On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Petrella, Long and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
[266 NJSuper Page 484] Plaintiffs Gertrude and David Ladner appeal from an adverse jury verdict in their product liability and breach of express warranty action against Mercedes-Benz of North America, Inc.
and Daimler-Benz Aktiengesellschaft (hereinafter Mercedes).*fn1 Mrs. Ladner*fn2 was injured when she attempted to stop her 1983 Mercedes 300D as it began to roll slowly down a street in Wallington, New Jersey.
Plaintiffs' theory at trial was that the gear shift mechanism on the vehicle was defectively designed, and that the warnings and instructions accompanying the vehicle were inadequate. Further, plaintiffs contended that Mercedes had breached certain express warranties made in connection with the purchase of the vehicle. Mercedes denied the allegations, and contended that plaintiff's conduct, rather than any defect in the vehicle, was the sole proximate cause of the accident.
By way of answers to special interrogatories, a jury determined that the gear shift mechanism was not defective by reason of its design; the warnings and instructions accompanying the vehicle were not defective; Mercedes breached no express warranty; and plaintiff voluntarily and unreasonably encountered a known risk when she returned to her vehicle and attempted to stop it. Plaintiffs now appeal from that verdict and raise multiple issues for determination.
We affirm substantially all of the judgment under review except for that part of the verdict which addressed the design defect in the gear shift mechanism. As to that issue, we conclude that the jury instructions were in error, and had the capacity to produce an erroneous result. Thus, for the reasons stated herein, we remand the matter for a new trial limited solely to the issue of design defect of the gear shift mechanism.
The 1983 Mercedes 300D involved in this incident was owned by the G & S Specialty Corporation, a plumbing supply operation in Wallington, New Jersey, of which plaintiff was both president and
owner. Plaintiff claimed that she bought the car on behalf of her company, in reliance on brochures and advertisements she had seen while shopping for a car, and because of the Mercedes slogan that the car was "engineered like no other car in the world." Plaintiff interpreted this slogan to mean that the vehicle was safe. She testified that she read the Owner's Manual "from cover to cover" when she first bought the car, including the section which read:
When parking the vehicle, or if working on the vehicle with the engine running, depress parking brake pedal and move selector lever to position "P."
On the evening of the accident, July 12, 1988,*fn3 plaintiff worked until almost nine o'clock p.m. Upon leaving her business, she decided to stop at a diner in Wallington to have a cup of coffee before going home. She parked the vehicle along a section of Patterson Avenue which she perceived as "basically flat," but which defendant's expert described as "quite obviously a downgrade."
The gear shift lever on the 300D is in a floor mounted console. It moves from one gear to another through a series of flats and grooves, or detents, in what is called a "jigsaw pattern." Plaintiff testified that because of this system, placing the car into "park" requires two movements; one to push the lever up to the park position (through reverse), and another to slip it into the park groove. The second movement is assisted by a spring, which has the effect of pulling the lever toward the notch and keeping it there.
Plaintiff testified that she thought she had put the car in park when she stopped, but was not sure that she had done so. Plaintiff then claims to have removed the key from the ignition, tucked her purse under her left arm, and exited the vehicle. She did not believe that her purse caught on anything as she picked it
up to leave the car.*fn4 Plaintiff acknowledged that she did not engage the parking brake that night, although she normally did so because the car "rolls a lot when you put it in park[.]" She did not remember whether she turned her wheels toward the side of the road.
After getting out of the car, plaintiff walked to the rear of the vehicle. From that vantage point, she saw the car begin to roll very slowly down Paterson Avenue. She decided to try to stop the rolling vehicle, even though she knew that there was nothing in close proximity to the front of the car. In her attempt to halt the car, plaintiff opened the driver's door and stepped on the brake pedal from outside the car. She lost her balance and fell, whereupon the left rear wheel of the car ran over her legs. The vehicle came to rest at the side of a building further down Paterson Avenue.
Plaintiffs' expert, Dr. I. Robert Ehrlich, testified extensively with regard to the "false park" syndrome, and its impact on the automobile industry prior to 1983. He defined the "false park" scenario as one where the gear shift becomes hung up inadvertently between the "reverse" and the "park" gears. Because there is so little space between the two gears in most gear shift designs, the shift lever appears to be in park when it is not. The danger of "false park" occurs when the gear shift does not drop into the park position, but either falls into the reverse position, allowing the car to inadvertently roll backward, or remains between reverse and park, essentially leaving the car in a neutral position, and allowing it to roll in either direction.
