SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4482-96T2
LLOYD WALLACE, individually
and as Administrator of the
Estate of THERESA R. WALLACE,
deceased, and as Administrator
Ad Prosequendum for THERESA R.
WALLACE, deceased, and for the
next of kin of THERESA R.
WALLACE, deceased,
Plaintiff-Appellant,
v.
FORD MOTOR COMPANY,
Defendant-Respondent,
and
CONTI-CAUSEWAY FORD &
LINCOLN MERCURY,
Defendant/Third-Party
Plaintiff-Respondent,
v.
FRANK TREMMER t/a
CHEERS PUB,
Third-Party Defendant.
Argued: January 27, l999 Decided: February 19, 1999
Before Judges King, Newman and Fall.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County.
Richard C. Swarbrick argued for appellant.
Bernard A. LeRoe argued for respondents (Dobis &
Reilly, attorneys; James S. Dobis and Mr. LeRoe, on the
brief).
The opinion of the court was delivered by
NEWMAN, J.A.D.
In this product liability case, plaintiff appeals from the
order denying a motion for reconsideration, the judgment of no
cause of action entered in favor of defendants Ford Motor Company
and Conti-Causeway Ford & Lincoln Mercury and the order denying a
motion for a new trial and/or judgment N.O.V. and/or mistrial.
We affirm.
This lawsuit was based on an accident that took place about 1:00 a.m. on Saturday, September 16, 1989. Theresa R. Wallace (decedent) was alone in her 1989 Ford Mustang, driving on Bordentown Avenue in Sayreville, New Jersey. At a curve in the road, decedent lost control of her car. The Mustang rolled over several times, and she was ejected through the car's sunroof. She landed on a parked vehicle and died instantly of a fractured skull.
Lloyd Wallace (plaintiff), on behalf of his deceased twenty-two-year-old daughter, filed a wrongful death, products liability action against Ford Motor Company (Ford), which manufactured decedent's car, and Conti-Causeway Ford & Lincoln Mercury (Conti-Causeway), which sold this new car to decedent in April 1989. Plaintiff's cause of action was predicated on the fact that, at some point in the accident, the right rear axle had snapped and the right rear wheel had disconnected from decedent's car. Plaintiff alleged a manufacturing defect in the right rear axle which caused a wobble in the right rear wheel, which eventually led to the shear-fracture found in the right rear axle after the accident. Plaintiff asserted that this axle snapped, and this caused decedent to lose control of her car.
Ford and Conti-Causeway (defendants) maintained that decedent lost control of her car at the curve because she was drunk, (.l68 blood alcohol content) and speeding at seventy miles per hour in a fifty mile per hour zone. Rather than causing the roll-over accident, defendants asserted that the right rear axle fractured after the accident began, when the car, which became airborne several times, landed on its right rear wheel during one of the rollovers. The force of this impact with the pavement fractured the right rear axle, disconnecting the right rear wheel.
The first two questions #1 and #2 on the eight-question verdict sheet asked this of the jury:
1. Was the axle defective while under the control of
Ford Motor Company and/or Causeway Ford?
YES ________ NO ________
IF YOUR ANSWER IS "NO" TO QUESTION #1, THEN CEASE YOUR
DELIBERATIONS AND RETURN YOUR VERDICT TO THE COURT.
IF YOUR ANSWER IS "YES" TO QUESTION #1, PROCEED TO ANSWER
QUESTION #2.
2. Was the defect in the axle a proximate cause of
the accident of September 16, 1989?
YES ________ NO ________
IF YOUR ANSWER IS "NO" TO QUESTION #2, THEN CEASE YOUR
DELIBERATIONS AND RETURN YOUR VERDICT TO THE COURT.
IF YOUR ANSWER IS "YES" TO QUESTION #2, PROCEED TO
ANSWER QUESTION #3.
The jury answered "no" to the first question, finding that
the right rear axle in decedent's car was not defective while
under the control of defendants. In view of this answer, the
jury did not have to determine if this alleged defect was a
proximate cause of the accident, nor did they have to decide if
decedent was negligent or if her negligence was a proximate cause
of the accident.
