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Lopez v. Borough of Sayreville

July 9, 2008

RICHARD LOPEZ, PLAINTIFF-APPELLANT, AND FRANCISCA VALENTIN AND CARMELO VALENTIN, PLAINTIFFS,
v.
BOROUGH OF SAYREVILLE, GPU ENERGY, INC., A/K/A GENERAL PUBLIC UTILITIES, INC., A/K/A JERSEY CENTRAL POWER & LIGHT COMPANY, DEFENDANTS, AND KAWASAKI MOTORS CORP., U.S.A., KAWASAKI MOTORS MANUFACTURING CORP., U.S.A., AND KAWASAKI HEAVY INDUSTRIES LTD, A/K/A KAWASAKI HEAVY INDUSTRIES, HERCULES, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6208-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 7, 2008

Before Judges Parrillo, Graves and Alvarez.

In this products liability action, plaintiff Richard Lopez suffered an acute spinal cord injury when the four-wheeled all terrain vehicle (ATV) he was riding "overturned backwards," rolled over and landed on him, rendering him a paraplegic. Plaintiff appeals from a final judgment entered on a jury's no cause verdict and an order denying his motion for a new trial.

On appeal, plaintiff presents the following arguments:

POINT I PLAINTIFF WAS ENTITLED TO A DIRECTED VERDICT ON PROXIMATE CAUSATION BECAUSE DEFENDANT DID NOT REBUT THE HEEDING PRESUMPTION.

POINT II EVIDENCE OF PLAINTIFF'S ALCOHOL CONSUMPTION WAS HIGHLY PREJUDICIAL, IRRELEVANT ON ANY POINT, AND SHOULD HAVE BEEN EXCLUDED IN IT[S] ENTIRETY FROM THE TRIAL.

POINT III QUESTION NO. 6 ON THE JURY VERDICT SHEET WAS REDUNDANT AND SHOULD NOT HAVE BEEN INCLUDED ON THE JURY VERDICT SHEET.

POINT IV THE COURT MISLED AND CONFUSED THE JURY WHEN IT CHANGED THE JURY CHARGE AFTER EIGHT DAYS OF DELIBERATION.

POINT V ACCEPTING A VERDICT FROM THE JURY WHILE JURY QUESTIONS WERE STILL PENDING IS REVERSIBLE ERROR.

POINT VI REQUIRING THE PLAINTIFF TO REMOVE CERTAIN PORTIONS FROM THE DAY IN THE LIFE VIDEO WAS ERROR, AND THEREFORE, A NEW TRIAL MUST BE GRANTED.

After reviewing these contentions in light of the record, the applicable law, and the arguments of counsel, we conclude there was ample evidence to support the jury verdict, and there was no prejudicial error warranting a new trial. We therefore affirm.

Plaintiff's complaint sought damages for injuries plaintiff suffered as the result of an ATV accident on May 7, 2000. Plaintiff was born on January 29, 1971, and was twenty-nine years of age at the time of the accident. Although plaintiff's complaint initially included claims on behalf of his mother, Francisca Valentin, and his step-father, Carmelo Valentin, those claims were subsequently dismissed. In addition, the trial court granted summary judgment motions filed by the Borough of Sayreville and GPU Energy, Inc., and those defendants are not part of this appeal. Because one answer was filed on behalf of defendants (Kawasaki Motors Corp., U.S.A.; Kawasaki Motors Manufacturing Corp., U.S.A.; and Kawasaki Heavy Industries Ltd.), we refer to these defendants collectively as either Kawasaki or defendants.

In March 2000, George Lopez, plaintiff's brother, gave plaintiff a used 1998 Kawasaki Bayou KLF220, the ATV involved in the accident. When George, an inexperienced rider, testified, he said that he did "[n]ot really" have any trouble controlling the ATV when he rode it, but "it always shot to one side. . . . or pulled to one side. I forgot which side it was." It was undisputed that the warning labels had previously been removed from the ATV, and that plaintiff did not receive a copy of the owner's manual. The ATV, as originally sold, had contained warning labels cautioning (1) individuals not to ride without a helmet, (2) with a passenger, or (3) after consuming alcohol.

