Kuhner v. Marlyn Manor, Inc.

• Decision Date: 31 July 1974
• Citation: 324 A.2d 128,129 N.J.Super. 554
• Parties: Sara J. KUHNER and Frederick Kuhner, her husband, Plaintiff, v. MARLYN MANOR, INC., a corporation of New Jersey, et al., Defendants.
• Court: New Jersey Superior Court

Page 554

129 N.J.Super. 554

324 A.2d 128

Sara J. KUHNER and Frederick Kuhner, her husband, Plaintiff, v. MARLYN MANOR, INC., a corporation of New Jersey, et al., Defendants.

Superior Court of New Jersey Law Division.

July 31, 1974.

James L. Cooper, Atlantic City, for plaintiffs (Cooper, Perskie, Neustadter & Katzman, Atlantic City, Attorneys).

Roger C. Steedle, Atlantic City, for defendant Horace Smith (Lloyd, Megargee & Steedle, Atlantic City, Attorneys).

Douglas R. Kleinfeld, Newark, for defendant Chrysler Corp. (Conway, Reiseman & Michals, Attorneys).

STALLER, J.C.C.

This matter is before the court on motions for a new trial made on behalf of plaintiff and of defendant Horace Smith pursuant to R. 4:49--1.

Plaintiff Sara Kuhner suffered serious injuries, including the amputation of one leg, when she was struck by a 1964 Plymouth automobile owned and operated by defendant Smith in the parking area of the Marlyn Manor shopping center. At trial in this court the jury found that Smith and Marlyn Manor were liable in negligence to plaintiff but that defendant Chrysler Corporation was not liable. The jury found damages in favor of Mrs. Kuhner in the amount of $300,000 and in favor of her husband Frederick in the amount of $50,000.

After the return of the verdict certain facts were brought to the attention of this court which led it to order that the jurors should be interrogated concerning their verdict. This order was stayed pending an appeal from it by defendant Chrysler. The Appellate Division held that it was improper to interrogate the jurors in this case concerning their answers to the special interrogatories posed to them. The cause was remanded to this court for disposition of the other grounds raised by the motion for a new trial.

At oral argument on this motion counsel for plaintiff did not argue the issue of whether the communication made by the court to the jury regarding their request for clarification of Interrogatory No. 2 was improper as not having been done in open court. In any event, the response made was undertaken in chambers with the knowledge and consent of all counsel.

With respect to plaintiff's grounds for a new trial which deal with the instructions given to the jury (Nos. 4, 5, 7 and 9 through 33), the court has reexamined its charge to the jury and finds no error. (Grounds Nos. 1 through 3 and No. 6 were dealt with in the decision of the Appellate Division).

The principal contention advanced for plaintiff at oral argument, based largely on plaintiff's grounds Nos. 8, 34 and 35, was that this court erred with regard to its instructions to the jury concerning the duty of Chrysler Corporation to warn users of the dangers posed by the pushbutton gear selector. After instructing the jurors on the applicable law of negligence and on reasonable care this court said:

* * * now, a manufacturer not only owes a duty to exercise reasonable care in the manufacture and inspection of this product, but likewise owes a duty, Owes a companion duty to warn buyers and users of the latent or hidden limitations of even a perfectly made article, the use of which is dangerous if the user is ignorant of those limitations and the manufacturer has no reason to believe that the user will recognize the danger. (Emphasis added)

No objection is made to the content of this instruction which sets out the rule established in Martin v. Bengue Inc., 25 N.J. 359, 366--367, 136 A.2d 626 (1957). However, immediately following this instruction the jury was then instructed with regard to the concept of strict liability in tort. It is plaintiff's contention that the instruction given by the court, because of the underlined language and because of the sequence in which it was given, informed the jury that 'duty to warn' was purely and solely applicable to a negligence theory of liability and had no applicability to the theory of strict liability in tort. This, contends plaintiff, was error which requires that a new trial be ordered.

It is clear that the instruction on a duty to warn did apply only to the negligence theory of liability. The jury was never told that under strict liability in tort the manufacturer has a duty to warn users of the dangers of a perfectly made product. The question thus arises as to whether such an instruction was proper and required.

It should be pointed out initially that Martin v. Bengue Inc., Supra, was a negligence case which did not involve the theory of strict liability in tort. There seem to be no reported decisions in this State in which a manufacturer or distributor has been held strictly liable in tort for its failure to warn of a latent danger in a perfectly made product. In order to find a manufacturer strictly liable in tort the jury must find that the product was in a 'defective condition.' It seems anomalous to speak of a perfectly made product as 'defective.' But, comment (h) to Restatement, Torts, 2d, § 402A, says,

Where, however, he (the manufacturer) has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger * * * and a product sold without such warning is in a defective condition.

That is, the 'defect' in the product is the failure of the manufacturer to warn of danger which may result from its use.

In New Jersey a product is deemed 'defective' for strict liability purposes if it is 'not reasonably fit for the ordinary purposes for which such articles are sold and used, and the defect arose out of the design or manufacture or while the article was in the control of the manufacturer, and it proximately causes injury or damage to the ultimate purchaser or reasonably expected consumer.' Santor v. A. M Karagheusian, Inc., 44 N.J. 52, 66--67, 207 A.2d 305, 313 (1965). Mrs. Kuhner, as an 'innocent bystander,' is a protected person, like a 'reasonably expected consumer' who could recover from Chrysler Corporation if a jury were to find it strictly liable in tort. Lamendola v. Mizel, 115 N.J.Super. 514, 524, 280 A.2d 241 (Law Div.1971), and cases cited therein at 521, 280 A.2d 241.

This definition or 'defect' provided by the Santor case does not seem to include or particularly allow for the concept that a failure to warn of the dangers of a 'perfectly made' product is a defect. But the Supreme Court in Santor pointed out that it was not attempting to define 'the outer limits' of the term 'defect.' 44 N.J. at 67, 207 A.2d 305; 1 Frumer & Friedman, Products Liability, § 16A (3)(c) (1960).

As noted above, there...