Siren v. Behan

• Decision Date: 24 March 1988
• Citation: 224 N.J.Super. 130,539 A.2d 1244
• Parties: Frances SIREN, Substitute Executrix of the Estate of Richard L. Siren, Deceased, Plaintiff-Appellant, v. Joseph BEHAN, Volkswagen-Werk Aktiengesellschaft, A.G., Volkswagen of America, Inc., World Wide Volkswagen, Inc., Pike Volkswagen, Inc., State of New Jersey, Township of Gloucester, Township of Winslow, County of Camden and James P. Behan, jointly, severally and in the alternative, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 130

224 N.J.Super. 130

539 A.2d 1244

Frances SIREN, Substitute Executrix of the Estate of Richard L. Siren, Deceased, Plaintiff-Appellant, v. Joseph BEHAN, Volkswagen-Werk Aktiengesellschaft, A.G. Volkswagen of America, Inc., World Wide Volkswagen, Inc. Pike Volkswagen, Inc., State of New Jersey, Township of Gloucester, Township of Winslow, County of Camden and James P. Behan, jointly, severally and in the alternative Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Submitted Feb. 17, 1988.

Decided March 24, 1988.

Molotsky, Rabkin & Schwartz, Camden, for plaintiff-appellant (Ira Rabkin, on the brief).

Hanlon, McHeffey, Herzfeld & Rubin, Edison, for defendants-respondents Volkswagen of America, Inc., Volkswagen Aktiengesellschaft, A.G., World Wide Volkswagen and Pike Volkswagen (Robert M. Hanlon, of counsel; Lawrence N. Lavigne, on the brief).

No briefs were filed on behalf of the other defendants-respondents.

Before Judges MICHELS, SHEBELL and GAYNOR.

The opinion of the court was delivered by

SHEBELL, J.A.D.

Plaintiff, Frances Siren, Substitute Executrix of the Estate of Richard L. Siren, deceased, appeals from a judgment of no cause for action entered on a jury finding that neither the automobile nor the door latch system manufactured, distributed and sold by the Volkswagen-defendants was defective and that neither defect was the proximate cause of plaintiff's husband's death.

In February 1980, plaintiff and her husband, Dr. Richard L. Siren, purchased a new 1980, four door, Volkswagen Dasher station wagon from a Volkswagen dealership. The vehicle performed well and the Sirens had experienced no mechanical problems with the driver's door.

On January 23, 1981, at about 5:30 p.m., the Sirens and their infant daughter left the home of plaintiff's mother, where they had been visiting, and entered the vehicle. Dr. Siren drove and his wife sat in the front passenger's seat holding her daughter; none wore the seat belts which were available in the vehicle. Earlier that day, Dr. Siren had worn a seat belt at his wife's insistence, but on this occasion, as was his usual practice, he did not use the seat belt. The Sirens drove north on County Route 689 (Berlin-Cross Keys Road) toward the point where it intersected with County Route 706 (Erial-Cross Keys Road). Stop signs controlled the intersection preventing traffic on Route 706 from flowing unimpeded onto Route 689. There were no stop signs controlling the flow of traffic along Route 689.

Meanwhile, a vehicle which had been travelling west on Route 706 stopped at the stop sign when it arrived at the intersection. The driver looked to his left on Route 689 and saw the Sirens' Volkswagen approaching at about 45 to 50 miles per hour. Across Route 689 he also saw a Ford approaching him travelling east on Route 706 at about 45 to 50 miles per hour. The Ford did not brake or slow down for the stop sign that was facing it. It entered the intersection at the same time as the Sirens' Volkswagen and collided with the left side of the Volkswagen, striking the area near the driver's door handle. The Ford spun around and came to rest after striking the third vehicle which was still stopped on the opposite side of Route 689. The Volkswagen was turned around by the force of the collision and came to rest in a field about 90 feet from the point of impact. The right rear wheel of the Volkswagen was torn off. Neither plaintiff nor her daughter was hurt, nor were the drivers of the other two cars. The driver's door of the Volkswagen came open and Dr. Siren was found about ten feet behind the Volkswagen. He died before being taken from the accident scene.

Plaintiff proceeded to trial against Volkswagen after settling with all other defendants. Plaintiff contended that Dr. Siren's death was proximately caused by a defectively designed door latch which had opened during the course of a "moderate," foreseeable traffic accident, permitting Dr. Siren to be ejected from the vehicle. Following an adverse jury verdict, plaintiff's motion for a new trial was denied.

Plaintiff argues that "[t]he jury verdict, as announced, clearly demonstrated a fatal confusion in the minds of the jurors and requires the granting of a new trial." This argument is directed toward the jury's negative answers to all four questions on the verdict form. Questions 1(a) and 2(a), respectively, asked whether the jury found Volkswagen's automobile or door latch to be defective. Questions 1(b) and 2(b) respectively asked whether the defect in the automobile or the door latch was the proximate cause of Dr. Siren's death.