Plaintiff was a "very experienced" ATV rider, and his testimony included the following:

Q: And as a matter of fact, you would agree with me that in terms of your operation of ATVs, you rode them as much as possible; is that right?

A: Yes.

Q: Two, three, four times a week sometime[s]?

A: Yes.

Q: Hours?

A: Yes.

Q: Right? Over a period of ten years, would you say that?

A: Yes. . . . .

Q: . . . Obviously you were a very experienced operator; is that right?

A: Yes.

Q: But you never read an owner's manual; is that right?

A: No.

Q: And you don't recall ever reading any of the labels, say, for example on Acosta's Honda; is that right?

A: No.

Q: You don't recall reading any of the labels on the Yahama that you operated. Is that also right?

A: No.

Q: In any event, whether it was the Kawasaki ATVs, the Honda ATVs, the [Yamaha] ATVs, you never read any of the owner's manuals. You've never read any of the warnings that were on the product; is that right?

A: Yes.

At approximately 9:00 p.m. on May 6, 2000, plaintiff and Liz Velez, his then-girlfriend, arrived at the residence of their friends Michael and Sandra Acosta, who lived near an area known as "the trails" in Sayreville. There they joined Kelly Glaser, another friend, and several other unnamed riders. Plaintiff usually stored his ATV in Michael's garage and frequently rode it at the trails. Plaintiff and his friends, who were all riding ATVs, departed shortly after 9:00 p.m. Plaintiff, who was not wearing a helmet, transported Velez on the back of his ATV. Plaintiff testified he often wore a helmet, but he did not do so that night because there were not enough helmets for everyone. Michael, who also was not wearing a helmet, transported his wife on the back of his ATV, along with a cooler stocked with beer and water.

To get to the trails, the group of riders followed train tracks for a distance, crossed a public thoroughfare (Cheesequake Road), and then entered a partially wooded, hilly area with dirt trails. Plaintiff, Velez, and the rest of the group rode for several hours, climbing many of the steep trails. Plaintiff testified he did not experience any problems operating the ATV that evening, and he had no problems seeing the trails because the ATV was equipped with a headlight.

At some point, the group stopped riding and drank some beer from the cooler. Plaintiff testified he is "not a drinker," and he only drank one "Coors Light." Velez confirmed that plaintiff had just one beer, and further stated that she took sips from his beer. But that testimony was later contradicted by Dr. Richard Saferstein, plaintiff's forensic scientist, who estimated plaintiff drank "[b]etween two and a half to three beers" based on hospital records indicating plaintiff's blood alcohol content following the accident.

In any event, after consuming some alcohol, plaintiff resumed riding the trails. One of the trails, where the accident ultimately occurred, traversed a fairly steep hill, although plaintiff said he had ridden even steeper hills without incident that night. Nonetheless, this particular hill had several trails leading to the top, one of which formed a "Y" shape, with a smoother trail on the left and a more hazardous rutted trail on the right. Plaintiff testified he rode up the left trail on three or four occasions without incident, after dropping Velez off.

However, on his final trip up the hill, plaintiff said he rode approximately three-quarters of the way up the smoother trail on the left when his ATV slowed, lost forward momentum, and then stopped. Plaintiff thought his back tires were "spinning," so he released the throttle to regain traction, but without warning the ATV "shot backwards" and pitched over and landed on him. Plaintiff admitted he did not attempt to apply either the front or the rear brakes, even though he admitted he had done so on another prior date when he stopped his ATV on a hill. Plaintiff also testified as follows:

Q: . . . It was your intention to apply more gas to the ATV at the time you felt it start to slow down; right?

A: Yes.

Q: Okay. But you didn't feed it more gas; right?

