(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 14, 1998 -- Decided February 8, 1999
COLEMAN, J., writing for a unanimous Court.
The issue before the Court is whether the doctrine of res ipsa loquitur should be applied in a strict
products liability case when liability is based on an alleged manufacturing defect.
On July 6, 1991, John Myrlak was injured when the chair he was sitting on collapsed. At the time of
the incident, Myrlak was at work at the Hoban Control Center at Journal Square in Jersey City. He was
employed as an assistant trainmaster for the Port Authority Trans-Hudson Corporation (PATH). At the
time of the accident, Myrlak was six feet six inches tall, and weighed approximately 325 pounds.
Myrlak had been sitting in the chair for almost two hours when he suddenly heard a loud noise; the
back of his chair cracked and gave way; and he fell backward to the floor. No other employees saw the
accident, but some claimed that they heard either a clicking or ratcheting sound, or a loud noise like the
grinding of gears. The chair in question was manufactured by Girsberger Industries, Inc. It had been in use
at Hoban Control Center for five weeks. Myrlak was not the only employee to use the chair on a daily basis.
There was no evidence, however, that the chair had been misused by anyone.
Myrlak sued PATH under the Federal Employer's Liability Act, alleging that PATH failed to
provide a safe workplace and was negligent in providing him with a chair that was too small for a man his
size. Myrlak also alleged products liability claims against Girsberger, pursuant to manufacture and warning
defect theories.
Myrlak's expert was unable to duplicate the accident, identify a specific defect in the chair or state
that a defect caused the accident. He did claim that PATH was negligent because the chair was too small
for a person Myrlak's size and weight.
At the close of all of the evidence presented at trial, Myrlak asked the court to charge the jury on
res ipsa loquitur in respect of the manufacturing defect claim since he was relying on circumstantial evidence
to prove the existence of a manufacturing defect. The court declined to grant that charge. The jury found
PATH was negligent in failing to provide Myrlak with a safe workplace and awarded him $1.5 million. The
jury also found that Myrlak failed to establish a manufacturing defect in the chair.
PATH appealed and Myrlak cross-appealed. The Appellate Division reversed both verdicts and
remanded for a new trial. The verdict against PATH was reversed on an evidentiary basis. The propriety of
that decision is not before this Court. The appellate panel also reversed the verdict in favor of Girsberger,
concluding that the trial court should have instructed the jury on res ipsa loquitur.
The Supreme Court granted Girsberger's petition for certification.
HELD: The traditional negligence doctrine of res ipsa loquitur generally is not applicable in a strict products
liability case. Instead, the Court adopts the "indeterminate product defect test" established in Section
3 of the Restatement (Third) of Torts: Products Liability as the more appropriate jury instruction in
cases that do not involve a shifting of the burden of persuasion.
1. Res ipsa loquitur is an evidentiary rule that governs the adequacy of evidence in some negligence cases.
It provides a method of circumstantially proving the existence of negligence. Under the doctrine, the
existence of negligence is inferred if: 1) the occurrence itself ordinarily bespeaks negligence; 2) the
instrumentality was within the defendant's exclusive control; and 3) there is no indication that the injury was
the result of the plaintiff's own action or neglect. The burden of persuasion does not shift to the defendant
under this doctrine. (pp. 8-11)
2. Where a manufacturing defect is alleged, a plaintiff must prove that the product was defective, that the
defect existed when the product left the manufacturer's control, and that the defect proximately caused
injuries to the plaintiff, a reasonably foreseeable intended user. A product is deemed defective if it is not
reasonably fit, suitable or safe for the ordinary or foreseeable purpose for which it is sold. A product defect
can be proven by direct evidence, circumstantial evidence or by negating other causes of the failure of the
product. (pp. 11-16)
3. There are theoretical differences between strict products liability and the doctrine of res ipsa loquitur.
Res ipsa is a negligence doctrine providing a circumstantial means of proving a defendant's lack of due care.
Strict products liability is a theory of liability based on allocating responsibility regardless of the
manufacturer's reasonableness, negligence or fault. The reported decisions applying a res ipsa instruction in
the products liability context involve the same set of highly fact-sensitive circumstances that are not present
in this case or in the majority of strict products liability cases. There is no precedent in New Jersey for
applying res ipsa in a products liability case that involves only one defendant. The traditional res ipsa
loquitur jury charge ordinarily should not be used in strict product liability actions. (pp. 16-21)
4. The trial court properly refused to give a res ipsa loquitur charge in this case. The proofs-- direct,
circumstantial, and that negating other cause-- failed to show that the collapse of the chair was caused by a
defect. (pp. 21-22)
5. The "indeterminate product test" found in Section 3 of the Restatement (Third) of Torts: Products
Liability is based on a res ipsa model. It permits a jury to draw two inferences: that the harmful incident
was caused by a product defect; and that the defect was present when the product left the manufacturer's
control. This model best serves the interests of all parties and is not inconsistent with the New Jersey
Products Liability Act. The Court adopts the indeterminate product test announced in Section 3 because it
finds support in decisional law and it is consistent with the policy that drives the doctrine of res ipsa loquitur.
