(Approved 12/93)
[Use the following if there is an issue of misuse in terms of
purpose.]
The next element of the plaintiff's
burden of proof is that at the time of the accident the product was being used
for an intended or reasonably foreseeable purpose. By a reasonably foreseeable purpose, it is
meant that plaintiff was using the product for a purpose for which it was
manufactured or for a purpose which a manufacturer could reasonably have
foreseen.
[Insert contentions of the parties here.]
If you find
that the plaintiff's purpose was not reasonably foreseeable, then the defendant
did not breach any duty owed to the plaintiff.
If, however, you find that the plaintiff did use the product for a
reasonably foreseeable purpose, you must then decide whether the product was
defective.[2]
[Use the following if there is an issue of misuse in
terms of manner.]
In determining whether the product was
defective, you should first decide if the plaintiff used the product in a
reasonably foreseeable manner. By
reasonably foreseeable manner, it is meant that the way in which the plaintiff
used the product could have been anticipated by a reasonable manufacturer at
the time the product left its hands.[3] [Insert contentions of the parties.] If you find that the plaintiff's manner of
using the product was not reasonably foreseeable by the defendant, then the
defendant did not breach any duty owed to the plaintiff.[4]
[Use the following if there is an issue of substantial
alteration.]
An element
of the plaintiff's burden of proof is that the defect existed when the product
left the defendant's control. [Insert
contentions of the parties.]
However, if the product was altered after it left the defendant's control,
then you must decide if the alteration was substantial. A substantial alteration is a change or
modification made to the product after it was manufactured or sold that does
two things: (1) it alters the design or function of the product and (2) it has
a significant or meaningful effect on the product's safety when used.[5] If you find that the alteration was
substantial, you must then decide if the alteration was reasonably foreseeable
at the time the product left the control of the defendant.[6] If the alteration reasonably could have been
anticipated, and if as a result of the alteration made the product was not
reasonably safe, the defendant may be responsible even if there was a
substantial alteration. If alteration
was not foreseeable, then the defendant is not responsible for injuries caused
by that alteration.
[Use the following wherever misuse or substantial alteration
is charged.]
I used the term reasonably
foreseeable. Reasonably foreseeable does
not mean that the particular misuse or substantial alteration was actually
foreseen or could have been actually foreseen by this defendant at the time the
product left its control. It is a test
of objective foreseeability. That is,
considering the general knowledge and experience within the industry when the
product was manufactured, sold or distributed, could the particular misuse or
substantial alteration of the product have been anticipated by a reasonably
careful manufacturer.[7] If the alteration reasonably could have been
anticipated, and if the alteration made the product not reasonably safe, the
defendant is still responsible.
Plaintiff has the burden to show that a typical manufacturer or seller
of the product could foresee that the product would be altered.[8]
Source: https://njcourts.gov/attorneys/civilcharges.html
[1]
In many cases, purpose and manner of misuse may not both be in
dispute. In such cases, instruct the
jury only on the applicable type of misuse, i.e., manner or
purpose. Likewise, charge substantial
alteration only when in dispute.
[2]
Jurado v. Western Gear Works, 131 N.J. 375, 389 (1993).
[3]
Id.
[4]
"In cases in which the product is defective solely because of a
foreseeable misuse, the determination of defect predetermines the issue of
proximate cause. In other cases,
however, where a product is defective for reasons other than the particular
misuse, the jury must separately
determine proximate cause." Jurado, supra 131 N.J. at 389.
[5]
See Soler v. Castmaster, Div. of the H.P.M. Corp., 98 N.J.
137 (1984); Brown v. United States Stove Co., 98 N.J. 155
(1984). Note that an issue of alteration
arises only if the particular facts indicate a substantial change relating to
the safety of the product. Soler, 98
N.J. at 148. Note further that the issue of misuse/abnormal use or
substantial alteration, if present in a case, presents considerations bearing
upon proximate cause. Id.
[6]
"[E]ven a significant subsequent alteration of a manufactured
product will not relieve the manufacturer of liability unless the change itself
created the defect that constitutes the proximate cause of the injury." States
Steamship Co. v. Stone Manganese Marine Ltd., 371 F. Supp. 500, at
505 (D.N.J. 1973). Thus, if the defect
which, singly or in combination, caused the injury existed before, as well as
after, the change, the manufacturer is not relieved of liability, regardless of
how much the product has been changed. Id.
[7]
Where there is an issue of substantial alteration a jury need not
consider the presence of a defect unless it resolves the element of
foreseeability against the defendant(s).
In such a case, the trial judge might consider altering the charge so
that the substantial alteration is charged first.
[8]
Brown, supra, 98 N.J. at 169.
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