On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County, Docket No. L-3343-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, C.L. Miniman and Kestin.
Plaintiff Tommy Johnson appeals from a judgment of no cause for action based on a jury finding that the defective LaBrie 200 side-loader garbage truck manufactured by defendants Fabrication LaBrie, Inc., and LaBrie Equipment, Ltd. (collectively LaBrie),*fn1 was not the proximate cause of the plaintiff's fall from the truck. Because the judge erred in admitting certain evidence and in charging the jury, we reverse and remand for a new trial.
Plaintiff was seriously injured*fn2 on June 7, 2000, when he fell from a side step by the hopper on the truck manufactured by LaBrie while it was in motion making a left turn at the intersection of Summit Avenue and Smoke Hollow Trail in Franklin Lakes. Police Officer William Colligan, who had extensive experience and training in traffic-accident investigation and reconstruction, was dispatched to investigate plaintiff's accident at 12:17 p.m. Traffic was light and it was a sunny, warm day.
When Colligan arrived, plaintiff was lying on Summit Avenue in the center of its intersection with Smoke Hollow Trail.
Another officer was attending to him. Garbage was "strewn in the roadway," and a sanitation truck was parked on the side of Smoke Hollow Trail. Henry Denson, the driver of the truck on the day of the accident, gave a formal statement to the police in which he said that he was employed by Frank's Sanitation (Frank's) and was collecting recyclables with plaintiff that day. Denson, who did not see plaintiff fall, related that he was driving north on Summit Avenue, had just pulled off from a stop and was not going fast. He was about to turn left onto Smoke Hollow Trail when he heard noise from the spill plate, a piece of metal on the side of the truck "that keeps the recyclables from falling out." The spill plate "came loose but there was a small chain that holds it." He informed the police that it was common practice to stand on the side step, that his supervisors were aware of it, and that there was a grab handle to hold on the side of the truck.
In plaintiff's second amended complaint, he alleged that LaBrie negligently designed and manufactured the LaBrie 200 side-loader garbage truck from which he fell. According to plaintiff, the defective design consisted of failing to install grab handles next to an outside step on which to stand during travel. Plaintiff also alleged that LaBrie failed to warn the owners and users of the truck of the inherent dangers of riding on the step without handles. Plaintiff alleged that he was seriously injured on June 7, 2000, as a result of LaBrie's defective design, negligence and failure to warn. LaBrie answered the second amended complaint, denying its material allegations and asserting that plaintiff's own negligence, or the negligence of other persons, caused his injuries.
At trial on January 10, 2007, Colligan described the photographs taken at the scene. Views of the rear and right side of the truck showed the spill plate hanging off the side of the truck, and other photos showed the spill plate returned to its normal position. Colligan measured three-sixteenths of an inch as the distance that the spill plate had to be lifted up out of its channel in order to be removed. He was able to pull the spill plate out "without a significant amount of force," because the channel that held it was small. The handle of the spill plate was the only handle that Colligan observed on the side of the truck, and "[t]here was nothing else really for him to hold onto at that location." Colligan expressed his opinion that plaintiff was riding on the platform on the right side of the truck and holding onto the handle on the spill plate when the spill plate became disengaged and plaintiff fell.
Plaintiff established at trial that LaBrie designed the truck from which he fell, manufactured it in 1990, and sold it to Frank's in 1991. Plaintiff's expert mechanical engineer, Paul Stephens, inspected the truck and related that it was a straight-body truck with a cab in the front. He testified that the truck could be operated from the lower-level right-side seat and steering wheel, which made it easier for the driver to get in and out to collect recyclables, but opined that for longer distances the driver should return to the higher left-side seat and steering wheel.
Stephens noted that the design of the truck did not include a grab handle for a person riding on the side step. Colligan's photographs of the truck showed the step on the right side behind the cab, with weld marks to the right of the hopper on the side of the truck where handles may have been located at one time. Rust at the location of the weld marks indicated that the handle had been missing for a period of time. Stephens acknowledged that Frank's had installed a grab handle on the truck where the weld marks were located and explained that the cab's sliding right door struck the grab handle when it was opened. Stephens saw worn paint and indentations on the cab door at the point of contact with a missing grab handle.
This vehicle has been constructed to be operated by one person. However, if there is a helper, be sure that he or she is qualified and knows about all the operations and precautions to take, before operating it. In such a case, the operator should make sure that the helper is within view before moving the vehicle . . . [h]e should also be sure that the helper is securely positioned on the side step beside the hopper . . . firmly holding on to the body. Consequently, do not accelerate fast or brake fast, which could unbalance or throw him off the vehicle.