(pp. 22-27)
6. The trial court adequately informed the jury that it could rely on circumstantial evidence to infer a defect.
Even if one had been required, Myrlak was not prejudiced by the absence of a res ipsa loquitur jury charge.
The circumstantial evidence charge given was equivalent to the indeterminate product test charge under
Section 3 of the Restatement. (pp. 27-28)
7. The Appellate Division's reversal of the trial court was based on both the absence of a res ipsa charge
and the exclusion of evidence vital to Myrlak's ability to establish a manufacturing defect. Thus, a new trial
is required on Myrlak's strict products liability claims.
The judgment of the Appellate Division is REVERSED IN PART and AFFIRMED IN PART. That
part of the Appellate Division judgment requiring a res ipsa loquitur charge on the manufacturing defect
claim is reversed. The matter is REMANDED to the Law Division for further proceedings as otherwise
directed by the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
130 September Term 1997
JOHN MYRLAK,
Plaintiff-Respondent,
v.
PORT AUTHORITY OF NEW YORK AND NEW
JERSEY and PORT AUTHORITY TRANS
HUDSON CORPORATION,
Defendants-Respondents,
and
GIRSBERGER INDUSTRIES, INC.,
Defendant-Appellant,
and
JOHN DOE 1-5, DOE COMPANY 1-5 and
DOE CORP. 1-5,
Defendants.
Argued September 14, 1998 -- Decided February 8, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
302 N.J. Super. 1 (1997).
Michelle Wall argued the cause for appellant
(Melli & Wright, attorneys).
David L. Pennington argued the cause for
respondent John Myrlak (Pennington &
Thompson, attorneys; Gary C. Chiumento and
Philip J. Espinosa, on the brief).
Donald F. Burke argued the cause for
respondent Port Authority Trans-Hudson
Corporation (Hugh H. Welsh, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
In this strict products liability case involving one
defendant, the primary issue is whether the doctrine of res ipsa
loquitur should be applied when liability is based upon an
alleged manufacturing defect. The trial court declined to
instruct the jury regarding res ipsa loquitur. The Appellate
Division held that the trial court should have given such an
instruction. We disagree and reverse. We hold that the
traditional negligence doctrine of res ipsa loquitur generally
is not applicable in a strict products liability case. We
adopt, however, the “indeterminate product defect test”
established in Section 3 of the Restatement (Third) of Torts:
Products Liability as the more appropriate jury instruction in
cases that do not involve a shifting of the burden of
persuasion.
At the time of the accident, plaintiff had been seated in the chair performing his duties for approximately one hour and forty-five minutes. He suddenly heard a loud noise, and the back of his chair cracked and gave way. Plaintiff and the chair fell backwards, causing both to land parallel to the floor. Plaintiff grabbed the arms of the chair and pulled himself forward as he was falling. He injured his lower back and was hospitalized.
Although no one other than the plaintiff actually saw the accident, several PATH employees testified that they heard either a clicking or ratcheting sound, or a loud noise like a grinding of gears. After the accident, those employees observed that the back of the chair had collapsed and was parallel to the floor. A co-worker stated that he touched the back of the chair after the accident and it appeared to be flopping back and forth. Another co-worker testified that he sat in the chair the day following the accident and found it lacked back support.
The chair involved in the accident was manufactured by defendant Girsberger Industries, Inc. It was one of five hundred chairs purchased by PATH at the same time from the same company. All of the chairs were delivered to PATH either on November 1, 1990, or on May 1, 1991, and were placed in use at the Hoban Control Center on June 1, 1991. Thus, the chair that caused plaintiff's accident had been in use for five weeks.
The chair had a high backed seat with a triple joint construction that allowed the seat to follow the user's movement by adjusting two levers. One of the levers positioned the chair in either a locked or a “free flow” mode; the other lever adjusted the height of the chair. The chair was also equipped with a tension control mechanism underneath the seat to adjust the tension of the chair's back according to the user's need or desire. Plaintiff was familiar with the chair and its operation.
There was no evidence that the chair had been misused by plaintiff or any other PATH employee. The chair, however, was not used exclusively by plaintiff. On the contrary, it was customarily used by several different PATH employees twenty-four hours each day. Although some of the PATH employees who used the chair were similar in size to plaintiff, none of them ever reported any similar incidents or complaints with regard to the chair.
Plaintiff instituted the present litigation against PATH under the Federal Employer's Liability Act (FELA), claiming that PATH failed to provide a safe workplace and was negligent in providing him with a chair that was too small for a man his size. He also filed products liability claims against the manufacturer of the chair alleging both a manufacturing and a warning defect theory of liability. Pretrial discovery left some uncertainty concerning whether the chair examined by plaintiff's expert and displayed in the court room during the trial was the same chair that was involved in the accident. However, PATH maintains that they are one and the same. To support its position, PATH presented evidence regarding the chain of custody of the chair.