On appeal, plaintiff raises the following points:
POINT I PLAINTIFF'S MOTION FOR JUDGMENT BASED ON
THE ADMISSIONS OF LIABILITY IN THE REQUESTS
FOR ADMISSIONS SHOULD HAVE BEEN DEEMED
ADMITTED FOR TRIAL PURPOSES
POINT II WITHOUT WAIVER OF PLAINTIFF'S CONTENTION
THAT A JUDGMENT N.O.V. SHOULD HAVE BEEN
ENTERED IN HIS FAVOR, THE TRIAL JUDGE'S
TREATMENT OF THE PLAINTIFF AND HIS
ATTORNEY WARRANTS REVERSAL
POINT III NO EVIDENCE OF ALCOHOL INTOXICATION
AGAINST DECEDENT SHOULD HAVE BEEN
PERMITTED IN THIS CASE AND IT WAS
REVERSIBLE ERROR BY THE COURT TO ALLOW IT
POINT IV THE TESTIMONY OF DEFENSE EXPERT WITNESSES,
KENT, EISENBERG AND VOLLMERHAUSEN, SHOULD
HAVE BEEN STRICKEN
POINT V SHOULD THE APPELLATE COURT DENY PLAINTIFF'S
MOTION FOR JUDGMENT N.O.V. AND/OR MISTRIAL
AND OTHER RELIEF SOUGHT, THE PLAINTIFF IS
ENTITLED TO A NEW TRIAL UNDER R. 4:49-1 ET.
SEQ.
POINT VI PLAINTIFF PROVED A CASE OF BREACH OF EXPRESS
AND IMPLIED WARRANTIES AND SHOULD HAVE
RECEIVED JUDGMENT OF LIABILITY AGAINST
DEFENDANTS ON THOSE ISSUES ALONE
POINT VII THE TRIAL JURY EXPERIMENTED WITH THE EVIDENCE
IN THE JURY ROOM (PARTICULARLY THE AXLE,
WHEEL AND ITS PARTS) AND PLAINTIFF'S MOTION
FOR RECONSIDERATION AND NEW TRIAL SHOULD HAVE
BEEN GRANTED
POINT VIII THE "NET OPINIONS" OF DEFENSE COUNSEL IN
THEIR DOCUMENTS (THEY WERE NOT EXPERT
REPORTS) SHOULD HAVE BARRED THEIR
TESTIMONY ALONG WITH THE OUTSTANDING COURT
ORDERS WHICH WERE VIOLATED, AND THE EVIDENCE
USED AS THE FOUNDATION OF THEIR OPINION WAS
TOO REMOTE AND NOT PROPERLY FOUNDED
POINT IX THE ADMINISTRATION OF FINES AGAINST
WALLACE'S ATTORNEY FOR ALLEGED CONTEMPT
AND THE INTIMIDATION OF HIS ATTORNEY BOTH
IN AND OUT OF THE PRESENCE OF THE JURY WAS
A GROSS MISCARRIAGE OF JUSTICE UNDER THE
LAW AND AN ABUSE OF DISCRETION WHICH
WARRANTS REVERSAL AND REMISSION OF FINES
After a review of the trial record, certain videotapes
offered into evidence, the briefs and argument thereon and the
applicable law, we are satisfied that the issues raised, except
for one raised under Point V concerning the viability of the
defense of intoxication to a product liability cause of action,
are clearly without merit, warranting only the following
discussion. R. 2:ll-3(e)(l)(C) & (E).
[Points I, II, III, IV, part of Point V, VI, VII, VIII, and
Point IX have been omitted for publication purposes].
Plaintiff makes a vague reference to his "arguments regarding whether intoxication can be used as a defense in product liability cases." He notes that it cannot be used as a defense to
product liability cases in the work place, citing Suter v. San
Angelo, 8l N.J. l50, l58 (l979), but that no mention is made to a
non-workplace environment such as this automobile product
liability action. Plaintiff contends the defense of intoxication
should be unavailable here as well.
The Products Liability Act (Act), N.J.S.A. 2A:58C-l to -7,
was enacted on July 22, l987. It applies to all product liability actions filed after its enactment date. Becker v. Baron
Bros.,
138 N.J. 145, 151 (1994).
"A plaintiff's conduct in using a product may implicate several distinct legal issues," in that it "may relate to the existence of a defect, the issue of causation, or comparative fault."