A subsequent section of the manual stated: "If a helper is used, make sure that he is safely on the side step and that he knows all about the operating instructions and the safety regulations. It is important to note that this vehicle was built to be operated by one person."
Stephens testified that "the usual and customary practice is for refuse[-]collection personnel to use riding steps" for work efficiency between each collection. Denson, too, testified that it was "common practice" to stand on the platform, and that supervisors were aware that workers stood there. However, Denson said that it was not common practice to hold onto the spill plate. Stephens read an interrogatory answer to the jury in which LaBrie admitted that there were no warnings on or attached to the truck about the side step.
Stephens explained to the jury that the American National Standards Institute (ANSI) promulgated safety standards for equipment, including refuse collection equipment, in 1984. According to Stephens, the platform on the truck from which plaintiff fell met all of the criteria for "riding/loading steps" in the code, ANS Z-245.1-1984, § 7.1.10 (location, size, surface and amount of weight that it could support). It was, thus, a "riding step" that required "grab handles" pursuant to § 7.1.6. A grab handle is defined in § 3.2.8 as "[a]n attachment to the body or tailgate to furnish an employee with a handhold."
Stephens opined that a riding step without grab handles was not a safe means for transporting a person, because four points of support--for each hand and foot--are necessary. According to Stephens, a helper standing on the side step could not be securely positioned without grab handles. He explained that holding onto the body required a "pinch grip which is not really an effective wrap around type grasp." Stephens further opined that LaBrie should have installed grab handles and that the LaBrie garbage truck was defectively designed because of their absence. In the absence of grab handles, there should have been a warning not to use the platform as a riding step, another product defect.
At the conclusion of Stephens's testimony, plaintiff's counsel rested without calling his client due to plaintiff's mental incompetency. The judge explained to the jury that plaintiff was not being called to the stand because he had suffered a brain injury as a result of the accident and had subsequently been declared incompetent.
LaBrie disputed that the truck was defective as manufactured or that any warnings were required. Further, as its counsel said in his opening statement, LaBrie contended that Frank's was the cause of the accident because (1) it made a substantial modification to the truck, (2) knew everything required to meet "their obligation to provide [plaintiff] with a reasonably safe environment in which to work," and (3) Denson failed to make sure the truck was safe before he took it out on the road. In concluding his opening remarks, counsel stated that "Frank's Sanitation is the cause of this accident."
Michael Fillion, a mechanical engineer and LaBrie's vice president of engineering, admitted at trial that LaBrie never installed grab handles by the side step. However, Fillion pointed out that the truck was advertised "as a vehicle to be operated by one person," although he acknowledged that the cab could accommodate two people. Fillion testified that the side step was for loading only and asserted that the vehicle met all of the applicable industry standards at the time of manufacture and sale. Fillion also testified that, for a helper to ride safely on the side step, a grab handle in the proper position was necessary and that, with no grab handle, the truck was unsafe and should not have been in use.
Although LaBrie's counsel had not alleged any fault on the part of plaintiff, he elicited an opinion from Lance Watt, defendant's expert engineer, that plaintiff should not have been riding on the step. He adopted Colligan's conclusion that plaintiff was "holding onto the defectively designed and manufactured spill shield installed by the truck owner, Frank's Sanitation Service."*fn3 Watt noted that plaintiff had to bend down to hold onto the handle on the spill plate, which "put his tail out into the wind[,] which is unsafe." Watt testified that the spill shield that Frank's installed "was not solidly engaged on the truck" because a channel three-sixteenths of an inch deep was insufficient. Watt opined that if Frank's intended a helper would ride on the step, it should have installed grab handles on both sides of the step. Watt further opined that Frank's should have trained both plaintiff and Denson how to use the truck properly and that Frank's was responsible for ensuring its truck was in a safe operable condition.
Watt also opined that Denson was responsible, but failed to insure the truck complied with federal motor carrier safety regulations before he drove it. According to Watt, Denson should have done a pre-trip inspection, noticed that the grab handle was missing, and reported that to Frank's, which then should have taken the vehicle out of service. Watt expressed the opinion that "[t]he actions of Denson, [plaintiff] and Frank's Sanitation Service" caused plaintiff's fall, although elsewhere he identified Frank's and Denson as the two causes of the accident because ...