NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0947-18T1
SUSAN CONFESSORE, as ADMINISTRATRIX for the ESTATE OF MICHAEL J. CONFESSORE, deceased, and SUSAN CONFESSORE, individually,
Plaintiffs-Appellants,
v.
AGCO CORPORATION,
Defendant-Respondent,
and
WEMROCK ORCHARDS, INC., and HIGHTS FARM EQUIPMENT COMPANY,
Defendants. ________________________
Argued October 5, 2020 – Decided November 16, 2020
Before Judges Sabatino, Currier and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0797-14.
Peter Chamas argued the cause for appellant (Gill & Chamas, LLC, attorneys; Jeffrey Zajac, Peter Chamas and William A. Bock, on the briefs).
Jacob Lehman argued the cause for respondent (German, Gallagher & Murtagh, attorneys; Jacob Lehman, on the brief).
PER CURIAM
This appeal arises from a jury’s no-cause verdict in a products liability
case.
Plaintiff’s husband was killed in 2013 when a farm tractor he was
operating at an orchard flipped over while attempting to remove a tree. The
tractor was manufactured in 1975 by defendant’s business predecessor in
interest. Plaintiff and her experts claimed the tractor was defectively designed
because it lacked a rollover protective system (a “ROPS”), which might have
spared her husband’s life.
In response, defendant and its experts contended the tractor was built in
conformity with the industry's state of the art as of time of its sale in 1975. They
maintained that a ROPS was not installed in 1975 for “low profile” tractors of
the kind used in orchards, where low hanging branches could interfere with the
elevated ROPS attachment. Defendant also argued that a “foldable” (or
A-0947-18T1 2 "collapsible") ROPS, which plaintiff suggested as a design alternative, was not
feasible in 1975, nor practical.
On appeal, plaintiff mainly challenges various aspects of the instructions
provided to the jury on design defect principles. She also contends the verdict
form was deficient, and that the judge made erroneous and prejudicial
evidentiary rulings during the trial.
For the reasons that follow, we affirm.
I.
As of the time of this fatal accident in 2013, decedent Michael J.
Confessore was a nighttime operations manager at AT&T. He lived with
plaintiff Susan Confessore and their eighteen-year-old son.
Plaintiff and her husband were long-time friends of Lisa Giunco and
Richard Giunco, a sister and brother who owned Wemrock Orchards (formerly
known as Twin Lakes Orchard) in Freehold. The Giunco family owned the farm,
a large portion of which was orchards, since around the 1950s.
Plaintiff worked part time at Wemrock. Decedent initially helped
sometimes with school tours and hayrides at the farm. After Hurricane Sandy,
decedent began to work part-time at Wemrock, removing trees from the orchard
that had fallen in the storm.
A-0947-18T1 3 The Accident
Martin Becktel, who was working with decedent during the fatal incident,
had been at Wemrock for about a year when the accident occurred. Becktel
explained the tree removal process. Typically, Becktel would cut a tree and then
hook it to the tractor by wrapping a chain around it. Then decedent would drive
the tractor, pulling the tree off to the side. According to Becktel, sometimes a
tree would be really "grown in, so [they] would have to rip it out."
On the day of the accident, May 17, 2013, decedent and Becktel were
using the tractor for tree removal at Wemrock's property on Gravel Hill Road in
Manalapan. While decedent was driving the tractor, a tree he was trying to
remove would not budge any further. The tractor went up in the air a few times,
and then flipped over, crushing decedent. It is undisputed he died from injuries
caused by the accident.
The tractor decedent was operating was a Massey Ferguson ("MF") 255
model, which was manufactured in 1975. The tractor was sold to distributor
Hights Farm Equipment Company ("Hights") and ultimately purchased by
Wemrock in 1976 for use in the farm's orchards.1 Edward Szczepanik, the owner
1 Before trial, plaintiff settled with Hights and voluntarily dismissed her claims against Wemrock.
A-0947-18T1 4 of Hights, stated the tractor was "low profile," and was designed for use in
orchards.2
Defendant AGCO Corporation purchased MF in 1994 and became its
successor in interest. As the successor company, AGCO has assumed the
manufacturer's liabilities and defenses for the tractors it sold.
Expert Testimony
Most of the testimony at trial centered on the parties' experts' differing
opinions as to whether the tractor had a design defect. 3 We first summarize
some of the main points the experts agreed upon or did not contest. 4
The key and undisputed usefulness of a "low profile" tractor is its ability
to work in areas, like orchards and barns, that have limited overhead space.
