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Nassy v. Patterson-Kelley Co.

October 26, 2007

FOSTER NASSY AND SHIRLEY NASSY, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
PATTERSON-KELLEY CO., GENERAL MACHINE CO. OF NEW JERSEY, INC., CHAMPION TRADING CORP., KEITH MACHINERY CORP., PATTERSON PUMP CO., LOWE INDUSTRIES, INC., O'HARA TECHNOLOGIES, INC., PAUL O. ABBE, DIVISION OF AARON PROCESS EQUIPMENT CO., DEFENDANTS, AND LOUISVILLE LADDER GROUP, LLC, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-4119-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 2, 2007

Before Judges Coburn, Grall and Chambers.

In this personal injury, products liability case, the jury returned its verdict by answers to specific interrogatories. In answer to the first two questions, the jury found that the product had a design defect but it was not a proximate cause of the accident; and in answer to the second two questions, the jury found that the product had inadequate warnings but they were not a proximate cause of the accident. Plaintiffs' motions for judgment notwithstanding the verdict or a new trial were denied, and plaintiffs appeal, offering the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING PLAINTIFFS JNOV OR A NEW TRIAL ON PROXIMATE CAUSE AS THIS ISSUE WAS PREDETERMINED AS A MATTER OF LAW ONCE THE JURY FOUND A DESIGN DEFECT.

POINT II

THE TRIAL COURT'S DENIAL OF PLAINTIFFS' IN LIMINE MOTION TO BAR EVIDENCE RELATED TO COMPARATIVE NEGLIGENCE COUPLED WITH A CONFUSING JURY CHARGE ON PROXIMATE CAUSE RESULTED IN JURY CONFUSION RELATED TO THE PROPER CONSIDERATION OF MR. NASSY'S CONDUCT AS A POSSIBLE INTERVENING CAUSE.

POINT III

THE TRIAL COURT ERRED IN DENYING PLAINTIFFS JNOV OR A NEW TRIAL ON FAILURE TO WARN PROXIMATE CAUSE.

A. Plaintiffs Were Entitled To A Directed Verdict Because Louisville Did Not Rebut The Heeding Presumption.

B. Assuming The Trial Court Correctly Determined That The Heeding Presumption Was Properly Before The Jury, The Court's Charge Misallocated The Burden Of Proof As Though The Defendant ...


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