(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).
JOHN J. ROBERTS, ET AL V. RICH FOODS, INC., ET AL (A-68-94)
Argued November 29, 1994 -- Decided March 21, 1995
GARIBALDI, J., writing for a unanimous Court.
The matter before the Court concerns the interpretation of the phrase "without impairing the
usefulness of the product" as used in section 3a(2) of the New Jersey Products Liability Act of 1987 (the
Act). Section 3a(2) of the Act provides an absolute, affirmative defense for defendants in product-liability
action that alleges design defect, if "the harm was caused by an unsafe aspect of the product that is an
inherent characteristic of the product and that would be recognized by the ordinary person who uses or
consumes the product." There are two exceptions to section 3a(2) that preclude the use of the defense: when
(1) the product is industrial machinery or other equipment that is used in the workplace; and when (2) the
danger "can feasibly be eliminated without impairing the usefulness of the product."
On August 27, 1987, a tractor-trailer owned by Rich Foods, Inc., and operated by William Lovette
struck a car driven by Anita Roberts (Roberts). Roberts was rendered a paraplegic. Roberts' husband,
John, and their minor children were also injured. Following the accident, Lovette told police that, as he had
entered a construction area with a posted speed limit of 45 miles per hour, he had been driving at 60 to 65
miles per hour and entering data in an "X-300" on-board computer manufactured by Cadec Systems, Inc.
(Cadec).
In September 1987, John Roberts, individually and on behalf of his minor children, filed a complaint
charging Rich Foods, Lovette and his wife with negligence in causing the accident. In February 1988,
Roberts filed a cross-claim against Rich Foods and Lovette, and a third-party complaint against five other
parties involved in the accident. On August 25, 1989, both John Roberts and Anita Roberts amended their
pleadings to allege a products-liability action against Cadec for defectively designing, manufacturing, and
labeling the computer. The members of the Roberts family eventually settled with Rich Foods and Lovette.
The sole issue at trial was whether Cadec defectively designed the X-300 computer by enabling it to
be operated while a truck is in motion, thereby increasing the risk that the driver's attention will be diverted
from the road. Trucking companies are required to pay taxes based on fuel and road usage (mileage) in
each state. The X-300's purpose is to provide a computerized record of that road-usage information for tax-reporting requirements. There was testimony at trial that the state/toll-road function of the computer is
operable while the vehicle is moving so that, when crossing state lines or entering or exiting toll roads, a
driver can record data with greater precision. The computer automatically records the odometer reading,
time, and date when the driver presses the appropriate button that is similar to the button depression on a
car radio. There was also testimony that it was technologically and economically feasible to make the X-300
operable only when a truck is stationary and that the reason the computer is operable while the vehicle is in
motion is for the convenience of the driver.
The trial court charged the jury that Roberts had the burden of proving that the computer was
defective because it was not reasonably safe for its intended or reasonably foreseeable use. To meet that
burden, Roberts had to prove that the computer's risks outweighed its utility. The trial court instructed the
jury to use the risk/utility analysis for the purpose of determining whether the Cadec computer was
defectively designed. The court also charged the jury on the section 3a(2) defense, but not on that section's
two statutory exceptions.
At the conclusion of trial, the jury found that the computer was not defective and returned a verdict
of no cause of action. Roberts appealed, claiming that the charge on the section 3a(2) defense was
reversible error because the two exceptions made the defense unavailable to Cadec. The Appellate Division
reversed and remanded for a new trial, finding that the trial judge should have instructed the jury on the
risk/utility analysis but not on the section 3a(2) defense because: the dangers posed by the computer feasibly
could have been eliminated without impairing the usefulness of the product; driver convenience was
insufficient to justify the unsafe character of the product; and the defense of section 3a(2) was unavailable
because the second statutory exception applied.
The Supreme Court granted Cadec's petition for certification.
HELD: To preclude the defendant's use of the 3a(2) defense, the plaintiff bears the burden of proving that
the danger feasibly could have been eliminated without impairing the product's usefulness. A
plaintiff seeking to establish this second exception to the 3a(2) defense must prove that the
defendant could have eliminated the danger without eliminating an inherent characteristic of the
product, and thereby significantly diminishing the product's intended use.
