NEW JERSEY PRODUCT LIABILITY RESOURCES

Defect in Design – the feasibility of alternative designs and consumer expectations

Defective design is one of the three types of product liability claims which can be brought under New Jersey Law (the other two being manufacturing defects and warning defects). A design defect occurs when there is an inherent flaw in a product’s design that renders it unreasonably dangerous.

The New Jersey Product Liability Act, N.J.S.A. 2A:58C, establishes a cause of action for defective design claims. Under this statute “A manufacturer or seller of a product shall be liable in a product liability action ... 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 ... was designed in a defective manner.” Id. at C-2.

To succeed under a strict liability design-defect theory, a plaintiff must prove:
(1) the product was defective,
(2) the defect existed when product left defendant's control,
(3) that the defect caused injury, and
(4) that the plaintiff was a reasonably foreseeable user.

Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 49 (1996). The New Jersey Supreme Court has held that “the ultimate question to be resolved in design-defect ... cases is whether the manufacturer acted in a reasonably prudent manner in designing and fabricating a product.” Id. at 49.

A party asserting that a product was defective must come forward with evidence of a practical and feasible alternative design. Whether there is in fact a feasible alternative design is a question of fact for the jury, however. See, Lewis v. American Cyanamid Co., 155 N.J. 544 (2007).

The New Jersey Legislature addresses utility issue in N.J.S.A. 2A:58C-3 provides with respect to exemptions from liability:

A In any product liability action against the 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; or
(2) The characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended, except that this paragraph shall not apply to industrial machinery or other equipment used in the workplace and is not intended to apply to dangers posed byproduct such as machinery or equipment that can feasibly be eliminated without impairing the usefulness of the product; or
(3) The harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction as defined by Section 4 of this Act.
B. The provisions of paragraph 1 of subsection A of this section shall not apply if the court, on the basis of clear and convincing evidence, makes all the following determinations:
(1) That       product was egregiously       unsafe or Ultra hazardous;
(2) The ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the products risks, or the product poses a risk of serious injury to persons other than the user or consumer; and
(3) The product has little or no usefulness.

Misuse of Products

Intentional misuse of a product in a manner which could not reasonably have been anticipated by the manufacturing or distributing defendant can be a defense in the product liability claim. Foreseeable misuse is not a defense, however. See, Soler v. Castmaster, Div. of H.P.M. Corp, 98 N.J. 137 (1984). Specifically, the court recognized in Soler:

In the event of either a substantial alteration or misuse, the manufacturer will be responsible for resultant injuries to an operator if the alteration or misuse implicated by the actual user of the machine was foreseeable and could have been prevented or reduced by the manufacturer. Id. An example of a clearly unforeseen use of a product was the dismissal of claims against fertilizer manufacturers whose products were used in the manufacture after the first bombing of the World Trade Center. See, Port Auth. of New York and New Jersey v. Arcadian Corp., 991 F. Supp. 390 (D.N.J. 1997). Quite often, however, the courts of New Jersey will take a very expansive view of that constitutes a foreseeable misuse or alteration of the product. Typically removal of a guard or other safety device that is not equipped with an interlocking shutoff will be deemed a foreseeable misuse. Ordinary rough handling or manipulation of a product will not be deemed unforeseeable misuse.

Unanticipated, Unforeseeable, or Unintended Use of Products

As New Jersey courts recognize that an injury sustained while using a product for an unforeseeable purpose or in an unforeseeable manner, the misuse sheds no light on whether the product is in fact defective, no liability will attach to the manufacturer or distributor. Jurado v. W. Gear Works, 131 N.J. 375, 388, 619 A.2d 1312, 1318 (1993). For example, removal of a guard device without an interlock constituted foreseeable misuse, allowing plaintiff to proceed to the jury. Cepeda v. Cumberland Eng. Co., Inc., 76 N.J. 152 (1978). The court will often apply the same analysis to alteration of the product. The more substantial the alteration, more likely a court is to conclude that same was unforeseeable or unintended on the part of the manufacturer/distributors. Misuse of a product can playa role not only in whether the product was in fact defective, but whether any such defect constituted the proximate cause of the plaintiff’s injury.