While the opposing experts differed as to whether the tractor in this case should
be classified as "low profile," they agreed that it was a MF model 255 that had
certain "low profile" features. In particular, the experts agreed the tractor was
less than sixty inches tall and had a horizontal exhaust. At the time, MF
2 As we discuss, infra, the parties dispute whether the tractor was "low profile" or a "standard" model with custom-made "low profile" features. 3 The parties also presented competing experts on economic loss, which are not germane to the liability issues on appeal. 4 Neither party contests the qualifications of the opposing experts. A-0947-18T1 5 produced three primary models: the 255, the 265, and the 275. All of those
models came in either "standard utility," "low profile," or "row crop"
configurations, depending on the purchaser's intended use.
The experts recognized that in 1975 the incidence of rollovers was a
subject of concern in the tractor market. To discourage such accidents, tractors
typically included warning labels about the dangers of rollovers and the hazards
of "high hitching" (i.e., failing to attach a load to the tractor's drawbar when
being pulled).
Plaintiff's Experts
Kevin Sevart
Plaintiff's main liability expert was Kevin Sevart, a mechanical engineer.
Sevart inspected the tractor involved in this accident and reviewed the witnesses'
depositions.
Sevart testified it has been well recognized since the 1930s that
agricultural tractors sometimes flip over. Sevart noted that both Szczepanik and
Richard Giunco had specifically stated in their depositions that the tractor's
intended use was in orchards. Even so, Sevart opined that the tractor was an MF
255 "standard utility" tractor with a horizontal exhaust and "low profile" features
and not technically a "low profile" tractor.
A-0947-18T1 6 Sevart noted that the manufacturer had ultimately developed a ROPS for
the MF 255 tractor. He opined a ROPS not only would have prevented the
tractor from rolling onto decedent, but that one was technologically and
economically feasible in 1975.
According to Sevart, the presence of a ROPS would not have eliminated
the possibility of a rollover but would have reduced the harm to the operator.
He maintained that the MF 255 without a ROPS was unreasonably dangerous
and defective in design. He noted that by 1975, although not required, all United
States manufacturers of tractors offered some form of optional ROPS that could
be purchased for a nominal fee.
Sevart acknowledged that the federal Occupational Safety and Health
Administration ("OSHA") requirements do not apply to a 1975 tractor. Even
today, "low profile" tractors are exempt from having a ROPS. Sevart also agreed
that it was not until 1985 that the American Society of Agricultural Engineering
Standards required a ROPS on tractors for the first time.
Additionally, Sevart recognized that MF never sold a ROPS as standard
equipment, and that a ROPS available in 1975 would have impeded, to some
extent, the usefulness of a "low profile" tractor. Nonetheless, he asserted that
MF could have produced a foldable version of a ROPS in 1975.
A-0947-18T1 7 In this regard, Sevart asserted there were at least three safer tractor designs
available at the time. For instance, as of 1966, manufacturers such as John Deere
included standard forward-mounted fixed ROPS on tractors used in orchards in
Europe. He also noted that a company in California had developed a limb-lifter
ROPS for use in orchards in the early 1970s. Further, companies like Caterpillar
(an industrial machinery company) had developed a folding system for
bulldozers, which he referred to as a ROPS, with what Sevart claimed was a
comparable technology needed for the MF 255.
Sevart specifically noted the possibility that an appropriate hinge, a key
component in a folding ROPS, could have been developed at the time.
Moreover, Sevart pointed out that by the 1990s MF offered its customers the
opportunity to retrofit a ROPS for older model tractors.
Scott Batterman
Scott Batterman was plaintiff's expert in forensic engineering accident
reconstruction and biomechanics. During his brief trial testimony, Batterman
opined that the tractor's steering wheel crushed decedent's chest, and the failure
to have a ROPS was a causal factor in the injury. This opinion on causation was
not countered by the defense.
A-0947-18T1 8 Defense Experts
Defendant presented testimony from three experts who opined on design
defect issues.
David Murray
David Murray worked for AGCO as its director of product safety and
standards. The court qualified him as an expert in agricultural mechanical
engineering, product safety and design, safety and manufacturing standards, and
accident investigation.
Contrary to Sevart, Murray opined that this particular MF 255 tractor was
designed to be "low profile." He pointed to the tractor's wheels, which were
smaller than usual, and its total height of less than sixty inches.
Murray noted that operators of tractors are supposed to be trained in the
proper use of the equipment, and that OSHA requires yearly updates to that
training. According to Murray, in order for this accident to have occurred, the
tractor had to be pulling twice its capability. He explained that decedent had
been dangerously "high hitching" the tree to the tractor.
As to the question of the use of foldable ROPS, Murray noted that such
safety devices developed over time because the devices needed to be able to fold
down in areas where overhead space was low.
A-0947-18T1 9 Beginning in the 1980s, MF was developing a foldable ROPS for "low
profile" tractors. After a change in regulations in the late 1980s, in 1993 MF
began offering a foldable ROPS that could be installed on older models at a
reduced price. There was little profit made in producing them because,
according to Murray, most farmers were not interested in buying the ROPS for
their older tractors.
Murray testified that while a hinge for a foldable ROPS may have been
feasible in 1975, the foldable ROPS itself was not possible at the time because
it required much more development. In addition, Murray asserted that Sevart's
suggested alternative ROPS designs developed by other companies were not
feasible and would not have prevented this injury. He noted that the limb lifter
model was not a ROPS by its nature. And, the Caterpillar design was also not a
folding ROPS, but instead a ROPS that could be collapsed to cover the steering
wheel for transport, but such a feature made the ROPS impractical. Moreover,
he claimed, in contrast to Sevart, that as of 1969 John Deere only offered a fixed
ROPS in its parts book, which he doubted was even a ROPS based on its design.
Clyde Richard
Clyde Richard was defendant's expert in human factors, mechanical
engineering, and accident reconstruction.
A-0947-18T1 10 To develop his expert opinions for this case, Richard used an exemplar
tractor to do experiments with high hitching and low hitching.
Richard explained that a tractor cannot flip over rearward, if it is hitched
properly, standing on level ground. According to Richard, the tractor in this
case was being misused when the accident occurred. He further opined the
tractor met the standards for a "low profile" model because of its wheels, exhaust
system, overall height, and fenders.
Dennis Murphy
Dennis Murphy was defendant's expert in agricultural safety. Murphy
agreed with the other defense experts that decedent and Becktel were using an
improper hitching technique, instead of hitching to the drawbar, which caused
the tractor to flip. He, too, opined this tractor was "low profile."
The Verdict
The trial judge presented an extensive jury charge explaining the legal
concepts of design defect. As part of that charge the jurors were provided with
a verdict form. The form contained a series of liability questions, culminating
with a final question on damages. The first question, which addressed
defendant's dispositive state-of-the-art defense, read:
1. Has the defendant Massey Ferguson, Inc. proven by a preponderance of the evidence that at the time the
A-0947-18T1 11 tractor left its possession in 1975 there was no practical and technically feasible alternative design that would have prevented the plaintiff's injury without substantially impairing the reasonably anticipated or intended essential functions of the tractor? ______ YES ______ NO Vote: ______
This verdict query tracked the recommended model form. See Model Jury
Charges (Civil), 5.40D-4, "Design Defect – Defenses" (approved Apr. 1999; rev.
Oct. 2001). The form and the judge's oral instructions told the jurors that if they
answered this first question in the affirmative, they were to cease their
deliberations.
On the second day of deliberations, the jury returned a unanimous 9-0
verdict, finding on Question #1 that defendant had met its burden of proof on
the state-of-the-art defense. Plaintiff did not move for a new trial.
The Issues on Appeal
This appeal ensued. In her brief, plaintiff argues that: (1) the court erred
in permitting defendant to present a state-of-the-art defense, and the jury should
not have been charged on that defense; (2) the verdict form was deficient by not
including a special factual interrogatory as to whether the tractor used by
decedent was a "standard" or a "low profile" tractor; (3) the charge confusingly
referred to principles of both "risk/utility" and "reasonably safer design"; (4) the
A-0947-18T1 12 charge should have included an instruction on "crashworthiness" concepts; (5)
the court erred in admitting evidence of negligence by decedent, Becktel, and
their employer Wemrock; (6) evidence of defendant's post-sale actions was
improperly presented; (7) the court erred in excluding evidence proffered by
plaintiff of a 1966 forklift patent; and, finally, (8) cumulative error.
II.
We first address plaintiff's various arguments that concern AGCO's
successful state-of-the-art defense, as well as alleged flaws in the jury charge on
liability.
A.
The New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to -11,
provides:
A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner. [N.J.S.A. 2A:58C-2 (emphasis added).]
A-0947-18T1 13 The statute establishes in N.J.S.A. 2A:58C-3 an absolute defense to design
defect liability, based on the "state-of-the-art" at the time the product was sold:
a. In any product liability action against a manufacturer or seller for harm allegedly caused by a product that was designed in a defective manner, the manufacturer or seller shall not be liable if:
(1) At the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product.
