O'Brien v. Muskin Corp.

• Decision Date: 02 August 1983
• Citation: 94 N.J. 169,463 A.2d 298
• Parties: Gary O'BRIEN, Plaintiff-Respondent, v. MUSKIN CORPORATION, formerly known as HPE, Inc., Defendant-Appellant, and KIDDIE CITY, Lionell Leisure, Inc., a subsidiary of Lionell Corporation and Kiddie City Inc., t/a Kiddie City, Defendants and Third Party Plaintiffs- Appellants, v. The ESTATE OF Arthur HENRY and Jean Lorraine Henry (Glass), Third Party Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 169

94 N.J. 169

463 A.2d 298

Gary O'BRIEN, Plaintiff-Respondent, v. MUSKIN CORPORATION, formerly known as HPE, Inc., Defendant-Appellant, and KIDDIE CITY, Lionell Leisure, Inc., a subsidiary of Lionell

Corporation and Kiddie City Inc., t/a Kiddie City, Defendants and Third Party Plaintiffs- Appellants, v. The ESTATE OF Arthur HENRY and Jean Lorraine Henry (Glass),

Third Party Defendants-Respondents.

Supreme Court of New Jersey.

Argued Nov. 9, 1982.

Decided Aug. 2, 1983.

John A. Fratto, Barrington, for defendant-appellant Muskin Corp., etc. (Fratto, Little, Allessi & Abbott, Barrington, attorneys; Frederick F. Fitchett, III, Barrington, on the brief).

Burchard V. Martin, Westmont, for defendants and third party plaintiffs-appellants Kiddie City, et al., relied upon the brief and argument of appellant Muskin Corp., etc. (Martin, Crawshaw & Mayfield, Westmont, attorneys).

Thomas F. Connery, Jr., Camden, for plaintiff-respondent Gary O'Brien (Brown, Connery, Kulp, Wille, Purnell & Greene, Camden, attorneys).

William L. Lundgren, III, Haddonfield, submitted a letter in lieu of brief for third party defendants-respondents The Estate of Arthur Henry, et al. (Green & Lundgren, Haddonfield, attorneys).

The opinion of the Court was delivered by

POLLOCK, J.

Plaintiff, Gary O'Brien, seeks to recover in strict liability for personal injuries sustained because defendant, Muskin Corporation, allegedly marketed a product, an above-ground swimming pool, that was defectively designed and bore an inadequate warning. In an unreported decision, the Appellate Division reversed the judgment for defendants and remanded the matter for trial. We granted certification, 91 N.J. 548, 453 A.2d 866 (1982), and now modify and affirm the judgment of the Appellate Division. In reaching that result, we conclude that state-of-the-art evidence is relevant to risk-utility analysis and admissible in a strict liability case involving a defectively designed product.

O'Brien sued to recover damages for serious personal injuries sustained when he dove into a swimming pool at the home of Jean Henry, widow of Arthur Henry, now Jean Glass. Ultimately, plaintiff sued as defendants not only Muskin Corporation, the manufacturer, but also Kiddie City Inc., the distributor of the pool, charging them with placing a defectively designed pool in the stream of commerce. Kiddie City filed a third-party complaint for contribution against the owners of the pool. Defendants filed cross-claims for contribution and indemnification against each other, and Muskin filed a cross-claim against the owners.

At the beginning of the jury trial, the claims against Kiddie City were dismissed with the consent of the parties. At the close of the plaintiff's case, the trial court determined that he had failed to prove a design defect in the pool. Accordingly, at the close of the entire case, the court refused to charge the jury on design defect. Instead, the court submitted the case to the jury solely on the adequacy of the warning.

In response to special interrogatories, the jury found that Muskin had "manufactured a product that was not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes or use," that the defect existed when the product left Muskin's control, and that the defect was a cause of O'Brien's injury. The jury found further that O'Brien was a trespasser, rather than a social guest, at the time of the accident, thus exculpating the Henrys. Finally, the jury found that O'Brien was guilty of contributory negligence, and allocated fault for the injury as 15% attributable to Muskin and 85% attributable to O'Brien. Thus, under New Jersey's comparative negligence statute, O'Brien was barred from recovery. See N.J.S.A. 2A:15-5.1. The trial occurred before our decision in Roman v. Mitchell, 82 N.J. 336, 413 A.2d 322 (1980), and the court did not give an "ultimate outcome" instruction; that is, the court failed to instruct the jury on the effect on plaintiff's recovery of its allocation of fault.