Joseph Bardzilowski, Coordinator of Rail Operations for PATH, testified that he saw the chair the day after the accident and that it looked normal to him. He stated that the chair had been moved from the trainmaster's/assistant trainmaster's area to a vacant area next to the desk. He also testified that the chair had a note on it that read "Do not use." At Bardzilowski's request, the chair was removed from the Control Center and placed into a supply room on the seventh floor at Journal Square the day after the accident. Anne DiNicola, a clerk employed by PATH, testified that at the request of Bardzilowski, she tagged the chair to prevent further use. Kevin Duffy testified that at the request of his supervisor, he removed the chair from the supply closet at Journal Square and placed it in the evidence closet at the World Trade Center where it remained until he brought it to court. Duffy further testified that the evidence closet was locked and the only persons with keys were himself and an administrative assistant. He was not aware of anyone tampering with the chair. The chair was taken from the evidence room and presented as an exhibit at the trial.
Plaintiff's expert was unable to duplicate the accident with the chair that was presented as evidence. Plaintiff's expert was not permitted to disassemble the chair, perform a failure analysis on it, or test any of its internal parts. He was allowed to operate the chair only by using the control levers. No application was addressed to the trial court to perform a more detailed analysis of the chair. The expert was unable to identify a specific defect in the chair; nor could he state that a defect caused the accident. On the issue of PATH's negligence, plaintiff's expert testified that the chair was too small for a person plaintiff's size and weight.
At the close of all of the evidence, plaintiff requested the court to charge the jury on res ipsa loquitur regarding the manufacturing defect claim. In denying the requested charge, the trial court stated that it wanted to avoid that phrase even though plaintiff relied on circumstantial evidence to infer that there was a manufacturing defect. The jury found PATH was negligent in failing to provide plaintiff with a safe workplace and awarded plaintiff 1.5 million dollars. The jury also found that plaintiff failed to establish a manufacturing defect in the chair.
PATH appealed and plaintiff cross-appealed. In a reported opinion, the Appellate Division reversed both verdicts and remanded for a new trial. 302 N.J. Super. 1 (1997). The court reversed the verdict against PATH on an evidentiary basis. Id. at 8-11. The propriety of that ruling is not before us. The panel also reversed the verdict in favor of the manufacturer, concluding that the trial court should have instructed the jury on res ipsa loquitur. Id. at 11-15. We granted defendant Girsberger's petition for certification, limited to the issue whether res ipsa loquitur should apply to this strict products liability case. 152 N.J. 10 (1997).
Defendant Girsberger also maintains that by allowing a res ipsa loquitur instruction, a plaintiff can proceed under a manufacturing defect theory without evidence of any specific defect. This, the defendant contends, improperly relieves the plaintiff of his burden of proof. An evaluation of plaintiff's claim in this case involves an analysis of both the tenets of products liability law and the traditional negligence doctrine of res ipsa loquitur.
Res ipsa loquitur, which in Latin means "the thing speaks for itself," is a rule of law that has its origin in negligence and "governs the availability and adequacy of evidence of negligence in special circumstances." Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984). Res ipsa loquitur is not a theory of liability; rather, it is an evidentiary rule that governs the adequacy of evidence in some negligence cases. Ibid. Ordinarily, negligence is a "a fact which must be proved and which will never be presumed," Meny v. Carlson, 6 N.J. 82, 91 (1950), and the burden of proving negligence in any particular case is on the plaintiff. Buckelew v. Grossbard, 87 N.J. 512, 525 (1981). The doctrine of res ipsa loquitur, where applicable, is a method of circumstantially proving the existence of negligence. Tierney v. St. Michael's Medical Center, 214 N.J. Super. 27, 30 (App. Div. 1986), certif. denied, 107 N.J. 114 (1987). Specifically, the doctrine permits an inference of defendant's want of due care when the following three conditions have been met: "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect." Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 269 (1958). If the instrumentality has left the control of the defendant before the accident, the doctrine may nevertheless be invoked where applicable if plaintiff can present evidence that the instrumentality causing the harm neither was improperly handled, nor its condition changed after the defendant relinquished control. Jakubowski v. Minnesota Mining and Mfg., 42 N.J. 177, 183 (1964).
Whether an occurrence ordinarily bespeaks negligence is based on the probabilities in favor of negligence. Hence, res ipsa is available if it is more probable than not that the defendant has been negligent. Buckelew, supra, 87 N.J. at 526; Tierney, supra, 214 N.J. Super. at 30. The doctrine does not shift the burden of persuasion to the defendant. Eaton v. Eaton, 119 N.J. 628, 638 (1990); Buckelew, supra, 87 N.J. at 526. Rather, what "is required of defendant is an explanation, not exculpation." Buckelew, supra, 87 N.J. at 526. It shifts to the defendant the obligation to explain the causative circumstances because of defendant's superior knowledge. Ibid. The doctrine confers upon the plaintiff an inference of negligence sufficient to establish a prima facie case at the close of plaintiff's evidence. Ibid.; see also Vespe v. DiMarco, 43 N.J. 430, 436-37 (1964).