1. In interpreting section 3a(2), the Court is mindful of the legislative policy limiting the liability of
manufacturers in order to balance the interests of the public and the individual with a view toward economic
reality. Under common law, the components of the 3a(2) defense were part of the risk/utility analysis, and it
was the plaintiff's burden to prove that the risk outweighed utility. That burden remains the same under
section 3a(2). (pp. 8-14)
2. The Act provides the defendant with a defense that did not exist under common law. Under the
Act, a product that satisfies the 3a(2) standard is, by statutory definition, not defectively designed. Because
this is an affirmative defense, it is the defendant who has the burden of proof. However, case law and
legislative history are silent on whose burden it is to prove the second exception to section 3a(2) that the
danger feasibly could have been eliminated without impairing the usefulness of the product. Placing that
burden of proof on the plaintiff conforms to both the plain language of the statute and the legislative intent.
(pp. 14-16)
3. The legislative history of the Act suggests that "without impairing the usefulness" implicates the
product's inherent characteristics and intended use. Dangers that are inherent cannot be eliminated without
impairing usefulness; an inherent danger arises from an aspect of the product that is indispensable to its
intended use. Further, "impairing the usefulness of the product" means significantly diminishing its intended
use. Thus, even when it is economically feasible to eliminate the danger, section 3a(2) still provides a
defense if eliminating the danger would require eliminating an inherent characteristic. Of course, an
inherent characteristic is one that is an essential characteristic. (pp. 16-20)
4. Although it is technologically and economically feasible to redesign the computer, it is not clear that
that can be done without impairing the product's usefulness. Thus, the jury must decide whether operability
of all functions of the computer while in motion is an inherent characteristic of the X-300, and whether
eliminating that feature in whole or in part would significantly diminish its intended use. Here, the trial
court failed to properly charge the jury in respect of the exception to the 3a(2) defense. Whether Cadec,
without impairing the usefulness of the computer, could have eliminated the dangers posed by the X-300's
being operable while in motion is a question of fact that a jury properly charged should decide. (pp. 20-22)
As MODIFIED, the judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN and STEIN join in
JUSTICE GARIBALDI's opinion. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
68 September Term 1994
JOHN J. ROBERTS, both as an
individual and as guardian ad
litem for the minor Plaintiffs
JAMES A. ROBERTS and SHERRY A.
ROBERTS,
Plaintiffs,
v.
RICH FOODS, INC., a foreign
corporations, WILLIAM LOVETTE,
and ANITA I. ROBERTS,
Defendants,
and
ANITA I. ROBERTS,
Defendant and Third-Party
Plaintiff-Respondent,
v.
CADEC SYSTEMS, INC., a foreign
corporation,
Defendant and Third-Party
Defendant-Appellant,
and
THE ESTATE OF ORLANDO SOLER,
THE ESTATE OF MARILYN MENKES,
STONE AND WEBSTER ENGINEERING
CORPORATION, a Massachusetts
corporation authorized to do
business in the State of New
Jersey, CONDUIT AND FOUNDATION
corporation, a Pennsylvania
corporation authorized to do
business in the State of New
Jersey, FLEET SAFETY, a Virginia
corporation, NEW JERSEY TURNPIKE
AUTHORITY, and JOHN DOE l-l50,
i/j/s/a,
Third-Party Defendants.
Argued November 29, 1994 -- Decided March 21, 1995
On certification to the Superior Court,
Appellate Division.
Penny A. Bennett argued the cause for
appellant (Smith, Stratton, Wise, Heber &
Brennan, attorneys; Peter R. Freed, of
counsel; Mr. Freed and Grayson Barber, on the
brief).
Benjamin Goldstein argued the cause for
respondent (Maressa, Goldstein, Birsner,
Patterson, Drinkwater & Oddo, attorneys).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal concerns the interpretation of the phrase "without impairing the usefulness of the product" as used in section 3a(2) of the New Jersey Products Liability Act of 1987 (the Act), N.J.S.A. 2A:58C-1 to -7. Section 3a(2) of the Act provides an absolute, affirmative defense for defendants in suits for design defect, if "the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary person who uses or consumes the product." Section 3a(2) also provides two exceptions that preclude use of the defense: when the product is "industrial machinery or other equipment [that] is used in the workplace"; and when the danger "can feasibly be eliminated
without impairing the usefulness of the product." Only the
second exception is before us.
