Sharpe v. Bestop, Inc.

• Citation: 314 N.J.Super. 54,713 A.2d 1079
• Parties: , Prod.Liab.Rep. (CCH) P 15,281 Timothy Patrick SHARPE, Plaintiff-Appellant, v. BESTOP, INC. and Sears Roebuck and Company, Defendants-Respondents, and Chrysler Corporation, Defendant.
• Decision Date: 15 July 1998
• Court: New Jersey Superior Court – Appellate Division

Page 54

314 N.J.Super. 54

713 A.2d 1079, Prod.Liab.Rep. (CCH) P 15,281

Timothy Patrick SHARPE, Plaintiff-Appellant, v. BESTOP, INC. and Sears Roebuck and Company, Defendants-Respondents, and Chrysler Corporation, Defendant.

Superior Court of New Jersey,

Appellate Division.

Argued May 27, 1998.

Decided July 15, 1998.

John B. Collins, Denville, for plaintiff-appellant (Bongiovanni, Collins & Warden, attorneys; Mr. Collins, on the brief).

Robert G. Hampson, Somerville, for defendant-respondent (Mr. Hampson, on the brief).

Before Judges DREIER, KEEFE and WECKER.

The opinion of the court was delivered by

KEEFE, J.A.D.

This "second collision" product liability case requires us to examine the use of the "heeding presumption" in the context of a failure to warn case.

I.

In November of 1987, plaintiff purchased a used 1985 Jeep CJ7, manufactured by Chrysler Corporation. As purchased, the Jeep came with a standard hard, fiberglass top and removable steel doors. In the summer of 1988, plaintiff purchased a "Fastback" soft convertible top and doors manufactured by Bestop, Inc. and sold by Sears Roebuck and Company. Plaintiff installed the soft top and doors on his Jeep according to the manufacturer's instructions.

In the early morning of August 18, 1988, plaintiff and a friend, Ray Alvarez, were returning to plaintiff's parents' home in Hazlet, travelling northbound on the Garden State Parkway. Plaintiff was driving, and Alvarez was in the passenger seat. Neither plaintiff nor Alvarez had their seat belts on. Plaintiff apparently fell asleep behind the wheel of the Jeep and was seriously injured when he was ejected from the vehicle upon impact with a guardrail.

Plaintiff thereafter brought an action against defendants Bestop, Sears, and Chrysler. Plaintiff's complaint alleged that defendants Bestop and Sears defectively designed the soft convertible top and doors and failed to provide adequate warnings for the soft top's safe use. As to defendant Chrysler, plaintiff alleged that the Jeep was defectively designed. Although Chrysler provided a general warning that seat belts must be worn at all times, plaintiff also alleged Chrysler failed to provide an adequate warning alerting occupants that the use of a soft top and doors did not provide adequate occupant protection and that seat belts were required for safe use of a soft top and doors.

The jury found that the Jeep, as originally manufactured by Chrysler, was not defective, nor were the Bestop soft top and doors defectively designed. The jury also exonerated Chrysler on the warning claim. As to the failure to warn claim against defendants Bestop and Sears, the jury found that Bestop and Sears failed to warn consumers of the dangers attendant to the use of their product. The jury found, however, that their failure to warn was not a proximate cause of plaintiff's injuries. Plaintiff's motion for a judgment notwithstanding the verdict, limited to defendants Bestop and Sears and the failure to warn issue, was denied.

Plaintiff now appeals only as to the jury verdict on the failure to warn claim against defendants Bestop and Sears. ¹

II.

With respect to the issues relevant to this appeal, the following interrogatories were submitted to the jury without objection by plaintiff:

4. Do you find that Defendants, Sears and Bestop failed to adequately warn and instruct users that the soft top and doors would not retain occupants in the CJ7 and would provide no protection against injury in the event of even a minor accident and, therefore, it was necessary to wear seat belts at all times in order to safely use their product?

5. If your answer to question 4 is Yes, do you find that had such warning and instruction been provided that Plaintiff probably would have followed the warnings and instruction and worn his safety belts?

As noted earlier, in response to Interrogatory No. 4, the jury found that Sears and Bestop failed to adequately warn users of the dangers associated with the use of the soft top and doors, but it answered Interrogatory No. 5 concerning proximate cause in the negative.

Plaintiff now argues, as he did before the trial court in his motion for a new trial, that Interrogatory No. 5 misstates the law and had the capacity to produce an unjust result. Specifically, plaintiff contends that the use of the word "probably" in Interrogatory No. 5 placed an unfair burden on him. Because plaintiff failed to object to the form of Interrogatory No. 5 in a timely fashion, we are required to consider plaintiff's argument under the plain error standard. R. 2:10-2.

