Kuhner v. Marlyn Manor, Inc.

• Decision Date: 31 July 1975
• Citation: 343 A.2d 820,135 N.J.Super. 582
• Parties: Sara J. KUHNER and Frederick Kuhner, her husband, Plaintiffs-Respondents, and Sylvia Kuhner, Plaintiff, v. MARLYN MANOR, INC., a New Jersey corporation et al., Defendants, and Chrysler Corporation, a foreign corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 582

135 N.J.Super. 582

343 A.2d 820

Sara J. KUHNER and Frederick Kuhner, her husband Plaintiffs-Respondents and Sylvia Kuhner, Plaintiff, v. MARLYN MANOR, INC., a New Jersey corporation et al., Defendants and Chrysler Corporation, a foreign corporation, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued June 16, 1975.

Decided July 31, 1975.

Douglas R. Kleinfeld, Newark, for defendant-appellant (Conway, Reiseman, Michals & Wahl, Newark, attorneys).

James L. Cooper, Atlantic City, for plaintiffs-respondents (Cooper, Perskie, Neustadter & Katzman, Atlantic City, attorneys, Harry Miller, Atlantic City, on the brief).

Before Judges MICHELS, MORGAN and MILMED.

PER CURIAM.

Pursuant to leave granted by this court, defendant Chrysler Corporation (Chrysler) appeals from an order in the Law Division setting aside a jury verdict of no cause for action in favor of Chrysler, and granting a new trial to plaintiffs limited solely to the issue of the liability of Chrysler for plaintiffs' injuries.

Plaintiff Sara J. Kuhner was struck while walking on a sidewalk in a shopping center in Rio Grande, New Jersey, by a 1964 Plymouth station wagon owned and operated by defendant Horace Smith (Smith). Smith's station wagon moved forward from the parking area of the shopping center, mounted the curb and struck plaintiff on the sidewalk, pinning her against a brick retaining wall and causing her serious personal injuries. She originally filed suit against Marlyn Manor, Inc., the owner and operator of the shopping center, and its principal stockholders, Henry R. Reitheimer and Virginia M. Reitheimer, charging them with negligence in its design and construction, and Smith charging him with negligence in the operation of the station wagon, including the failure to select the right gear in which to operate the vehicle. Her husband sued Per quod, and her daughter Sylvia Kuhner sued to recover damages for the personal injuries she sustained when also struck by the Smith vehicle. Plaintiff subsequently joined, among others, Chrysler as a defendant, charging it with (1) negligence in the design and manufacture of the station wagon, specifically the gear selection system and its component parts, (2) breach of warranty, and (3) strict liability in tort. In their pre-trial memorandum plaintiffs detailed their allegations against Chrysler as follows:

This defendant was careless and negligent in the manner in which it designed and installed said gear selection system and said defendant knew or should have known that the precarious manner in which this selection system was designed would probably lead to one selecting the wrong gear. This defendant failed to install a correct and proper gear selection system and were further negligent in failing to forewarn the users of said vehicle of the improper design and installation of said gear selection system. This defendant permitted this hazardous condition to exist in the Smith car in particular all resulting in the creation and maintenance of a nuisance. Defendant, Chrysler Corporation, held itself out to this public as a manufacturer of motor vehicles and accordingly did warrant that said vehicle would be fit for the purposes for which it was intended and said defendant did breach said warranty by failing to design and manufacture a proper motor vehicle with a proper gear selection system within it all resulting in damage to the plaintiffs.

This defendant further placed into the stream of Commerce a motor vehicle which was a hazard to the public in general and to the plaintiffs in particular, in that the said vehicle was improperly designed and manufactured regarding said gear selection system all resulting in said defendant being held strictly liable in tort for said injuries, damages and losses sustained by the plaintiffs.

Prior to trial plaintiff and her husband settled with Marlyn Manor, Inc., dismissing the suit against it and its principal stockholders. Plaintiff Sylvia Kuhner settled with defendant Smith and dismissed her suit against all defendants.

From the evidence developed at trial a jury could have found either that Smith intended to put his vehicle in reverse in order to back out of the parking lot but instead engaged the drive gear, as a result of which the vehicle went forward and struck plaintiffs, or that Smith, after backing out of the parking lot, put his vehicle in drive in order to avoid oncoming traffic and struck plaintiffs. Plaintiffs' theory as to Chrysler's liability was predicated on a defective gear selection system. Plaintiffs claimed that the gear selection system was designed in such a manner as to increase the risk that someone would hit the wrong gear button. Expert opinion presented on behalf of plaintiffs indicated the defect to be that the 'reverse' and 'drive' gear shift buttons were not sufficiently defined and differentiated in color, texture, shape and feel and that a driver would have difficulty in selecting the proper gear shift button, relating this alleged defect to Smith's inadvertent selection of the wrong gear. Expert testimony presented on behalf of Chrysler supported its contention that the design was safe for normal operation and that the buttons were totally separate from on another and clearly marked with an imprint to designate their function so that the driver would have no difficulty selecting the appropriate gear.

Special interrogatories were submitted to the jury which found that Chrysler was not negligent in the design or manufacture of the push button gear selection system, was not strictly liable in its design or manufacture and did not breach any warranty to the public concerning the push button gear system. The jury also found that Marlyn Manor, Inc., was negligent in the design and construction of the parking area of the shopping center and that Smith was negligent in the operation of his vehicle. The jury awarded damages to plaintiff in...