Plaintiff views the negative answers on the proximate cause issues as irreconcilable with the negative answers on the defect issues, because if the jurors found no defect in either the automobile or door latch, it was unnecessary for them to deal with the proximate cause issues. Because the jurors answered the proximate cause questions, plaintiff contends that they must have believed that some defect was present in both the automobile and the door latch.

We read nothing more into the jury's actions than that by answering both the "defect" and "proximate cause" questions the jury was obeying the instructions given to it by the trial judge. In the two-part jury question number 1, the judge focused the jury's attention on defects and proximate causation involving the whole vehicle. The judge told the jury to answer both 1(a) and 1(b), and, if they answered either part in the negative, to answer both questions 2(a) and 2(b), which focused on defects and proximate causation involving only the door latch. The jury answered both 1(a) and 1(b) in the negative and therefore, pursuant to the judge's instructions, went on to answer 2(a) and 2(b).

To our view, the jury findings do not indicate that the jury might have found that plaintiff prevailed on any issue. The answers clearly indicate that the jury concluded there were no defects and, even if there were, those defects were not the proximate cause of Dr. Siren's death.

In Brendel v. Public Service Elec. and Gas Co., 28 N.J.Super. 500, 101 A.2d 56 (App.Div.1953), we stated:

It is, of course, well settled that inconsistent and irreconcilable verdicts are fatally defective and should normally be set aside. The grounds customarily assigned as the reason therefor is that the jury failed to comprehend the issues involved in the trial and, by their verdicts, demonstrated their unfitness to determine the rights and obligations of the respective parties. [ Id. at 507, 101 A.2d 56].

Here, however, we do not find the verdict to be inconsistent or irreconcilable. There is no indication that the jurors did not comprehend the issues involved or that they were confused about the answers they provided.

Plaintiff also contends that it was reversible error for the trial judge to reconsider and reverse the prior interlocutory order of a motion judge who barred trial evidence pertaining to non-use of the seat belts. This argument has no merit.

The inherent power of a court to modify its interlocutory orders prior to the entry of final judgment is well settled in New Jersey. In Lyle v. Staten Island Terra-Cotta Lumber Co., 62 N.J.Eq. 797, 805, 48 A. 783 (E. & A. 1901), the Court recognized that a lower court had the power "to correct, pendente lite, an obvious fallacy in one of its own orders." Expanding this power, the Court in Fidelity Union Trust Co. v. Petchensky, 119 N.J.Eq. 514, 183 A. 472 (Ch. 1936), favorably quoted federal case law which stated:

"Nor do we have any doubt of the power of the court, while a case and the parties are before it, upon proper hearing to reconsider, modify and enlarge its previous orders in respect to a pending controversy. Such power and such authority is so familiar and so well understood that we see no occasion for citing authorities in support of it." Calaf v. Fernandez (C.C.A.), 239 Fed.Rep. 795 [1st Cir.1917]. [ Id. at 516, 183 A. 472].

Moreover, the power was commented upon and supported in Falcon B. & L. Assn. v. Schwartz, 121 N.J.Eq. 27, 31, 186 A. 696 (Ch. 1936).

The issue of the trial court's power to modify its interlocutory orders was addressed in Ford v. Weisman, 188 N.J.Super. 614, 458 A.2d 142 (App.Div.1983), wherein we stated:

Therefore, we hold that the principle of finality of judgments does not prevent a trial court from granting relief from its interlocutory orders upon a change in the governing law before litigation ends. During this time, the trial court has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so. See John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475 (1922); 7 Moore, Federal Practice, p 60.16, at 87-88. See also, Scheck v. Houdaille Constr. Materials, Inc., 121 N.J.Super. 335, 343-345 (Law Div.1972). A contrary rule would wreak havoc in our appellate courts, because it would require that every litigant seek leave to appeal from every interlocutory order, to protect himself should the applicable law change before the end of litigation. [ Id. at 619, 458 A.2d 142; emphasis supplied].

Again, in Johnson v. Cyklop Strapping Corp., 220 N.J.Super. 250, 531 A.2d 1078 (App.Div.1987), we stated:

We hold that the trial court has the inherent power, to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment. [ Id. at 257, 531 A.2d 1078].

Plaintiff, of course, urges that the trial court erred in admitting evidence of the failure of Dr. Siren to use his seat belt, particularly since the defense conceded that the failure to use his seat belt could not constitute contributory negligence. Plaintiff asserts that Dr. Siren had no statutory or common law duty to wear a seat belt, and therefore, his failure to use the seat belt should not have been submitted to...