(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).
PER CURIAM.
(Note: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment is
based substantially on the written opinion of Judge Keefe of the Appellate Division.)
Timothy Patrick Sharpe was the owner of a 1985 Jeep CJ7, manufactured by Chrysler Corporation.
As purchased, the Jeep came with a standard hard, fiberglass top and removable steel doors. In the summer
of 1988, Sharpe purchased a "Fastback" soft convertible top and doors manufactured by Bestop, Inc. and sold
by Sears Roebuck and Company. Sharpe installed the soft top and doors on his Jeep according to the
manufacturer's instructions.
In the early morning of August 19, 1988, Sharpe and a friend, Ray Alvarez, were returning to
Sharpe's parents' home in Hazlet, traveling northbound on the Garden State Parkway. Sharpe was driving
and Alvarez was in the passenger seat. Neither of them had their seat belts on. Sharpe apparently fell
asleep behind the wheel of the Jeep and was seriously injured when he was ejected from the vehicle upon
impact with a guardrail.
Sharpe brought an action against Bestop, Sears, and Chrysler. His complaint alleged that Bestop
and Sears defectively designed the soft convertible top and doors and failed to provide adequate warnings for
the top's safe use. As to Chrysler, Sharpe alleged that the Jeep was defectively designed and also that
Chrysler failed to provide an adequate warning alerting occupants about the need to wear seat belts when
using a soft top and doors.
The jury found that the Jeep was not defective and also that the Bestop soft top and doors were not
defectively designed. The jury also exonerated Chrysler on the warning claim. As to the failure to warn
claim against Bestop and Sears, the jury found that Bestop and Sears failed to warn consumers of the
dangers attendant to the use of their product. The jury further found, however, that the failure to warn was
not a proximate cause of Sharpe's injuries. Sharpe's motion for a judgment notwithstanding the verdict,
limited to Bestop and Sears and the failure to warn issue, was denied.
Sharpe appealed only as to the verdict on the failure to warn claim against Bestop and Sears.
Sharpe argued that Interrogatory No. 5 to the jury misstated the law and had the capacity to produce an
unjust result. This interrogatory was to be considered only after the jurors found that Sears and Bestop
failed to adequately warn and instruct users as to the need to wear seat belts to safely use their product.
Interrogatory No. 5 asked whether the jury found "that had such warning and instruction been provided that
Plaintiff probably would have followed the warnings and instruction and worn his safety belts?" The jury
answered in the negative. Sharpe contended that he was only required to prove he "might" have heeded the
warning if given. Because Sharpe did not object to the form of the interrogatory in a timely manner, his
argument was considered under the plain error standard.
The opinion of the Appellate Division, written by Judge Keefe, noted that in Coffman v. Keene
Corp.,
133 N.J. 581 (1993), the Supreme Court adopted the "heeding presumption" in New Jersey (in a
product-liability case alleging a failure to warn, plaintiff is afforded the presumption that he or she would
have followed an adequate warning had one been provided). It also cited to Graves v. Chruch & Dwight co.,
Inc.
267 N.J. Super. 445, certif. denied,
134 N.J. 566 (1993), which addressed the burden-shifting aspects of
the presumption in greater detail. Graves held that where the presumption applies, a defendant has the
burden to come forward with evidence rebutting the presumption (burden of production), and, if defendant
does so, the presumption disappears and plaintiff must prove by a preponderance of the evidence (burden of
persuasion) that the failure to warn was a proximate cause of the injury. The Appellate Division agreed with
Graves that the ultimate burden of persuasion rests with plaintiff, and found no conflict between Graves and
Coffman. The Appellate Division therefore held that Interrogatory No. 5 was an accurate statement of the
law regarding burden of persuasion on the issue of proximate cause once the needing presumption had been
rebutted.
Sharpe also questioned the substantive proofs used by defendant to rebut the heeding presumption.
In a pre-trial ruling, the trial court prohibited defendant from presenting any evidence in respect of Sharpe's
consumption of alcoholic beverages on the night in question. Sharpe testified on direct examination that he
always wore his seat belt when he was driving the Jeep without any top or doors, but not when the top and
doors (even the soft ones) were installed. Sharpe claimed that he would have worn a seat belt with the soft
top if he had been warned to do so. The trial court therefore permitted defendant to cross-examine Sharpe
as to whether he heeded the warnings that did appear on the sun visor of the Jeep, which cautioned: "WEAR
SEAT BELTS AT ALL TIMES -- DON'T DRINK AND DRIVE." Sharpe admitted on cross-examination
that notwithstanding these warnings, he did not wear his seat belts "at all times," and that there were
occasions when he did drink and drive the Jeep (Sharpe's abstract must have revealed a prior DWI
conviction). The trial court cautioned the jury that this testimony could be used only on the issue of Sharpe's
"observation of any warnings that may be set forth in the vehicle."
Sharpe argued that the trial court improperly permitted testimony about drunk driving, and that
evidence of alcohol consumption may never be introduced. The Appellate Division rejected this contention,
noting that the evidence did not include any reference to Sharpe's consumption of alcohol on the day of the
accident. However, the Appellate Division went on to caution that a defendant cannot rebut the heeding
presumption with evidence that a plaintiff failed to follow warnings or instructions on a few occasions,
explaining that this was the type of character evidence prohibited by N.J.R.E. 404(a). The Appellate Division
stated that for the evidence to be admissible, it must rise to the level of "habit" or "routine practice," as
permitted by N.J.R.E. 406(b).
Applying these principles to these facts, the Appellate Division held that the evidence about Sharpe's
failure to heed the existing warning to wear seat belts at all times was admissible because it is clear that he
had a habit of not wearing seat belts when the top and doors were on the Jeep. But the Appellate Division
determined that there was nothing in the record to demonstrate that Sharpe had a habit of drinking and
driving. It therefore held that the evidence of Sharpe "occasionally" failing to heed the warning not to drink
and drive was inadmissible. The Appellate Division concluded, however, that this error was harmless, since
the testimony was brief, not linked to the accident, and it paled in comparison to Sharpe's failure to obey the
seat belt warning, which was directly linked to the premise of his case against the defendants.
Judge Wecker wrote a separate, concurring opinion, expressing the view that Coffman required that
the heeding presumption shifted not only the burden of producing evidence to the defendant, but the burden
of proof, as well.
The Supreme Court granted Sharpe's petition for certification.
HELD: When the heeding presumption applies, a defendant has the burden to come forward with evidence
rebutting the presumption (burden of production), and, if defendant does so, the presumption disappears and
plaintiff must prove by a preponderance of the evidence (burden of persuasion) that the failure to warn was
a proximate cause of the injury.
The Supreme Court affirms substantially for the reasons stated in Judge Keefe's opinion. In
addition, it notes the Appellate Division's careful distinction between habit and character evidence when
offered by product manufacturers seeking to overcome the heeding presumption.
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN
and COLEMAN join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
53 September Term 1998
TIMOTHY PATRICK SHARPE,
Plaintiff-Appellant,
v.
BESTOP, INC., a corporation of the
State of Colorado and SEARS ROEBUCK
AND CO., a corporation of the State
of New York,
Defendants-Respondents,
and
CHRYSLER CORPORATION, a corporation
of the State of Delaware,
Individually and as successor to
American Motors Corp., and ABC
Companies 1-10, fictitious
corporations or entities,
Defendants.
Argued March 29, 1999 -- Decided May 12, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
314 N.J. Super. 54 (1998).
John B. Collins argued the cause for
appellant (Bongiovanni, Collins & Warden,
attorneys, Mr. Collins and Anthony P.
Caivano, on the brief).
Robert G. Hampson argued the cause for
respondents.
PER CURIAM
We affirm the judgment of the Appellate Division
substantially for the reasons stated in its opinion reported at
314 N.J. Super. 54 (1998). We wish simply to note the court's
careful distinction between habit and character evidence when
offered by product manufacturers seeking to overcome the heeding
presumption that was established in Coffman v. Keene Corp.,
133 N.J. 581 (1993). Specifically, the Appellate Division in this
case held that only evidence of a habit related to the specific
situation of a seat-belt warning, not a character trait, may be
offered to rebut the heeding presumption. 314 N.J. Super. at 77,
79.
In State v. Radziwil,
235 N.J. Super. 557 (App. Div. 1989),
aff'd o.b.,
121 N.J. 527 (1990), this Court approved of the
following analysis of the distinction between habit and character
evidence:
The two are easily confused. People
sometimes speak of a habit for care, a habit
for promptness, or a habit of forgetfulness.
They may say that an individual has a bad
habit of stealing or lying. Evidence of
these habits would be identical to the kind
of evidence that is the target of the general
rule against character evidence. Character
is a generalized description of a person's
disposition, or of the disposition in respect
to a general trait, such as honesty,
temperance or peacefulness. Habit, in the
present context, is more specific. It
denotes one's regular response to a repeated
situation. If we speak of a character for
care, we think of the person's tendency to
act prudently in all the varying situations
of life -- in business, at home, in handling
automobiles and in walking across the street.
A habit, on the other hand, is the person's
regular practice of responding to a
particular kind of situation with a specific
type of conduct. Thus, a person may be in
the habit of bounding down a certain stairway
two or three steps at a time, of patronizing
a particular pub after each day's work, or of
driving his automobile without using a
seatbelt. The doing of the habitual act may
become semi-automatic, as with a driver who
invariably signals before changing lanes.
[235 N.J. Super. at 564 (quoting McCormick on
Evidence, § 195 at 574-75 (3d ed. 1984)
(footnotes omitted)) (emphasis added).]
In Radziwil, supra, the court concluded that evidence of the
defendant regularly becoming intoxicated each weekend at a
specific bar was admissible as habit evidence to prove that the
defendant was intoxicated when he fatally injured an individual
in an automobile accident.
In this case, the Appellate Division concluded that
plaintiff's habitual disregard of the identical product safety
warning to WEAR SEAT BELTS AT ALL TIMES was admissible as
evidence of a regular response to a repeated situation (including
this occasion when only the vehicle's soft top was on), while his
occasional disregard of warnings not to drink and drive was not
admissible, although it found that error to be harmless. 314
N.J. Super. at 79-80. (There was no evidence that plaintiff
habitually drove while impaired, and the many circumstances in
which driving after one or two drinks would not be unsafe made
the evidence especially suspect, in contrast to the defendant's
habitual intemperance in Radziwil.)
The party offering the evidence must
establish the habitual nature of the alleged
practice. * * * Although there are no
precise standards for determining whether a
behavior pattern [such as bounding down
stairs two or three at a time] has matured
into a habit, two factors are considered
controlling as a rule: adequacy of sampling
and uniformity of response. United States v.
Newman,
982 F.2d 665, 668 (1st Cir. 1992),
cert. denied,
510 U.S. 812,
114 S. Ct. 59,
126 L. Ed.2d 28 (1993).
In short, [s]pecificity distinguishes 'habit' from 'character.'
23 Fed. Practice and Procedure Evid. § 5273 (R. 406) n.53 (citing
Jones v. Southern Pacific R.R. Co.,
962 F.2d 447, 449 (5th Cir.
1992) (holding that nine diverse safety violations do not show
habit of negligence). Thus, for example, we would not find
that evidence of one's repeated failure to follow a doctor's
advice to lose weight, is sufficiently similar in character and
quality to establish the likelihood of a similar response to a
safety warning concerning boating waters. See Verdun v. State,
Through Dep't of Health and Human Resources,
598 So.2d 1091, 1095
(La. Ct. App.), writ denied,
604 So.2d 1003 (La. 1992).
We would also hesitate to endorse rebuttal evidence that
focuses on the product user as one who may be illiterate, . . .
irresponsible or lax in judgment . . . . Technical Chem. Co. v.
Jacobs,
480 S.W.2d 602, 606 (Tex. 1972) (quoted in Coffman,
supra, 133 N.J. at 604). The latter two factors are clearly
character traits. Unless a claimant has somehow put character at
issue, these traits would appear to be inadmissible. The first
factor is of little relevance in this context. Some unlettered
people are far more proficient than the lettered in dealing with
machinery. Moreover, in Campos v. Firestone Tire & Rubber Co.,
98 N.J. 198, 208 (1984), the Court emphasized that product
warnings must be tailored to the circumstances of the user when
known, including the needs of the unskilled or [those] who do
not read English.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.
NO. A-53 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
TIMOTHY PATRICK SHARPE,
Plaintiff-Appellant,
v.
BESTOP, INC. a corporation of the
State of Colorado and SEARS ROEBUCK
AND CO. , a corporation of the State
of New York,
Defendants-Respondents,
and
CHRYSLER CORPORATION, a corporation
of the State of Delaware, Individually and as
successor to American Motors Corp., and ABC
companies 1-10, fictitious corporations or entities,
corporations or entities,
Defendants.
DECIDED May 12, 1999
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY