On certification to the Superior Court, Appellate Division.
Stein, Wilentz, Clifford, Handler, Pollock, O'hern, Garibaldi
The opinion of the court was delivered by
Plaintiff, Chris Johansen, brought this strict-products-liability action alleging that he had sustained personal injuries caused by the defective design of a power saw manufactured and distributed by defendants. At the close of the evidence, the trial court ruled that defendants could not assert a comparative-negligence defense. The court, however, did not instruct the jury that comparative negligence was not at issue in the case, and declined to instruct the jury concerning the limited manner in which it could consider evidence of plaintiff's negligent operation of the saw. The jury returned a verdict for defendants, finding that the saw was not defectively designed. The Appellate Division held that the trial court did not err in failing to charge the jury that comparative negligence was not a defense because the jury instruction's reference to plaintiff's conduct focused on the issue of product defect. We granted certification, 126 N.J. 334 (1991), and now reverse.
Johansen was injured while performing carpentry work on a house under construction. At the time of the accident, plaintiff was using a power miter saw manufactured by defendant Makita U.S.A., Inc., distributed by defendant Makita Electric Works, Ltd., (defendants), and supplied by his employer. A miter saw is manually operated, except that an electric motor operates the rotating blade. To make a cut, the user must place the wood on the saw's platform, hold the wood securely against the "fence" with a vise or by hand, and use the other hand to pull the blade down through an opening in the fence and into the wood. The accident occurred as plaintiff attempted to cut a few inches off of the end of a six-foot-long two-by-four. AS he braced the board on the saw's platform with his left hand, most of the board extended off the platform to the left. Plaintiff, however, did not prop up the unsupported end of the long board. Instead he applied pressure to the end that he was cutting to keep the board flat against the saw platform while he made the cut. According to plaintiff, as the blade hit the wood, the wood shifted and drew his hand into the path of the blade. The saw severed his index and middle fingers and part of his thumb.
Although the saw had been marketed with a protective guard for the blade, the guard was not attached at the time of the accident. Plaintiff testified that he did not know that the saw was manufactured with a guard. He also stated that the guard was attached to the saw when he visited the job site a few weeks after the accident.
Prior to trial, defendants requested an order permitting them to present evidence of plaintiff's contributory negligence, contending that plaintiff's injury had not occurred in an industrial setting and thus the jury should be permitted to determine whether plaintiff had voluntarily encountered a known risk. See Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 166-68 (1979). Plaintiff cross-moved to bar all evidence of plaintiff's contributory negligence. The court denied both motions, observing that they were premature. At the close of plaintiff's case, plaintiff renewed his motion to bar the affirmative defense of comparative negligence. The trial court again reserved decision and asked counsel to renew the motion at the Conclusion of the case. At the close of defendant's case, plaintiff renewed his motion and the court granted it, striking the defense of comparative negligence.
At trial, plaintiff's engineering expert theorized that when plaintiff pulled the saw into the wood, the wood quickly rotated, pulling plaintiff's hand into the path of the blade. In his opinion, the two-inch opening in the "fence" was too wide, and the resultant instability permitted the wood to rotate. He also testified that because the manufacturer had not provided a vise or clamp with the saw, the user had to place his hand dangerously close to the blade to stabilize the wood while cutting it. Thus, because of the excessive width of the fence opening and the absence of a clamp or vise, the saw was defectively designed and the defect proximately caused plaintiff's injuries. The expert also testified that the guard originally supplied with the saw would not have prevented the accident.
Defendants claimed that the guard was the only safety device they were required to provide, and that although a vise would have been convenient, it was not essential. Defendant's expert testified that the accident had occurred because plaintiff had accidentally placed his fingers directly in the path of the saw blade. He stated that a vise was unnecessary for the safe use of the saw, noting that plaintiff could have avoided the accident by using "common sense" and propping up the unsupported end of the board, thereby eliminating the need to place his hand so close to the blade. The expert also testified that the guard would have prevented the blade from coming into contact with plaintiff's fingers.
During the trial, defendants focused on the degree of care that plaintiff had used in the operation of the power saw. In his opening statement, defense counsel stated that a user of the product must use it "reasonably and properly" with "a degree of care." He explained that the "common logical thing to do" would be to prop up the free end of the board with a piece of wood, and suggested that plaintiff might have failed to do that because "he was in a rush." Defense counsel continued to emphasize that point through direct examination of his expert witness and cross-examination of plaintiff. For example, he asked plaintiff on three separate occasions why he had not supported the free end of the wood before he had made the cut. Each time, plaintiff responded that it had not occurred to him to support the wood because he had never done that before. One of plaintiff's co-workers admitted on cross-examination that to support the far end of the board made "common sense," and that he usually did so. Defense counsel also introduced into evidence several other types of power tools available to plaintiff at the site to show both that plaintiff had freely chosen to use a miter saw without a guard and that other saws required the user to place his or her hands in close proximity to the blade.
Because plaintiff's conduct while using the saw had been thoroughly explored before the jury, plaintiff requested that the trial court instruct the jury that it could not consider evidence of plaintiff's negligent operation of the saw because the defense of comparative negligence had been barred. The trial court rejected plaintiff's request because plaintiff's conduct in operating the saw was relevant to the issue of causation. Hence the jury was never informed that evidence of plaintiff's negligent operation of the saw was not a defense to plaintiff's claim. Nor did the trial court instruct the jury that evidence of plaintiff's misuse of the saw was relevant only to the issue of causation.
The court gave the jury a strict products-liability design-defect charge, and explained that plaintiff could show that the saw was defectively designed by proving that
the product is so dangerous that it creates a risk of harm outweighing its usefulness * * * .
To make this determination you have to consider the following factors: the usefulness of and benefit of the product as it was designed to the user and to the public as a whole, was there a need for this product which was specifically served by its production, the safety aspects of the product, that is, the likelihood of risk that the product, the saw, as designed would cause injury, and the probable seriousness of such injury. If there is a probability of injury, what was the seriousness of the injury which could have or should have been anticipated through the use of the product, the saw.
You should also consider the ability of the defendant to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. You should also consider as an element the ability of foreseeable users to avoid danger by the exercise of care in the use of the product.
After concluding the charge, the court then gave the jurors the following interrogatories to assist ...