[N.J.S.A. 2A:58C-3a(1) (emphasis added).] As elaborated in the Supreme Court's seminal opinion on the defense,
Cavanaugh v. Skil Corp., 164 N.J. 1, 4 (2000), the term "state-of-the-art" refers
to "the very safest product of that type which [an] industry could define at the
time of manufacture" or "a product for which [at the time] there was no
reasonable alternative design."
A manufacturer that asserts a state-of-the-art defense has the burden to
prove what was the existing design technology when the product was
manufactured. Ibid. However, a plaintiff must show that such a reasonable
alternative design was feasible at the time. Ibid.
As the Court in Cavanaugh explained:
If a defendant can prove that there was no practical or technically feasible alternative design that both would
A-0947-18T1 14 have prevented the harm and would not have substantially impaired the function of the product, the defendant cannot be held liable for failure to provide an alternative design.
[Id. at 6 (emphasis added; citations omitted) (quoting William A. Dreier, The Restatement (Third) of Torts: Products Liability and New Jersey Law—Not Quite Perfect Together, 50 Rutgers L. Rev. 2059, 2081-83 (1998)).]
The Court added:
The plaintiff . . . is usually required to show the existence of a reasonable alternative design. . . . Thus, a showing of feasibility is the plaintiff's responsibility.
[Ibid.]
For a manufacturer to prevail on the state-of-the-art defense, there must be an
absence of "both a practical and technically feasible alternative." Id. at 9-10.
The state-of-the-art defense is not available if the danger can "feasibly be
eliminated without impairing the usefulness of the product." N.J.S.A. 2A:58C-
3a(2).5 It is the plaintiff's burden to prove this exception exists. Roberts v. Rich
Foods, Inc., 139 N.J. 365, 379 (1995) (citing N.J.S.A. 2A:58C-3a(2)).
5 N.J.S.A. 2A:58C-3a(2) also provides an exception to the state-of-the-art defense, not applicable here if the product is workplace equipment.
A-0947-18T1 15 As part of the state-of-the art functionality analysis, the product's inherent
characteristics are relevant. "[A] feature of a product that is desirable but not
necessary is not an inherent characteristic: an inherent characteristic must be an
essential characteristic." Id. at 382. However, "[t]he elimination of an essential
characteristic might not render the product totally useless, but it would
measurably reduce the product's appropriateness for its central function." Ibid.6
Plaintiff argues the trial court erred in giving the state-of-the-art jury
instruction because the tractor was standard utility and should have been sold
with a fixed ROPS as mandatory, and not optional, equipment. According to
plaintiff's theory on this point, a fixed ROPS was available as early as 1968 and,
therefore, the lack of a fixed ROPS on a standard utility tractor was a design
defect because it rendered this tractor unsafe as a matter of law.
Defendant does not dispute that it was selling a ROPS as optional
equipment on its standard tractors as of 1975. Hence, defendant essentially
conceded that if the tractor in this case was an unmodified standard tractor, the
state-of-the-art defense could not justify the omission of a ROPS.
6 In addition, the existence or absence of a warning is generally not relevant to the question of design defect. Saldana v. Michael Weinig, Inc., 337 N.J. Super. 35, 49 (App. Div. 2001) (citing N.J.S.A. 2A:58C-3). Although there was some testimony at trial about labels that at one time may have been affixed to this tractor, no failure-to-warn defect was asserted by plaintiff here. A-0947-18T1 16 Plaintiff's argument in this regard presupposes that the tractor was
standard utility and not, in any sense, low profile. In fact, this premise was hotly
contested at trial. All defense experts opined that the tractor was low profile or
had been modified from standard for use as low profile. They supported this
assertion by pointing to the tractor's lower height, smaller wheels, its exhaust
system, and fenders. As we noted already, the defense experts further stated that
a fixed ROPS would have interfered with the usefulness of a low profile tractor,
by adding height to the vehicle and preventing its use in environments such as
chicken coops, barns and orchards. Moreover, fact witnesses Richard Giunco
and Szczepanik each stated that the tractor was low profile and intended for use
in orchards.
Plaintiff points to several places in the record to support her claim that the
tractor was not actually low profile. She quotes, for example, Murray's
testimony that the tractor was a "standard tractor with low profile features,"
including shell fenders, low exhaust, low profile tires and a height below sixty
inches. She further highlights a page from an MF brochure stating the MF 255
and MF 265 models all came "standard," with three-point linkage for mounted
implements. Plaintiff also notes that Giunco owned other tractors, including an
MF 245, which was a "low profile model."
A-0947-18T1 17 Having reviewed the record as a whole, we are satisfied there was ample
evidence from which a jury could have reasonably concluded that the tractor
was low profile, and, therefore, did not require a fixed ROPS. Among other
things, Murphy, Murray, and Richards all testified the tractor was low profile
either because of its wheels, exhaust system, fenders, height below sixty inches
or a combination thereof.
Plaintiff does not dispute that at the time the tractor left defendant's
control in 1975, a low profile tractor did not require a fixed ROPS. Given the
reasonable factual support showing this was a low profile tractor, defendant
appropriately asserted the state-of-the-art defense. Hence, the court was correct
to deliver an instruction on state-of-the-art to the jury.
In a related point, plaintiff contends the trial court committed reversible
error by declining to include a specific jury interrogatory on the verdict form,
requiring them to determine whether (a) the tractor was standard or (b) low
profile. We disagree.
Special interrogatories on verdict forms are utilized to prompt the jury "to
specifically consider the essential issues of the case, to clarify the court's charge
to the jury, and to clarify the meaning of the verdict and permit error to be
localized." Sons of Thunders, Inc. v. Borden, Inc., 148 N.J. 396, 419 (1997)
A-0947-18T1 18 (quoting Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.
1968)). Claimed flaws in verdict interrogatories are generally not grounds for
reversal unless they are shown to be "misleading, confusing, or ambiguous." Id.
at 418.
The trial court is reposed with substantial discretion in deciding whether
to include a special interrogatory on a verdict form, and, if so, how to phrase it.
See R. 4:39-2 (providing that the trial court "may submit to the jury, together
with forms for a general verdict, written interrogatories upon one or more issues
of fact the decision of which is necessary to a verdict.").
Here, the trial judge did not abuse her discretion in sustaining defendant's
objection to plaintiff's requested query on the jury form. Plaintiff's binary
question, asking whether the tractor was either standard or low profile, ignores
the nuance and complexity involved in categorizing this particular tractor.
Several witnesses used qualifying language in describing or classifying
this tractor. For example, defense expert Murray described the tractor as "a
standard tractor" with "low profile features." Another defense expert, Richard,
described the tractor as "a standard tractor made low profile," due to
modifications.
A-0947-18T1 19 The classification of standard versus low profile defied a simple one-or-
the-other jury inquiry. The jury could have found it impossible to answer such
a binary question. No judicial discretion was misapplied in omitting the
proposed query.
Plaintiff further argues that even if the tractor was low profile, a foldable
ROPS was technically feasible and practical in 1975, and it was a design defect
for defendant not to include some type of ROPS as mandatory equipment.
Plaintiff contends this negates any reliance by defendant upon a state-of-the-art
defense. We disagree.
To assert the state-of-the-art defense, defendant needed to show that at the
point the tractor left MF's control in 1975, there was no practical or technically
feasible alternative design that would have prevented decedent's injury. The
evidence reasonably bore out that, in 1975, the state-of-the-art in the tractor
industry was such that a foldable ROPS was not practical or technically feasible.
Data had not yet been accumulated indicating a ROPS was necessary on a low
profile tractor. Moreover, according to Murray's expert testimony, a folding
ROPS that would be used sometimes and folded at other times presented
significant risks that the tractor operator might forget to raise the ROPS after
leaving the low profile area.
A-0947-18T1 20 Plaintiff argues the court erred in giving the state-of-the-art instruction
because defendant allegedly challenged only the practicality, and not the
technical feasibility, of including a folding ROPS in 1975. She spotlights
several portions of the record to support her claim.
For example, defense expert Richard testified that a foldable ROPS was
technically feasible in 1975, but it just had not been done yet. But Richard then
elaborated, "[w]hat happens in engineering is there's an accumulation of data,
and there's some accumulation of data . . . then different things pop up. But
there hadn't been, at that point, I believe, an accumulation of data in the early
'70s." Richard also testified that a foldable ROPS in 1975 was not feasible
because it had not been engineered, proof tested, or field tested "to make sure it
wouldn't create accidents." In essence, Richard's opinion was that the state-of-
the-art in 1975 was such that the technical data had not yet indicated the need
for a folding ROPS on a low profile tractor and, therefore, one had not yet been
designed.
Plaintiff also points to Murray's testimony that it would have been feasible
but not practical to design a folding ROPS in 1975. But Murray also testified
that low profile tractors were a "relatively small part of the market," and "it took
time to get the statistics" to determine the actual risk of having a low profile
A-0947-18T1 21 tractor where the driver might forget to put the ROPS back up when no longer
in a low profile situation. When asked whether in 1975 it was feasible to have
a hinge that connected a ROPS to a low profile tractor, Murray responded,
"[t]here's a lot more involved than just a hinge."
Murray did ultimately acknowledge that it would have been feasible in the
1970s to do the necessary studies, but a foldable ROPS presented other serious
risks for operators of low profile tractors. He noted that, even currently, OSHA
regulations specifically state that a foldable ROPS on a low profile tractor is not
feasible.
Murray testified that, although the component of a hinge was feasible in
1975, a foldable ROPS “was not feasible at that time.” Murray explained that
there was not yet a basis to ensure that such a hinge “was strong enough to meet
the qualifications of a ROPS at that point in time.”
Murphy similarly testified that standards for such a device “hadn’t even
been invented yet.” He further noted that an OSHA Committee considered, and
apparently agreed with, testimony during the rulemaking process that it was “not
feasible” to require a ROPS on tractors used in low profile situations.
A-0947-18T1 22 Lastly, Richard testified that a folding ROPS had not been designed or
"proof tested" for safety and was not “technically feasible and practical back in
1975.”
Plaintiff contends that Murray and Richard “admitted” technological
feasibility by acknowledging the feasibility of a hinge component. However, a
jury reasonably could have found persuasive Murray’s caveat that it was not yet
technologically clear in 1975 that such a hinge would have met the strength
requirements for a foldable ROPS. She also points to testimony Richard gave
at his pretrial deposition agreeing that a foldable ROPS could have been built in
1975. But when confronted about that earlier statement on cross-examination at
trial, Richard explained the reason one had not yet been built as of 1975 was
because “there were too many unknowns.”
Despite the attempted impeachment of these two witnesses by plaintiff's
skillful advocacy, the jury could have reasonably accepted their explanations,
along with Murphy’s own testimony and the lack of OSHA approval, and
concluded a foldable ROPS was not yet technologically feasible when this
tractor was manufactured. The record simply is not as one-sided as plaintiff
portrays it.
A-0947-18T1 23 Plaintiff cites Barker v. Deere & Co., 60 F.3d 158, 166-67 (3d Cir. 1995),
for the proposition that the nonexistence of a safety device is not evidence of its
non-feasibility. That case is readily distinguished because it specifically
analyzed Pennsylvania law, and not whether a jury should be instructed on New
Jersey's state-of-the-art defense. Also, as we have noted, several experts opined
that there were risks associated with a foldable ROPS, inasmuch as a tractor
operator might forget to raise it when leaving a "low profile" area. No data
existed in the 1970s establishing that the risks of such a foldable ROPS
outweighed the benefits.
Viewing the record as a whole, there was substantial evidence presented
that it was not practical or technically feasible to design the folding ROPS in
1975, given that the data had not yet indicated the need for it. The jury was
appropriately asked to resolve whether these proofs supported defendant's
position. The court was correct to give the state-of-the-art instruction.
Once defendant asserted the defense, it became plaintiff's burden to
establish that there was a superior design available that would not impair the
usefulness of the tractor. It was for the jury to decide whether defendant
correctly asserted the defense and whether plaintiff met her burden of proof.
The jury concluded on Question #1 that the defense had been established.
A-0947-18T1 24 When determining on appeal whether jury instructions were erroneous,
the question is whether the charge was clearly capable of producing an unjust
result. Domurat v. Ciba Specialty Chems. Corp., 353 N.J. Super. 74, 93 (App.
Div. 2002). A reviewing court must consider the instructions as a whole to
determine whether they adequately conveyed the law and did not mislead or
confuse the jury. Ibid. Instructions given in accordance with the model charge,
or which closely track the model charge, are generally not considered erroneous.
Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 466 (2000).
To summarize, the trial court did not err in allowing defendant to present
a state-of-the-art defense at trial, and in so instructing the jury on that defense.
The court's instructions and verdict form on state-of-the-art closely tracked the
model jury charge for the state-of-the-art defense. The instructions and verdict
form were not capable of producing an unjust result or prejudicing substantial
rights. R. 2:10-2.
The evidence reasonably supported a jury finding that the tractor was low
profile, and therefore there was no practical or technically feasible ROPS
available when the tractor left defendant's control in 1975.
A-0947-18T1 25 B.
Plaintiff argues the court erred in giving the jury instructions on both "risk
utility" and "reasonably safer design" concepts. At trial, there was extensive
discussion between counsel and the judge as to whether the court should give
the model instructions on both risk utility and reasonably safer design. The court
agreed that the overlap in the two charges could be confusing, but nevertheless,
decided to give both charges.
Specifically, the court instructed the jury that: a defendant must design a
product that is reasonably safe; a design defect exists if the foreseeable risk of
harm could have been reduced or avoided by adoption of a reasonably safer
design; and, that if defendant failed to include a practical and technically
feasible safer alternative design, the tractor had a design defect . However, if
plaintiff failed to provide a practical and technically feasible safer design, or if
the tractor was designed reasonably safe, then there was no design defect.
Additionally, the court instructed the jury to weigh the "risk utility"
factors, which are: (1) the usefulness and benefit of the tractor as it was
designed; (2) safety aspects of the tractor; (3) if there was a substitute design
that was feasible and practical; (4) the ability of defendant to eliminate the
unsafe character of the tractor without impairing its usefulness; (5) the ability
A-0947-18T1 26 of a foreseeable user to avoid danger by the exercise of care; and, (6) the
awareness of the user of dangers because of general public knowledge or the
existence of warnings or instructions.
Plaintiff contends the court should have given only the "reasonably safe
design" jury charge and omitted any "risk utility" charge. In fact, the product
liability statute and case law in design defect matters meld these two concepts,
to some extent.
The delineation of an actionable "design defect" under N.J.S.A. 2A:58C-
3a(1) includes a consideration of both: (1) whether there existed "a practical and
technically feasible alternative design that would have prevented the harm" —
which concerns the availability of reasonably safer alternative designs; and, (2)
whether that design "would have prevented the harm without substantially
impairing the reasonably anticipated or intended function of the product" —
which involves an evaluation of the utility of the product. Ibid.
The statute entails weighing the risks of not adopting the alternative
design against the utility of that design change and its impact upon the product's
functionality. As the Supreme Court has explained:
The decision whether a product is defective because it is "not reasonably fit, suitable and safe" for its intended purposes reflects a policy judgment under a risk-utility analysis. . . . That analysis seeks to determine whether
A-0947-18T1 27 a particular product creates a risk of harm that outweighs its usefulness. . . . Risk-utility analysis is especially appropriate when a product may function satisfactorily under one set of circumstances and yet, because of a possible design defect, present an unreasonable risk of injury to the user in other situations. . . .
[Jurado v. W. Gear Works, 131 N.J. 375, 385-86 (1993) (emphasis added) (citations omitted).]
We recognize the Notes to the Model Jury Charges advise that in a design
defect case, generally the court should provide the jury with either the charge
on "reasonably safe design" or "risk utility," but not both. See Model Jury
Charges (Civil), 5.40D-3, "Design Defect – Legal Tests of Product Defect"
(approved Apr. 1999). The Notes advise that either charge can be appropriate
because they essentially focus on the same principles. Ibid. However, the Notes
go on to say the trial court may issue the reasonably safer charge but may also
"use the additional risk-utility factors only if the case is unusual in that it
requires one or more of these additional elements." Ibid.
Although it may have sufficed here for the court to have issued only the
"reasonably safer" charge and omitted the "risk utility" charge, the overlap or
redundancy of those charges in this case was not unduly prejudicial. The overlap
does not provide grounds for setting aside this verdict.
A-0947-18T1 28 The experts on both sides debated whether a foldable ROPS was an
available "reasonably safer" design that could reduce the risks of rollovers. In
addition, they also debated whether such a safer device significantly reduced the
utility of a tractor used in low profile settings because such a device needed to
be raised and lowered by the operator. Both risk and utility were part-and-parcel
of the contested issues.
The additional concepts the court mentioned in the "risk utility"
instruction were not demonstratively prejudicial to plaintiff. Moreover, any
alleged prejudice to plaintiff arising out of overlapping charges is conjectural.
That is because the jury never reached this defect issue, having concluded on
Question #1 of the verdict form that the state-of-the-art defense foreclosed
liability, regardless of the comparative risks and benefits of an alternative design
that the jury found simply did not exist in 1975. In sum, the overlap of the
instructions was not of consequence here.
C.
Plaintiff further criticizes the jury charge for not containing an instruction
on the concept of "crashworthiness."
"'Crashworthiness' is defined as the ability of a motor vehicle to protect
its passengers from enhanced injuries after a collision." Poliseno v. Gen. Motors
A-0947-18T1 29 Corp., 328 N.J. Super. 41, 51 (App. Div. 2000) (citation omitted). "Strict
liability is imposed on a manufacturer for injuries sustained in an accident
involving a design or manufacturing defect that enhanced the injuries, but did
not cause the accident." Id. at 52.
