On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-6458-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Grall and Chambers.
Robert Rider (Rider) sustained fatal cranial and cerebral injuries when he struck his head against a utility pole that penetrated the door and intruded into the passenger compartment of his 1986 BMW 325i. The car hit the pole after it slid off an icy roadway.
Defendants BMW of North America, Inc. and Bayerische Motoren Werke Aktiengesellschaft (collectively BMW) appeal from the final judgment in a wrongful death action in favor of plaintiff Joan M. Rider, as executor of her husband's estate.*fn1
Plaintiff's claim was based on a design defect under the Products Liability Act, N.J.S.A. 2A:58C-1 to -7, and the common law principles it incorporates.*fn2 See Green v. Gen. Motors Corp., 310 N.J. Super. 507, 517 (App. Div.), certif. denied, 156 N.J. 381 (1998). A jury found that the car's design was defective and awarded plaintiff damages in the amount of $6,930,000 to compensate for the pecuniary loss sustained by plaintiff and the Riders' five children.
BMW appeals, contending that it was entitled to judgment and judgment notwithstanding the verdict. In the alternative, BMW contends that erroneous evidentiary rulings and jury instructions on liability and damages warrant a new trial. For reasons stated in Part I of this decision, we affirm the verdict on liability and damages.
Plaintiff appeals, and defendant cross appeals, from the trial court's rulings on damages, prejudgment interest, fees and costs.*fn3 We now consolidate the separate appeals.
Applying the collateral source statute, N.J.S.A. 2A:15-97, the court reduced the damage award by $99,785, the amount plaintiff received from social security as Rider's surviving spouse and mother of his children, but the court did not deduct social security survivor benefits payable to the children. Both parties claim error. For reasons stated in Part II(B) of this decision, we remand for deduction of all social security benefits after offset for contributions.
The trial court denied prejudgment interest available for past economic loss pursuant to Rule 4:42-11(b), because the jury had stated the damage award in a lump-sum amount. Plaintiff argues that the jury instruction calling for a lump-sum verdict was plain error, which the court should have corrected by conducting a second trial to allocate damages awarded or by calculating past and future loss based on the evidence presented at the first trial. For reasons stated in Part II(A), we reject that claim.
Pursuant to Rule 4:58-2, and based on BMW's failure to accept plaintiff's offer of judgment, the court awarded prejudgment interest, from the discovery end date until the date of final judgment, in the amount of $843,237.18, plus pre-verdict counsel fees in the amount of $930,768.75, post-verdict counsel fees in the amount of $240,680.86 and costs in the amount of $59,170.65. Plaintiff contends that the court erred by calculating the interest from the discovery end date to the date of final judgment. For reasons stated in Part II(C), we reject that claim. BMW argues that plaintiff was not entitled to an award pursuant to Rule 4:58-2 and, in the alternative, argues that the amount awarded for reasonable counsel fees and litigation expenses is excessive. For reasons stated in Part II(C), we reject both claims. Finally, BMW argues that the award for taxed costs pursuant to Rule 4:42-8(a) is excessive. For reasons stated in Part II(D), we remand for reduction of that award.
This section of the opinion addresses the evidence relevant to liability and the points of error BMW raises relevant to the jury's verdict on liability and damages.
We reject BMW's claim that the trial court erred in denying its motions for judgment and judgment notwithstanding the verdict.*fn4 On review of a motion for involuntary dismissal, judgment, or judgment notwithstanding the verdict, a court must consider whether the evidence permits a finding of each essential element of the claim. See Pressler, Current N.J. Court Rules, comment 2.1 on R. 4:37-2(b) (2008); id. at comment 1 on R. 4:40-2. In making that determination, the court must "accept as true all evidence supporting the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be deduced therefrom. If reasonable minds could differ, the motion must be denied." Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567-68 (1998); see Zive v. Stanly Roberts, Inc., 182 N.J. 436, 441 (2005).
The law relevant to plaintiff's cause of action and BMW's liability is clear. A products liability claim based on a car's defective design is available if, considering the risks and alternatives that should have been known by a reasonable automobile manufacturer, the car was not "reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes" because of its design. Green, supra, 310 N.J. Super. at 517 (concluding that N.J.S.A. 2A:58C-2(c) incorporates the common law standard enunciated in Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 169 (1979)).
Where the design of a car is at issue, reasonably foreseeable accidents are a reasonably foreseeable use of the car, and reasonable, feasible measures to protect the integrity of the passenger compartment and the passenger in such accidents are part of a safe design. See id. at 521. Our cases have used the term "crashworthiness" to describe the quality of a car that provides such protection. See, e.g., id. at 519. "'Crashworthiness' is . . . 'the protection a passenger motor vehicle gives its passengers against personal injury or death from a motor vehicle accident.'" Poliseno v. Gen. Motors Corp., 328 N.J. Super. 41, 45 n.2 (App. Div.) (quoting 49 U.S.C.A. § 3201(1)), certif. denied, 165 N.J. 138 (2000).
A plaintiff may establish a claim of defective design relevant to crashworthiness by proving that omission of a "reasonable alternative" design made the car "not reasonably safe." Green, supra, 310 N.J. Super. at 518 & 518 n.4; Restatement (Third) of Torts: Products Liability § 2(b) (1998). Stated differently, the plaintiff can demonstrate a claim of design defect by showing that the car "could have been designed in an alternative manner so as to minimize or eliminate the risk of harm." See Lewis, supra, 155 N.J. at 570-71 (discussing the design of a different product). In proving that the product at issue "could have been designed more safely," the plaintiff must prove "the existence of an alternative design that is both practical and feasible." Id. at 571; see Diluzio-Gulino v. Daimler Chrysler Corp., 385 N.J. Super. 434, 438 (App. Div. 2006); Smith v. Keller Ladder Co., 275 N.J. Super. 280, 284 (App. Div. 1994); Macri v. Ames McDonough Co., 211 N.J. Super. 636, 641 (App. Div. 1986). In addition, the plaintiff must establish that the manufacturer's failure to include the alternative design "was a substantial factor in producing an injury that would not have occurred, or would have been substantially diminished, in the absence of the defect." Poliseno, supra, 328 N.J. Super. at 55.
In this case, the jury found that BMW's design of the structure and seatbelt of Rider's 1986 BMW 325i was defective because it did not include "technically feasible, practical and safer alternative" designs proven by plaintiff's experts. The jury also found the defective design was a substantial factor in increasing Rider's injury beyond that which would have resulted if the defect had been remedied and that BMW had not established the percentage of injuries that Rider would have sustained if there had been no defect.
The relevant evidence, viewed in a light most favorable to plaintiff, is as follows. The accident occurred on January 3, 1994. Rider was driving his 1986 BMW 325i west on an icy road in Freehold Township. The car slipped off the road, hit a tree and was spun around. It was still traveling in a westerly direction at a speed of twenty-five to thirty miles per hour when the passenger side of the car hit a utility pole.*fn5 The car continued to move along the pole, at an eight or nine degree angle with the road, until it stopped abruptly when the "soft" mid-section of the door reached the pole and the car pocketed and wrapped around it. The pole intruded twenty-nine inches into the passenger compartment, which was crushed on its right side. From the force of the impact, Rider's upper torso moved out from under the shoulder seatbelt harness and toward the right side of the car. His head hit the intruding utility pole, causing fatal cranial and cerebral injuries.
The mid-section of the door, where the car grabbed the pole and stopped, is the point at which the car's rear and front subframes meet. Those subframes are not connected to one another. In this accident, the subframes were not deformed or distorted. They were simply pushed aside.
Plaintiff presented expert testimony relevant to the design of the 1986 BMW 325i and alternative, feasible and practical safer designs. Byron Bloch was plaintiff's expert on automobile safety and "crashworthiness," and Nicholas Perrone was her expert on mechanical and biomechanical engineering.
