Before Judges Long, Wefing and Carchman.
The opinion of the court was delivered by: Long, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Plaintiffs, April M. Kurzke, individually and as a representative of the Estate of Hartmut Kurzke and Brendan Kurzke by his Guardian ad Litem April Kurzke, appeal from the trial judge's dismissal, on forum non conveniens grounds, of the products liability action they filed against defendants Nissan Motor Corporation In U.S.A., Nissan Research and Development, Ford Motor Company, Inc. and Bristol Motors, Inc.
According to plaintiffs, in November of l992, April Kurzke and her husband, Hartmut, were living in Warren, New Jersey. On November 23, l992, they went to Bristol Motors in North Plainfield to purchase a minivan. They specifically requested Bristol Motors salesperson Steven Handelman to assist them in their purchase because he had sold them a Nissan Maxima in l990. Before purchasing the l993 Nissan Quest, however, the Kurzkes had particular concerns regarding the safety of the vehicle, which concerns they shared with Handelman. Specifically, they informed Handelman that they were worried that the Nissan Quest did not have an air bag and, for that reason, they were also considering purchasing (from one of Bristol Motors' competitors) a Dodge Caravan, a vehicle equipped with an air bag. Handelman allayed their anxiety by explaining that the steering column on the Nissan Quest would collapse upon impact. A collapsible steering column, according to Handelman, would effectively function like an air bag. Handelman supported his express oral promises by showing the Kurzkes a Nissan advertisement which confirmed them. Relying on all of these representations, the Kurzkes purchased the l993 Nissan Quest minivan. At that time, they had no intention of leaving New Jersey.
Thereafter, in l993, Hartmut Kurzke, a Ph.D. in chemistry, was offered a transfer to Hanau, Germany, by his employer, Degussa Corporation. He was expected to remain in Germany for four or five years and then to return to assume an administrative position at Degussa's Ridgefield Park headquarters. Hartmut Kurzke arrived in Germany to begin his training on August l, l994. The family later joined him.
On August l4, l995, the Kurzkes and their son, Brendan, then four years old, were travelling on the Autobahn in the city of Olpe, Germany, in their l993 Nissan Quest when another vehicle, operated by Freida Adler in the oncoming lane, unexpectedly crossed into the Kurzke's lane and struck their vehicle head-on. The steering column failed to collapse upon impact and Hartmut Kurzke, who was operating the Nissan Quest, was trapped and compressed between the seatback and the steering column for nearly two hours before he died of fatal chest and abdominal injuries. As passengers in the vehicle at that time, April and Brendan observed the slow, painful death of their husband and father.
Plaintiffs sued defendants on both products liability and breach of warranty theories by filing a complaint in the Superior Court of New Jersey, Law Division, Middlesex County. *fn1 Specifically, plaintiffs contended that the steering column of their l993 Nissan Quest minivan was designed to collapse upon impact to the vehicle and, contrary to its design, failed to collapse, causing Hartmut Kurzke to sustain injuries. Plaintiffs further asserted that defendants made express warranties that the steering column would collapse upon frontal impact in order to persuade them to purchase the vehicle and that these warranties were breached. All named defendants are American corporations.
Defendants moved to dismiss the action based on the doctrine of forum non conveniens. They asserted that all discovery materials concerning the crash and Hartmut Kurzke's death are in Germany as are all eyewitnesses and police and medical witnesses, none of whom are subject to compulsory process in New Jersey; that under their theory of the case (i.e., that Hartmut Kurzke died as a result of the high speed crash, not from the failure of the steering column to collapse) the Estate of Frieda Adler should be impleaded yet this is not possible in New Jersey; that the New Jersey courts would suffer "enormous administrative difficulties" in handling a case which has "no connection" to Middlesex County; and that a dismissal would result in a single litigation in Germany instead of two cases an ocean apart.
Plaintiffs countered that they are American citizens and New Jersey residents temporarily in Germany; that they purchased the Nissan Quest in New Jersey; and that the vehicle was designed, manufactured and sold by American companies. Plaintiffs further argued that additional claims exist involving the New Jersey dealership's breach of express warranties regarding the collapsibility of the steering column. According to plaintiffs, when this products liability case is viewed as it should be (separate and distinct from the auto negligence action), it is clear that defendant Nissan Research and Development, the American corporation which designed the steering column, and American design defect experts will offer the most crucial evidence. Plaintiffs stressed to the judge that the only connection to Germany was the location in which the automobile accident occurred. That slim reed was an inadequate basis to overcome the presumption in favor of their choice of their home forum.
The trial judge ruled in favor of defendants and dismissed the complaint. After citing appropriate legal principles and outlining the facts of the case, she assessed the evidence this way:
"I looked at the access to the evidence and the majority of the fact witnesses are in Germany, including the plaintiff herself. All of the emergency personnel that responded to the scene, the fire, the police personnel, the medical personnel are in Germany. Any medical personnel that treated the decedent in -- after the accident are also in Germany, and the other drivers involved in the accident are in Germany. All of these witnesses are beyond the jurisdiction of this Court."
"The scene of the accident is in Germany and that's important and there's some contention that there may have been construction on the Autobahn that may have been a contributing factor, and the inspection of the scene would have to obviously occur in Germany."
"The vehicle in question, the vehicle involved in the accident that allegedly has this defect is located in Germany and all the other vehicles involved in the accident are in that country. In addition, all records are in Germany and are written in German, so the medical reports, any police and investigatory reports involving this serious accident are obviously located in that country and are written in German."
"And I note that even the plaintiff, while the plaintiff takes the position that the happening of the accident isn't really the focus of the case, the focus of the case is the defect in the vehicle, even the plaintiff acknowledges that there still would have to be discovery of these emergency personnel and an examination of the vehicle to properly litigate this case."
"In addition, it's come before me at oral argument today that there may have been some alterations to the vehicle before it entered that country in order to comply with German law. Obviously, those records would be in Germany. In addition to the problem with the evidence, and I do note that there is evidence in the United States. The car was manufactured here and was sold here, so all of those -- that evidence and those witnesses involved in the design of the vehicle would be located in the United States, however, if we look at this from the focus of a products liability case, the expert testimony would be, obviously, key and certainly in a country like Germany, which is such a ...