William A. Dreier, Hannah G. Goldman & Eric D. Katz, New Jersey
Products Liability & Toxic Torts Law, § 16:3 at 385 (1998) (hereafter Dreier). See Jurado v. Western Gear Works,
131 N.J. 375,
387 (1993). Whether a product has a manufacturing defect or design defect "focuses on the condition of the product as it left
the control of the manufacturer" and, therefore, the conduct of
an injured plaintiff "which occurs at some time after that
reference point" is not relevant in determining the existence of
a manufacturing defect or design defect. Grier v. Cochran
Western Corp.,
308 N.J. Super. 308, 324-25 (App. Div. 1998).
See, e.g., Johansen v. Makita USA, Inc.,
128 N.J. 86, 101 (1992)
(noting that "[b]ecause the risk-utility analysis is based on the
premise that a product is defective if it is dangerous when
marketed, the post-marketing conduct of one plaintiff cannot
inform that determination").
However, a plaintiff's conduct may be relevant to the
"question of proximate cause," in that a jury may find that
plaintiff's conduct "had been the sole cause of the accident."
Johansen, supra, 128 N.J. at 102-03. See Grier, supra, 308 N.J.
Super. at 325 (concluding that, while evidence of plaintiff's
post-marketing conduct was "irrelevant to the question of whether
the product was defective," such conduct may be considered "on
the issue of proximate cause").
While the "doctrine of comparative fault . . . focuses on
the plaintiff's conduct in contributing to the occurrence of an
accident," at present there is, in New Jersey, "no case law
directly addressing the application of comparative negligence
principles in cases alleging product defect where the plaintiff's
conduct was a factor in the happening of the accident but not
because of his or her use of the product." Dreier, supra, §
16:3-2 at 386 and § 16:5 at 387. However, there appears to be no
obstacle to considering plaintiff's "conduct . . . in the
happening of the accident," even though it is "unrelated to a
product's use:"
For example, the plaintiff may have been
speeding in a vehicle and that speed might
have been a cause of an accident which was
also caused by a defect in the vehicle. The
plaintiff could not be said to have proceeded
in the face of a known risk if he or she did
not know of the defect in the vehicle. . . .
In these examples there are multiple causes
for an accident or injury and there is no
reason not to apply the usual comparative
negligence rules for concurrent fault. For
these product-unrelated causes, there should
be no bar to recognizing the plaintiff's conduct.
[Id. § l6:5 at 387-88.]
Under New Jersey law, "evidence of alcohol consumption" by
the injured plaintiff prior to the accident may be admissible "in
a products liability case" because such evidence may be "relevant
. . . to the issue of proximate cause." Hulmes v. Honda Motor
Co.,
936 F. Supp. 195, 201 (D.N.J. 1996), aff'd,
141 F.3d 1154
(3d. Cir. 1998), cert. denied, ____ U.S. ____, ll
9 S. Ct. 49, l
42 L. Ed.2d 38 (l998).
Swajian v. General Motors Corp.,
916 F.2d 31 (1st Cir.
1990), is especially persuasive because it factually mirrors this
case. On June 5, 1986, Maurica Swajian (Mrs. Swajian) was
driving her 1986 GMC "when the vehicle began to sway, went out of
control, and rolled over." Id. at 33. Mrs. Swajian was killed
when she was thrown from the vehicle. Ibid. After this one-vehicle accident, the right rear axle of Mrs. Swajian's vehicle
was found to be fractured. Ibid. Given this, Gregory Swajian
(Swajian), Mrs. Swajian's husband, filed a products liability
action against General Motors Corporation (GMC), based upon
"defects in the manufacture and design of the right rear axle."
Id. at 32-33. Swajian alleged that the right rear axle "failed
during normal operation thereby causing a rollover accident
resulting in his wife's death." Id. at 33. Among other things,
GMC countered that the "vehicle rollover was caused solely by
driver error as a result of Mrs. Swajian's intoxication." Ibid.
The main factual dispute concerning the accident itself was
"whether the axle fractured before the rollover sequence began,"
i.e., "whether the right rear wheel separated before the rollover
began or after it was already in progress." Id. at 33, 35. Daniel Mitchell, the driver closest to Mrs. Swajian's vehicle at the
time of the accident, testified that Mrs. Swajian's vehicle
"passed him in a normal manner, and when he next saw it, it was
in the process of flipping over." Id. at 33. Mitchell also
testified that he "could not recall whether the right rear wheel
was still attached to the vehicle when he saw it flipping," in
that he "never saw the wheel leave the vehicle and could not
recall whether it was still on the vehicle when he saw it in the
process of flipping over." Id. at 33, 35. Finally, Mitchell
testified that he "became aware of the [right] wheel only when
his passenger, Kim Gallante, cautioned him about the wheel, which
was rolling across the roadway." Id. at 33.
At trial, Swajian's expert witnesses testified that the
right rear axle "failed as a result of a fatigue fracture." Id.
at 33. This, of course, supported Swajian's position that the
"right rear wheel separated before the rollover began," which
meant that the right rear axle "failed during normal operation
thereby causing . . . [the] rollover accident resulting in his
wife's death." Id. at 33, 35.
Prior to trial, GMC took the position that the "vehicle
rollover was caused solely by driver error as a result of Mrs.
Swajian's intoxication." Id. at 33. In support of its position
that the axle had not fractured before the rollover sequence began, GMC had evidence that, after work on the day of her
accident, Mrs. Swajian had "consumed a number of alcoholic
beverages." Ibid. "Immediately following the accident," Mrs.
Swajian was taken to a hospital, "where blood samples were
obtained and a blood alcohol content of 0.174 was measured."
Ibid. In Rhode Island (where the accident took place), a blood
alcohol level of 0.10" is "presumptive evidence of intoxication."
Ibid.
Prior to trial, Swajian filed a motion to "exclude all
reference to decedent's consumption of alcoholic beverages and
her blood alcohol level." Id. at 34. The District Court judge
granted this motion, holding that, given the "dramatic" extent of
Mrs. Swajian's intoxication, this evidence was "unduly
inflammatory and far outweighs its probative value." Ibid. The
judge barred any "evidence of intoxication." Ibid.
The jury found GMC liable, and awarded Swajian $449,033 for
the loss to Mrs. Swajian's estate and $551,000 for his loss of
consortium. Id. at 33. Among other things, GMC appealed the
District Court's decision to "exclude all evidence of Mrs.
Swajian's intoxication." Ibid.
The Court of Appeals concluded that granting the motion to
exclude this evidence constituted "clear error," reversing and
remanding for a new trial. Id. at 35. The Court of Appeals
explained why as follows:
Granting this motion denied the jury the
opportunity to fairly judge this case. The
district court erred in characterizing the
intoxication as merely "corroborative evidence" of abnormal driving, since it is essential evidence from which the jury could
infer the cause of the accident. The cause
of the loss of control is the ultimate issue
in the case, and, without this explanation,
the jury had only Swajian's allegations of
design defects to consider.
[Id. at 34.]
The trial judge made no specific finding
of "unfair prejudice." It appears, from the
trial judge's order, that evidence of intoxication would have been admissible if the decedent had consumed less alcohol, and thus
decedent's estate profits from her misconduct
only because it was so egregious. This cannot be the law. Furthermore, the trial court
ignored the probative value of the evidence
to GMC's case. Armed with this evidence, the
jury could have concluded that driver error
contributed significantly to, if not caused,
decedent's accident. As it was, the jury was
presented with the following factual scenario: the two month old vehicle was travelling
down a straight, flat road in good weather
when it swayed and went out of control for no
apparent reason. The only explanation
proffered was that there was a defect in one
of the axles. Without the evidence of intoxication the jury was left with no reason for
the loss of control other than Swajian's allegations.
[Ibid.]
Evidence of intoxication is, by definition, prejudicial because that is precisely
the intended function of relevant and probative evidence. Indeed, that evidence could
have prompted the jury to return a verdict
for GMC. This hardly renders the evidence
unduly inflammatory; it simply highlights its
significance.
[Id. at 35.]
We are satisfied that the intoxication of the decedent was
properly admitted on the issue of comparative negligence which
was pled as a defense in this case.
Affirmed.