A "crashworthy" car, according to Bloch, is one designed and produced to protect the occupants by minimizing intrusions into the passenger compartment, the car's "survival space," and keeping the occupants in their seats. Bloch and Perrone found the 1986 BMW 325i lacking in both respects.
The front and rear subframes, which run on the underside of the car, could not prevent intrusion into the passenger compartment on side impact with a pole because they were not connected to one another. This design feature, the unconnected subframes, created a structural gap that allowed penetration. Although each subframe had its own independent connection to the car's floor pan, the floor pan was made of a thin piece of sheet metal that offered no real "structural resistance." Further, because the front subframes were positioned thirteen inches in from the periphery of the car, they could not prevent intrusion before that point, which was well within the passenger compartment.
The rocker sections of the car, which run along the perimeter of the underside of the car, were inadequate to prevent intrusion on side impact or compensate for the structural gap left by the separate subframes. The rockers were hollow and could not prevent intrusion, and the car did not have any structural lateral cross members that could serve to transfer the load of force from the hollow rockers to other structural components around its perimeter.
The only lateral component at the floor level was a hollow tube of sheet metal to which the seats were bolted. It provided no "real structural resistance" to side impact.
At the roof level, the only lateral structures were the roof side rails, which were made of a u-shaped open piece of thin metal. Those side rails were not connected to a rigid part of the frame structure.
The door beams were not part of a continuous structure around the perimeter of the car. Rather, they were bolted to the doors.
In the opinion of plaintiff's experts, the structural components of the car did not form a protective cage enclosing the occupants that would promote safety and survival in any type of crash by distributing the load from force on impact and preventing or minimizing intrusion into the passenger compartment.
Plaintiff's experts offered alternative designs that would form such a protective cage and would have minimized the intrusion into the passenger of Rider's car by a distance of twelve to seventeen inches. The experts recognized that the stiffening, or strengthening, of the structure would result in some increase in the force exerted upon the occupants of the car, but concluded that the impact of the forces would not increase beyond acceptable levels and could be reduced by the addition of padding.
The rocker sections could be reinforced with an internal baffle, which is a hollow tube made of the same sheet metal that forms the rocker, or with "rigid foam," which is inserted into a hollow metal tube in liquid form and expands to fill the hollow space. The baffle would convert what was a hollow rocker into two tubes and "significantly increase" its ability to resist buckling and bending on impact. Installation of the lightweight, easily installed and inexpensive foam would do the same. A draw back of the foam, its potential corrosive effect, could be addressed by using resistant metals and proper venting.
The baffle technology suggested to reinforce the car's rocker section was available in 1986. Other car manufacturers had used the baffle technology for decades. Volkswagen developed an experimental car utilizing that technology in 1973. Tests of that vehicle demonstrated that rocker sections reinforced with baffles kept intrusion upon impact with a pole to 4.33 inches at a speed of fifteen miles per hour. The results of that study were reported. According to Bloch, an impact of Volkswagen's experimental car and a pole would be seventeen inches at a speed of thirty miles per hour. Photographs of a structural member reinforced with a baffle were produced. Bloch acknowledged that the study reported that forces exerted on an occupant of the experimental car would increase beyond the standard set for experimental safety vehicles, but he explained that the standard for experimental safety vehicles exceed ordinary standards. Perrone explained that the increased forces could be addressed by additional padding.
The foam technology was also known and available in 1986. GM/Opel conducted a conference on vehicle safety in 1974. A report of a study presented at that conference advised that capability of handling the type of loading caused by a pole can be "increased drastically" by use of polyurethane foam. A 1973 article reporting on an experimental safety vehicle developed by Nissan advised that injection of urethane foam into hollow metal sections can triple the bending strength of the components.
According to Bloch and Perrone, the rockers, with the reinforcement suggested, could form ...