This matter is before the court on motions for a new trial made on behalf of plaintiff and of defendant Horace Smith pursuant to R. 4:49-1.
Plaintiff Sara Kuhner suffered serious injuries, including the amputation of one leg, when she was struck by a 1964 Plymouth automobile owned and operated by defendant Smith in the parking area of the Marlyn Manor shopping center. At trial in this court the jury found that Smith and Marlyn Manor were liable in negligence to plaintiff but that defendant Chrysler Corporation was not liable. The jury found damages in favor of Mrs. Kuhner in the amount of $300,000 and in favor of her husband Frederick in the amount of $50,000.
After the return of the verdict certain facts were brought to the attention of this court which led it to order that the jurors should be interrogated concerning their verdict. This order was stayed pending an appeal from it by defendant Chrysler. The Appellate Division held that it was improper to interrogate the jurors in this case concerning their answers to the special interrogatories posed to them. The cause was
remanded to this court for disposition of the other grounds raised by the motion for a new trial.
At oral argument on this motion counsel for plaintiff did not argue the issue of whether the communication made by the court to the jury regarding their request for clarification of Interrogatory No. 2 was improper as not having been done in open court. In any event, the response made was undertaken in chambers with the knowledge and consent of all counsel.
With respect to plaintiff's grounds for a new trial which deal with the instructions given to the jury (Nos. 4, 5, 7 and 9 through 33), the court has reexamined its charge to the jury and finds no error. (Grounds Nos. 1 through 3 and No. 6 were dealt with in the decision of the Appellate Division).
The principal contention advanced for plaintiff at oral argument, based largely on plaintiff's grounds Nos. 8, 34 and 35, was that this court erred with regard to its instructions to the jury concerning the duty of Chrysler Corporation to warn users of the dangers posed by the pushbutton gear selector. After instructing the jurors on the applicable law of negligence and on reasonable care this court said:
No objection is made to the content of this instruction which sets out the rule established in Martin v. Bengue Inc., 25 N.J. 359, 366-367 (1957). However, immediately following this instruction the jury was then instructed with regard to the concept of strict liability in tort. It is plaintiff's contention that the instruction given by the court, because of the underlined language and because of the sequence in which it was given, informed the jury that "duty to warn"
was purely and solely applicable to a negligence theory of liability and had no applicability to the theory of strict liability in tort. This, contends plaintiff, was error which requires that a new trial be ordered.
It is clear that the instruction on a duty to warn did apply only to the negligence theory of liability. The jury was never told that under strict liability in tort the manufacturer has a duty to warn users of the dangers of a perfectly made product. The question ...