On appeal from the Superior Court of New Jersey, Law Division, Essex County.
J.h. Coleman, Dreier and Landau. The opinion of the court was delivered by Dreier, J.A.D.
Defendant Rogers Brothers Corporation, the manufacturer of a flatbed tractor-trailer, appeals from a product liability judgment in favor of plaintiff arising out of the November 12, 1986 death of her late husband. The jury awarded $2,500,000 on plaintiff's wrongful death claim and $50,000 on the survival action for decedent's pain and suffering.
Plaintiff's theory of liability was that the manufacturer's failure to install a back-up signal created a design defect.*fn1 Decedent was an oiler, a trainee in charge of maintaining a backhoe, and was working laying a gas line from Lambertville to Belle Meade. He, an operating engineer, Louis O'Rourke, and the driver of the tractor-trailer, were directed by their supervisor to go to a site on Highway 31 near Ringoes, where an area of the pavement had settled. The backhoe to be operated by O'Rourke and maintained by decedent had been placed on a flatbed trailer and was driven to the site. O'Rourke and decedent drove their own cars and parked in a nearby lot. O'Rourke and decedent were talking to the foreman in the center of the southbound lane which had been closed to traffic, when the tractor-trailer driver started to back up the rig from where it had been parked at the curb. O'Rourke, who had not heard the tractor-trailer backing up, saw the movement out of the corner of his eye, but by then it was so close that it brushed his arm and knocked the foreman out of the way. He tried to grab decedent who was also knocked to the ground. The trailer's back wheels slowly rolled over decedent's chest. O'Rourke called out to the driver who stopped, leaving decedent between the two sets of tires. Decedent raised his head a little and then slumped down, apparently dead.
The trailer was approximately 45-feet long, and O'Rourke estimated that it had moved two or three trailer lengths when it struck decedent. There was no signalman observing the truck as it backed up, although O'Rourke knew that it was the practice to have someone watching when even a backhoe was moving to make sure no one got in the way. Ironically, as an operator's helper, decedent would perform this function when the backhoe was operated.
The tractor manufacturer's*fn2 staff engineer's deposition was read to the jury. In that deposition, he noted that there was a blind spot for the driver of the tractor when a backhoe was on the trailer. He personally made the observation and found that in such a situation the driver, despite extended side mirrors, could not see anything behind the trailer. Defendant's president's deposition was also read to the jury. Defendant understood that a function of the trailer would be to carry backhoes, yet the company did no safety tests to determine whether there would be blind spots when a driver was hauling equipment. Furthermore, defendant did not install back-up alarms without request or give advice to its customers of the existence or advisability of back-up alarms.
Plaintiff's expert, George F. Bowden, a registered professional engineer, testified that the only ways one could back up safely with obscured vision to the rear were either to have a flagperson giving signals or to use an audible alarm that was "not only louder than the surrounding noise, but distinctive." There was no question that both electrical and mechanical back-up alarms had been available since the 1950's, would not have affected the utility of the trailer, are quite inexpensive (mechanical alarms costing approximately $35) and are easy to
install.*fn3 It is true that the tractor had two West Coast mirrors, 16-inch vertical mirrors on either side of the vehicle, which gave full visibility without the trailer or with an empty trailer. But, depending upon what was placed on the trailer, visibility could still be obscured by the load. Defendant's president testified that as a manufacturer of low-bed trailers, defendant was regulated by the National Highway Traffic Safety Administration, and he understood that nothing in relevant legislation required back-up alarms, nor did he know of any requirement for such alarms.
Decedent, 28 1/2 years old at his death, earned approximately $35,000 per year as an oiler. O'Rourke, however, was training decedent to be an operating engineer and was about to recommend him for such advancement. As an operator, O'Rourke earned $24 an hour plus $9.25 per hour for benefits. With overtime he made between $65,000 and $80,000 per year, although other operating engineers made more than that. Plaintiff's economic expert testified that decedent had already earned $32,601 in 1986 prior to his demise. Plaintiff had testified in detail concerning the work decedent did at home and the time he spent with her and their four children, ages one, nearly four, six and seven years old at the time of their father's death.*fn4 The economist factored into the loss equation the time a spouse normally spends working in the house (ten hours per
week), even though he acknowledged that this was less than the time decedent normally worked at his house. After deducting what decedent would have paid for his personal expenses, the expert testified that there had been a net earned income loss of $104,000 to the time of trial and a loss of physical household services of $15,865 (then reduced by three percent for sickness). This estimate contained no pecuniary value for the loss of companionship, guidance or advice. See Green v. Bittner, 85 N.J. 1, 11-12, 424 A.2d 210 (1980).
During the direct examination of plaintiff's expert, the attorney asked for a sidebar conference which actually was held in the empty jury room. Harold Braff, Esq., attorney for the tractor manufacturer, noticed a Newsweek magazine on the jury room table and stated to the judge and assembled attorneys, "[B]efore you go, I just wanted you to see what's on the table. 'The selling of safety' its a Newsweek article." Although this was not put on the record at the time, the event was noted without objection at the new trial motion. Defendant's argument for a new trial based upon this event will be discussed infra.
The original complaint in this matter had charged defendant with negligence, strict liability, breach of warranty and gross negligence. On the first day of trial, plaintiff successfully sought to dismiss its negligence and warranty claims and proceed only on the strict liability count. Initially, counsel for defendant simply responded, "o.k." Later, however, while arguing a motion addressed to peremptory challenges, counsel asserted opposition to the dismissal, stating that plaintiff was trying to "emasculate the defense of contributory or comparative or third-party negligence," and simply wanted to "attempt to impair the defense in this case." The judge adhered to his earlier ruling. Defendant's challenge has been reiterated in this appeal.
There are two definitive answers to the defense argument. First, we have noted that the complaint in this matter was filed September 17, 1987. The New Jersey Product Liability Act, in an explanatory note to N.J.S.A. 2A:58C-1 (L. 1987, c. 197, § 8) provides that the Act, enacted July 22, 1987, applies to "product liability actions filed on or after the date of enactment." Thus, where the Product Liability Act conflicts with the common law, it governs this action. The Product Liability Act no longer recognizes negligence or breach of warranty (with the exception of an express warranty) as a viable separate claim for "harm" (as defined in the Act) caused by a defective product. The Act, in N.J.S.A. 2A:58C-1b(3), defines a "product liability action" as
any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty.
N.J.S.A. 2A:58C-2 established the sole method to prosecute a product liability action.
A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose . . . . (Emphasis added).
Since a product liability action encompasses " any claim or action brought by a claimant for harm caused by a product," N.J.S.A. 2A:58C-1, (emphasis added), and section 2 describes the sole method of proof, namely that recognized for strict liability claims, it is clear that common-law actions for negligence or breach of warranties (except express warranties) are subsumed within the new statutory cause of action, if the claimant and harm also fall within the definitional limitations of section 1.*fn5
The second support for the judge's ruling is the common law which preceded the 1987 Act. In Heavner v. Uniroyal, Inc., 63 N.J. 130, 157, 305 A.2d 412 (1973), the Court determined that a personal injury claim was to be founded on strict liability rather than a breach of an implied warranty under the Uniform Commercial Code. This was reiterated in Realmuto v. Straub Motors, Inc., 65 N.J. 336, 345, 322 A.2d 440 (1974) and Collins ...