Before Judges Dreier, Keefe and Wecker.
The opinion of the court was delivered by: Keefe, J.A.D.
On appeal from the Superior Court of New Jersey, Law Division, Morris County.
This "second collision" product liability case requires us to examine the use of the "heeding presumption" in the context of a failure to warn case.
In November of 1987, plaintiff purchased a used 1985 Jeep CJ7, manufactured by Chrysler Corporation. As purchased, the Jeep came with a standard hard, fiberglass top and removable steel doors. In the summer of 1988, plaintiff purchased a "Fastback" soft convertible top and doors manufactured by Bestop, Inc. and sold by Sears Roebuck and Company. Plaintiff installed the soft top and doors on his Jeep according to the manufacturer's instructions.
In the early morning of August 18, 1988, plaintiff and a friend, Ray Alvarez, were returning to plaintiff's parents' home in Hazlet, travelling northbound on the Garden State Parkway. Plaintiff was driving, and Alvarez was in the passenger seat. Neither plaintiff nor Alvarez had their seat belts on. Plaintiff apparently fell asleep behind the wheel of the Jeep and was seriously injured when he was ejected from the vehicle upon impact with a guardrail.
Plaintiff thereafter brought an action against defendants Bestop, Sears, and Chrysler. Plaintiff's complaint alleged that defendants Bestop and Sears defectively - 1 -designed the soft convertible top and doors and failed to provide adequate warnings for the soft top's safe use. As to defendant Chrysler, plaintiff alleged that the Jeep was defectively designed. Although Chrysler provided a general warning that seat belts must be worn at all times, plaintiff also alleged Chrysler failed to provide an adequate warning alerting occupants that the use of a soft top and doors did not provide adequate occupant protection and that seat belts were required for safe use of a soft top and doors.
The jury found that the Jeep, as originally manufactured by Chrysler, was not defective, nor were the Bestop soft top and doors defectively designed. The jury also exonerated Chrysler on the warning claim. As to the failure to warn claim against defendants Bestop and Sears, the jury found that Bestop and Sears failed to warn consumers of the dangers attendant to the use of their product. The jury found, however, that their failure to warn was not a proximate cause of plaintiff's injuries. Plaintiff's motion for a judgment notwithstanding the verdict, limited to defendants Bestop and Sears and the failure to warn issue, was denied.
Plaintiff now appeals only as to the jury verdict on the failure to warn claim against defendants Bestop and Sears. *fn1
With respect to the issues relevant to this appeal, the following interrogatories were submitted to the jury without objection by plaintiff:
4. Do you find that Defendants, Sears and Bestop failed to adequately warn and instruct users that the soft top and doors would not retain occupants in the CJ7 and would provide no protection against injury in the event of even a minor accident and, therefore, it was necessary to wear seat belts at all times in order to safely use their product?
5. If your answer to question 4 is Yes, do you find that had such warning and instruction been provided that Plaintiff probably would have followed the warnings and instruction and worn his safety belts?
As noted earlier, in response to Interrogatory No. 4, the jury found that Sears and Bestop failed to adequately warn users of the dangers associated with the use of the soft top and doors, but it answered Interrogatory No. 5 concerning proximate cause in the negative.
Plaintiff now argues, as he did before the trial court in his motion for a new trial, that Interrogatory No. 5 misstates the law and had the capacity to produce an unjust result. Specifically, plaintiff contends that the use of the word "probably" in Interrogatory No. 5 placed an unfair burden on him. Because plaintiff failed to object to the form of Interrogatory No. 5 in a timely fashion, we are required to consider plaintiff's argument under the plain error standard. R. 2:10-2.
In the context of a duty to warn case, plaintiff has the burden of proving, by a preponderance of the evidence, that the product was defective, i.e. the manufacturer did not warn the consumer of the risks attendant to the product, and that the failure to warn was a proximate cause of plaintiff's injuries. See Campos v. Firestone Tire & Rubber Co., 98 N.J. 198 (1984). In this case, plaintiff satisfied his burden of proof with regard to the warning defect. The issue here is one of causation. As noted by our Supreme Court, "[c]ausation is a fundamental requisite for establishing any product-liability action." Coffman v. Keene Corp., 133 N.J. 581, 594 (1993). That is to say, in order to satisfy the burden of proof required in a failure to warn case, a plaintiff must prove that the absence of the warning was a proximate cause of his harm. Id. at 594 (citing Campos, supra.).
