(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 February 28, 2000 -- Decided May 24, 2000
VERNIERO, J., writing for a unanimous Court.
In this products liability case, the issues on appeal deal with the propriety of the trial court's jury charges in
respect of the state-of-the-art defense and its ruling that comparative negligence could not be used as a defense in
products liability cases involving certain workplace injuries.
Plaintiff, Ronald J. Cavanaugh, suffered injuries, including loss of a toe, after he put down a portable
circular saw, which then traveled about eighteen inches across the floor and ran over his foot. The saw was
manufactured by Skil Corporation. Ultimately, he filed suit against Skil, alleging, among other things, that the saw
was defective in its design.
The matter was tried before a jury over several days. At the close of the evidence, the trial court held a
charge conference. During that conference, counsel for Cavanaugh requested that the court give a state-of-the-art
defense charge. The state-of-the-art defense, which has been codified in N.J.S.A. 2A:58C-3, absolves a product
manufacturer from liability for injuries or damages caused by its product if the manufacturer can establish that at the
time the product left its control, there was not a practical and technically feasible alternative design that would have
prevented the harm without substantially impairing the reasonably anticipated or intended function of the product.
Skil objected to the proposed state-of-the-art defense charge, maintaining that Skil did not wish to assert the defense
and that it had offered no evidence on the defense. Ultimately, the trial court decided to give the charge, finding that
Skil had asserted the defense at least in principle, if not by name. The jury returned a verdict in favor of Cavanaugh
in the amount of $160,000.
Skil appealed on several grounds. In respect of the jury instructions, Skil maintained that it was prejudiced
by the state-of-the-art defense charge because Cavanaugh had argued to the jury that Skil had not met its burden of
proof on the defense after Skil rested without offering any proofs on it. In addition, Skil maintained that the charge
confused the jury on the issue of which party bore the ultimate burden of proof and denied Skil a fair trial. The
Appellate Division affirmed the judgment of the trial court, concluding, among other things, that because Skil had
asserted the defense in principle, the trial judge's decision to charge the jury on the defense was not erroneous.
The Supreme Court granted Skil's petition for certification.
HELD: Although the trial court committed error in charging the jury on the state-of-the-art defense when defendant
had not asserted it, that error did not unfairly prejudice the defendant-manufacturer because the jury correctly
understood that plaintiff had the ultimate burden to prove that defendant's product was defective. The judgment of
the Appellate Division, as modified, is affirmed substantially for the reasons set forth in its opinion.
1. When contending that the “state of the art” rendered the technology urged by a plaintiff unfeasible, the defendant
must prove the technological state-of-the-art at the time the product left its control. However, to overcome what is
otherwise an absolute bar to recovery, the plaintiff bears the burden of proving that when the product was
manufactured, it did not conform to whatever may have been the feasible technology. (pp. 2-8)
2. Under New Jersey's notice-pleading rules, a defendant is obliged to properly interpose the state-of-the-art defense
when seeking its protection. The mere presentation of rebuttal evidence concerning a product's reasonable design,
without more, does not automatically equate with an assertion of the state-of-the-art defense. (p. 8)
3. A product manufacturer, challenging only the practicality of the alternative device and not its technological
feasibility, has not asserted the state-of-the-art defense. Thus, it was erroneous for the trial court to charge the jury
on that defense. (pp. 9-11)
4. Although the complex wording of N.J.S.A. 2A:58C-3 may be subject to different interpretations, under a sensible
reading of the statute, the absence of both a practical and technically feasible alternative device is a necessary
predicate to barring liability under the state-of-the-art defense. (p. 12)
5. Although it was error on the part of the trial court to charge the jury in the fashion that it did, viewing the record
and instructions as a whole, the trial court's action did not unfairly prejudice Skil or produce an unjust result. The
jury correctly understood that Cavanaugh had the ultimate burden to prove that Skil's product was defective, and its
verdict should not be disturbed. (pp. 12-14)
As modified, the judgment of the Appellate Division is AFFIRMED..
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, COLEMAN, LONG, and LAVECCHIA join
in JUSTICE VERNIERO's opinion.