In September 1987, John Roberts, individually and as guardian ad litem for his two children, filed a complaint charging Rich Foods, Lovette, and his wife with negligence for causing the accident. In February 1988, Anita Roberts filed a cross-claim against Rich Foods and Lovette, and a third-party complaint against five additional parties involved in the accident. On August 25, 1989, plaintiffs and third-party plaintiff amended their pleadings to commence a product-liability action against Cadec for defectively designing, manufacturing, and labeling the computer. After a complicated series of claims
and cross-claims among the many parties involved, the members of
the Roberts family settled with Rich Foods and Lovette. All
parties agreed that Lovette had been negligent; that Rich Foods,
as his employer, was responsible; and that Lovette's negligence
was a proximate cause of the accident.
The sole issue at trial was whether Cadec defectively
designed the X-300 by allowing it to operate while a truck is in
motion, which raises the risk that the driver's attention will be
diverted from the road. The X-300 is Cadec's top of the line on-board computer. At issue is its "state/toll-road" function.
Trucking companies are required to pay taxes based on fuel and
road usage (mileage) in each state. The X-300's purpose is to
provide a computerized record of that road-usage information for
tax-reporting purposes.
At trial, Ernest J. Simmons., Jr., Cadec's former Chairman,
President, Chief Executive Officer, and Treasurer, who was
extensively involved in the designing of the X-300, testified
that
[t]he state/toll road feature is a button . .
. on the panel . . . and upon depression of
that button the on-board computer
automatically records the odometer, the time
. . . and the day. . . [T]hat recording
together with information that is
subsequently entered by the driver at some
time thereafter, not necessarily coincident
with the depression of the button, but at
some time when it's safe to do so, that
information is ultimately turned into a
dispatch . . . and processed on a central
computer . . . . [The purpose of that
information is] to gather road usage, or to
gather data for tax reporting purposes . . .
[relating to] road use taxes for various
states.
Simmons explained that the state/toll-road function is operable
while a vehicle is in motion so that, when crossing state lines
or entering or exiting toll roads, a driver can record data with
greater precision.
At trial, the Robertses' counsel also read into evidence the
deposition of Steven Frye, a Cadec program analyst. Frye, like
Simmons, explained the purpose and operation of the state/toll-road feature. He noted that the entire data-recording procedure
takes over ten seconds. If it is unsafe to enter information
while in motion, the driver can do so at a later time, when the
truck is stationary.
Cadec's Driver's Guide describes the initial entry of data
using the state/toll-function as the one entry that automatically
records the odometer reading, time, and date when the driver
presses a button on the computer. The Guide gives the following
instructions:
1. Press the state/toll button to record the
crossing of a state line, and when you enter
or leave a toll road. The unit records the
date, time and odometer reading when the
button is pressed. Record the following
information when it is safe to do so.
In a letter dated October 5, 1987, to the National Transportation Safety Board, the President of Cadec wrote that "a single button depression, similar to the button depression that changes a radio station on a car radio, determines the information that is
displayed." The other entries can be recorded at a later time,
"when it is safe to do so."
Cadec's Driver's Guide, however, does not indicate when it
would be safe to record those other entries. According to Frye,
Cadec expected each driver to exercise discretion about when it
is safe to enter data. Frye admitted that it was technologically
and economically feasible to make the X-300 operable only when a
truck is stationary. According to Frye, Cadec's reason for
making the computer operable while in motion was convenience to
the driver in being able to enter data while driving away from a
toll booth.
At the close of evidence, the Robertses moved for a directed
verdict on the grounds that Cadec conceded that it could have
designed the X-300 more safely by requiring the truck to be
stationary when the driver enters information. The trial court
denied the motion, finding that, because such a change would
diminish the usefulness of the X-300, it would implicate the
risk/utility analysis of the computer.
The trial court charged the jury that it was plaintiffs'
burden to prove that the computer was defective because it was
not reasonably safe for its intended or reasonably foreseeable
use. To meet that burden, plaintiffs would have to prove that
the computer's risks outweighed its utility. The trial court
then instructed the jury to employ a risk/utility analysis for
the purposes of determining whether the Cadec computer was
defectively designed. Over the Robertses' objection, the court
went on to instruct the jury on the section 3a(2) defense, but
not on that section's two statutory exceptions.