In Coffman v. Keene, supra, the Supreme Court recognized the difficulties encountered by plaintiffs in proving proximate causation in failure to warn cases and adopted a heeding presumption to assist plaintiffs in overcoming the hurdle. *fn2 In that case, plaintiff was exposed to various quantities of asbestos while working on naval vessels. 133 N.J. at 590-93. Plaintiff brought suit against defendant Keene and others for injuries allegedly contracted from exposure to their products. Ibid. The basis of plaintiff's complaint was that defendants failed to warn consumers of the health risks associated with the use of asbestos products. Ibid.
At trial, Keene claimed that plaintiff failed to establish proximate causation between its failure to warn consumers about the risks associated with asbestos products and plaintiff's injuries. Ibid. Despite plaintiff's failure to present such direct proof of causation, the trial Judge disagreed with Keene and instructed the jury that it was to presume that plaintiff would have heeded the warning if one had been given. Ibid.
On appeal, this court found support for the heeding presumption in comment j to Section 402A of the Restatement (Second) of Torts, as well as in language contained in Campos. 257 N.J. Super. 279, 287-88 (App. Div. 1992). Thus, we affirmed the trial Judge's use of the heeding presumption.
On certification to the Supreme Court, the Court found, as a matter of public policy, that the heeding presumption should be recognized in New Jersey. 133 N.J. at 597. The Court explained that "[t]he heeding presumption . . . serves to reinforce the basic duty to warn -- to encourage manufacturers to produce safer products, and to alert users of the hazards arising from the use of those products through effective warnings." Id. at 599. Cognizant of the difficulties plaintiff may have in establishing that the absence of a warning was a proximate cause of his injuries, the Court noted that the heeding presumption would serve to lighten the plaintiff's burden of proof on the issue of proximate causation. Id. at 600. In the Court's words, "[t]he use of the presumption will be conducive to determinations of causation that are not based on extraneous, speculative considerations and unreliable or self-serving evidence." Id. at 601. Therefore, "with respect to the issue of product-defect causation in a product-liability case based on a failure to warn, the plaintiff should be afforded the use of the presumption that he or she would have followed an adequate warning had one been provided, and that the defendant in order to rebut that presumption must produce evidence that such a warning would not have been heeded." Id. at 603. In the absence of evidence produced by the defendant rebutting the heeding presumption, the plaintiff is entitled to a directed verdict on the proximate cause element of a failure to warn cause of action. Ibid.
In Graves v. Church & Dwight Co., Inc., 267 N.J. Super. 445 (App. Div.), certif. denied, 134 N.J. 566 (1993), a case decided at the same time as the Supreme Court's decision in Coffman, this court recognized the use of the heeding presumption in a non-workplace setting. There, the plaintiff suffered a stomach rupture after ingesting an excessive amount of baking soda. Id. at 450-56. The plaintiff brought suit against the baking soda manufacturer, Church & Dwight, for failing to warn consumers of the dangers associated with ingesting its product in quantities greater than recommended by the manufacturer. Ibid. Although the jury in that case found that the product was defective by reason of its failure to warn, it found that the failure to warn was not a proximate cause of plaintiff's injury. Ibid.
Consistent with the analysis of the Coffman Court, although not having the benefit of the Supreme Court decision at the time Graves was filed, Graves advanced Coffman one step further and held that the heeding presumption has general application and is not simply applied just to asbestos or workplace products. Id. at 459. The Graves court noted that the effect of the heeding presumption "is to require defendant to come forward with evidence sufficient to rebut the presumption, or risk a directed finding against it as to the presumed fact," i.e. that the warning would have been heeded, and thus, the failure to warn was a proximate cause of plaintiff's injury. Id. at 460. Thus, the court recognized that if the defendant presents rebuttal evidence sufficient to create a genuine issue of fact as to whether the presumed fact exists, the issue must be resolved by the jury. Ibid. According to the court, "[t]he burden of coming forward with evidence to rebut the presumption is on the defendant, but the burden of proof never shifts from the plaintiff." Ibid. (citation omitted). Accordingly, "once the presumption is rebutted, the risk of non-persuasion remains with the party upon whom the burden of proof was originally placed, in this case, the plaintiff," and the jury should not be instructed on the presumption. Id. at 460-61.
Despite the peculiar circumstance that the Supreme Court's in Coffman and our opinion in Graves were issued simultaneously, the rules established in both cases are substantially consistent in their application of the heeding presumption. Commentators on the subject, however, have identified one area of perceived conflict between the two decisions pertaining to the issue of burden shifting under the presumption. There is a passage in Coffman that states: "[t]he use of a rebuttable heeding presumption will serve to shift plaintiff's burden of proof on the issue of causation as it relates to the absence of a warning." 133 N.J. at 603. The Graves court, however, described the issue of burden shifting as one where the defendant has "[t]he burden of coming forward with evidence to rebut the presumption[,]. . . but the burden of proof [on proximate cause] never shifts from the plaintiff." 267 N.J. Super. at 460; cf. Facendo v. S.M.S. Concast, Inc., 286 N.J. Super. 575, 585 (App. Div. 1996) (recognizing the burden shifting analysis in Graves). Some commentators have suggested that the language in Coffman shifts the burden of persuasion on the issue of causation to the defendant and, thus, implicitly overrules Graves on this issue. See Dreier, Goldman & Katz, New Jersey Products Liability & Toxic Torts Law § 8:3-6, at 176 (1998) ("Note that Graves holds that the burden of proof does not shift when the heeding presumption is in effect and that the jury, therefore need not have the presumption called to its attention. In this regard Graves, which had relied on the Appellate Division decision in Coffman, is implicitly overruled by the Supreme Court rulings in Coffman and Theer, at least with regard to workplace cases."); Kevin J. O'Connor, Comment, New Jersey's Heeding Presumption in Failure to Warn Product Liability Actions: Coffman v. Keene Corp. and Theer v. Philip Carey Co., 47 Rutgers L. Rev. 343, 370 (1994) ("The New Jersey Supreme Court embraced the use of a heeding presumption with full realization that it was `departing from the general governing rule that the plaintiff bears the burden of proving causation.'"); see also John L. McGoldrick & Frederick T. Smith, New Jersey Product Liability Law §3-19, at 124-25 (1994).
Despite the commentators' concerns, Graves and Coffman are reconcilable. We are satisfied that when Coffman is read as a whole, the only burden shifting stemming from the heeding presumption is with respect to the burden of production. That is to say, once the heeding presumption comes into play, the burden of coming forward with evidence, i.e. the burden of production, shifts to the defendant to overcome or rebut the presumption. As noted in Graves, the defendant's failure to produce evidence at this stage "risk[s] a directed finding against it" on the issue of proximate causation. 267 N.J. Super. at 460. If, however, the defendant satisfies its burden of production, that is, if defendant presents sufficient evidence to rebut the presumption, an issue we deal with below, the presumption disappears and the plaintiff, consistent with his original burden of persuasion, must prove by a preponderance of the evidence that the failure to warn was a proximate cause of his injury. When the Supreme Court stated in Coffman that the "heeding presumption will serve to shift plaintiff's burden of proof on the issue of causation," the Court was simply indicating that if defendant fails to produce sufficient evidence to rebut the presumption, plaintiff is relieved of proving proximate causation. See Coffman, supra, 133 N.J. at 604 (recognizing case law which observes that once the presumption is rebutted by evidence, the "presumption disappears and goes for naught").
This reconciliation of the burden shifting analysis in Coffman and Graves is consonant with our Rules of Evidence concerning evidentiary presumptions. N.J.R.E. 301 expressly provides, . . . a presumption discharges the burden of producing evidence as to a fact (the presumed fact) when another fact (the basic fact) has been established.
If evidence is introduced tending to disprove the presumed fact, the issue shall be submitted to the trier of fact for determination unless the evidence is such that reasonable persons would not differ as to the existence or nonexistence of the presumed fact. If no evidence tending to disprove the presumed fact is presented, the presumed fact shall be deemed established if the basic fact is found or otherwise established. The burden of persuasion as to the proof or disproof of the presumed fact does not shift to the party against whom the presumption is directed unless otherwise required by law. . . .