Alteration of Products

As discussed above, alteration of products can often be considered on the same analysis as foreseeable misuse. Where an alteration by the end-user or other party is foreseeable to the manufacturer, the product may still be considered defective. See Brown v. United States Stove Co., 98 N.J. 155, 166 (1984). Factors for the court to consider are whether the machine was defective as originally designed, whether the subsequent alteration was substantial, foreseeable, and whether the original design defect constitute a proximate cause of the injury. See, Soler v. Castmaster, Div. of H.P.M. Corp, 98 N.J. 137 (1984). In Michalko v. Cooke Color &Chem. Corp., 91N.J. 389,400 (1982), the court set forth a fairly high standard for defendant manufacturers, noting:

Even a significant subsequent alteration of the manufactured product will not relieve the manufacturer of liability unless the change itself creates the defect that constitutes the proximate cause of the injury . . . thus, in the defect which, singly or in combination, cause 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. Even where significant changes to a product are made after it leaves the control of the manufacturer, or the practice of making similar changes was widespread and knowledge of the practice common, the alteration will be deemed foreseeable. See, Brown v. United States Stove Co., 98 N.J. 155, 166 (1984).

The issue of warnings and their adequacy can also play a role in the context of misuse and substantial alteration to the product.

Unavoidably Unsafe Products

According to the Restatement (Second) of Torts § 402A, comment k (which has been approved and adopted by New Jersey Courts (see Brody v. Overlook Hosp., 317 A.2d 392(App. Div. 1974)))“unavoidably unsafe products” are products which “in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. ... Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. ... The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”

The New Jersey Product Liability Act adopts this principle, providing that a seller is not liable for a design defect if harm results from an un avoidably unsafe aspect so long as the product is accompanied by a proper warning. N.J.S.A. 2A:58C–3(a)(3). For example, in Calabrese v. Trenton State College, 162 N.J. Super. 145 (1978), the court held that the manufacturer of a rabies vaccine (which the court determined was an unavoidably unsafe product) could not be held liable to a patient for damages caused by adverse side effects associated with the vaccine where the vaccine was sold accompanied by warnings of these undesirable side effects.

Environmental torts do not fall within the Product Liability Act. This includes lawsuits where the plaintiff claims injury as a result of exposure to reportedly toxic or hazardous substance.

Duty to Warn - Dangerous or Obviously Unsafe Conditions

The New Jersey Product Liability Act defines an adequate warning. The act goes on to note that there shall be no liability under a failure to warn theory if in fact an adequate warning is provided. N.J.S.A. 2A:58C-4 provides in pertinent part:

In any product liability action the manufacturer or seller shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction or, in the case of dangers a manufacturer or seller discovers or reasonably should discover after the product leaves its control, if the manufacturer or seller provides an adequate warning or instruction. An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger that communicates adequate information on the dangers and safe use of the product, taking into account the characteristics of and the ordinary knowledge common to, the persons by whom the product is intended to be used, or in the case of prescription drugs, taking into account the characteristics of, and the ordinary knowledge common to, the prescribing physician . . . N.J.S.A. 58:C-4

Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 57 58, 675 A.2d 620, 632 (1996)

A failure to warn, or a failure to warn adequately, may constitute a defect in a product sufficient to support a cause of action in strict liability. Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 57, 675 A.2d 620, 632 (1996).

In a failure-to-warn strict liability case, the plaintiff does not allege that the design or structure of the product was defective. Rather, the defect is in the failure to warn unsuspecting users that the product can potentially cause injury. Coffman v. Keene Corp., 133 N.J. 581, 593-94, 628 A.2d 710(1993) (citing Freund, supra, 87 N.J.at 242,432 A.2d925 (holding that “the duty to warn in the strict liability cause of action is based on the notion that absent a warning or adequate warning a product is defective, in that it is not reasonably fit, suitable or safe for its intended purposes”)).