A: Because I got to a certain point I started to let off the throttle because I thought my tires were spinning. It wasn't going anymore.

Q: But you didn't depress the gas at that time, did you?

A: No.

Q: Okay. Then you say you started going backwards; is that right?

A: Yeah.

Q: Eventually you got to the bottom of the hill; is that right?

A: We both wound up at the bottom.

Q: Huh?

A: The bike was on top of me, but yeah, I was on the bottom.

However, Sandra Acosta, who was standing at the bottom of the hill with Velez and Glaser, and who witnessed the entire incident, testified that it looked as though plaintiff traveled up the right, more rutted trail. She recalled that when plaintiff had almost reached the top of the hill he "started sliding" backwards. Plaintiff then looked over his shoulder and tried to back down the hill. As plaintiff got close to the bottom of the hill he appeared to be trying to steer the ATV, but it started "swiveling" and then tumbled over. Sandra said it seemed as though the ATV flipped or tumbled "[n]ot straight up. Like sort of on the side." Similarly, Velez, who also witnessed the accident, testified that before plaintiff reached the top of the hill, his ATV "slid back" and "just flipped."

It is undisputed that plaintiff eventually came to rest face down at the bottom of the hill, with the ATV resting on top of him. Michael, who did not witness the accident, ran to join the others who were crowded around plaintiff, and then called 9-1-1. Someone lifted the ATV off plaintiff. Michael, Velez, Grazer, and Sandra remained with plaintiff to wait for the ambulance, but the rest of the riders fled the scene, taking the cooler and plaintiff's ATV with them.

At approximately 12:34 a.m., Patrolman John Ziola, Jr. and Patrolman Poetch of the Sayreville Police Department were dispatched to the scene. Poetch rode on the back of Michael's ATV to where plaintiff was laying, and Ziola followed in his vehicle. Upon arrival, Ziola observed that plaintiff was laying face down, could not move his legs, and was having difficulty breathing, so Ziola administered limited first aid. Ziola said he "didn't get up close" to plaintiff and thus did not know if plaintiff smelled of alcohol. The paramedics arrived shortly thereafter, resuscitated plaintiff who had stopped breathing, and then arranged to have him evacuated by helicopter to the hospital. The paramedics' report did not contain any indication that they suspected intoxication or alcohol consumption.

Ziola then spoke to Michael, who had "a little bit of alcoholic odor on his breath" but did not appear intoxicated. Michael stated that plaintiff had "attempted to [ride his ATV] up a hill but lost control and crashed."

As a result of the accident, plaintiff suffered an acute spinal cord injury, rendering him a paraplegic with only limited ability to bend his elbows and move his wrists. After the accident plaintiff remained in intensive care for six weeks, was on a ventilator, and underwent several surgeries, including a cervical fusion. He was ultimately weaned off the ventilator and transferred to a rehabilitation center, where he remained for approximately three weeks. He then returned to live with his parents.

Plaintiff's forensic scientist, Dr. Saferstein, testified plaintiff's blood alcohol content (BAC) at the time of the accident was .066%. Dr. Saferstein explained that a blood test taken at the hospital at 1:59 a.m. revealed that plaintiff's serum blood alcohol was fifty-four milligrams per deciliter, which converted to a whole blood level of .044% BAC. Dr. Saferstein then extrapolated back and calculated that, given that plaintiff testified he stopped drinking an hour and a half to two hours before the accident, and given an average rate of elimination of .015% per hour, that plaintiff had a BAC of .066% at the time of the accident. However, Dr. Saferstein admitted that if he had used slightly different times and ranges of elimination, plaintiff's BAC at the time of the accident could have been as high as .0737%.

In any event, Dr. Saferstein opined that plaintiff, who was under the then-legal limit of .10% BAC, "was not impaired by alcohol at the time of his accident" and "was not impaired with respect to his performance in the driving of this vehicle." He also testified that plaintiff's judgment, reasoning skills, and motor skills were not "significantly impaired to the point that they were a cause of this accident."