SUPREME COURT OF NEW JERSEY
A-
30 September Term 1999
RONALD J. CAVANAUGH,
Plaintiff-Respondent,
v.
SKIL CORPORATION,
Defendant-Appellant,
and
JOHN DOE 1 through 20,
(fictitious names of persons
and/or business organizations
more fully described herein);
jointly, severally, and in
the alternative,
Defendants.
Argued February 28, 2000 -- Decided May 24, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at ____ N.J.Super.____ (1999).
Joseph Di Rienzo, Sr., argued the cause for
appellant (Di Rienzo & Di Rienzo, attorneys;
Mr. Di Rienzo and Joseph Di Rienzo, Jr., on
the briefs).
Bruce H. Zamost argued the cause for
respondent (Colton, Stein & Zamost
attorneys).
Eric J. Ludwig argued the cause for amicus
curiae, The Association of Trial Lawyers of
America-New Jersey (Stark & Stark,
attorneys).
The opinion of the Court was delivered by
VERNIERO, J.
This is a products liability action. Plaintiff suffered
injuries, including the loss of a toe, after he put down
defendant's portable circular saw, which then “traveled” about
eighteen inches across the floor and ran over his foot. A jury
awarded plaintiff $160,000. The principal issues in this appeal
are whether the trial court erred (1) in charging the jury on the
state-of-the-art defense, thereby improperly shifting the burden
of proof to defendant; and (2) in ruling that comparative
negligence could not be used as a defense in products liability
cases involving certain workplace injuries.
With one modification, we are satisfied to affirm the
judgment of the Appellate Division upholding the jury's verdict
substantially for the reasons expressed in the opinion below.
Cavanaugh v. Skil Corp., ____ N.J. Super. ____ (App. Div.
1999). The modification concerns the state-of-the-art defense.
We emphasize the importance of correctly allocating the burden
of proof whenever that defense is asserted.
The state-of-the-art defense has been codified at N.J.S.A.
2A:58C-3, which states in relevant part:
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:
(1) At the time the product left the control
of the manufacturer, there was not a
practical and technically feasible
alternative design that would have prevented
the harm without substantially impairing the
reasonably anticipated or intended function
of the product;
. . . .
c. No provision of subsection a. of this
section is intended to establish any rule,
or alter any existing rule, with respect to
the burden of proof.
Until today, this Court has never stated directly and
definitively that, (1) when contending that the “state of the
art” rendered the technology urged by the plaintiff unfeasible,
the defendant must prove the technological state-of-the-art at
the time the product left its control, and (2) the plaintiff
bears the burden of proving that when the product was
manufactured, it did not conform to whatever may have been the
feasible technology. The Court approves those allocations of
the burden of proof on the basis of the Appellate Division's
opinion, which includes this passage:
The statutory state-of-the-art defense is
available to all defendants in cases filed
after July 22, 1987. State-of-the-art
“refers to the existing level of
technological expertise and scientific
knowledge relevant to a particular industry
at the time a product is designed.” O'Brien
v. Muskin Corp.,
94 N.J. 169, 182 (1983).
State-of-the-art or “the very safest product
of that type which [an] industry could
define at the time of manufacture” “is
defined as a product for which there was no
reasonable alternative design.” Dreier,
Goldman & Katz, New Jersey Products
Liability & Toxic Torts Law § 14:2 at [349
50] (Gann 1999).
Of course, “'[w]hen an affirmative defense
is raised [in a civil case], the defendant
normally has the burden of proving it.'”
Roberts v. Rich Foods, Inc.,
139 N.J. 365,
378 (1995) (quoting Biunno, Current N.J.
Rules of Evidence, comment 2 on Evid.R.
101(b)(1) (1994-95)). However, “[t]he
burden on a defendant who claims a state-of
the-art defense is to prove only the
technological state-of-the-art when the
product was manufactured.” Fabian v.
Minster Mach. Co., 258 N.J. Super. at 274.
“The defendant ha[s] no burden to prove its
conformity with the state-of-the-art.”
Ibid. “It remains plaintiff's burden,
unaffected by the Product Liability Act, to
prove non-conformity.” Ibid.
[Cavanaugh, supra, ____ N.J. Super. at ____
(slip op. at 32-33) (first citation
omitted.)]