In a products liability case in which the plaintiff alleges
a manufacturing defect under the Act, the plaintiff has the
burden to prove "the product causing the harm was not reasonably
fit, suitable or safe for its intended purpose." N.J.S.A.
2A:58C-2. In the typical manufacturing defect case, a plaintiff
is not required to establish negligence. See Zaza v. Marquess
and Nell, Inc.,
144 N.J. 34, 49 (1996); Waterson v. General
Motors Corp.,
111 N.J. 238, 267 (1988); Freund v. Cellofilm
Properties, Inc.,
87 N.J. 229, 238 (1981). In other words, a
plaintiff must impugn the product but not the conduct of the
manufacturer of the product. Prosser & Keeton on Torts, § 99,
at 695 (5th ed. 1984); R. Keeton, Products Liability
Inadequacy of Information,
48 Tex. L. Rev. 398, 407-08 (1970).
The Act defines a manufacturing defect as a deviation "from
the design specifications, formulae, or performance standards of
the manufacturer or from otherwise identical units manufactured
to the same manufacturing specifications or formulae." N.J.S.A.
2A:58C-2a. The Act left unchanged the three theories under
which a manufacturer or seller may be held strictly liable for
harm. Jurado v. Western Gear Works,
131 N.J. 375, 384 (1993);
Dewey v. R.J. Reynolds Tobacco Co.,
121 N.J. 69, 94-95 (1990);
Fabian v. Minister Mach. Co.,
258 N.J. Super. 261, 271 (App.
Div.), certif. denied,
130 N.J. 598 (1992). Section 2 of the
Restatement (Third) of Torts: Products Liability adopts
manufacturing defects as one of three categories or theories of
product defects. The Restatement defines a manufacturing defect
as one in which "the product departs from its intended design
though all possible care was exercised in the preparation and
marketing of the product." Restatement (Third) of Torts:
Products Liability § 2(a). The Act's and the Restatement's
definitions of a manufacturing defect both emphasize the safety
of the product rather than the reasonableness of the
manufacturer's conduct. Becker v. Baron Bros.,
138 N.J. 145,
152 (1994); Feldman v. Lederle Labs.,
97 N.J. 429, 450 (1984).
Simply because a plaintiff is not required to prove fault
in a strict liability case does not mean that absolute liability
will be imposed upon a manufacturer. Although a plaintiff is
relieved of proving fault, that plaintiff must nonetheless prove
that the product was defective under our common law
jurisprudence that was incorporated into the Act. See Jurado,
supra, 131 N.J. at 384 (holding that Act did not alter our
common law). Based on our well-established case law in this
area, a plaintiff must prove that the product was defective,
that the defect existed when the product left the manufacturer's
control, and that the defect proximately caused injuries to the
plaintiff, a reasonably foreseeable or intended user. Becker,
supra, 138 N.J. at 151; Coffman v. Keene Corp.,
133 N.J. 581,
593 (1993); Jurado, supra, 131 N.J. at 385; Feldman, supra, 97
N.J. at 449; O'Brien v. Muskin Corp.,
94 N.J. 169, 179 (1983);
Michalko v. Cooke Color & Chem. Corp.,
91 N.J. 386, 394 (1982).
A product is deemed to be defective if it is not reasonably
fit, suitable, or safe for the ordinary or foreseeable purpose
for which it is sold. See Waterson, supra, 111 N.J. at 267. As
noted previously, a manufacturing defect under the Act occurs
when the product comes off the production line in a substandard
condition based on the manufacturer's own standards or identical
units that were made in accordance with the manufacturing
specifications. N.J.S.A. 2A:58C-2a; Navarro v. George Koch &
Sons, Inc.,
211 N.J. Super. 558, 576 (App. Div.) certif. denied,
107 N.J. 48 (1986).
To prove both the existence of a defect and that the defect
existed while the product was in the control of the
manufacturer, a plaintiff may resort to direct evidence, such as
the testimony of an expert who has examined the product, or, in
the absence of such evidence, to circumstantial proof. Scanlon
v. General Motors Corp.,
65 N.J. 582, 591 (1974); Manieri,
supra, 151 N.J. Super. at 430-31. The law is "settled in this
State that in a products liability case the injured plaintiff is
not required to prove a specific manufacturer's defect." Moraca
v. Ford Motor Co.,
66 N.J. 454, 458 (1975). Proof that a
product is not fit for its intended purposes "requires only
proof ... that 'something was wrong' with the product."
Scanlon, supra, 65 N.J. at 591. The mere occurrence of an
accident and the mere fact that someone was injured are not
sufficient to demonstrate the existence of a defect. Ibid.;
Zaza, supra, 144 N.J. at 49.
Under the Scanlon circumstantial evidence method of proving
a product defect, the fact that a product is relatively new does
not suffice by itself to establish a defective condition.
