Mohr v. B. F. Goodrich Rubber Co.

• Decision Date: 08 February 1977
• Parties: Robert W. MOHR and Dorothy Mohr, his wife, Plaintiffs-Appellants, v. B. F. GOODRICH RUBBER COMPANY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 279

147 N.J.Super. 279

371 A.2d 288

Robert W. MOHR and Dorothy Mohr, his wife, Plaintiffs-Appellants, v. B. F. GOODRICH RUBBER COMPANY, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Nov. 16, 1977.

Decided Feb. 8, 1977.

Samuel C. Inglese, Metuchen, for plaintiffs-appellants (Moss & Inglese, Metuchen, attorneys).

Thomas T. Chappell, Jersey City, for defendant-respondent (Lamb, Hutchinson, Chappell, Ryan & Hartung, Jersey City, attorneys; Thomas T. Chappell, Jersey City, of counsel; Mary B. Rogers, Jersey City, on the brief).

Before Judges LYNCH, MILMED and ANTELL.

PER CURIAM.

This is a product liability case wherein plaintiff Robert W. Mohr seeks damages for injuries suffered when a tire manufactured by defendant B. F. Goodrich Rubber Company (Goodrich) exploded while Mohr was mounting it on a rim. The central issue contested at the jury trial was whether the tire blew up because of a manufacturing defect in the bead ¹ of the tire or because of the manner in which Mohr undertook to mount it. His wife Dorothy sued Per quod.

The case was submitted to the jury on issues of (1) strict liability, (2) breach of warranty, (3) negligence and (4) contributory negligence on the part of plaintiff Mohr.

In response to special interrogatories the jury found that there was (1) no defect in the tire which was a proximate cause of the accident, and (2) no negligence in the manufacture of the tire which was a proximate cause, but (3) contributory negligence on the part of Mohr which did proximately contribute to the cause of the accident. Judgment was thereupon entered in favor of defendant.

Plaintiffs moved for a judgment N.o.v. in their favor or, in the alternative, for a new trial. Both motions were denied. They now appeal. They contend that:

(1) they were entitled to a judgment N.o.v. on the issue of failure to warn;

(2) The judge erred in his jury charge;

(3) The interrogatories submitted to the jury did not encompass all the plaintiffs' theories of liability and therefore the final verdict cannot be sustained;

(4) The failure of the judge to dismiss or sever the case of Goodrich v. Barella (service station operator) was prejudicial;

(5) The excessive objections on the part of defendant's attorney were prejudicial;

(6) The judge erred in permitting cross-examination of plaintiffs' experts beyond the scope of direct examination, and

(7) He erred in requiring counsel to conduct summation during the jury's normal lunch hour.

We conclude that all of plaintiffs' contentions are without merit and require no comment (R. 2:11--3(e)(1)(B)(C) and (E)), except (1) and (2), dealing respectively with the 'duty to warn' and the charge.

The Duty to Warn

On this issue plaintiffs contend that they were entitled to judgment in their favor notwithstanding the verdict. They argue that the inherent danger of and potential injury from a tire exploding during the mounting procedure were foreseeable, and since Goodrich failed to give warning thereof, plaintiffs were entitled to judgment in their favor as a matter of law.

There is no question but that there is a duty to warn of the inherent dangers of physical harm from misuse of a product where the manufacturer knows of a possible misuse and resulting danger or should have known of it in the reasonable course of his business. Hursh and Bailey, American Law of Products Liability 2d (2 ed. 1974), § 8:26 at 213--214. New Jersey has recognized this duty to warn. Kuhner v. Marlyn Manor, 129 N.J.Super. 554, 324 A.2d 128 (Law Div.1974), rev'd on other grounds, 135 N.J.Super. 582, 343 A.2d 820 (App.Div.1975).

Here, at several points in his charge, the trial judge told the jury of defendant's duty to warn and even pointed out that if plaintiff had been contributorily negligent as a result of not having the proper instructions as to use and a warning of possible dangers from misuse, then the contributory negligence was not a bar to recovery. See Hursh and Bailey, op. cit., § 8:36 at 239.

The evidence presented factual questions for the jury as to whether defendant had failed in its duty to warn. Among those issues were whether there was a label on the tire directing the user to follow the mounting procedure recommended by the Rubber Manufacturers Association, of which Goodrich was a member; whether, indeed, the tire was a new one, for if it were not, there would be no label on it; whether plaintiff's testimony that te label was missing on the tire was credible; whether wall charts containing instructions and warnings disseminated by Goodrich through the Rubber Manufacturers Association and the Trie Industry Safety Council provided adequate warnings, and whether the service station where the accident occurred had in fact received, or even heard of, such wall charts. The law as to 'duty to warn' having been properly put to the jury, plaintiffs can have no legal complaint on appeal. We therefore find no error in this respect.

The Charge to the Jury

A party is not entitled to have a jury charged in words of his own choosing. If the charge adequately covers the matter requested, there is no error. State v. Thompson, 59 N.J. 396, 283 A.2d 513 (1971). Further, sections of a jury charge cannot be read in isolation. The charge must be read as a whole. State v. Wilbely, 63 N.J. 420, 307 A.2d 608 (1973). Taking into account the above guidelines, it is clear that the trial judge did not misstate or disregard any of plaintiffs' legal contentions.

Plaintiffs contend that the trial judge erred in charging:

When it is alleged that there is more than one possible cause for the breakage in a product, the plaintiff is required to introduce evidence which would indicate that one of the causes was more probable than the others.

It is plaintiffs' contention that the judge was here charging that plaintiffs had to prove a particular defect, contrary to Moraca v. Ford Motor Co., 66 N.J. 454, 332 A.2d 599 (1975), and Scanlon v. General Motors Corp., 65 N.J. 582, 326 A.2d 673 (1974). We do not so read the quoted portion of the charge. When the charge is considered as a whole, with particular emphasis on the several paragraphs immediately preceding...