Willner v. Vertical Reality, Inc.

• Decision Date: 15 August 2018
• Docket Number: A-9 September Term 2017,079626
• Citation: 192 A.3d 1011,235 N.J. 65
• Parties: Josh WILLNER, An Infant by his Guardian ad Litem, Lester Willner, Lester Willner, Individually, and Amy Willner, Individually, Plaintiff-Respondents, v. VERTICAL REALITY, INC., An Entity Doing Business in the State of New Jersey, and Vertical Reality Manufacturing, Inc., An Entity Doing Business in the State of New Jersey, Defendant-Respondents. and Ivy League Camp, An Entity Doing Business in the State of New Jersey, Defendant, and ASCO Numatics, improperly pled as Numatics, Inc., Defendant-Appellant.
• Court: New Jersey Supreme Court

235 N.J. 65

192 A.3d 1011

Josh WILLNER, An Infant by his Guardian ad Litem, Lester Willner, Lester Willner, Individually, and Amy Willner, Individually, Plaintiff-Respondents,

v. VERTICAL REALITY, INC., An Entity Doing Business in the State of New Jersey, and Vertical Reality Manufacturing, Inc., An Entity Doing Business in the State of New Jersey, Defendant-Respondents.andIvy League Camp, An Entity Doing Business in the State of New Jersey, Defendant,andASCO Numatics, improperly pled as Numatics, Inc., Defendant-Appellant.

A-9 September Term 2017

079626

Supreme Court of New Jersey.

Argued April 24, 2018

Decided August 15, 2018

Joseph DiRienzo, Westfield, argued the cause for appellants (DiRienzo, DiRienzo & Dulinski, attorneys; Joseph DiRienzo, on the briefs). Cynthia A. Walters, Short Hills, argued the cause for respondents (Budd Larner, attorneys; Cynthia A. Walters and Terrence John Hull, Florham Park, on the brief).

Michael Ferrara, Cherry Hill, argued the cause for amicus curiae New Jersey Association for Justice (The Ferrara Law Firm and Lomurro, Munson, Comer, Brown & Schottland, attorneys; Michael Ferrara, of counsel, and Christina Vassiliou Harvey, Freehold, of counsel and on the brief).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this products liability case, we review both a trial judge's jury instruction related to evidence of a defendant manufacturer's conduct and our rule governing offers of judgment in cases in which a single plaintiff pursues joint and several liability against multiple defendants.

Plaintiff Josh Willner was injured while climbing a rock wall owned by his employer, Ivy League Day Camp (Ivy League). Willner sued the camp and the manufacturers of the wall and parts contained in the wall, Vertical Reality, Inc. (Vertical Reality), and ASCO Numatics (Numatics), respectively, alleging strict products liability claims and negligence. Before trial, Willner made a single offer of judgment to the defendants in accordance with Rule 4:58 in the amount of $125,000. No defendant accepted the offer or counteroffered.

By the end of the ensuing trial, the only count remaining against Numatics alleged a manufacturing defect. Because a defendant's conduct is not relevant to adjudicating such a claim, at the conclusion of the parties' cases, Numatics requested a jury instruction that advised the jurors not to consider evidence of its conduct or negligence. The judge denied the request and instead provided an instruction tracking the model jury charge for manufacturing defect claims.

The jury returned a verdict in favor of Willner, awarding him $358,000 and apportioning Numatics thirty percent of the liability and Vertical Reality seventy percent. The judge then granted Willner's motion for attorney fees and costs pursuant to the offer of judgement rule, Rule 4:58.

Numatics appealed, and the Appellate Division affirmed. The panel found that the trial judge's jury instruction did not constitute plain error because he correctly advised the jury on the only evidence relevant to the manufacturing defect claim. The panel further held the judge's award of attorney fees and costs was proper because the jury's verdict was sufficiently greater than Willner's offer to trigger sanctions pursuant to Rule 4:58.

We affirm the panel's approval of the judge's jury instruction, albeit under a different standard of review, finding that the judge's actions were harmless error. We disagree with the panel, and reverse the imposition of sanctions on Numatics under the offer of judgment rule. It would be unfair to impose sanctions in a case where the only means for a party to avoid sanctions would be to pay an amount greater than the jury's verdict against that party, without advance notice of that consequence.

I.

A.

In the summer of 2006, Willner was employed as a junior counselor at Ivy League in Manalapan. The camp offered a rock climbing wall for its campers to use. The wall was manufactured by Vertical Reality and contained parts produced by Numatics. Willner's only responsibility in his role as junior counselor with regard to the rock wall was to assist campers as they put on harnesses and helmets; the camp employed specialists to assist with climbing.