Scanlon, supra, 65 N.J. at 592-93. The age and prior usage of
the product in relation to its expected life span are factors to
consider in conjunction with other evidence presented. Id. at
593, 595. Generally, the older a product is, the more difficult
it is to prove that a defect existed while in the manufacturer's
control. Id. at 593; Prosser, supra, § 99, at 696. However,
age of the product alone may not preclude a finding that the
product was defective when the product is "of a type permitting
the jury, after weighing all the evidence ..., to infer that in
the normal course of human experience an injury would not have
occurred at this point in the product's life had there not been
a defect attributable to the manufacturer." Scanlon, supra, 65
N.J. at 593. Scanlon held that this critical inference could
not be drawn when the product in question, a complicated
automobile, was nine months old and had only 4,000 miles of use.
Id. at 599.
In addition to the direct and circumstantial evidence
methods of proving a product defect, a plaintiff has a third
option. A plaintiff may establish a defect by "negat[ing] other
causes of the failure of the product for which the defendant
would not be responsible, in order to make it reasonable to
infer that a dangerous condition existed at the time the
defendant had control [of the product]." Id. at 593-94 (citing
Jakubowski, supra, 42 N.J. at 184). Under that approach, a
plaintiff does not have to negate all possible causes of
failure, only those likely causes of failure. Id. at 594. Both
Moraca and Scanlon involved alleged defects in automobiles that
were relatively new with low mileage. Moraca is similar to the
present case in that the plaintiff there heard a "gink" while
driving the car and the steering mechanism suddenly locked,
causing the vehicle to skid off the road into a tree. 66 N.J.
at 459. Although res ipsa was not charged to the jury in
Moraca, the jury was nonetheless allowed to infer a defect from
the circumstances. Id. at 460.
Based on the foregoing legal principles synthesized from
our products liability and res ipsa loquitur jurisprudence, it
is evident that there are some technical differences between
using res ipsa loquitur as a method of proving negligence and
using that doctrine to prove a product defect in strict products
liability cases. Res ipsa loquitur is a doctrine created under
the fault theory of negligence as a means of circumstantially
proving a defendant's lack of due care. Strict products
liability, on the other hand, is a theory of liability based
upon allocating responsibility regardless of a defendant's
unreasonableness, negligence, or fault. Nonetheless, except in
those rare cases in which the application of res ipsa loquitur
also involves a shifting of the burden of persuasion, there may
be sound reasons to adopt a res ipsa-like method of
circumstantially proving a product defect.
Apart from the theoretical differences between strict
products liability and the doctrine of res ipsa loquitur, we
must determine whether the Legislature's intent in passing the
Act militates against the use of res ipsa as a method of
establishing the existence of a defect in strict products
liability cases. The Act provides that manufacturing defect
claims "are to be determined according to the existing common
law of the State." Comment to N.J.S.A. 2A:58C-1; see also
Judiciary Committee, Statement to Senate Bill No. 2805, at 1
(March 23, 1987). The Act also provides that unless stated
otherwise, it was not the intent of the Act to establish or
alter any existing rules "with respect to the burden of proof in
a products liability case." N.J.S.A. 2A:58C-7.
In Corbin v. Camden Coca-Cola Bottling Co.,
60 N.J. 425,
435-36 (1972), the Court adjured that a res ipsa loquitur jury
charge should not be given because it "does nothing to aid the
jury." Corbin involved a breach of warranty claim against a
single products liability defendant. The doctrine of res ipsa
loquitur, however, has been applied in cases involving multiple
defendants and multiple theories of liability such as negligence
and products liability. See, e.g., Anderson v. Somberg,
67 N.J. 291, cert. denied,
423 U.S. 929,
96 S. Ct. 279,
46 L. Ed.2d 258
(1975); Maciag v. Strato Med. Corp.,
274 N.J. Super. 447 (App.
Div. 1994); McGuiness v. Wakefern Corp.,
257 N.J. Super. 339
(App. Div. 1991). The Anderson-type cases utilize collective
res ipsa loquitur in that both the burden of coming forward with
evidence and the burden of persuasion are shifted to the
defendants. Anderson, supra, 67 N.J. at 298-303.
Anderson and its progeny are cases involving unique
circumstances in which a clearly helpless or anesthetized
plaintiff suffered physical injury as a result of acts involving
multiple defendants. In those cases, ”it was apparent that at
least one of the defendants was liable for plaintiff's injury
because no alternative theory of liability was within reasonable
contemplation.” Anderson, supra, 67 N.J. at 298. The
plaintiffs in those cases were clearly blameless. All of our
reported decisions in which a res ipsa instruction was utilized
in a products liability context involve the same set of highly
fact-sensitive circumstances: a plaintiff sued multiple
defendants on multiple theories of liability; all possible
defendants were before the court; it was clear that at least one
of those defendants was responsible for the plaintiff's
injuries; and the plaintiff was either helpless, anesthetized,
or in a situation in which he or she clearly had less
information than the defendants concerning the cause of the
injuries. Those special facts are simply not present in the
vast majority of strict products liability cases, including the
present one.