[Ibid. (emphasis added).] Although there are extraordinary cases in which our courts have held that the burden of persuasion does shift, those cases are by far the exception, and not the rule. (For a Discussion of this rule and accompanying cases, see Biunno, New Jersey Rules of Evidence, comment 8 on N.J.R.E. 301 (1997-98).) In the typical case, the principle established by N.J.R.E. 301 is followed, and a presumption does no more than shift the burden of production to the party against whom it is directed. The shifting of the burden of production, however, has no effect on the ultimate burden of persuasion, which at all times remains with the party upon whom the burden of persuasion is originally placed. *fn3 If the Coffman Court intended to change this well-established rule we would have expected it to have made the announcement in a somewhat more expansive fashion, because the new rule would have effectively overruled its decision in Campos, which clearly places the burden of persuasion to prove proximate cause on the plaintiff in a failure to warn case. See Campos, supra, 98 N.J. at 209-10 (explaining that the "plaintiff had the burden of proving that the failure to give adequate warnings was a proximate cause of the accident and injuries. . . ."). Furthermore, we think that the Court would have granted certification in Graves to correct our error if its decision in Coffman intended to shift the burden of persuasion.
Thus, by way of summary, the heeding presumption applies to all failure to warn and inadequate warning cases and provides the plaintiff with a rebuttable presumption on the issue of proximate cause, i.e., if a warning or instruction had been given, such warning or instruction would have been heeded by the plaintiff. In such cases, the burden of production on the issue of proximate cause shifts to the defendant to come forward with rebuttal evidence. In essence, the defendant's burden of production requires "evidence sufficient to demonstrate . . . that a warning would have made known to the plaintiff the danger of the product and, notwithstanding the knowledge imparted by the warning, the plaintiff would have proceeded voluntarily and unreasonably to subject him or herself to the dangerous product." Coffman, supra, 133 N.J. at 604. If the defendant fails to meet its burden of production to the trial court's satisfaction, the trial Judge is required to direct a verdict in favor of the plaintiff on the issue of proximate causation. If, however, the defendant presents rebuttal evidence such that reasonable minds could differ as to whether the warning, if given, would have been heeded by the plaintiff, the defendant has satisfied its burden of production and the plaintiff loses the benefit of the presumption. The plaintiff must then carry the burden of persuasion as to proximate cause.
Thus, plaintiff's contention that he was not required to prove that he "probably" would have followed a warning if given is without merit. Plaintiff's reliance on Campos v. Firestone, supra, 98 N.J. at 210, Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 402-03 (1982), Crispin v. Volkswagenwerk A.G., 248 N.J. Super. 540, 564 (App. Div. 1991), and Vallillo v. Muskin Corp., 212 N.J. Super. 155, 160 (App. Div 1986), to support his argument that he only was required to prove that he "might" have heeded the warning if given is misplaced. Those cases do not deal with the issue of burden of proof, but rather pertain to the issue of whether a defendant has a duty to warn in the first instance. Further, plaintiff's reliance on Dafler v. Raymark Indust., Inc., 259 N.J. Super. 17, 39 (App. Div. 1992), and Stephenson v. R.A. Jones & Co., Inc., 103 N.J. 194, 199 (1986), for the proposition that a plaintiff may prove proximate cause by showing only a small percentage of fault by a defendant, a standard significantly less than the 50.1% required under the preponderance standard, is also misplaced. Plaintiff confuses the concept of burden of proof by a preponderance of the evidence, which is the standard required to prove a defect and proximate cause in the first instance, and the concept of apportionment of fault, which occurs only after there has been a determination that a defective product was, more likely than not, a proximate cause of plaintiff's injury. The passages in Dafler and Stephenson relied on by plaintiff address apportionment issues, not proximate cause issues.
It is clear that the form of Interrogatory No. 5 is an accurate statement of our law regarding plaintiff's burden of persuasion on the issue of proximate cause once the heeding presumption has been rebutted. By directing the jury to determine, "if a warning and instruction [had] been provided, [whether] Plaintiff probably would have followed the warnings and instruction and worn his safety belt" (emphasis added), the interrogatory simply reflected the preponderance standard that is applicable in proving a product liability cause of action. See N.J.S.A. 2A:58C-2. To state it somewhat differently, the jury was presented with the question that if a warning had been given by defendants ...