On July 19, 2006, Willner was supervising a group of campers at the rock wall.

After his group finished, he was invited by a specialist to climb as well. He strapped on a harness and helmet. His harness was inspected by the specialist, and attached by a rope to an auto-belay system that was assembled by Vertical Reality and contained parts manufactured by Numatics.

Willner ascended approximately fifteen feet up the wall before deciding to come down. When he pushed off the wall to descend, the rope initially supported his weight, but suddenly and rapidly lost all of its tension after he heard a loud noise. Willner fell to the ground, fracturing his ankle.

B.

Willner, who was sixteen at the time of the incident, and his parents filed a complaint against Ivy League, Vertical Reality, and Numatics, alleging strict products liability, negligence, and per quod claims. After a period of discovery, Ivy League was granted summary judgment and dismissed from the case.

The remaining parties entered settlement negotiations and Willner made an offer of judgment to the defendants in the amount of $125,000, which he filed pursuant to Rule 4:58. Neither party responded to Willner's offer.

The claims against Vertical Reality and Numatics proceeded to a jury trial. Willner's strict liability claims against defendants were based on theories of design defect, manufacturing defect, and failure to warn.

At trial, Willner presented an expert in safety engineering, who testified that Vertical Reality's design of the auto-belay system was inadequate for use on Ivy League's rock wall. According to the expert, the system should have supported the weight of a 250-pound person -- Willner's approximate weight at the time of his accident. The expert testified that the cylinders specified in the designs of the auto-belay system supported 250 pounds per square inch. The expert further testified that, because the fall of a 250-pound person would create far more force than 250 pounds per square inch, the auto-belay system was inadequately designed.

Willner's expert also opined that Numatics' cylinders were defectively manufactured, containing "void"-filled retainers. Numatics produced an expert who testified that, despite the voids found in the cylinders' retainers, the retainers were "manufactured in a manner that was reasonably fit, suitable, and safe for [their] ordinary and reasonably foreseeable purposes on [a] 250 PSI rated cylinder."

Throughout trial, evidence was submitted regarding Numatics' conduct both before and after the incident. That evidence related to Numatics' knowledge of its cylinders' deficiency, its failure to evaluate the safety of its products, and its failure to repair deficient cylinders already in use.

Prior to summation, the court dismissed the design defect and failure to warn claims, allowing Willner to proceed only on his strict liability claim of manufacturing defect against Numatics. Although any need for evidence of Numatics' conduct was thereby obviated, during summation, Vertical Reality's counsel again underscored Numatics' alleged malfeasance in using substandard parts in the construction of its cylinders "because [they were] cheaper." Numatics objected and moved for a mistrial. The trial court denied the mistrial motion, but instructed the jury to disregard counsel's comments concerning Numatics' conduct, explaining that evidence of Numatics' actions was not relevant to the remaining issues in the case.

Following summations, Numatics requested that the trial court give the following instruction to the jury regarding the applicability of Numatics' conduct in the context of Willner's manufacturing defect claim:

In a products liability case such as this one, negligence is not an issue for your consideration. You are not to focus on the conduct of the parties. Rather, the issue for your determination is on the condition of the products that have been alleged to be defective.... Likewise, if you find that a product is not defective, then you must find that in favor of that defendant as to plaintiff's claim, regardless of that defendant's conduct.

The judge denied that proposal and instead provided an instruction that substantially mirrored Model Jury Charges (Civil), 5.40B, "Manufacturing Defect" (2009):

Plaintiff has made a manufacturing defect allegation against the Defendant, Numatics, alleging that the cast retainer that was on the cylinder at the time of the accident contained a void and was weaker and therefore rendered it defective. Numatics denies this claim.

Let me give you some applicable concepts when dealing with the claim of a manufacturing defect, and then I'll explain what the Plaintiff must prove to establish a defect in manufacturing.

So, a manufacturing defect may be established by proof that as a result of a defect or flaw, which happened during the production, or while in Defendant's control, the product was unsafe and that unsafe aspect of the product was a substantial factor in causing the Plaintiff's accident.

To establish this claim for a manufacturing defect, the Plaintiff must prove the following elements by a preponderance of the credible evidence: that the cylinder contained a manufacturing defect, which made the product not reasonably safe. To determine if the cylinder had a manufacturing defect, you must decide what the condition of the cylinder as planned should have been according to Numatics' design specifications or performance standards and what its condition was as it was made.

If you find there's no difference between these two conditions, then there's no manufacturing defect. If there was a difference you must decide if that difference made the cylinder not reasonably safe for its intended or reasonably foreseeable uses. If the answer is

...