The jury found that the computer was not defective and
returned a verdict of no cause of action. The trial court then
denied the Robertses' motion for a new trial or, in the
alternative, for a judgment n.o.v. Only Anita Roberts appealed,
claiming that the charge on the section 3a(2) defense was
reversible error because the two exceptions -- workplace
equipment and feasible elimination of the danger without
impairing usefulness -- made the defense unavailable to Cadec.
In an unpublished opinion, the Appellate Division reversed
and remanded for a new trial. Because Cadec "acknowledged that
it was technologically and economically feasible to have designed
the computer to require the truck to be stationary in order to
operate the computer," the Appellate Division held that "[t]he
judge should not have charged this statute because it was
undisputed that the dangers posed by this computer could have
'feasibly be[en] eliminated without impairing the usefulness of
the product.'" (quoting N.J.S.A. 2A:58C-3a(2)).
The Appellate Division found "driver convenience" and
"greater precision in recording" insufficient to justify the
unsafe character of the X-300. The court held that, because the
second statutory exception of section 3a(2) applied, the section
3a(2) defense was not available to Cadec. Therefore, the
Appellate Division concluded that the trial court should have
given an instruction on only risk/utility analysis, and not on
the section 3a(2) defense. The Appellate Division remanded the
case for a new trial on Roberts's third-party complaint against
Cadec.
We granted Cadec's petition for certification, ___ N.J. ___
(1994).
Hence, we approach our interpretation of section 3a(2) mindful of the Legislature's policy to limit the liability of manufacturers so as to "`balance[] the interests of the public and the individual with a view towards economic reality.'" Shackil v. Lederle Labs., 116 N.J. 155, 188 (1989) (quoting Shackil v. Lederle Labs., 219 N.J. Super. 601, 643 (1987) (Shebell, J.A.D., dissenting), rev'd, 116 N.J. 155 (1989)). See also DePrimo v. Lehn & Fink Prods. Co., 223 N.J. Super. 265, 273 (Law Div. 1987) (finding that in interpreting the Act, court
should as "matter of sound judicial policy, . . . apply this
conservative legislative policy"). The Legislature
limit[ed] the expansion of products-liability
law by creating absolute defenses and
rebuttable presumptions of nonliability. See
N.J.S.A. 2A:58C-3(a)(1) (adopting "state of
the art" as complete defense in design defect
claims); N.J.S.A. 2A:58C-3(a)(2) (providing
that a product is not defectively designed if
inherent characteristics of the product are
known to ordinary person who uses it or
consumes it with knowledge common to the
class of persons for whom product was
intended); N.J.S.A. 2A:58C-3(a)(3) (adopting
comment k of the Restatement (Second) of
Torts, which provides that a manufacturer or
seller is not liable for a design defect if
harm results from unavoidably unsafe aspect
and product is accompanied by proper
warning); N.J.S.A. 2A:58C-4 (establishing
presumption of adequate warning if warning
approved or prescribed by FDA).
The Legislature passed the Act as "remedial legislation to establish clear rules [in] . . . actions for damages for harm caused by products, including certain principles under which liability is imposed." N.J.S.A. 2A:58C-l. The law does not "codify all issues relating to product liability"; rather, the Legislature intended it to address "matters that require clarification." Ibid.
The Act left intact "the three theories under which a manufacturer or seller may be held strictly liable for harm caused by a product -- defective manufacture, defective design, and defective warnings." Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 94-95 (1990). See N.J.S.A. 2A:58C-2. The Act also provides that a claimant must "prove[] by a preponderance of the
evidence that the product causing the harm was not reasonably
fit, suitable or safe for its intended purpose." N.J.S.A.
2A:58C-2. Except as modified by sections 3 and 4 of the Act,
the elements of the causes of action brought for such product
claims "are to be determined according to the existing common law
of the State." Senate Judiciary Comm., Statement to Senate Bill
No. 2805 (July 22, 1987), reprinted in note following section 1
(hereinafter "Senate Judiciary Committee Statement").