There is no precedent in this State permitting a res ipsa
loquitur charge in a commonplace products liability case that
involves only a single defendant. A few other jurisdictions,
however, have permitted the use of that doctrine. In Williams
v. Emerson Elec. Co.,
909 F. Supp. 395, 398 (D. La. 1995), a
district court permitted a 275-pound plaintiff who fell from a
ladder after it buckled beneath him to use the doctrine to prove
that a manufacturing defect might have caused the accident. Id.
at 396, 399. A Louisiana appellate court had previously reached
a similar conclusion in State Farm Mut. Auto Ins. Co. v. Wrap-On
Co.,
626 So.2d 874, 877 (La. Ct. App. 1993). The Ninth Circuit
interpreting Hawaii law also held that "nothing bars
application of the res ipsa loquitur theory to strict
liability." Jenkins v. Whittaker, Corp.,
785 F.2d 720, 733
(9th Cir. 1986).
The majority of jurisdictions that have addressed the issue
do not allow res ipsa loquitur to be used in a strict products
liability cause of action. Jonathan M. Hoffman, Res Ipsa
Loquitur and Indeterminate Product Defects: If They Speak for
Themselves, What Are They Saying?,
36 S. Tex. L. Rev. 353, 373
(1995). See generally Whitted v. General Motors, Corp.,
58 F.3d 1200, 1208 (7th Cir. 1995) (applying Indiana law held that res
ipsa loquitur charge may not be given, but circumstantial
evidence may be used to prove a product defect); Welge v.
Planters Lifesavers Co.,
17 F.3d 209, 211 (7th Cir. 1994)
(applying Illinois law declared that res ipsa loquitur is not
applicable to products liability cases); Brooks v. Colonial
Chevrolet-Buick, Inc.,
579 So.2d 1328, 1333 (Ala. 1991)
(stating "res ipsa loquitur is not applicable in products
liability cases"); Tresham v. Ford Motor Co.,
275 Cal. App.2d 403, 407 (Cal. Ct. App. 1969) (stating "an instruction embodying
the doctrine of res ipsa loquitur in strict liability cases is
not legally supportable"); Ford Motor Co. v. Reed,
689 N.E.2d 751, 754 (Ind. Ct. App. 1997) (stating "products liability and
the doctrine of res ipsa loquitur are antithetical"); Brothers
v. General Motor Corp.,
658 P.2d 1108, 1110 (Mont. 1983)
(stating res ipsa is applied to human conduct, not defective
products); Fulton v. Pfizer Hosp. Products Group, Inc.,
872 S.W.2d 908, 912 (Tenn. Ct. App. 1994) (holding that doctrine
"has application only to the law of negligence and does not
apply in a products liability case").
We agree with the majority of jurisdictions that,
ordinarily, the traditional res ipsa loquitur jury charge should
not be used in strict products liability actions. As noted
previously, res ipsa loquitur is a negligence doctrine; it is a
circumstantial means of proving a defendant's lack of due care.
Tierney, supra, 214 N.J. Super. at 30. Strict liability, on the
other hand, is a theory of liability based on allocating
responsibility regardless of a defendant's unreasonableness,
negligence or fault. Waterson, supra, 111 N.J. at 238. Thus,
while res ipsa might demonstrate a manufacturer's negligence in
failing to inspect or appropriately assemble a particular
product, strict liability merely questions whether there is a
defect in that product that existed before it left the
manufacturer's control. See Feldman, supra, 97 N.J. at 449.
Furthermore, a strict products liability case by its nature
implies that the product will have left the control of the
manufacturer. See Hoffman, supra,
36 S. Tex. L. Rev. at 360.
We reaffirm the Court's holding in the Anderson-type cases in
which collective res ipsa loquitur is applied and the burden of
persuasion is shifted to the defendants.
Even if we were to hold that the doctrine should be applied
to a commonplace products liability case involving a single
defendant, the trial court properly refused to give the jury a
res ipsa loquitur charge in the present case. The chair had
been in use for about five weeks. It was used twenty-four hours
a day by at least three different persons of various weights and
sizes. Although there was no evidence of misuse, multiple
intended users had many opportunities to adjust the tension on
the back of the chair to meet their personal needs. It cannot
be said that simply because the back of the chair collapsed when
plaintiff placed his weight against it, the chair was defective.
The accident could not be replicated and no defect was found by
any expert. The proofs--direct, circumstantial, and that
negating of other causes--simply failed to show that collapse of
the chair while the 325-pound plaintiff sat in it meant the
chair was defective based on a balancing of the probabilities.
See Lynch v. Galler Seven-Up Pre-Mix Corp.,
74 N.J. 146, 153
(1977) (holding that soda canister that was set-up for use for
about two weeks before it exploded precluded res ipsa loquitur
charge because of frequent handling by third persons).
We recognize that as an alternative to a traditional res
ipsa loquitur instruction, various states and commentators have
advocated an intermediate-type approach for circumstantially
proving the existence of a product defect. That approach
appears to best serve the interest of all parties and is not
inconsistent with the Act.
The Scanlon rule regarding circumstantial proof of a defect
in a strict products liability case was adopted recently in the
Restatement (Third) of Torts: Products Liability. It provides :
It may be inferred that the harm sustained
by the plaintiff was caused by a product
defect existing at the time of sale or
distribution, without proof of a specific
defect, when the incident that harmed the
plaintiff:
(a) was of a kind that ordinarily occurs as
a result of a product defect; and
(b) was not, in the particular case, solely
the result of causes other than product
defect existing at the time of sale or
distribution.
[Restatement (Third) of Torts § 3 (1997).]
The Restatement test for circumstantial evidence of a product
defect is similar to res ipsa loquitur in that it is an
inferential test. Our Model Jury Charge on res ipsa loquitur
instructs the jury:
[I]f you find by the greater weight of the
evidence that at the time of the incident
(1) the defendant had exclusive control of
the instrumentality causing the occurrence,
(2) that the circumstances were such that in
the ordinary course of events the incident
would not have occurred if the defendant had
exercised reasonable care and (3)
plaintiff's voluntary act or negligence did
not contribute to the occurrence, then you
may infer that the defendant was negligent.
[Model Jury Charge (Civil) § 5.13.]
Although Section 3 of the Restatement is based on a res
ipsa model, it permits the jury to draw two inferences: that the
harmful incident was caused by a product defect, and that the
defect was present when the product left the manufacturer's
control. The res ipsa loquitur doctrine, on the other hand,
creates the single inference of negligence. Nevertheless,
Section 3 of the Restatement parallels the elements of our res
ipsa loquitur doctrine. As noted previously, the requirements
that the product was in the defendant's exclusive control at the
time of the harmful incident under res ipsa loquitur, and that
the defect occurred before the product left the control of the
manufacturer, can be satisfied through direct and circumstantial
evidence as well as by evidence negating other causes for the
failure of the product for which the defendant would not be
responsible. Moreover, even those jurisdictions that find that
res ipsa is not specifically applicable to a strict products
liability action have recognized that the inferences and
principles that form the core of res ipsa "merely instantiates
the broader principle, which is as applicable to a products case
as to any other tort case, that an accident can itself be
evidence of liability [,] . . . if it is reasonably plain that
the defect was not introduced after the product was sold."
Welge, supra, 17 F.
3d at 211; Williams v. Smart Chevrolet Co.,
730 S.W.2d 479, 482 (Ark. 1987); Lang v. Federated Dep't
Stores.,
287 S.E.2d 729, 731 (Ga. Ct. App. 1982). We agree with
that analysis.
Section 3 of the Restatement has been referred to as the
"indeterminate product test" because its use is limited to those
product liability cases in which the plaintiff cannot prove a
specific defect. Hoffman, supra,
36 S. Tex. L. Rev. at 356. A
plaintiff can satisfy the requirements of Section 3 of the
Restatement the same way as in the case of res ipsa loquitur, by
direct and circumstantial evidence as well as evidence that
negates causes other than product defect.
Other jurisdictions have adopted similar circumstantial
methods for establishing an inference of a product defect in
strict products liability cases. We agree with those states
that in some cases, “common experience indicates that certain
accidents do not occur absent some defect,” and therefore an
inference of a defect under specific circumstances should be
permitted. Matthew R. Johnson, Note, Rolling the "Barrel" a
Little Further: Allowing Res Ipsa Loquitur to Assist in Proving
Strict Liability in Tort Manufacturing Defects, 38 Wm. & Mary L.
Rev. 1197, 1225 (1997). See also Williams v. Smart Chevrolet
Co.,
730 S.W.2d 479, 482 (Ark. 1987) (stating that "[t]he
plaintiff is not required to prove a specific defect when common
experience tells us that the accident would not have occurred in
the absence of a defect"); Embs v. Pepsi-Cola Bottling Co.,
528 S.W.2d 703, 706 (Ky. 1975) (quoting Henry David Thoreau, the
court states that "'[s]ome circumstantial evidence is very
strong, as when you find a trout in the milk'"); Crump v.
MacNaught P.T.Y. Ltd.,
743 S.W.2d 532, 535 (Mo. Ct. App. 1987)
(finding that common sense suggests handles do not usually fly
off pumps); Bombardi v. Pochel's Appliance & TV Co.,
518 P.2d 202, 204 (Wash. Ct. App. 1975) (implying that common sense would
lead jury to conclude that television set was defective because
it caught on fire). Fifteen other states have adopted the
principles incorporated into Section 3 of the Restatement. See
Reporters' Notes to Section 3, at 115-18. We also adopt the
indeterminate product defect test announced in Section 3 of the
Restatement.
Our decision to adopt Section 3 of the Restatement is
compelled by the decisional law in this State. Alloway v.