Dr. Ehrlich testified that the auto industry had designed a button mechanism and an interlock mechanism to prevent the false park phenomenon. The button system forces the driver to depress a button on the gear shift knob, in order to move the shift
into or out of park. The driver can feel the button pop, and thus has a tactile sensation that the switching of gears has been completed. The ignition interlock, on the other hand, simply does not allow the ignition key to be removed unless the shift is actually in the park position. Although the latter design appeared most frequently on cars with the shifting mechanism on the steering column, he opined that it could have been installed on console mount gear shifts, such as plaintiff's Mercedes.
Dr. Ehrlich criticized the Mercedes design for having neither the button nor the interlock safety feature, and testified that the cost of incorporating both safety features in the Mercedes would have been between $7 and $70. He cited his own 1983 Chrysler Le Baron, equipped with the button system, as an example of a safely designed console gear mechanism.
Finally, Dr. Ehrlich opined that the spring which held the Mercedes gear shift in place was too weak, allowing for the gear shift to be easily pulled out of place, although he did not know of any facts indicating that plaintiff had in fact inadvertently pulled the gear shift out of park.*fn5
Plaintiffs also called a Mercedes engineer, Axel Stehle, as a witness. He testified that car manufacturers had installed the ignition interlock system described by Dr. Ehrlich as a means of complying with a federal anti-theft statute. He noted that Mercedes had chosen to comply with that statute by implementing a system whereby the steering wheel locks once the driver takes out the ignition key, thus prohibiting the car from being steered without insertion of the key. Mr. Stehle gratuitously told the jury, however, that Mercedes installed the ignition interlock in 1990 model cars. He also indicated that, prior to plaintiff's accident, Mercedes had been made aware of certain incidents where inadvertent gear shift movement allegedly occurred, but had decided at that point not to issue any warnings or install any additional safety equipment.
Dr. Kenneth Packer, defendant's expert, testified that the gear shift configuration in the Mercedes was not the "rooster comb" design which permits the appearance of false park about which Dr. Ehrlich had testified, but was a completely different jigsaw configuration. Although a Mercedes driver could potentially place the gear shift between reverse and park, it would not, to the observant driver, give the illusion of being in park, i.e. "false park." Rather, upon inspection, the gear shift would simply appear to be between reverse and park. As such, he testified, the Mercedes 300D could not be subject to the phenomenon of false park.
Dr. Packer further noted that the Mercedes actually gave greater tactile feedback as to whether it was actually in park than did Dr. Ehrlich's Chrysler, because the Mercedes shift required two motions, both pushing up and pushing over (with the spring assist in the latter movement), in order to get the shift into park, while the Chrysler required only that the lever be pushed straight up. He also pointed out that the Mercedes 300D, like Dr. Ehrlich's 1983 Chrysler, was not equipped with an ignition interlock, and opined that such design was not necessary to make the car safer.
He noted that the 300D, like all autos, was designed with the driver as an important part of its system, and that a driver using reasonable care had the ability to park the 300D safely, by putting the car in park and engaging the parking brake. As such, he opined that the 300D was properly designed.
Mercedes did not claim that plaintiff misused the product, nor did it deny the feasibility of the alternative designs advanced by plaintiff. Its defense theory was that Mercedes intended the parking brake to be the primary mechanism for preventing a parked vehicle from rolling down a grade; the drivers' manual so instructs a Mercedes owner; the plaintiff acknowledged being aware of the instruction; and the average motor vehicle user also
understands that to be the case, as evidenced by the New Jersey motor vehicle statute requiring parking brakes to be set.
Mercedes defense, thus, implied that the gear shift mechanism, and the "park" gear specifically, in essence, was a fail-safe mechanism, providing the operator with a second way to prevent the car from rolling when parked. Mercedes contended that its gear shift lever transmits a tactile message, or "feel," to the driver when the lever is properly placed in the park position, and, is every bit as good as the Chrysler Le Baron design plaintiffs' expert found acceptable. Additionally, Mercedes contended that, if the driver actually looked at the shift mechanism and did not rely on feel, the driver would see that the shift was in or out of park. Mercedes argued that no illusion or "false park" phenomenon is created ...