In attempting to limit a manufacturer's liability, the
Legislature, via the Act, strengthened rather than weakened the
state-of-the-art defense. William A. Dreier, Analysis: 1987
Products Liability Act,
41 Rutgers L.R. 1279, 1298 (1989). We
note, however, that section 3b recognizes an exception to the
3a(1) state-of-the-art defense that is not applicable to this
case. The section 3b exception applies to certain egregiously
unsafe or ultrahazardous products that have hidden risks or could
seriously injure third persons, and have little or no usefulness.
State-of-the-art evidence is not a defense to liability for
injury caused by such products. However, "[i]t is intended that
such a finding would be made only in genuinely extraordinary
cases -- for example, in the case of a deadly toy marketed for
use by young children, or of a product marketed for use in
dangerous criminal activities." Senate Judiciary Committee
Statement. What is clear is that "section 3(a)(1) now
establishes a defense, subject only to the limited exceptions in
section 3(b)." Dreier, supra, 41 Rutgers L.R. at 1298.
Section 3a(2) provides
a. In any product liability action against a manufacturer or seller for harm allegedly caused by a product that was designed in a defective manner, the manufacturer or seller shall not be liable if:
. . . .
(2) The characteristics of the product are
known to the ordinary consumer or user, and
the harm was caused by an unsafe aspect of
the product that is an inherent
characteristic of the product and that would
be recognized by the ordinary person who uses
or consumes the product with the ordinary
knowledge common to the class of persons for
whom the product is intended, except that
this paragraph shall not apply to industrial
machinery or other equipment used in the
workplace and it is not intended to apply to
dangers posed by products such as machinery
or equipment that can feasibly be eliminated
without impairing the usefulness of the
product . . . .
In construing a statute we first look at its plain language.
Merin, supra, 126 N.J. at 434. The Senate Judiciary Committee
Statement notes that section 3a(2) adopts the "consumer
expectations" test that we recognized in O'Brien v. Muskin Corp.,
94 N.J. 169 (1983) and Suter v. San Angelo Foundry & Machine Co.,
81 N.J. 150 (1979). However, examining the language of section
3a(2), we recognized in Dewey, supra, that the test is really a
"'hybrid' provision [that] combines the 'consumer expectations'
doctrine for determining whether a product is defective with the
obvious-danger factor of the risk-utility analysis to create a
defense to a design-defect claim." 121 N.J. at 96 (citations
omitted).
Under pre-Act New Jersey case law, the risk/utility analysis
determined whether or not a product was defectively designed -
that is, whether its design was fit for its intended purpose. In
Cepeda v. Cumberland Engineering Co.,
76 N.J. 152 (1978),
overruled in part by Suter, supra,
81 N.J. 150, we listed the
factors of that analysis:
(1) The usefulness and desirability of
the product -- its utility to the user and to
the public as a whole.
(2) The safety aspects of the product -
the likelihood that it will cause injury, and
the probable seriousness of the injury.
(3) The availability of a substitute
product which would meet the same need and
not be as unsafe.
(4) The manufacturer's ability to
eliminate the unsafe character of the product
without impairing its usefulness or making it
too expensive to maintain its utility.
(5) The user's ability to avoid danger
by the exercise of care in the use of the
product.
(6) The user's anticipated awareness of
the dangers inherent in the product and their
avoidability, because of general public
knowledge of the obvious condition of the
product, or of the existence of suitable
warnings or instructions.
(7) The feasibility, on the part of the
manufacturer, of spreading the loss by
setting the price of the product or carrying
liability insurance.
[Id. at 174 (quoting John W. Wade,
On the Nature of Strict Tort
Liability For Products,
44 Miss.
L.J. 825, 837-38 (1973).]
Under O'Brien, supra, a product was defective, and unfit for its
intended purpose, if its risks outweighed its utility: "In a
design-defect case, the plaintiff bears the burden of both going
forward with the evidence and of persuasion that the product
contained a defect. To establish a prima facie case, the
plaintiff should adduce sufficient evidence on the risk-utility
factors to establish a defect." 94 N.J. at 185.
The Act, however,
converted into absolute affirmative defenses
what had been under the common law merely
factors in the overall risk/utility analysis.
Dewey v. R.J. Reynolds, 121 N.J. at 96.
Specifically, it created as absolute defenses
a state-of-the-art defense, N.J.S.A. 2A:58C-3a(1); an obvious-danger/consumer
expectations defense, N.J.S.A. 2A:58C-3a(2);
and an unavoidably unsafe defense, N.J.S.A.
2A:58C-3a(3).
[Fabian v. Minster Mach. Co.,
258 N.J. Super. 261, 271 (App. Div.),
certif. denied, 130 N.J. 598
(1992).]
By converting some factors of the risk/utility equation into
absolute defenses, the Act "drastically changed the method of
analyzing products-liability cases." Dewey, supra, 121 N.J. at
96. Indeed, because "under [the Act], the consumer-expectations
test cannot be avoided," id., some commentators have referred to
it as an element of the plaintiff's case:
[S]ince the Act so clearly provides that the
test under section 3a(2) constitutes an
absolute defense to liability, the net effect
upon a plaintiff (suing on a claim in which
consumer-expectations may be a component)
requires that the section 3a(2) standard be
included within the proof of defect presented
in the affirmative case.
[William A. Dreier et al., Products
Liability and Toxic Tort Law in New
Jersey: A Practitioner's Guide, at
135.1 (6th ed. 1988 & Supp. 1990)
(emphasis added).]
Such an interpretation of 3a(2) accords with the fact that, under
common law, the components of the 3a(2) defense were part of the
risk/utility analysis, and it was the plaintiff's burden to prove
that risk outweighed utility. That burden remains on the
plaintiff under section 2.
The Act, however, provides the defendant with a defense that
did not exist under common law. Because consumer expectations
and open-and-obvious danger were merely factors of the
risk/utility test under common law, a plaintiff could still make
out a case of design defect even if the those factors weighed in
favor of the defendant. Under the Act, that is no longer the
case: a product that satisfies the 3a(2) standard is, by
statutory definition, not defectively designed. If the harm
caused by a product "would be recognized by the ordinary person
who uses or consumes the product," and if the harm stems from an
"inherent characteristic of the product," N.J.S.A. 2A:58C-3a(2),
then the harm is not actionable. Because 3a(2) provides a new,
absolute defense, the defendant should bear the burden of proving
the 3a(2) defense by a preponderance of the evidence. "When an
affirmative defense is raised [in a civil case], the defendant
normally has the burden of proving it." Biunno, Current N.J.
Rules of Evidence, comment 2 on Evid. R. 101(b)(1) (1994-95).
However, because 3a(2) is an absolute defense that product-liability defendants will invariably raise, a plaintiff will
rarely be able to go forward without addressing it.
The Act effected the same "conversion" -- from mere factor
to absolute defense -- for the "state-of-the-art" test. N.J.S.A.
2A:58C-3a(l). For example, in reviewing a jury charge, the
Appellate Division held that, "by including the state-of-the-art
element only as an element of the risk/utility analysis, the
court failed to give defendant the benefit of the absolute
statutory affirmative defense available under N.J.S.A. 2A:58C-3a(1)." Fabian, supra, 258 N.J. Super. at 274. The same
analysis applies to the section 3a(2) defense: if the defendant
has proved it, and the plaintiff has not disproved it, the
plaintiff will not recover.
The exceptions, however, provide two circumstances in which
the 3a(2) absolute, affirmative defense is not available to the
defendant: if the product is workplace equipment or if the danger
cannot "feasibly be eliminated without impairing the usefulness
of the product." N.J.S.A. 2A:58C-3a(2). Although case law and
the legislative history are silent on whose ultimate burden it is
to prove that the danger can or cannot feasibly be eliminated
without impairing the usefulness of the product, we hold that the
plaintiff bears that burden of proving that this exception
precludes the defendant's use of the 3a(2) defense.
Placing on the plaintiff the burden of proving that the
danger could feasibly be eliminated without impairing the
product's usefulness conforms to both the plain language of the
statute and legislative intent. The "without impairing the
usefulness" element was a factor of the risk/utility analysis
under common law. Just as section 3a(2) elevates some of those
factors to an absolute defense that the defendant may raise, this
exception to 3a(2) elevates a different factor to an exception
that the plaintiff may raise. That the plaintiff will in most
cases have to prove that the danger could be eliminated without
impairing usefulness makes the plaintiff's task more difficult,
and that was the intent of the Act. Hence, if a plaintiff proves
by a preponderance of the evidence that the defendant could have
eliminated the danger without impairing the usefulness of the
product, then the product might be defectively designed even
though the defendant has proved the 3a(2) defense.
Cadec asserts that removal of the danger posed by an allegedly defective product may impair its usefulness without rendering the product totally useless. Hence, Cadec seeks a standard under which the plaintiff has to prove that the danger can be eliminated without significantly diminishing the usefulness of the product. Under that standard, a plaintiff
could not prevail by showing that the defendant could have
designed a product that was safer, but significantly less useful.
The Act's legislative history suggests that "without
impairing the usefulness" implicates the product's inherent
characteristics and intended use. The Senate Judiciary Committee
Statement refers to dangers "that can feasibly be eliminated
without impairing the usefulness of the product, because such
dangers are not 'inherent.'" (Emphasis added.) Hence, dangers
that are not inherent can be eliminated without impairing
usefulness. Conversely, dangers that are inherent cannot be
eliminated without impairing usefulness. For example, the danger
that a carving knife will cut the user cannot be eliminated
because an exposed, sharp blade is an inherent characteristic of
a carving knife, and essential to its intended use. A plaintiff
could not establish the second exception to 3a(2) by proving that
a dull knife would be safer. However, in the case of a lawn
mower, the danger of being cut by sharp, exposed blades during
use is not inherent: the manufacturer can include a cover that
extends to the ground, so that the machine still cuts grass (its
intended use) but does not pose nearly so great a threat of
injury during operation. Thus, an inherent danger arises from an
aspect of the product that is indispensable to its intended use.
The danger of exposed, sharp blades is indispensable to knives,
but not to lawn mowers.
Although no New Jersey cases have addressed the meaning of
the phrase "without impairing the usefulness," a federal district
court has predicted how this Court would eventually interpret the
phrase. In McWilliams v. Yamaha Motor Corp., USA,
780 F. Supp. 251 (D.N.J. 1991), modified,
987 F.2d 200 (3d Cir. 1993), the
plaintiff, whose legs had been injured in a motorcycle accident,
claimed that the section 3a(2) defense was not available to the
defendant motorcycle manufacturer because the defendant could
feasibly have eliminated the danger of leg injury by adding crash
bars. Id. at 253-54. Applying the Act, the district court held
leg injuries to be an open and obvious danger of motorcycle
riding that is inherent in the intended use of motorcycles and
that, therefore, cannot feasibly be eliminated:
In all likelihood, the New Jersey
Supreme Court will rule that a motorcycle, a
vehicle specifically designed as an open-air,
easily maneuverable, light-weight vehicle,
contains an open and obvious risk of lower-leg injury.
. . . [The plaintiff] would now have the
court characterize the intended use of
motorcycles as simply a means of
transportation. Such a characterization,
however, fails to consider the intended
differences between a truck or an automobile
and a motorcycle . . . . To require a
manufacturer to eliminate all the dangers
associated with motorcycle accidents would
require a manufacturer to deprive the
motorcycle of its intended use and turn the
motorcycle into an enclosed vehicle. The
risk associated with being in an accident
while operating a motorcycle is just as open
and obvious as the risk associated with using
a knife which could slip and cut a finger.
fact as to whether the addition of crash bars would have
eliminated the risk of lower leg injury . . . without impairing
the usefulness" of the motorcycle. McWilliams, supra, 987 F.
2d
at 206. However, the Court of Appeals focused on whether adding
crash bars would eliminate the danger, not on whether adding
crash bars would impair the usefulness of the motorcycle. Id. at
205-06. For that reason, the opinion of the Court of Appeals is
not directly on point.
Taking our lead from the legislative history's stress on the
word "inherent," we hold that "impairing the usefulness of the
product" means significantly diminishing its intended use. Even
where it is economically and technologically feasible to
eliminate the danger, section 3a(2) still provides a defense if
eliminating the danger would require eliminating an inherent
characteristic.
