Lora, Crane and Michels. The opinion of the court was delivered by Michels, J.A.D.
Plaintiffs Robert Manieri and Pauline Manieri appeal from a judgment entered in favor of defendants Volkswagenwerk A.G. and Volkswagen of America, Inc. as the result of a jury verdict of no cause for action, and from a denial of their motion for a new trial.
Plaintiff Robert Manieri was the general sales manager of a Volkswagen dealership located in Washington, New Jersey. While driving a new 1969 Volkswagen en route to a Volkswagen dealer's convention in South Fallsburg, New York, his car left the highway, went down an incline and struck a tree, causing serious personal injury. During plaintiff's journey rain and snow were falling, and there were accumulations of slush on the road. These weather and road conditions continued throughout the trip and were extant at the time of the accident. When plaintiff had driven several miles from the dealership, he observed that the defroster was not working properly and that the interior of the windshield was fogging up. He was therefore required to use a utility rag to wipe the windshield clean of fog. He also opened and closed his left window and vent in an effort to stop the fogging while not letting rain and snow into the automobile. Both windshield wipers apparently operated properly until a tractor-trailer truck going in the opposite direction passed, splashing slush across the windshield and into the opened window, hitting plaintiff in the face. As a result of this, the wiper on the driver's side stopped working for about ten seconds. The right wiper continued to operate. The last thing plaintiff remembers is that he leaned over to clear the fog from the interior of the windshield on the passenger's side. The car went off the road and the accident giving rise to this suit occurred.
Plaintiff instituted suit against defendants Volkswagenwerk A.G., Volkswagen of America, Inc., and World Wide Distributors, Inc., to recover for the personal injuries he sustained in the accident.*fn1 His wife sued per quod. He contended that defendants, as manufacturers and distributors of the 1969 Volkswagen, were negligent in the design, manufacture and assembly of the vehicle and breached expressed and implied warranties that the Volkswagen, as well as the component parts thereof, were fit for their intended use. He also alleged that the defendants were liable on the theory of strict liability in tort. Specifically, plaintiff charged that the vehicle lacked crashworthiness, that the seat belts were not properly anchored, and that the windshield wiper and defroster systems were defective, resulting in his inability to observe the highway. The allegations of the lack of crashworthiness of the vehicle and the failure to anchor the seat belts properly were voluntarily withdrawn by plaintiff during the course of discovery, and at pretrial conference plaintiff abandoned the claim that the defroster system was defective. Plaintiff claimed at trial that the accident was caused by a defective windshield wiper. He charged that the windshield wiper assembly was defectively designed because "the windshield wiper arm depended solely on a set screw being properly torqued to the windshield wiper shaft," and that the set screw had not been properly torqued, as a result of which the windshield wiper failed to operate when subjected to the stress and force of the heavy slush on the windshield.
The windshield wiper system utilized in the 1969 Volkswagen involved consisted in part of a circular transmission shaft which protruded from the front of the vehicle to which was attached a wiper arm and blade. The wiper arm and blade were attached to the shaft by means of a bracket and
set screw. The set screw had to be torqued or tightened to the proper degree in order to lock the arm to the shaft. This was accomplished generally by use of a wrench as distinguished from a screw driver. If the set screw was not torqued properly, there was a distinct possibility of slippage under stress. Thus, it was possible for the shaft to move but the wiper arm and blade to fall or sag under the stress of heavy snow, slush or other debris on the windshield. The 1969 Volkswagen here involved was manufactured in Germany, but the windshield wiper assembly was installed at the Washington dealership. The president of that dealership testified that his mechanics, who were specially trained to work on Volkswagens, used socket-rachet type wrenches, not screw drivers, to torque the set screws on the wiper assemblies.
Plaintiff's expert, an automobile mechanic, testified that the design of the method of attachment of the windshield wiper arm to the windshield wiper shaft was defective because it was dependent upon the set screw being torqued to the proper degree and, if improperly torqued, slippage of the wiper arm could occur under stress. He pointed out that American-manufactured automobiles utilized a spline-type method of locking the wiper arm to the shaft. This design employed a circular shaft with teeth or grooves around it to reduce the chances of slippage. He was of the opinion, based upon the hypothetical question propounded to him, that the windshield wiper arm on the 1969 Volkswagen driven by plaintiff was not installed correctly and that the set screw was not tightened to the proper degree, as a result of which the wiper failed under the weight of the slush on the windshield.
Defendant's proofs, on the other hand, tended to show that the windshield wiper assembly was not defectively designed and that the wiper arm on plaintiff's 1969 Volkswagen was not incorrectly installed. One of defendants' experts, a safety test engineer at the Technical Development Center of Volkswagen in Germany, testified that he was of the opinion that since plaintiff had observed the right wiper operating, the
left wiper was also operating because both wipers were driven by a single motor. He also testified that if slippage were to occur as theorized by plaintiff, it would have occurred sooner, and plaintiff would have observed the area of the windshield being cleaned by the wiper gradually narrow down.
At the conclusion of the lengthy trial the jury unanimously returned a verdict of no cause for action in favor of defendants. Plaintiffs' motion for a new trial was denied, and this appeal followed.
Plaintiffs seek a reversal of the judgment and a new trial, contending solely that the trial judge erred in excluding evidence of defendants' recall campaign relating to the failure of windshield wipers on certain Volkswagens. Plaintiff offered to introduce evidence to show that the 1969 Volkswagen he was operating was one of 3,700,000 Volkswagens manufactured from 1949 through 1969 which were subject to a safety defect recall campaign as the result of a Consumer Bulletin issued by the National Highway Traffic Safety Administration warning Volkswagen owners that windshield wiper failures could occur on certain Volkswagen models, and that in the Fall of 1974 defendants issued recall letters to Volkswagen owners and service letters to Volkswagen dealers informing both of them of this problem, urging the owners to bring their cars to an authorized dealer to have the wiper arm set screws checked to assure that they were correctly tightened, and suggesting to the dealers that they advise their customers thereof. The recall letter issued to the customers stated:
We have received reports that windshield wiper performance has been impaired on some 1969 and older Volkswagens because the set screws holding wiper arms to their driving shafts have become loose. This loosening occurs only in instances where the set screw was improperly torqued, and the vehicle is operated during periods of freezing or heavy rain or snow when the wiper is subject to ...