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Myrlak v. Port Authority

February 08, 1999

JOHN MYRLAK, PLAINTIFF-RESPONDENT,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND PORT AUTHORITY TRANS- HUDSON CORPORATION, DEFENDANTS-RESPONDENTS, AND GIRSBERGER INDUSTRIES, INC., DEFENDANT-APPELLANT, AND JOHN DOE 1-5, DOE COMPANY 1-5 AND DOE CORP. 1-5, DEFENDANTS.



The opinion of the court was delivered by: Coleman, J.

Argued September 14, 1998

On certification to the Superior Court, Appellate Division, whose opinion is reported at 302 N.J. Super. 1 (1997).

In this strict products liability case involving one defendant, the primary issue is whether the doctrine of res ipsa loquitur should be applied when liability is based upon an alleged manufacturing defect. The trial court declined to instruct the jury regarding res ipsa loquitur. The Appellate Division held that the trial court should have given such an instruction. We disagree and reverse. We hold that the traditional negligence doctrine of res ipsa loquitur generally is not applicable in a strict products liability case. We adopt, however, the "indeterminate product defect test" established in Section 3 of the Restatement (Third) of Torts: Products Liability as the more appropriate jury instruction in cases that do not involve a shifting of the burden of persuasion.

I.

On July 6, 1991, plaintiff, John Myrlak, was injured when his chair collapsed while he was at work. At that time, plaintiff was forty-three years old, six feet six inches tall, and weighed approximately 325 pounds. Plaintiff was employed as an assistant trainmaster for the Port Authority Trans-Hudson Corporation (PATH). He worked at the Hoban Control Center at Journal Square in Jersey City. Plaintiff usually performed his duties while seated in a movable desk chair that was positioned at a semi-circular console, approximately eight feet long and three feet high.

At the time of the accident, plaintiff had been seated in the chair performing his duties for approximately one hour and forty-five minutes. He suddenly heard a loud noise, and the back of his chair cracked and gave way. Plaintiff and the chair fell backwards, causing both to land parallel to the floor. Plaintiff grabbed the arms of the chair and pulled himself forward as he was falling. He injured his lower back and was hospitalized.

Although no one other than the plaintiff actually saw the accident, several PATH employees testified that they heard either a clicking or ratcheting sound, or a loud noise like a grinding of gears. After the accident, those employees observed that the back of the chair had collapsed and was parallel to the floor. A co-worker stated that he touched the back of the chair after the accident and it appeared to be flopping back and forth. Another co-worker testified that he sat in the chair the day following the accident and found it lacked back support.

The chair involved in the accident was manufactured by defendant Girsberger Industries, Inc. It was one of five hundred chairs purchased by PATH at the same time from the same company. All of the chairs were delivered to PATH either on November 1, 1990, or on May 1, 1991, and were placed in use at the Hoban Control Center on June 1, 1991. Thus, the chair that caused plaintiff's accident had been in use for five weeks.

The chair had a high backed seat with a triple joint construction that allowed the seat to follow the user's movement by adjusting two levers. One of the levers positioned the chair in either a locked or a "free flow" mode; the other lever adjusted the height of the chair. The chair was also equipped with a tension control mechanism underneath the seat to adjust the tension of the chair's back according to the user's need or desire. Plaintiff was familiar with the chair and its operation.

There was no evidence that the chair had been misused by plaintiff or any other PATH employee. The chair, however, was not used exclusively by plaintiff. On the contrary, it was customarily used by several different PATH employees twenty-four hours each day. Although some of the PATH employees who used the chair were similar in size to plaintiff, none of them ever reported any similar incidents or complaints with regard to the chair.

Plaintiff instituted the present litigation against PATH under the Federal Employer's Liability Act (FELA), claiming that PATH failed to provide a safe workplace and was negligent in providing him with a chair that was too small for a man his size. He also filed products liability claims against the manufacturer of the chair alleging both a manufacturing and a warning defect theory of liability. Pretrial discovery left some uncertainty concerning whether the chair examined by plaintiff's expert and displayed in the court room during the trial was the same chair that was involved in the accident. However, PATH maintains that they are one and the same. To support its position, PATH presented evidence regarding the chain of custody of the chair.

Joseph Bardzilowski, Coordinator of Rail Operations for PATH, testified that he saw the chair the day after the accident and that it looked normal to him. He stated that the chair had been moved from the trainmaster's/assistant trainmaster's area to a vacant area next to the desk. He also testified that the chair had a note on it that read "Do not use." At Bardzilowski's request, the chair was removed from the Control Center and placed into a supply room on the seventh floor at Journal Square the day after the accident. Anne DiNicola, a clerk employed by PATH, testified that at the request of Bardzilowski, she tagged the chair to prevent further use. Kevin Duffy testified that at the request of his supervisor, he removed the chair from the supply closet at Journal Square and placed it in the evidence closet at the World Trade Center where it remained until he brought it to court. Duffy further testified that the evidence closet was locked and the only persons with keys were himself and an administrative assistant. He was not aware of anyone tampering with the chair. The chair was taken from the evidence room and presented as an exhibit at the trial.

Plaintiff's expert was unable to duplicate the accident with the chair that was presented as evidence. Plaintiff's expert was not permitted to disassemble the chair, perform a failure analysis on it, or test any of its internal parts. He was allowed to operate the chair only by using the control levers. No application was addressed to the trial court to perform a more detailed analysis of the chair. The expert was unable to identify a specific defect in the chair; nor could he state that a defect caused the accident. On the issue of PATH's negligence, plaintiff's expert testified that the chair was too small for a person plaintiff's size and weight.

At the close of all of the evidence, plaintiff requested the court to charge the jury on res ipsa loquitur regarding the manufacturing defect claim. In denying the requested charge, the trial court stated that it wanted to avoid that phrase even though plaintiff relied on circumstantial evidence to infer that there was a manufacturing defect. The jury found PATH was negligent in failing to provide plaintiff with a safe workplace and awarded plaintiff 1.5 million dollars. The jury also found that plaintiff failed to establish a manufacturing defect in the chair.

PATH appealed and plaintiff cross-appealed. In a reported opinion, the Appellate Division reversed both verdicts and remanded for a new trial. 302 N.J. Super. 1 (1997). The court reversed the verdict against PATH on an evidentiary basis. Id. at 8-11. The propriety of that ruling is not before us. The panel also reversed the verdict in favor of the manufacturer, concluding that the trial court should have instructed the jury on res ipsa loquitur. Id. at 11-15. We granted defendant Girsberger's petition for certification, limited to the issue whether res ipsa loquitur should apply to this strict products liability case. 152 N.J. 10 (1997).

II.

Defendant Girsberger Industries, Inc. argues that the Appellate Division's opinion constitutes an unwarranted expansion of the doctrine of res ipsa loquitur into the field of strict products liability. It maintains that using res ipsa loquitur to create an inference that the product was defective ...


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