Thus, a plaintiff seeking to establish the second exception
to the 3a(2) defense must prove that the defendant could have
eliminated the danger without eliminating an inherent
characteristic of the product, and thereby significantly
diminishing the product's intended use. We emphasize, however,
that a feature of a product that is desirable but not necessary
is not an inherent characteristic: an inherent characteristic is
an essential characteristic. The elimination of an essential
characteristic might not render the product totally useless, but
it would measurably reduce the product's appropriateness for its
central function. We make one final observation about jury
evaluation of the second exception to the 3a(2) defense: juries
will inevitably weigh the extent to which the elimination of the
inherent danger would impair usefulness against the extent to
which the change would improve a hazardous condition.
Cadec argues that part of the intended use of the X-300 is to accept data entry while in motion. That would mean that operating while in motion is an inherent characteristic of the X-300, and that diverting the driver's eyes from the road is an inherent danger. Although Roberts discounts the reasons that Cadec's witnesses offered for making the computer operable while in motion -- convenience and precision -- Cadec claims that those two characteristics are integral to the X-300.
Cadec admitted that it could have made the X-300 inoperable while in motion, but Roberts and the Appellate Division misapprehended that admission as a concession that Cadec could so
design the computer without impairing its usefulness -- a
concession that the second exception to 3a(2) made the defense
unavailable to Cadec. Even though it is technologically and
economically feasible to redesign the product, it is not clear
that that can be accomplished without impairing the usefulness of
the X-300 -- without, that is, removing one of its inherent
characteristics.
Because the state/toll-road function is operable while in
motion, it poses the danger of diverting the driver's eyes away
from the road. Although Cadec could have eliminated that danger,
the question remains whether Cadec could have done so without
significantly impairing the intended function of the on-board
computer. Hence, a jury must decide whether operability of all
functions while in motion is an inherent characteristic of the X-300, and whether or not eliminating that feature in whole or in
part would significantly diminish its intended use.
The section 3a(2) defense itself applies if full operability
while in motion is an inherent characteristic of the X-300. The
danger of diverting ones eyes from the road is open and obvious
to any driver, and hence "known to the ordinary consumer or
user." The injury was caused (in part) by entering data while in
motion, which may be an "inherent characteristic" of the computer
that is "recognized by the ordinary [driver] who uses . . . the
product with the ordinary knowledge common to" drivers. N.J.S.A.
2A:58C-3a(2). Accordingly, the trial court correctly charged the
risk/utility analysis and the section 3a(2) defense.
However, the trial court also should have charged the
exception to the section 3a(2) defense. We do not agree with the
trial court that the proofs were sufficient as a matter of law to
establish that making the X-300 inoperable in whole or in part
while in motion would so impair the usefulness of the product
that an instruction on the "impairing the usefulness" exception
to the 3a(2) defense was unnecessary. Nor do we agree with the
Appellate Division's conclusion that the record establishes that
Cadec could feasibly have eliminated the dangers that the X-300
poses without impairing its usefulness. Instead, on this record,
we find that whether Cadec could have -- without impairing the
usefulness of the computer -- eliminated the dangers posed by the
X-300's being operable while in motion is a question of fact that
a jury properly charged should decide. For example, Cadec may
prove that the initial, one-touch data entry cannot be made
inoperable while in motion without impairing the usefulness of
the X-300. The record is unclear, however, on whether Lovette
was attempting to make the initial entry or the follow-up entries
as he entered the construction area. Thus, Roberts may prove
that Cadec could, without impairing the usefulness of the
computer, feasibly have made only the ten-second follow-up
procedure inoperable while in motion. All those considerations
are properly for the jury to resolve.
As modified, the judgment of the Appellate Division is
affirmed.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern,
and Stein join in this opinion. Justice Coleman did not
participate.
NO. A-68 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JOHN J. ROBERTS, etc., et al.,
Plaintiffs,
v.
RICH FOODS, INC., etc., et al.,
Defendants,
and
ANITA I. ROBERTS,
Defendant and Third-Party
Plaintiff-Respondent,
v.
CADEC SYSTEMS, INC., etc.,
Defendant and Third-Party
Defendant-Appellant,
and
THE ESTATE OF ORLANDO SOLER, et al.,
Third-Party Defendants.
DECIDED March 21, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY