(Approved 8/86)
The manufacturer of a product is under
a duty to exercise reasonable care in the design of a product. The law imposes that duty in order to protect
those who may be reasonably expected to be in the foreseeable area of the use
of the product, from unreasonable risk of harm.
This duty exists while the product is being used for the purpose for
which it was intended. The duty of
exercising reasonable care in the design of the product is also applicable
where the use made of the product is one that the manufacturer should have
reasonably foreseen. This duty includes
the obligation to exercise reasonable care in the inspection of the product and
to locate visible or hidden defects in the product. This duty to exercise reasonable care extends
to anyone who may reasonably be expected to be in the vicinity of the product’s
probable use and to be endangered in the event that the product is defective.
In order
for the defendant to be found liable, the plaintiff must prove each of the
following elements by a preponderance of the credible evidence.[2]
1. That defendant was negligent in
designing/manufacturing the product;[3]
and
2. that the defect existed at the time the
article left the control of the manufacturer and did not undergo substantial
change; and
3. that plaintiff was a foreseeable user or
consumer, or was within the area exposed to the risk; and
4. that the defect was a proximate cause of[4]
the accident; and of
5. plaintiff’s injuries or damages.
Negligence
is conduct by the defendant which deviates from the standard of care
established by law for the protection of others against unreasonable risk of
harm.[5] “Conduct” may either be the actions of a
party or its failure to act.[6] To put it another way, plaintiff must prove
that defendant breached a duty of exercising reasonable care owed to plaintiff
by defendant’s actions or failure to act.
Plaintiff
must also prove that the conduct of the defendant is a proximate cause of
his/her injuries.
[Insert Proximate Cause Charge, see Chapter 6]
Plaintiff
also must prove his/her injuries or damage to his/her property.
Optional Charge
a.
Standards and
Customs of the Industry
You may
consider evidence relative to standards or customs in the industry in
determining whether or not the defendant(s) breached any duty which it owed to
the plaintiff.
If you
find that the defendant did not comply with a standard of safety policy or
practice you may find that the defendant breached its duty to the
plaintiff. However, the general custom of
the industry, although evidential as to what is a reasonable standard in such
industries, does not conclusively establish the care the defendant is required
to exercise in the performance of its operations, namely, the manufacture,
assembly, etc., of this [particular
product]. Compliance with an
industry standard is not necessarily conclusive as to the issue of duty or
negligence and does not itself excuse the defendant from liability merely
because there has been compliance with an industry standard. The defendant must still exercise reasonable
care under all of the circumstances. If
you find that the prevailing practices in the industry do not comply with that
standard of reasonable care, the defendant may be found to have breached that
duty, notwithstanding compliance with such industry standard or custom.[7]
b. Duty to Inspect
A
manufacturer, processor, supplier, etc.,
is also under a duty to make reasonable inspection and tests of his/her
products for the purpose of locating obvious or hidden but discoverable defects
in his/her product.
This duty calls for the exercise of
reasonable care in applying reasonable tests to detect such discoverable
deficiencies in the article or product.
You may be assisted in this inquiry through whatever expert opinion is
available to you in the case, [or you may
draw your own conclusions from the facts and the circumstances presented to you
in this case,][8]
as to the reasonableness and sufficiency of making inspections and tests in
order to locate discoverable defects.
To
determine the reasonableness of an inspection or test, you must weigh the
difficulties of effective discovery of the deficiency, against the dangers
inherent in the goods manufactured (processed, assembled, etc.). The greater the inherent danger lurking in
such goods, the more careful and exact the inspection or testing must be in
order to be termed reasonable.
There
is no duty to employ extraordinary methods of inspection or testing to discover
defects. To determine the extent of the
testing that is required, you may weigh and compare what a reasonably prudent
manufacturer would think necessary under the circumstances to discover a
defect, the extent of the inherent dangers and the difficulties of an effective
discovery. The question is what a reasonable
manufacturer would or would not have done under the given circumstances.
In
determining whether the defendant made reasonable inspections and tests, you
may also consider any potential danger to a user or consumer that the
inspections are to guard against; what [if
any] inspections/tests this defendant made; and the manner and adequacy of
such tests/inspections. You may also
consider from all of the evidence presented what inspections/testing [if any] could have been made; the
feasibility and difficulty in making such additional inspections/tests and
whether such additional tests/inspections would likely have disclosed the
defect claimed here.
c. Negligent Duty to Warn
A manufacturer has a duty
to warn buyers or users of hidden dangers or concealed limitations of its
product where the use of its product is dangerous to a user who is ignorant of
such hidden dangers or concealed limitations and where the manufacturer has no
reason to believe that the user will recognize the dangers or limitations.[9] This duty to warn applies even if the product
is perfectly inspected, designed or manufactured.[10]
A
manufacturer breaches its duty to warn if the warning it does give is not
adequate. Plaintiff has the burden of
proving that the warning is inadequate.
In order for you to find that the warning is not adequate, the warning
must be in a form that could not reasonably be expected to catch the attention
of a reasonable user under the circumstances, or the content of the warning is
not understandable to a reasonable user and does not convey a fair indication
of the nature and extent of the hidden dangers or limitations to the mind of a
reasonable user.[11]
Although
a manufacturer may reasonably assume that the warning that it gives with its
product will be read and heeded, the mere presence of directions for use of the
product, as opposed to a warning as to the hidden dangers or limitations of the
product, is not an adequate warning.[12]
Source: https://njcourts.gov/attorneys/civilcharges.html
[1] Negligence is applicable to defective products. Schipper
v. Levitt & Sons, Inc., 44 N.J.
70, 82 (1965).
[2] Rosenau v. New Brunswick , 51 N.J. 130,
136 (1968); Jakubowski v. Minnesota Mining & Manufacturing Co., 42 N.J. 177 (1964); Hollinger v. Shoppers Paradise ,
134 N.J. Super. 328, 336 (Law Div. 1975), aff’d. per curiam, 142 N.J. Super. 356 (App. Div. 1976); Jackson v. Muhlenberg Hospital
[3] Bexiga v. Havir
Manufacturing Corp., 60 N.J.
402, 410-411 (1972); Finnegan v. Havir
Manufacturing Corp., 60 N.J. 413,
423 (1968).
[5] Sanzari v.
Rosenfeld, 34 N.J. 123,
134 (1961); McKinley v. Slenderella
Systems of Camden , N.J.
[6] Hollinger v.
Shoppers Paradise , 138 N.J. Super.
356 (1976); Jackson v. Muhlenberg Hospital
[7] Bexiga v. Havir
Manufacturing Corp., supra,
60 N.J. at 411; Finnegan v. Havir Manufacturing Corp., supra, 60 N.J. at 422.
[8] Where applicable.
[9] Martin v.
Bengue, Inc., 25 N.J.
359, 366-67 (1957); Kuhner v. Marlyn
Manor, Inc., 135 N.J. Super. 582, 588 (App. Div. 1975); Inductotherm Corp. v. N.J. Mfrs. Cas. Ins.
Co., 83 N.J. Super. 464, 472 (Law Div. 1964).
[11] D’Arienzo v. Clairol,
Inc., supra, 125 N.J. Super. 224, 230
(1973), quoting Soruill v.
Boyle-Midway, Inc., 308 F.2d 79,
85 (4 Cir. 1962).
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