The opinion of the court was delivered by: Verniero, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at ____ N.J.Super.____ (1999).
This is a products liability action. Plaintiff suffered injuries, including the loss of a toe, after he put down defendant's portable circular saw, which then "traveled" about eighteen inches across the floor and ran over his foot. A jury awarded plaintiff $160,000. The principal issues in this appeal are whether the trial court erred (1) in charging the jury on the state-of-the-art defense, thereby improperly shifting the burden of proof to defendant; and (2) in ruling that comparative negligence could not be used as a defense in products liability cases involving certain workplace injuries.
With one modification, we are satisfied to affirm the judgment of the Appellate Division upholding the jury's verdict substantially for the reasons expressed in the opinion below. Cavanaugh v. Skil Corp., ____ N.J. Super. ____ (App. Div. 1999). The modification concerns the state-of-the-art defense. We emphasize the importance of correctly allocating the burden of proof whenever that defense is asserted.
The state-of-the-art defense has been codified at N.J.S.A. 2A:58C- 3, which states in relevant part:
a. In any product liability action against a manufacturer or seller for harm allegedly caused by a product that was designed in a defective manner, the manufacturer or seller shall not be liable if:
(1) At the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product;
c. No provision of subsection a. of this section is intended to establish any rule, or alter any existing rule, with respect to the burden of proof.
Until today, this Court has never stated directly and definitively that, (1) when contending that the "state of the art" rendered the technology urged by the plaintiff unfeasible, the defendant must prove the technological state-of-the-art at the time the product left its control, and (2) the plaintiff bears the burden of proving that when the product was manufactured, it did not conform to whatever may have been the feasible technology. The Court approves those allocations of the burden of proof on the basis of the Appellate Division's opinion, which includes this passage:
The statutory state-of-the-art defense is available to all defendants in cases filed after July 22, 1987. State-of-the-art "refers to the existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed." O'Brien v. Muskin Corp., 94 N.J. 169, 182 (1983). State-of-the-art or "the very safest product of that type which [an] industry could define at the time of manufacture" "is defined as a product for which there was no reasonable alternative design." Dreier, Goldman & Katz, New Jersey Products Liability & Toxic Torts Law § 14:2 at [349-50] (Gann 1999).
Of course, "`[w]hen an affirmative defense is raised [in a civil case], the defendant normally has the burden of proving it.'" Roberts v. Rich Foods, Inc., 139 N.J. 365, 378 (1995) (quoting Biunno, Current N.J. Rules of Evidence, comment 2 on Evid.R. 101(b)(1) (1994-95)). However, "[t]he burden on a defendant who claims a state-of-the-art defense is to prove only the technological state-of-the-art when the product was manufactured." Fabian v. Minster Mach. Co., 258 N.J. Super. at 274. "The defendant ha[s] no burden to prove its conformity with the state-of-the-art." Ibid. "It remains plaintiff's burden, unaffected by the Product Liability Act, to prove non-conformity." Ibid. [Cavanaugh, supra, ____ N.J. Super. at ____ (slip op. at 32-33) (first citation omitted.)]
Part of the confusion in this area of the law stems from the interplay between the statutory language and a plaintiff's general burden of proof in a civil action. As noted, the statute refers to "a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product[.]" N.J.S.A. 2A:58C-3. In considering that language, we observed in Lewis v. American Cyanamid Co., 155 N.J. 544, 571 (1998), that under the state-of-the-art defense the manufacturer "bears the burden of proving that its design of the [product] represented the state of the art." Moreover, the Restatement (Third) of Torts: Products Liability (the "Restatement (Third)") provides:
A product . . . is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe[.] [Restatement (Third) of Torts: Products Liability, § 2(b) (1998).]
Comment f of the Restatement (Third) describes the plaintiff's burden and instructs that "[t]o establish a prima facie case of defect, the plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff's harm." Thus, in looking at both the statute and Comment f to the Restatement (Third), it might appear that the plaintiff and ...