4. The Comparative Fault Instruction
Hulmes contends that it was error to instruct the jury on comparative fault, and that he is therefore entitled to a new trial. Plaintiff correctly notes that a comparative fault charge in a products liability action is only permissible when the evidence supports a finding that the plaintiff voluntarily and knowingly encountered a risk of injury from a defective product. Johansen v. Makita USA, Inc., 128 N.J. 86, 94, 607 A.2d 637 (1992). Hulmes contends that the court's charge on comparative fault was not tailored to the specific design defect alleged in this case, i.e., the instability of the ATV and its lack of bumpers on the rear wheels. Plaintiff essentially contends that the charge on comparative fault allowed the jury to define the "known danger" which plaintiff voluntarily encountered at too high a level of generality. There is no merit to this contention.
In keeping with New Jersey's Model Jury Charges - Civil §§ 5.34H and 5.34I, the jury was instructed that, only if it found that "Robert Hulmes was at fault by voluntarily and unreasonably proceeding to encounter a known danger and that action was a proximate cause of the accident," should it proceed to "compare the fault of each party." Tr. of Oct. 23, 1996 at 79-80. As to the alleged design defect, the instability and lack of a bumper system, the jury found, in response to special interrogatory number 1-A, that there was no design defect in the Honda ATC250R. Clearly, the jury was not asked to compare, and it must be assumed that it did not compare, the fault of Honda in defectively designing the ATV with the fault of Hulmes in voluntarily encountering a "known danger." Indeed, the jury need not even have considered the questions of design defect and nature of the "known danger" together. Had it done so, the jury must necessarily have set the fault of Honda at 0%, since it found no design defect. Accordingly, even if it was error to instruct the jury on comparative fault as it related to the issue of "design defect," the error was harmless.
"As a threshold matter, a party challenging a jury instruction on a particular matter must establish that the jury in fact reached that matter. A motion for a new trial on issues that a jury did not reach will not be granted." Farra v. Stanley-Bostitch, Inc., 838 F. Supp. 1021, 1027 (E.D. Pa. 1993) (citing Markovich v. Bell Helicopter Textron, Inc., 805 F. Supp. 1231, 1241 (E.D. Pa.), aff'd, 977 F.2d 568 (3d Cir. 1992); Field v. Omaha Standard, Inc., 582 F. Supp. 323, 332 (E.D. Pa. 1983), aff'd, 732 F.2d 145 (3d Cir. 1984)), aff'd, 31 F.3d 1171 (3d Cir. 1994). The conclusion that the jury need not have reached the comparative fault issue on the question of design defect is inescapable. This alone is sufficient to deny plaintiff the relief he requests in this portion of his motion.
More importantly, however, this case properly raised an issue of plaintiff's comparative fault. Plaintiff seeks to define the "known danger" element as the danger presented by an allegedly unstable design and the absence of rear wheel bumpers. Plaintiff characterizes defendants' definition of the same element as mere knowledge that one can be injured in an accident, which plaintiff claims would erase the threshold requirement of a knowing assumption of risk. Neither of these end points properly defines the test of a known risk. The precise nature of the "known danger" which the plaintiff is said to voluntarily encounter must be defined by the facts of the individual case. It should not be defined so broadly that mere negligence by the plaintiff can be equated with voluntarily encountering a "known danger." Neither can the term be defined so narrowly that the jury is prevented from considering a plaintiff's comparative fault unless it can be shown that the plaintiff was aware of the precise defect which is alleged to have caused her injuries. The cases speak of a "known danger" not a "known defect." See Ladner, 266 N.J. Super. at 495 ("It is not knowledge of the defect . . . that is required to be proven, but, rather, evidence that plaintiff voluntarily and unreasonably encountered a known danger.").
Lewis v. American Cyanamid Co., 294 N.J. Super. 53, 682 A.2d 724 (App. Div. 1996), is instructive on this important distinction. In Lewis, the plaintiff was injured when an aerosol insecticide which he was using in his kitchen caught fire. The Appellate Division discussed, in considerable detail, the New Jersey rule on comparative fault in product liability actions, before remanding the case for reconsideration, inter alia, of whether the plaintiff had actual knowledge of the particular risk of fire as opposed to a mere generalized knowledge of the risk of injury, possibly from the toxicity of the insecticide.
Hulmes argued at trial that the ATV was defectively designed because it was unreasonably unstable and could easily roll over in the event of an accident, throwing the rider. The "danger" he must knowingly have encountered, therefore, is the danger of injury from a similar accident. There was evidence that Hulmes was aware of this danger, even if he was unaware of the exact center of gravity of his ATV. Plaintiff testified that he was aware of the danger presented by a collision. Tr. of Oct. 1, 1996, part B, at 55. Hulmes also testified that his brother punctured his lung after being thrown from a four-wheeled ATV. Id. at 61-63.