Here, it is undisputed that a ROPS would not have prevented the rollover
accident itself. Rather, plaintiff claims that a ROPS, whether standard or
foldable, would have lessened the impact upon her husband once the rollover
occurred.
We are mindful of the Restatement (Third) of Torts: Products Liability §
16 (Am. Law Inst. 1998) (Restatement), which explains the concept of
crashworthiness in a manner that arguably could fit this kind of tractor rollover
case. Under such a concept, "[t]he plaintiff must . . . establish that the defect
[in lacking a design that is 'crashworthy'] was a substantial factor in increasing
the plaintiff's harm beyond, the harm that would have occurred from other
causes." Ibid. Indeed, the Restatement presents a scenario that depicts a
situation with a tractor rollover accident occurring when a tractor lacked a
ROPS. Id. at cmt. b, illus. 4.
Despite these Restatement passages, our Supreme Court has yet to
prescribe that a jury charge on crashworthiness is appropriate to use in a
A-0947-18T1 30 products liability case that involves a tractor, rather than an automobile or a
truck. In the absence of such a mandate, the trial judge did not err in denying
plaintiff's novel request for the charge in this tractor setting.
Moreover, the detailed charges which the court did issue on design defect
principles furnished the jurors with helpful guidance in considering the possible
benefits of having a ROPS installed to prevent the decedent from sustaining
greater harm in a rollover.
Lastly, the absence of a crashworthiness charge is inconsequential because
the jurors found the state-of-the-art defense was applicable and did not reach the
issue of damages.
III.
The remaining arguments posed by plaintiff are likewise unavailing. We
briefly canvass them here. All of them concern rulings of evidential relevance
and admissibility, as to which civil judges generally have wide discretion. See,
e.g., Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).
First, we are unpersuaded the court abused its discretion in admitting
certain proofs of negligent conduct on the part of decedent, Becktel, and
Wemrock. Their conduct was germane to the issues of proximate causation. For
example, if the jury found the accident could have been avoided if the chain
A-0947-18T1 31 attached to the tree had not been "high-hitched," such a finding would weigh
against a finding that an alleged design defect in the tractor proximately caused
the harm. See Fabian v. Minster Mach. Co., Inc., 258 N.J. Super. 261, 278 (App.
Div. 1992).
Next, the court did not abuse its discretion in admitting proof of
defendant's post-sale actions in marketing a folding ROPS in 1993. That
evidence was admissible under N.J.R.E. 401 because it was relevant to defense
expert Murray's general discussion about the evolution of the ROPS from the
1960s through the present time. The court also gave a limiting instruction that
reasonably explained to the jury the limited probative nature of this post-sale
evidence.
Plaintiff further argues the court erred in admitting evidence of the OSHA
standard regarding low profile tractors, because the standard was adopted in
1976, after the tractor was manufactured. The court ruled that the OSHA
standard could be discussed in opening and closing statements and the court
would instruct the jury that opening and closing statements are not evidence .
The court also ruled the parties could bring out in testimony the fact that OSHA
standards for ROPS were adopted after 1975. In making these rulings, the court
did not abuse its discretion.
A-0947-18T1 32 The timing of the evolution of the OSHA standards provided the jurors
with useful context. Moreover, at least one expert pointed out OSHA has not
required foldable ROPS to be installed on low profile tractors, even to this day.
The evidence had sufficient probative value under N.J.R.E. 401 to be presented
and was not so substantially prejudicial as to require its exclusion under N.J.R.E.
403.
Plaintiff further argues the court erred in permitting defendant to introduce
evidence of the manufacturer's 1993 marketing campaign. The court's
instructions clearly asked the jury to determine whether there was a design
defect according to the state-of-the-art in 1975. Even if every aspect of the post-
1975 marketing campaign was not entirely relevant, it was appropriate for the
jury to understand the evolution of the ROPS, as part of its assessment of
whether there was a reasonable safer design alternative available in 1975.
As a final claim of evidential error, plaintiff argues the court erred by
disallowing her to introduce evidence of a 1966 patent for a retractable overhead
guard for a forklift. The court excluded the forklift patent because it was not
designed to prevent a tractor rollover. We detect no abuse of discretion under
N.J.R.E. 403 in the court's exclusion of this attenuated proof concerning a
different product.
A-0947-18T1 33 Plaintiff's claim of cumulative error and all other points raised on appeal,
to the extent we have not already addressed them, lack sufficient merit to be
discussed here. R. 2:11-3(e)(1)(E).
Affirmed.
A-0947-18T1 34