General Marine Indus.,
149 N.J. 620 (1997); Lehmann v. Toys 'R'
Us, Inc.,
132 N.J. 587 (1993). Indeed, this Court in Corbin
acknowledged that a res ipsa-like jury charge that permitted a
jury to infer a defect in a carton was appropriate given the
circumstantial evidence presented. Corbin, supra, 60 N.J. at
436. For nearly a century before the Act became effective, the
evolving common law of this State established a policy of
creating evidentiary rules that permit an injured plaintiff to
circumstantially prove the existence of negligence when certain
specific conditions could be satisfied. By the time Section 3
of the Restatement was approved, res ipsa loquitur had evolved
to the point in New Jersey that even if the instrumentality
causing the harm had left the control of the defendant prior to
the accident, the doctrine could still be invoked if the
appropriate evidence was presented. That evidentiary rule then
shifted to the defendant the obligation to explain the causative
circumstances of the defendant's superior knowledge.
Because the historical antecedent to Section 3 of the
Restatement is traceable to the negligence doctrine of res ipsa
loquitur, the American Law Institute was mindful of the parallel
between drawing an inference of negligence in an appropriate
case and drawing an inference of product defect under similar
circumstances when it approved Section 3 of the Restatement.
That section was adopted to "set forth the formal requisites for
drawing an inference" in some product defect cases. Restatement
§ 3, comment a.
Consequently, Section 3 of the Restatement in a products
liability case does precisely what res ipsa loquitur does in a
negligence context. We are persuaded, therefore, that our
adoption of Section 3 of the Restatement is consistent with the
policy that drives res ipsa. Like our traditional res ipsa
loquitur charge, there is no shifting of the burden of proof
under a jury charge based on Section 3 of the Restatement.
Our independent review of the record, including a
consideration of the jury charge as a whole, State v. Wilberly,
63 N.J. 420, 422 (1973); State v. Kamienski,
254 N.J. Super. 75,
85, 98 (App. Div.), certif. denied,
130 N.J. 18 (1992),
convinces us that the trial court adequately informed the jury
that it could rely on circumstantial evidence to "infer that
there was a defect by reasoning from circumstances and the facts
shown." Hence, plaintiff was not prejudiced by the absence of a
res ipsa loquitur jury charge even if one had been required.
Moreover, the circumstantial evidence charge that was given was
equivalent to the indeterminate product test charge under
Section 3 of the Restatement.
Finally, we must decide whether our reversal of the
Appellate Division's requirement of a res ipsa loquitur charge
nonetheless requires a new trial on the products liability
claim.
One of the reasons the Appellate Division reversed the
judgment in favor of PATH was because the trial court excluded
opinion testimony from Stan Johnson, Girsberger's plant manager.
302 N.J. Super. at 9-10. PATH's proffer of evidence from
Johnson revealed that he would testify concerning what would
have had to be broken on the chair if plaintiff's version of the
accident was credible. The Appellate Division concluded that
because of Johnson's familiarity with the manufacturing process,
he "could have revealed Girsberger's standards, that is, the
manufactured capability of the chair. PATH was prejudiced by
the exclusion of this evidence . . . , and plaintiff was
prejudiced because its exclusion prevented him from proving a
manufacturing defect." Id. at 10. In addition, the Appellate
Division inferred that the trial court improperly excluded as
hearsay Johnson's proffer of the results of testing the load
capacity of the chair's seat and back without exploring whether
that evidence was admissible as an exception to the hearsay
exclusion rule, possibly pursuant to N.J.R.E. 803(c)(6) and
N.J.R.E. 808. The Appellate Division also observed that "[b]y
requiring proof of a deviation from the manufacturer's
standards, after the proffered evidence thereof had been
excluded, the jury could not fairly evaluate the claim of
manufacturing defect." 302 N.J. Super. at 13.
In view of the Appellate Division's analysis, it is
apparent that vacating the judgment in favor of Girsberger was
not based solely on the trial court's failure to charge the jury
regarding res ipsa loquitur. Rather, the reversal was based on
both the absence of a res ipsa loquitur charge and the exclusion
of evidence vital to plaintiff's ability to establish a
manufacturing defect. Consequently, a new trial is required on
plaintiff's strict products liability claims as well.
Because we have adopted Section 3 of the Restatement, upon
retrial, plaintiff need not prove a specific defect in the chair
if he can establish that the incident that harmed him is of the
kind that ordinarily occurs as a result of a product defect, and
that the incident was not solely the result of causes other than
product defect existing at the time the chair left Girsberger's
control. Restatement (Third) of Torts § 3(a) and (b). If
plaintiff cannot satisfy those requirements, he is not entitled
to have the jury charged regarding an inference of a product
defect, and plaintiff would be obligated to establish one or
more manufacturing defects required by the Act, N.J.S.A. 2A:58C-2a.
That part of the Appellate Division's judgment requiring a
res ipsa loquitur charge on the manufacturing defect claim is
reversed. The matter is remanded to the Law Division for
further proceedings as otherwise directed by the Appellate
Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-130 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JOHN MYRLAK,
Plaintiff-Respondent,
v.
PORT AUTHORITY OF NEW YORK
AND NEW JERSEY, et al.,
Defendants-Respondents,
and
GIRSBERGER INDUSTRIES, INC.,
Defendant-Appellant,
and
JOHN DOE 1-5, et al.,
Defendants.
DECIDED February 8, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY