On appeal from Superior Court, Law Division, Middlesex County.
Bischoff, Botter and Dwyer. The opinion of the court was delivered by Bischoff, P.J.A.D.
[170 NJSuper Page 405] Infant plaintiff Gregory Lavin was struck by a car when he lost control of his Big Wheel, a three-wheeled toy vehicle, which carried him into a street and across the path of an oncoming car. A jury found no liability on the part of either the driver of the car or Louis Marx & Company, manufacturer of the Big Wheel. Plaintiff appeals from the judgment entered in favor of Louis Marx & Company and the sole question argued is whether the trial judge properly prohibited plaintiffs from probing defendant-manufacturer's
design modifications of the Big Wheel subsequent to purchase of the toy.
On February 13, 1973 the seven-year-old plaintiff was riding on his brother's Big Wheel, along with some friends. The boys would ride in an oval pattern on a driveway, beginning at the garage and turning around on the sidewalk near the street. During one of his rides plaintiff "lost control" of his Big Wheel because he "was going too fast." As he approached the street he was unable to turn the vehicle onto the sidewalk and continued into the roadway. He was unable to stop the vehicle by dragging his feet. Plaintiff did not see any car coming prior to being struck.
On behalf of plaintiffs Seiden, a safety engineer, testified that the Big Wheel sold to plaintiff was unsafe because it did not have a mechanical braking system. He further stated that adequate systems were then known in the industry and were both economically and technologically feasible. He opined that the absence of a brake caused plaintiff's accident.
During cross-examination of defendant's independent expert, Roy Rice, plaintiffs' counsel elicited Rice's opinion that an effective braking device would not be economical on the Big Wheel and that such a brake would be a "disservice." Counsel promptly sought to introduce a Big Wheel manufactured after the accident in order to attack Rice's credibility, arguing that since the later model did have a mechanical brake, Rice's opinion should be discredited. The trial court denied the application without comment, although it is clear from the judge's earlier comments that he was relying upon Evid. R. 51. On appeal plaintiffs argue that the evidence should have been admitted under the credibility exception to that evidence rule.
Evid. R. 51 reads as follows:
When after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.
The rule has been expressly applied to actions in strict liability. Price v. Buckingham Mfg. Co., Inc. , 110 N.J. Super. 462, 464-465 (App.Div.1970).*fn1
Evidence of subsequent remedial repairs may be admitted for purposes other than to prove negligence or culpable conduct, e.g. , to establish control over the instrumentality causing the injury, Manieri v. Volkswagenwerk , 151 N.J. Super. 422, 432 (App.Div.1977); to show defendant's customary standard of care, Ryan v. Port of New York Auth. , 116 N.J. Super. 211, 219 (App.Div.1971); to prove the condition existing at the time of the accident, Millman v. U.S. Mortgage & Title Guar. Co. , 121 N.J.L. 28, 34-35 (Sup.Ct.1938); to show that a feasible alternative for avoiding the danger existed at the time, Apgar v. Hoffman Constr. Co. , 124 N.J.L. 86, 90 (E. & A.1940), and to attack the credibility of a witness, Lombardi v. Yulinsky , 98 N.J.L. 332, 334 (Sup.Ct.1923). Accord, Hansson v. Catalytic Constr. Co. , 43 N.J. Super. 23, 27 (App.Div.1956). Plaintiffs seek to come within the credibility exception.
We agree with plaintiffs that the Big Wheel designed and manufactured after the accident should have been admitted to attack Rice's credibility. Rice testified that an effective lever brake would not have been economically feasible. But a later model manufactured by defendant apparently incorporated a hand-operated lever brake, a fact which would appear to question Rice's opinion that such a brake would not be economically feasible. ...