On cross-examination, Dr. Saferstein admitted, however, he had never ridden an ATV and thus was unfamiliar with the skill necessary to operate such a vehicle. He also admitted impairment begins as soon as someone ingests alcohol, and various abilities are affected by the consumption of alcohol, which are increasingly compromised upon additional alcohol consumption. Such abilities included balance, visual acuity, vigilance, judgment, reasoning, and fine motor skills.

Furthermore, Wade Bartlett, plaintiff's expert ATV operator, mechanical engineer, mechanical design engineer, and accident reconstructionist, who was familiar with the skills necessary to ride an ATV, described ATVs as "rider active," meaning that the vehicle is "dramatically affected by the rider." He explained how a rider positions his or her body on an ATV and what he or she does with the controls "makes a very immediate and important difference in how the machine handles."

On August 30, 2000, Howard Sarrett, plaintiff's expert in mechanical engineering, went to the Sayreville Police Department to inspect the ATV, which had been impounded since the accident. Sarrett observed that the ATV had a semi-automatic transmission, was heavily splattered with mud, and had a loose front cowling and fuel line. Sarrett took some measurements of the vehicle but admitted he did not check the vehicle's electrical system, the brakes, the controls, or the headlights. Sarrett noticed the front of the ATV was misaligned, but he did not investigate whether the frame had been bent prior to the accident. In fact, Sarrett admitted he did not attempt to determine if the condition of the ATV may have contributed to the accident.

However, plaintiff's other expert, Wade Bartlett, who inspected the ATV sometime after Sarrett, found several problems with the condition of the vehicle. Notably, a static/non-moving test of the brakes revealed that the rear brakes were fairly "well-worn" and that the front brakes were worn but "functional." He also determined the steering was loose, although he surmised it may have become loosened during the accident. And he found the frame was "tweaked," or bent, and that someone had replaced the original factory installed carburetor with an improperly installed Dynojet carburetor.

Similarly, Ronald Wayne Robbins, defendants' expert in ATV riding, training, and technical performance, inspected the ATV and found that there was "play" in the steering, the front fender was bent, and the front wheels "toe-in" or pointed slightly inward instead of being level with the axle, causing the vehicle to pull in either direction. Robbins also found the frame had been bent, which he said would cause the ATV "to drift one way or the other." He reported the rear "brakes were worn beyond their service limit" and the front brakes "were worn to the service limit," and thus should have been replaced. Robbins concluded the above-described damage preceded the accident. He further noted the improperly installed carburetor could create intermittent fuel metering problems, resulting in erratic loss of engine power.

Hideo Saito, defendants' chief engineer for the design of the KLF220, testified during depositions, which were read to the jury, that defendants had successfully tested the ATV on hills with thirty to forty-degree slopes. However, Makoto Matsuo, an assistant design engineer, admitted in answers to interrogatories that defendants had "been aware that on sufficiently steep hills a KLF220 may begin to roll backwards if the operator causes the ATV to lose momentum while climbing the hill, the throttle is released, and the brakes are not applied." And Makoto testified during depositions, which were also read to the jury, that the KLF220 was last tested in 1989, and that "[t]here was no continual developmental testing," nor had any safety changes been made.

In May 2000, Sarrett and Bartlett visited the scene of the accident and calculated the sloped portion of the very steep hill measured approximately fifty-six feet, and the average slope of the hill was approximately thirty degrees, with some portions, notably that portion of the hill closer to the top, measuring about thirty-five degrees. Sarrett observed two visibly eroded tracks composed primarily of sand and some gravel leading to the top of the hill, noting the right trail had a crevice, while the left trail did not. At the top of the hill was a power line and an approximately five-foot-wide track or roadway. Sarrett admitted he took measurements from the left side of the hill only, because the right side was heavily rutted, steep, and had a ravine running through it, so it would have been hazardous to walk on. Nonetheless, Bartlett claimed that even if ...


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