On appeal from the Superior Court, Appellate Division, whose opinion is reported at
The opinion of the court was delivered by: Verniero, J.
We are called on in this appeal to decide whether plaintiffs' action should be dismissed on the basis of the doctrine of forum non conveniens. That doctrine is equitable in nature and allows a court to decline jurisdiction when it would be inappropriate to try the case in the forum selected by the plaintiff. We also address when in the litigation a party should properly move to dismiss an action on that basis.
Following a fatal automobile accident, plaintiffs brought suit in Middlesex County asserting products liability and breach of warranty claims, relating to an allegedly defective steering column in their minivan. The vehicle and steering column were designed and manufactured in the United States, and plaintiffs purchased the vehicle in New Jersey from a New Jersey corporation. The accident around which this case centers, however, occurred in Germany. Defendants successfully argued to the courts below that Germany was the more appropriate forum in which to resolve the litigation. We disagree based on the record presented and, therefore, reverse.
We describe plaintiffs' version of the facts, intimating no view concerning what the evidence at trial might show. In November 1992, April Kurzke and her husband, Hartmut Kurzke, were living in Warren, New Jersey, with no intention of leaving the State. (When they filed suit, plaintiffs resided in Edison.) The Kurzkes wanted to purchase a minivan to replace their Nissan Maxima, which they had purchased in 1990. On November 23, 1992, the Kurzkes went to Bristol Motors Company in North Plainfield, New Jersey, and asked to speak to the same salesperson who had sold them their Maxima. The Kurzkes were considering purchasing a 1993 Nissan Quest; however, they were concerned about the safety of that vehicle.
Specifically, the Kurzkes told the salesperson they were concerned that the Nissan Quest was not equipped with an air bag and, therefore, they were considering purchasing a competitor's vehicle that had such a safety device. The salesperson reassured the Kurzkes, telling them that although the Quest did not have an air bag, it did have a collapsible steering column, which, in a collision, effectively would function like an air bag. The salesperson showed the Kurzkes a Nissan advertisement confirming that the Quest had an "[e]nergy-absorbing steering column [which] collapses upon impact to help reduce the risk of injury." Relying on those assurances, the Kurzkes purchased the Nissan Quest.
In 1993, Hartmut Kurzke's employer offered him a transfer to Germany. Hartmut accepted the position with the expectation of living in Germany for four or five years and then returning to New Jersey to assume an administrative position in his employer's New Jersey headquarters. Hartmut arrived in Germany in August 1994, and April and the Kurzkes' two children joined him soon thereafter. The Kurzkes had their Nissan Quest shipped to them overseas.
On August 14, 1995, Hartmut was driving the Nissan Quest on the Autobahn near Olpe, Germany. April and Brendan, the Kurzkes' four-year- old son, were passengers. The Kurzkes were on a section of the Autobahn undergoing construction when a vehicle driven in the opposite direction by Frieda Adler unexpectedly crossed into the Kurzkes' lane. Adler's vehicle (a Volkswagen Golf) hit another vehicle before striking the Kurzkes' Nissan Quest.
Adler was pronounced dead at the scene. Hartmut, though conscious, was trapped and compressed between the seatback and the steering column for nearly two hours before he died. April and Brendan escaped serious injury but observed Hartmut's slow and painful death. Plaintiffs submitted an expert's report that concludes that the steering column was defectively designed and failed to collapse. Plaintiffs' expert also expressed the view that Hartmut could have survived the accident had it not been for the defective steering column, which crushed Hartmut's chest and lungs.
April Kurzke, individually and as a representative of the Estate of Hartmut Kurzke, and Brendan Kurzke, by his guardian ad litem, instituted this action in the Law Division on March 6, 1997, alleging that the steering column was defectively designed and that its failure to collapse was in breach of the warranties that they had received. Plaintiffs also instituted a negligence action against Adler's estate in the Munich District Court of Germany. That action is pending.
During the early stages of the litigation, defendants moved to dismiss the New Jersey action on the basis of forum non conveniens. Following written submissions and oral argument, the trial court granted defendants' motion and dismissed the complaint. The court also ordered defendants to waive statute of limitations defenses and jurisdictional objections to enable the action to be tried in Germany.
Plaintiffs appealed to the Appellate Division. In a reported opinion, that court affirmed the trial court's order dismissing plaintiffs' complaint. Kurzke v. Nissan Motor Corp., 320 N.J. Super. 386 (App. Div. 1999). One member of the panel, Judge Wefing, dissented. Plaintiffs appealed to this Court as of right pursuant to Rule 2:2- 1(a)(2).
The doctrine of forum non conveniens "is firmly embedded in the common law of this State." Civic S. Factors Corp. v. Bonat, 65 N.J. 329, 332 (1974). The precise origins of the doctrine are obscure; the term appeared in early Scottish practice and was invoked by courts declining to exercise jurisdiction when justice required that an alternative forum be used. Gore v. United States Steel Corp., 15 N.J. 301, 305, cert. denied, 348 U.S. 861, 75 S. Ct. 84, 99 L. Ed. 678 (1954). "Although phrased in a variety of ways, the essence of the doctrine is that a court may decline jurisdiction whenever the ends of justice indicate a trial in the forum selected by the plaintiff would be inappropriate." D'Agostino v. Johnson & Johnson, Inc., 225 N.J. Super. 250, 259 (App. Div. 1988), aff'd, 115 N.J. 491 ...