Manufacturers have a duty to warn consumers and users of the product of known dangerous conditions. Defendants under the duty to warn are compared to other manufacturers in their field and the presumption is the knowledge of one manufacturer is the knowledge of all manufacturers. Under N.J.S.A:58C-4, the manufacturer has a duty to warn of danger concerning product, irrespective of when knowledge of danger is or could have been adequate. Furthermore, the manufacturer has a duty to warn of danger concerning product, irrespective of when knowledge of danger is or could have been acquired. “A manufacturer that knows its machines are defective has a duty to employees of the purchaser to correct the defect and may not rely on the purchaser employer to make the necessary correction.”Seeley v. Cincinnati Shaper Co., 256 N.J. Super. 1,14, 606 A.2d 378, 384 (App. Div. 1992). In any product liability action the manufacturer or seller shall not be liable ... in the case of dangers a manufacturer or seller discovers or reasonably should discover after the product leaves its control, if the manufacturer or seller provides an adequate warning or instruction. Seeley v. Cincinnati Shaper Co., 256 N.J. Super. 1, 15, 606 A.2d 378, 385 (App. Div. 1992).

Model civil jury charge 5.40C applies to warnings and also sets forth the so-called heeding presumption.

State of the Art Defenses

State of the art defenses may be available to defendants in product liability actions in New Jersey, depending upon the theory asserted. Where the plaintiff pursues a strict liability failure-to warn action, so called state-of-the-art will not be relevant in the compensatory damages phase. Plaintiff need not come forward with evidence that the defendant knew or should have known of the alleged hazards of the product. Rather, in a strict liability action, that knowledge will be presumed. As a consequence, the defendant may not introduce evidence whether in the way of factual testimony, documents or expert testimony that tends to show that this knowledge was not generally available. However, where the plaintiff pursues a negligence claim, plaintiff must come forward with evidence that the defendant knew or should have known of the alleged hazards at issue and thus the defendant may also introduce evidence on this point. N.J.S.A. 2A:58C-3 provides with respect to exemptions from liability:
G. In any product liability action against the 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; or
(2) The characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended, except that this paragraph shall not apply to industrial machinery or other equipment used in the workplace and is not intended to apply to dangers posed byproduct such as machinery or equipment that can feasibly be eliminated without impairing the usefulness of the product; or
(3) The harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction as defined by Section 4 of this Act.

B. The provisions of paragraph 1 of subsection A of this section shall not apply if the court, on the basis of clear and convincing evidence, makes all the following determinations:

(1) That product was egregiously unsafe or ultra hazardous;
(2) The ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the products risks, or the product poses a risk of serious injury to persons other than the user or consumer; and
(3) The product has little or no usefulness.

Government Contractor Defense

The government contractor defense is something of a relic and is rarely used in modern litigation. It is disfavored by most courts and probably the only chance of having the court apply the doctrine for the benefit of the defendant would be in the United States District Court. The seminal case on the government contractor defense is Anzalone v. Westech Gear Corp., 271 N.J.Super. 522 (1994). The court in Anzalone summarized the utility of the government contractor defense as follows: federal government contracting is an area that is clearly committed to federal control and raises special federal considerations . .. a military contractor fulfilling a procurement contract similar to a federal official performing governmental duties because both “obviously implicate . .. the same interest in getting the government’s work done.” Hence, a suit against a private party involving a military contract raises to “uniquely federal interest;” the civil liability of the federal officials for actions taken in the course of their duties and the government’s rights and obligations under its contracts. Id.

The government contractor defense is not, however, an absolute bar to liability. Rather, where there is a significant conflict between the law of the form state and federal policy, the court will then apply the three-part Boyle test:

Liability for design defects and military equipment cannot be imposed, pursuant to state law, when
(1) United States approved reasonably precise specifications;
(2) The equipment conformed to their specification; and
(3) The supplier warned the United States about the dangers and the use of the equipment that were known to the supplier but not to the United States.

Boyle v. United Technologies Corp., 487 U.S. 500 (1998). The third prong is the so-called superior knowledge requirement. Only where a defendant can meet the three requirements imposed by the court in Boyle will the government contractor defense serve as a bar to liability. The relationship between the knowledge held by the government and the manufacturing defendant, as well as the government practices and policies pertaining to how much information can be passed along to the end user are also relevant potentially to proximate cause, particularly in the case of a failure-to-warn claim.

Statutes of Limitation and of Repose

A statute of limitations serves as a bar to an otherwise valid claim. New Jersey has a two-year statute of limitations for personal injury and a six-year statute of limitations for personal injury is codified at N.J.S.A. § 2A:14-2(a). The statute of limitations for property damage is codified at N.J.S.A. § 2A:14-1. The statute of limitations in New Jersey are not always bright lines. While a complaint must be filed within the applicable statute of limitations, New Jersey has the so called discovery rule which potentially enables a plaintiff who has filed a complaint within the two-year statute of limitations and adequately pled John Doe claims to amend the complaint to add additional defendants. The plaintiff will be afforded a reasonable period of time after discovery of an entity or other defendant who should be joined in the litigation to join that additional defendant. This is the so called “discovery rule.” The discovery rule provides that the cause of action does not accrue and thus the statute of limitations has not begin to run until the party discovers or, by the exercise of reasonable diligence should have discovered here she has a basis for a claim. See, Lopez v. Swyer, 62 N.J. 267 (1973).

The statute of repose differs from the statute of limitations in several ways. The statute of repose differs from the statute of limitations in that once the statute of repose has run, a plaintiff’s claim is not barred, rather the plaintiff simply has no cause of action. Port Imperial Condo Ass’n, Inc. v. K. Hovnanian Port Imperial Urban Renewal, Inc., 419N.J. Super. 459(A.D. 2011). N.J.S.A. 2A:14-1.1 codifies the statute of repose. A party must bring a cause of action within 10 years after completion of the design, planning or construction of an improvement to real property. The statute of repose typically does not apply or extinguish a claim asserted against the owner or possessor of the site, however. Improvements to real property include not only initial construction but repair work done months after initial construction. See, Scanlon v. General Motors, 65 N.J. 582,326 A.2d 673 (1974); Barilla v. 3M Co. Inc., 2013 WL472128(N.J. Super. A.D. 2013). Even the design and construction of an improvement to real property which includes component parts which are subsequently determined to be hazardous or fail causing injury bar a cause of action brought against such a builder, designer or seller if the action does not preclude any cause of action brought against a builder, designer or seller if the action is not filed within 10 years of the completion of the improvement to real property. O’Connor v. Altus, 67 N.J. 106, 119 (1975).

The statute of repose is intended to limit liability for a special class of entities engaged in creating improvements to real properties such as architects, engineers and building contractors. Ebert v. South Jersey Gas Co., 307 N.J. Super. 127 (1998). The statute of repose applies retroactively. Kozikowski v. DRPA, D.C.N.J. 175, 397 F. Supp. 1115. In order for the statute of repose to apply to extinguish a cause of action, the defendant’s scope of work must have involved the design, planning, supervising or construction of the improvement to real property. Russo Development Corp. v. KKD Imports, Inc., 352 N.J. Super. 146 (2002), citing, Santos v. Hubey Corp., 236N.J.Super.608(Law. Div. 1989). In order to constitute an improvement to real property, the work must beintegral to the building and have features which are closely related to the structure. Id. citing, O’Connor v. Altos, 67 N.J. 106 (1975).