On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-2794-01.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Parker and Grall.
Defendant, University Loft Company, appeals from a July 23, 2004 "order of judgment" based on a jury verdict awarding plaintiff $179,001, including prejudgment interest and costs,*fn1 and from an order of October 8, 2004, which denied defendant's motion for a new trial and to vacate the judgment.
Plaintiff filed this products liability design, manufacturing, and warning defect case after falling from his loft bed and sustaining injuries. Summary judgment was granted dismissing plaintiff's case except for the claim "based upon lack of warning."
On this appeal defendant argues that summary judgment should have been granted on the failure-to-warn claim and that the case should have been dismissed at the end of plaintiff's case; that the instructions "on the allegation of a failure to warn" were in any event erroneous; that a mistrial should have been granted following plaintiff's "repeated statements and argument[s] to the jury concerning the lack of guardrails on the loft bed despite the court having granted summary judgment on [the design and manufacturing defect] issue[s], and [because of] repeated references in closing to the retail standards for loft beds, with knowledge that the bed in question was sold for industrial use";*fn2 that the trial judge also "committed an error of law in allowing plaintiff's 'warnings expert' to testify concerning the retail standards for warnings and guardrails on loft beds"; and that the jury's verdict was excessive.
We agree with defendant that the failure-to-warn claim should have been dismissed, and we reverse the judgment for plaintiff. In so doing, we note that there is no cross-appeal on the dismissal of the manufacturing and design defect claims that were dismissed on summary judgment.
According to the proofs at trial, in the fall of 1999 plaintiff, then twenty-one years old, was a senior at Stockton State College. He lived with a roommate in a new campus apartment, where he slept in a new "loft bed" which was six feet off the floor.*fn3 Plaintiff began sleeping on the loft bed in the first week of September 1999. He had never slept on a loft or bunk bed before.
At about noon on October 11, 1999, plaintiff was asleep on the bed when his pager went off. The pager was on the "desk, or dresser area, below the bed." Plaintiff did not hear the pager at first, but his roommate, who also had been sleeping, woke up and yelled to plaintiff to "turn . . . off" the pager. Plaintiff testified that "when he yelled over to me to wake up, or, you know, get up, I was startled, and I -- the next thing I knew, I was -- I fell off the bed, I was on the floor."
Plaintiff landed on his head and left shoulder, and felt "excruciating pain" in his shoulder, which looked "deformed" and had dislocated. After a few minutes he was able to "roll" the shoulder "back into the socket." He went to the school healthcare center from which he was sent to the hospital, where x-rays were taken and he was given pain medication and "a sling to wear for a few weeks."
Plaintiff resumed sleeping in the loft bed, but subsequently positioned himself "all the way against the wall," as far as possible from the open edge of the bed, because he "didn't want to fall off the bed again." There were no warning labels on the bed, and it had never "cross[ed his] mind" or "occurred to" plaintiff that he could fall or that the bed was dangerous in any way. He testified that had he seen a warning, he would have been "aware of the hazard that was present" and slept closer to the wall, as he had done after the accident. In light of our disposition, we do not detail the proofs concerning damages.
George Widas, a consulting engineer, testified for plaintiff as an expert in "safety engineering, including safety in products, safety in falls from heights, and human factors." At plaintiff's counsel's request, Widas had examined the discovery in this case, as well as defendant's documentation concerning the loft bed in question and the applicable industry standard, which considered any bed higher than three feet off the ground to create a "fall hazard." According to Widas, this bed was six feet high, and thus constituted a "significant risk." In 1989 there had been over 8,000 reported falls from bunk beds by persons over fifteen years old.
Widas testified that when such a risk exists, the proper response is for the manufacturer to provide a "barrier to prevent a sleeping occupant from rolling or sliding out of the bed." If no barrier is provided or it is removable, industry standards require that the manufacturer affix a warning "that says make sure that you protect yourself from this fall hazard[.]" According to Widas, an adequate warning must include "a keyword, an alerting word, such as danger to get people's attention" and must "tell the people what the danger is and how to avoid it." The warning must be in certain colors to attract "attention," must "make the user aware of the means to mitigate the hazard," and must "be displayed on the end board of the bed at a prominent height, eye height, in a location that's readily visible to the user." Widas observed that although there was a manufacturer's sticker on plaintiff's bed, it was not a warning; it was a label that identified the manufacturer and disclaimed liability or ...