In the context of a duty to warn case, plaintiff has the burden of proving, by a preponderance of the evidence, that the product was defective, i.e. the manufacturer did not warn the consumer of the risks attendant to the product, and that the failure to warn was a proximate cause of plaintiff's injuries. See Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 485 A.2d 305 (1984). In this case, plaintiff satisfied his burden of proof with regard to the warning defect. The issue here is one of causation. As noted by our Supreme Court, "[c]ausation is a fundamental requisite for establishing any product-liability action." Coffman v. Keene Corp., 133 N.J. 581, 594, 628 A.2d 710 (1993). That is to say, in order to satisfy the burden of proof required in a failure to warn case, a plaintiff must prove that the absence of the warning was a proximate cause of his harm. Id. at 594, 628 A.2d 710 (citing Campos, supra.).

In Coffman v. Keene, supra, the Supreme Court recognized the difficulties encountered by plaintiffs in proving proximate causation in failure to warn cases and adopted a heeding presumption to assist plaintiffs in overcoming the hurdle. ² In that case, plaintiff was exposed to various quantities of asbestos while working on naval vessels. 133 N.J. at 590-93, 628 A.2d 710. Plaintiff brought suit against defendant Keene and others for injuries allegedly contracted from exposure to their products. Ibid. The basis of plaintiff's complaint was that defendants failed to warn consumers of the health risks associated with the use of asbestos products. Ibid.

At trial, Keene claimed that plaintiff failed to establish proximate causation between its failure to warn consumers about the risks associated with asbestos products and plaintiff's injuries. Ibid. Despite plaintiff's failure to present such direct proof of causation, the trial judge disagreed with Keene and instructed the jury that it was to presume that plaintiff would have heeded the warning if one had been given. Ibid.

On appeal, this court found support for the heeding presumption in comment j to Section 402A of the Restatement (Second) of Torts, as well as in language contained in Campos. 257 N.J.Super. 279, 287-88, 608 A.2d 416 (App.Div.1992). Thus, we affirmed the trial judge's use of the heeding presumption.

On certification to the Supreme Court, the Court found, as a matter of public policy, that the heeding presumption should be recognized in New Jersey. 133 N.J. at 597, 628 A.2d 710. The Court explained that "[t]he heeding presumption ... serves to reinforce the basic duty to warn--to encourage manufacturers to produce safer products, and to alert users of the hazards arising from the use of those products through effective warnings." Id. at 599, 628 A.2d 710. Cognizant of the difficulties plaintiff may have in establishing that the absence of a warning was a proximate cause of his injuries, the Court noted that the heeding presumption would serve to lighten the plaintiff's burden of proof on the issue of proximate causation. Id. at 600, 628 A.2d 710. In the Court's words, "[t]he use of the presumption will be conducive to determinations of causation that are not based on extraneous, speculative considerations and unreliable or self-serving evidence." Id. at 601, 628 A.2d 710. Therefore, "with respect to the issue of product-defect causation in a product-liability case based on a failure to warn, the plaintiff should be afforded the use of the presumption that he or she would have followed an adequate warning had one been provided, and that the defendant in order to rebut that presumption must produce evidence that such a warning would not have been heeded." Id. at 603, 628 A.2d 710. In the absence of evidence produced by the defendant rebutting the heeding presumption, the plaintiff is entitled to a directed verdict on the proximate cause element of a failure to warn cause of action. Ibid.

In Graves v. Church & Dwight Co., Inc., 267 N.J.Super. 445, 631 A.2d 1248 (App.Div.), certif. denied, 134 N.J. 566, 636 A.2d 523 (1993), a case decided at the same time as the Supreme Court's decision in Coffman, this court recognized the use of the heeding presumption in a non-workplace setting. There, the plaintiff suffered a stomach rupture after ingesting an excessive amount of baking soda. Id. at 450-56, 631 A.2d 1248. The plaintiff brought suit against the baking soda manufacturer, Church & Dwight, for failing to warn consumers of the dangers associated with ingesting its product in quantities greater than recommended by the manufacturer. Ibid. Although the jury in that case found that the product was defective by reason of its failure to warn, it found that the failure to warn was not a proximate cause of plaintiff's injury. Ibid.

Consistent with the analysis of the Coffman Court, although not having the benefit of the Supreme Court decision at the time Graves was filed, Graves advanced Coffman one step further and held that the heeding presumption has general application and is not simply applied just to asbestos or workplace products. Id. at 459, 631 A.2d 1248. The Graves court noted that the effect of the heeding presumption "is to require defendant to come forward with evidence sufficient to rebut the presumption, or risk a directed finding against it as to the presumed fact," i.e. that the warning would have been heeded, and...