Part of the confusion in this area of the law stems from the
interplay between the statutory language and a plaintiff's
general burden of proof in a civil action. As noted, the statute
refers to “a practical and technically feasible alternative
design that would have prevented the harm without substantially
impairing the reasonably anticipated or intended function of the
product[.]” N.J.S.A. 2A:58C-3. In considering that language, we
observed in Lewis v. American Cyanamid Co.,
155 N.J. 544, 571
(1998), that under the state-of-the-art defense the manufacturer
“bears the burden of proving that its design of the [product]
represented the state of the art.” Moreover, the Restatement
(Third) of Torts: Products Liability (the “Restatement (Third)”)
provides:
A product . . . is defective in design when
the foreseeable risks of harm posed by the
product could have been reduced or avoided by
the adoption of a reasonable alternative
design by the seller or other distributor, or
a predecessor in the commercial chain of
distribution, and the omission of the
alternative design renders the product not
reasonably safe[.]
[Restatement (Third) of Torts: Products
Liability, § 2(b) (1998).]
Comment f of the Restatement (Third) describes the plaintiff's
burden and instructs that “[t]o establish a prima facie case of
defect, the plaintiff must prove the availability of a
technologically feasible and practical alternative design that
would have reduced or prevented the plaintiff's harm.” Thus, in
looking at both the statute and Comment f to the Restatement
(Third), it might appear that the plaintiff and defendant share
the same burden of proof, or at least that the burdens overlap to
some significant degree.
Today's decision should clarify the discrete differences in
the burdens of proof placed on the parties in a design-defect
case in which the state-of-the-art defense is interposed. In a
recent commentary, Judge Dreier explained the differences between
the Restatement (Third) approach and our New Jersey statute as
follows:
New Jersey has adopted a “practical and
technically feasible alternative design” test
to define state-of-the-art. If a defendant
can prove that there was no practical or
technically feasible alternative design that
both would have prevented the harm and would
not have substantially impaired the function
of the product, the defendant cannot be held
liable for failure to provide an alternative
design. This state-of-the-art defense is
stated as absolute, and is no longer merely a
risk-utility factor. Note that this is not
an attack just on the particular alternative
presented by the plaintiff. This defense
must show that there were no other
alternatives that fit the statutory
definition. There is an obvious overlap
between a defendant's proof of this defense
and a plaintiff's proof of a “reasonable
alternative design” under the Restatement
(Third).
The Reporters of the Restatement
(Third), aware of the confusion surrounding a
definition of state-of-the-art, have
abandoned the term and simply proffer that “a
design is defective if the product could have
been made safer by the adoption of a
reasonable alternative design.” . . . The
Restatement (Third)'s use of the word “could”
precludes any unfeasible design from being a
“reasonable” alternative. Thus, both the New
Jersey statute and the Restatement (Third)
require that the alternative design be
feasible, not merely theoretically possible.
New Jersey's statute creates an absolute
defense. Can the Restatement (Third) phrase
be interpreted as any less, but with the
burden placed on the plaintiff rather than
the defendant? When viewed in this light,
the different terminology can be harmonized.
The main differences are the burden of
proof and the scope of alternatives to be
negated or proven. The plaintiff, under New
Jersey law, is usually required to show the
existence of a reasonable alternative design.
But where the defendant shows that there
exists no design alternative which was
practical and technically feasible, the jury
need not weigh the plaintiff's proposed
design against the defendant's. Under the
Restatement (Third) the plaintiff must show
that the [foreseeable risks of harm posed by
the] product “could have been reduced or
avoided by the adoption of a reasonable
alternative design.” Thus, a showing of
feasibility is the plaintiff's
responsibility. Except for the burden of
proof and possible scope differences, the
Restatement (Third) language and the New
Jersey test appear similar where a state-of
the-art defense is interposed.
[William A. Dreier, The Restatement (Third)
of Torts: Products Liability and New Jersey
Law -- Not Quite Perfect Together,
50 Rutgers
L. Rev. 2059, 2081-83 (1998) (citations
omitted).]
Hence, in asserting the defense, the defendant must
establish the state-of-the-art at the time of distribution.
Lewis, supra, 155 N.J. at 571. However, the plaintiff must prove
the product's non-conformity with the feasible technology to
overcome what is otherwise an absolute bar to recovery. Fabian
v. Minster Mach. Co.,
258 N.J. Super. 261, 274 (App. Div.),
certif. denied,
130 N.J. 598 (1992). Importantly, the statute
does not alter the plaintiff's burden to show defendant's failure
to follow a reasonable alternative design. Id. at 273.
Not only does the defendant retain the prerogative of
asserting the state-of-the-art defense, the defendant is also
obliged under our notice-pleading rules to properly interpose the
defense when seeking its protection. R. 4:5-3 and -4. That way,
the issues are litigated fairly. In the course of a trial, the
defendant may present rebuttal evidence concerning a product's
reasonable design but that, without more, does not automatically
equate with an assertion of the state-of-the-art defense. In
that circumstance, it may be unfair to saddle a defendant with a
complicated defense it did not wish to interpose. Conversely, it
may be unfair to the plaintiff to allow the defendant to defend
on state-of-the-art grounds, with the possible effect of barring
the plaintiff's claims, without some form of advance notice.
In this case, the trial court charged the jury on state-of
the-art because it determined that defendant had asserted the
defense at least in principle, if not by name. The Appellate
Division concluded:
Here, plaintiff tried to prove the
Skilsaw was defectively designed because a
safer alternative existed, to wit: a portable
circular saw with a blade brake. Defendant,
through [its expert's] testimony, tried to
prove plaintiff's proposed safer alternative
was neither practical nor feasible because a
portable circular saw with a blade brake
would be more dangerous than a portable
circular saw without a blade brake.
Defendant also took issue with the
practicality of the “flag,” but defendant's
brief focuses on the brake. . . .
[D]efendant here, in principle, had asserted
the state-of-the-art defense. Indeed, even
though defendant did not challenge the
technological availability of a blade brake
in 1988, it most certainly challenged its
practicality. N.J.S.A. 2A:58C-3(a)(1). The
judge's decision to charge the jury on the
state-of-the-art defense was not erroneous .
. . .
[Cavanaugh, supra, ____ N.J. Super. at ____
(emphasis added) (slip op. at 36).]
We disagree. A product manufacturer, challenging only the
practicality of the alternative device and not its technological
feasibility, has not asserted the state-of-the-art defense. We
assume that, in referring to the “technological availability” of
the blade brake, the Appellate Division was speaking of what
would otherwise be termed the device's “technological
feasibility.”
In analyzing the issues presented, it is important to note
that the statute “has not appreciably altered the common law
interpretation of risk/utility analysis outside of the . . .
absolute defenses.” Fabian, supra, 258 N.J. Super. at 271-72.
It is not necessary for us to discuss at any length the risk
utility factors typically argued in a products-liability action.
Those factors have been fully discussed elsewhere. See, e.g.,
Johansen v. Makita USA, Inc.,
128 N.J. 86, 95-97 (1992)
(providing summary of this Court's adoption of risk-utility
analysis and seven factors considered).
Suffice it to say for present purposes, litigation in this
area often centers on design reasonableness. As one court
observed:
Although there are seven listed factors in
the classical statement of the risk-utility
analysis, see Cepeda v. Cumberland Eng'g Co.,
76 N.J. 152, 174,
386 A.2d 816 (1978) and its
progeny, the prevalent view is that, unless
one or more of the other factors might be
relevant in a particular case, the issue upon
which most claims will turn is the proof by
plaintiff of a “reasonable alternative design
. . . the omission . . . [of which] renders
the product not reasonably safe.”
[Green v. General Motors Corp.,
310 N.J. Super. 507,
517-18 (App. Div. 1998) (quoting the Restatement
(Third)), certif. denied,
156 N.J. 381 (1998).]
See also Fabian, supra, 258 N.J. Super. at 273 (emphasizing that
“[w]hether the defect is in the design or due to a lack of
warning, unless an absolute defense is interposed, reasonableness
is the prime factor in determining liability”).
In other words, because reasonableness is central to
determining the defendant's liability in a design-defect action,
it is not unusual in the course of such an action for the
manufacturer to argue the practicality of the plaintiff's
proposed design. In so doing, the manufacturer submits evidence
to rebut the plaintiff's prima facie case and may even prevail in
the litigation if the jury concludes that the plaintiff has not
met its burden of demonstrating the defendant's failure to follow
a reasonable alternative design. However, as previously noted, a
defendant submitting rebuttal evidence or debating risk-utility
factors in a design-defect case may be confusingly similar to,
but does not necessarily equate with, the assertion of the
statutory state-of-the-art defense.
The hazard in giving the state-of-the-art instruction in a
case in which the manufacturer challenges only the alternative
device's practicality is apparent because, as indicated above,
the defendant has the attendant burden to “prove” the state-of
the-art when that instruction is given. Consequently, if the
defendant argues that a proposed design was not practical
because, for example, it increased rather than decreased the risk
of harm to the consumer, but admits that the design was
technically feasible, then the jury might incorrectly believe
that it must find against the defendant solely because the
technology was available -- without any burden on the plaintiff
to show that the defendant failed to follow a reasonable
alternative design.
We acknowledge that the complex wording of N.J.S.A. 2A:58C-3
may admit of different interpretations. However, “our function
is to make sense of a statute.” Strasenburgh v. Straubmuller,
146 N.J. 527, 542 (1996). In that regard, we are persuaded that,
under a sensible reading of the statute and in keeping with the
discrete but important differences between interposing an
absolute defense and merely rebutting the elements of a cause of
action, the absence of both a practical and technically feasible
alternative device is a necessary predicate to barring liability
under the state-of-the-art defense. (Obviously, if the device is
not technically feasible, the notion of practicality may be
subsumed by the proofs regarding technological feasibility.) See
also William A. Dreier, Analysis: 1987 Products Liability Act,
41
Rutgers L. Rev. 1279, 1297 n.126 (1989) (concluding that pursuant
to statute “[s]tate-of-the-art evidence is evidence that no
'practical and technically feasible alternative design' existed
when the product left the control of the manufacturer”) (emphasis
added).
Accordingly, it was error on the part of the trial court to
charge the jury in the fashion that it did. We are satisfied,
however, viewing the record and jury instructions as a whole,
that the trial court's action did not unfairly prejudice
defendant or produce an unjust result. As the Appellate Division
noted:
This case was presented to the jury as a
defective design case. The competing
experts, as our review of the evidence
clearly reveals, clashed directly in this
design confrontation. Counsel argued the
case to the jury on the competing design
theories. The judge clearly charged the jury
that plaintiff had the burden of proving a
design defect. The jury found that the
circular saw was “defectively designed” in
answer to special interrogatories. The jury
found the defective design was “a proximate
cause of the accident.” None of the verdict
form special interrogatories dealt with the
“state-of-the-art” issue. . . . We are
satisfied that the issue of defective design
was fairly fought out and clearly resolved by
the jury.
[Cavanaugh, supra, ___ N.J. Super. at ___ (slip op. at
39-40).]
Because the jury correctly understood that plaintiff had the
ultimate burden to prove that defendant's product was defective,
its verdict should not be disturbed on appeal. Wanetick v.
Gateway Mitsubishi, ___ N.J. ___ , ___ (2000) (upholding verdict
in consumer-fraud case even though jury charge was erroneous
because record did not indicate “that the jury was confused by
the erroneous instruction or that the error resulted in an unjust
outcome”); see also Fisch v. Bellshot,
135 N.J. 374, 392 (1994)
(observing that “[c]ourts uphold even erroneous jury instructions
when those instructions are incapable of producing an unjust
result or prejudicing substantial rights”).
As modified, the judgment of the Appellate Division is
affirmed.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, COLEMAN,
LONG, and LaVECCHIA join in JUSTICE VERNIERO's opinion.
NO. A-30 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
RONALD J. CAVANAUGH,
Plaintiff-Respondent,
v.
SKIL CORPORATION,
Defendant-Appellant,
and
JOHN DOE 1 through 20, etc.,
Defendants.
DECIDED May 24, 2000
Chief Justice Poritz PRESIDING
OPINION BY JUSTICE VERNIERO
CONCURRING OPINION BY
DISSENTING OPINION BY