On appeal from the Superior Court, Law Division, Morris County.
Furman, Cohen and Skillman. The opinion of the court was delivered by Skillman, J.s.c. (temporarily assigned).
[211 NJSuper Page 637] This is a products liability personal injury case. The accident happened while plaintiff was assisting his father in cutting down a tree stump. A steel hammer manufactured by defendant McDonough Company (improperly named in the complaint as Ames-McDonough Company) was being used to hit the head of a chisel driven into the stump. Plaintiff's father was using the hammer and plaintiff was standing five to six feet away. When the hammer hit the head of the chisel the hammer chipped and a fragment of metal penetrated plaintiff's abdomen.
Plaintiff attempted to proceed on two theories of liability. First, he contended that the hammer was defectively designed because the material used in the head is brittle and hence has a propensity to chip. Second, he contended that the warnings on the hammer are inadequate.
Defendants successfully moved before trial to preclude plaintiff's expert on the warnings claim from testifying because his report had not been produced in a timely manner pursuant to a case management order of the trial court. During argument on that motion, the trial court repeatedly expressed the view that expert testimony is required in order to proceed on an inadequate warnings claim. At the bottom of the order of April 23, 1985, which precluded plaintiff's expert on the warnings claim from testifying, was the trial court's handwritten note which stated: "Reference to the label on the hammer will be limited to the issue as to whether it was being used in a reasonably foreseeable manner."
At the close of all the evidence, the trial court granted defendants' motion for an involuntary dismissal, concluding that plaintiff had failed to present any evidence of a design defect in the hammer. Although the trial court did not discuss plaintiff's inadequate warnings claim at that time, it is undisputed that the court intended to dismiss that claim as well.*fn1
On appeal, plaintiff raises three arguments: (1) the defect in the design of the hammer is self-evident and hence the trial court not only erred in involuntarily dismissing plaintiff's claim but should also have directed judgment in plaintiff's favor; (2) the inadequacy of the warnings on the hammer can be established without expert testimony, and (3) if expert testimony is required on the warnings claim, the trial court abused its
discretion in precluding the testimony of plaintiff's warnings expert.
We conclude that the trial court properly determined that plaintiff failed to present any evidence of a design defect in the hammer and therefore affirm the dismissal of that claim. However, we also conclude that plaintiff's claim that the warnings on the hammer are inadequate does not require supporting expert testimony and therefore should not have been dismissed. Accordingly, the case is remanded for a new trial on the warnings claim only. Our reversal on this basis makes it unnecessary to determine whether the trial court abused its discretion in precluding plaintiff's warnings expert from testifying, because the trial court's order of April 23, 1985 will not be controlling at the retrial and defendants will now presumably have adequate time to submit expert testimony addressed to this claim. See O'Connor v. Abraham Altus, 67 N.J. 106, 130 (1975).
When it is claimed that a product has been defectively designed, the court ordinarily must apply a "risk-utility analysis to determine whether the utility of the product outweighs its risk of harm." Johnson v. Salem Corp., 97 N.J. 78, 88 (1984). If "there is a fact question whether the risks outweigh the utility of the product, then the matter is for the trier of fact." O'Brien v. Muskin Corp., 94 N.J. 169, 186 (1983). On the other hand, "[i]f the minds of reasonable men could not differ on whether the risks posed by a product outweigh its utility, or vice versa, then the court could make the appropriate determination as a matter of law." Id.
The trial court concluded that no evidence was presented at trial from which a jury could conclude that the risks posed by the hammer outweigh its ...