On appeal, the Appellate Division found that the trial court erred in removing from the jury the issue of design defect. Consequently, that court reversed the judgment against Muskin and remanded the matter for a new trial. The Appellate Division also determined that plaintiff was a trespasser at the time of the accident and resolved that the issue of his status need not be relitigated at a new trial. Furthermore, the court below vacated the consent judgment dismissing the complaint and cross-claim against Kiddie City. Finally, the Appellate Division ruled that at the re-trial the trial court should include a charge on the effect of the allocation of fault between plaintiff and defendant. See Roman v. Mitchell, 82 N.J. 336, 413 A.2d 322 (1980).

We agree that the status of the plaintiff need not be relitigated, but disagree with vacating the dismissal against Kiddie City. For the reasons set forth in this opinion, we affirm the remand of the matter for a new trial.

I

Muskin, a swimming pool manufacturer, made and distributed a line of above-ground pools. Typically, the pools consisted of a corrugated metal wall, which the purchaser placed into an oval frame assembled over a shallow bed of sand. This outer structure was then fitted with an embossed vinyl liner and filled with water.

In 1971, Arthur Henry bought a Muskin pool and assembled it in his backyard. The pool was a twenty-foot by twenty-four-foot model, with four-foot walls. An embossed vinyl liner fit within the outer structure and was filled with water to a depth of approximately three and one-half feet. At one point, the outer wall of the pool bore the logo of the manufacturer, and below it a decal that warned "DO NOT DIVE" in letters roughly one-half inch high.

On May 17, 1974, O'Brien, then twenty-three years old, arrived uninvited at the Henry home and dove into the pool. A fact issue exists whether O'Brien dove from the platform by the pool or from the roof of the adjacent eight-foot high garage. As his outstretched hands hit the vinyl-lined pool bottom, they slid apart, and O'Brien struck his head on the bottom of the pool, thereby sustaining his injuries.

In his complaint, O'Brien alleged that Muskin was strictly liable for his injuries because it had manufactured and marketed a defectively designed pool. In support of this contention, O'Brien cited the slippery quality of the pool liner and the lack of adequate warnings.

At trial, both parties produced experts who testified about the use of vinyl as a pool liner. One of the plaintiff's witnesses, an expert in the characteristics of vinyl, testified that wet vinyl was more than twice as slippery as rubber latex, which is used to line in-ground pools. The trial court, however, sustained an objection to the expert's opinion about alternative kinds of pool bottoms, specifically whether rubber latex was a feasible liner for above-ground pools. The expert admitted that he knew of no above-ground pool lined with a material other than vinyl, but plaintiff contended that vinyl should not be used in above-ground pools, even though no alternative material was available. A second expert testified that the slippery vinyl bottom and lack of adequate warnings rendered the pool unfit and unsafe for its foreseeable uses.

Muskin's expert testified that vinyl was not only an appropriate material to line an above-ground pool, but was the best material because it permitted the outstretched arms of the diver to glide when they hit the liner, thereby preventing the diver's head from striking the bottom of the pool. Thus, he concluded that in some situations, specifically those in which a diver executes a shallow dive, slipperiness operates as a safety feature. Another witness, Muskin's customer service manager, who was indirectly in charge of quality control, testified that the vinyl bottom could have been thicker and the embossing deeper. A fair inference could be drawn that deeper embossing would have rendered the pool bottom less slippery.

At the close of the entire case, the trial court instructed the jury on the elements of strict liability, both with respect to design defects and the failure to warn adequately. The court, however, then limited the jury's consideration to the adequacy of the warning. That is, the court took from the jury the issue whether manufacturing a pool with a vinyl liner constituted either a design or manufacturing defect.

II

Strict liability law, a relatively recent but rapidly growing legal phenomenon, has received uneven treatment from scholars, legislatures and courts. Underlying the various responses is a shared concern about the allocation of the risk of loss upon manufacturers, distributors and others in the stream of commerce for injuries sustained by the public from unsafe products.

One of the policy considerations supporting the imposition of strict liability is easing the burden of proof for a plaintiff injured by a defective product, a policy that is achieved by eliminating the requirement that the plaintiff prove the manufacturer's negligence. Keeton, "Product Liability and the Meaning of Defect," 5 St. Mary's L.J. 30, 34-35 (1973). Generally speaking, a plaintiff has the burden of proving that (1) the product was defective; (2) the defect existed when the product left the hands of the defendant; and (3) the defect caused injury to a reasonably foreseeable user. Michalko v. Cooke Color & Chemical Corp., 91 N.J. 386, 394, 451 A.2d 179 (1982). Proof that the product was defective requires more than a mere showing that the product caused the injury. The necessity of proving a defect in the product as part of the plaintiff's prima facie case distinguishes strict from absolute liability, and thus prevents the manufacturer from also becoming the insurer of a product. See Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 877 (Alaska 1979); Birnbaum, "Unmasking the Test for Design Defect:...