In Dixon v. Jacobsen Mfg. Co., 270 N.J. Super. 569, 592, 637 A.2d 915 (App. Div. 1994), the plaintiff testified that he was unaware that a rotating impeller blade was located in a snowthrower's discharge chute, therefore, he could not be contributorily at fault for the accident which severed some of his fingers. The Appellate Division held that the testimony created a jury question on contributory fault, because the jury could have inferred a knowledge of the relevant danger from the plaintiff's testimony. Here, Hulmes testified that he did not know and had never asked about the details of his brother's ATV accident. Tr. of Oct. 1, 1996, part B, at 62. Hulmes's brother, Nicholas, testified that Hulmes may have been there at the time of his own ATV accident and that he and his brother may have witnessed other riders involved in ATV accidents. Tr. of Oct. 3, 1996, part A, at 49-51. These testimonial inconsistencies presented a jury question as to whether Hulmes was aware of the danger of an accident similar to the one in which he was involved, and yet voluntarily encountered that danger. Accordingly, there was ample justification for a jury charge on comparative fault in this case.
5. The "U-Haul Documents"
Plaintiff contends that this court erred in excluding certain warning labels produced by U-Haul for a fleet of Honda ATVs which it maintained for the rental market. These labels were attached to the U-Haul ATVs and were more detailed and extensive than the warning labels that appeared on Hulmes's Honda ATC250R.
At the July 1, 1996 hearing on the motions in limine, and again on October 3, 1996, the court expressed concern that U-Haul might not have been qualified to design an appropriate warning label for an ATV, and the record was devoid of any testimony from a representative of U-Haul regarding these warnings. Tr. of July 1, 1996 at 161-72; Tr. of Oct. 3, 1996, part B, at 54. This, concern, however, largely preceded plaintiff's counsel's suggestion that he sought to introduce the U-Haul warnings only for notice. Id. at 55. On this motion, Hulmes repeats his assertion that these documents constituted "vivid evidence" of notice. Plaintiff's Brief at 38. Plaintiff contends that this court "misconstrued the vividness of the evidence to prove just what it was offered for as undue prejudice to Honda." Id.
As the court understands plaintiff's argument, these documents were offered as evidence of notice that U-Haul considered the warnings Honda provided with its vehicles inadequate in view of the purposes for which U-Haul had purchased these ATVs. This court's conclusion that plaintiff did not lay a sufficient foundation as to U-Haul's purpose and experience with these vehicles goes directly to plaintiff's notice argument. Thus, this court's concern with the "content" of the U-Haul warnings was not the result of some mistaken notion that plaintiff sought to introduce these documents for their truth.
Rather, that concern addressed the nature of the notice these documents purportedly gave to Honda. Plaintiff simply never established what this notice contained, other than notice that U-Haul put additional warning labels on its ATVs. This fact is, at best, of marginal relevance in a case of a purchaser of an ATV, not of the same model as those in the U-Haul fleet, who admitted to having read the owner's manual that accompanied his ATV "cover to cover." Tr. of Oct. 1, 1996, part B, at 4.
Moreover, insofar as these documents provided any notice of the insufficiencies of Honda's warnings, the U-Haul documents were cumulative of much of the plaintiff's evidence, as the court pointed out at the time. Tr. of Oct. 3, 1996 at 60. Ultimately, this court excluded these documents because they were potentially inflammatory and confusing to the jury, as well as cumulative of other evidence. Id. at 64-65. Plaintiff has not demonstrated that, in so doing, this court misapplied Fed. R. Evid. 403.
Indeed, plaintiff cannot demonstrate any prejudice from the exclusion of these documents, much less any impact on his substantial rights, because the jury found in his favor on the failure to warn theory, and it was on notice of the adequacy of the warning that plaintiff sought to introduce this evidence. For all these reasons, a new trial on this basis must be denied.
6. Lay Opinion Testimony
Plaintiff contends that this court erred in admitting the opinion of Officer James Mikulski under Fed. R. Evid. 701. Rule 701 allows opinions of non-experts to be heard when those opinions or inferences are "rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Fed. R. Evid. 701.
Based upon his post-accident investigation, Officer Mikulski testified that Hulmes was traveling over the posted speed limit of twenty-five (25) miles per hour at the time of the accident. Tr. of Oct. 8, 1996 at 174. Officer Mikulski also offered his opinion that the accident resulted from "driver inattention" because he could find no "debris" or other impediments which might have caused the accident. Id. at 177-78. Plaintiff's counsel cross-examined Officer Mikulski at some length about the measurements upon which he based his conclusions regarding the speed of Hulmes's ATV, concluding:
Q. You are not saying here today that you have any real scientific technical accurate focused determination that this is the precise spot where the event occurred; is that right?