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Johnson v. Navistar International Transportation Corporation


July 29, 2008


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County, Docket No. L-3343-02.

Per curiam.


Argued: May 5, 2008

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.

The truck's manual said:

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 Frank's should not have allowed the truck to be operated as it was and Denson should have made sure that plaintiff was inside the cab between stops.

After Watt's testimony concluded, LaBrie's counsel read a portion of plaintiff's deposition to the jury in which plaintiff said that, when he was seventeen*fn4 and on his first sanitation-truck job, he was taught to hold onto two handles while riding on the back of the truck in order to avoid falling. When he began work at Frank's, it did not give him any safety training because he already knew. Mike Franco told him to ride on the side of the truck because he was a lifter. Plaintiff said that Frank's side loaders had "handles on it where you dump the garbage at. You got a food stander down there and you got two handles." Plaintiff also said that he could not remember whether the truck involved in the accident had grab handles and did not know why he had the accident. He denied that he had ever held onto the spill plate while riding on the sanitation truck "[b]ecause it will come out" and because "I can't stick my hand down there." He also testified that he would never ride on a truck that had only one handle because he would fall off.

At the charge conference on January 16, 2007, the last trial day, plaintiff objected to a charge that comparative fault was not a defense to workplace injuries and he further objected to including questions on the verdict sheet asking if he had been negligent and if his negligence had proximately caused the accident. The judge overruled this objection, ruling that it was for the jury to decide whether plaintiff knew of the danger and had a choice to avoid it by riding in the cab of the truck.

After charging the jury on the issues of a defective product under the Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11, the judge charged on proximate cause as follows:

Proximate cause means that the design defect was a substantial factor which singly or in combination with another cause or causes brought about the accident. It doesn't have to be the only cause. It has to be a substantial factor which singly or in combination with another cause or causes brought about the accident.

Plaintiff need not prove that this same accident could have been anticipated so long as it was foreseeable that some significant harm could result from the design defect. But [if] the defect does not add to the risk of the occurrence of this accident and therefore is not a contributing factor to the happening of the accident, then plaintiff has failed to establish that the design defect was a proximate cause of the accident.

If plaintiff has proven each element I've explained to you, then you must find for the plaintiff. If on the other hand plaintiff has failed to prove any of the elements, then you must find for the defendant. But again, proximate cause means it was a substantial factor in the cause of the accident, singly or in combination with other causes.

After charging the jury on failure to warn, the judge gave a modified version of this proximate-cause instruction.

In addressing LaBrie's affirmative defenses, the judge charged the jury that LaBrie contended that there were several intervening acts that caused the accident: modification of the truck by Frank's to include a spill plate and grab handle and the subsequent failure to reattach the grab handle, Frank's failure to train Denson properly, and Denson's improper operation of the truck with plaintiff riding on the side step. The judge explained:

Now this intervening cause is the act of an independent agency which destroys the causal connection between the defect in the product and the accident. Ultimately this issue of proximate cause, the connection between the two. Remember I told you about that.

To be an intervening cause, the independent act must be the immediate and sole cause of the accident. In . . . that event liability will not be established because the failure to warn and instruct, or for that matter, design defect is not a proximate cause of the injury.

However, the defendant would not be relieved from liability for its failure to . . . instruct by the intervention of acts of third persons if those acts were reasonably foreseeable. Where the intervention of third parties is reasonably foreseeable, then there's a substantial causal connection between the product defect and the accident. Again there's two ultimate theories of the product defect here, design defect and failure to warn.

You must determine whether the actions of the plaintiff's employer of performing modifications in the vicinity of the step and the actions of Frank's Sanitation of the driver of the vehicle was an intervening cause that destroyed the causal connection between the failure to warn/design defect and the accident.

In other words you have to find that those intervening causes were the immediate and sole cause of the accident. And that's the flip side of the proximate cause question which plaintiff has the burden of proving to your satisfaction.

The judge then addressed LaBrie's claim that plaintiff "was at fault for the occurrence of the accident because he should not have been standing on the step while the refuse truck was moving." The judge charged the jury that LaBrie contended that "plaintiff himself was negligent," and that his negligence, not a design defect or failure to warn, was a substantial factor which caused his fall. He explained:

To win on this defense, LaBrie Equipment, Ltd. must prove -- again they had the burden of proof, that Tommy Johnson voluntarily and reasonably proceeded to encounter a known danger and that Tommy Johnson's actions were a proximate cause of the accident.

The failure of Tommy Johnson to discover inadequate warnings or instructions or to guard against the possibility of inadequate warnings or instructions is not a defense. Rather to win on this defense, LaBrie Equipment, Ltd. must prove that Tommy Johnson had actual knowledge of the particular danger presented by the side loading refuse truck and the plaintiff knowingly and voluntarily encountered the risk.

Obviously plaintiff can't be responsible for a design defect as well. But if he knows this is a known danger and in the face of this known danger he proceeds, he could be found negligent. Again this is for you to determine.

The judge again discussed proximate cause and, for the first time during the charge, explained that "a substantial factor" meant "that it was not a remote, trivial or inconsequential cause."

The judge concluded by instructing the jurors that, if they found (1) LaBrie had designed the truck defectively or failed to warn, (2) plaintiff was also negligent, and (3) the actions of both parties were a proximate cause of the accident, then they must apportion the fault between plaintiff and LaBrie; and a comparative negligence charge was given. No exceptions to the charge were taken by plaintiff or LaBrie.

After the charge was completed, the jury deliberated and found that the truck LaBrie had manufactured and sold to plaintiff's employer was defective, but that the design defect was not a proximate cause of plaintiff's accident. The jury also found that LaBrie's failure "to contain any warning for the truck" was unreasonable, but that the absence of a warning was also not a proximate cause of plaintiff's accident. The jury did not address the remaining questions, whether plaintiff "voluntarily and unreasonably proceed[ed] in the face of known danger"; if so, whether his negligence was a proximate cause of the accident, and if so, what percentages of liability should be assigned to LaBrie and plaintiff. On January 30, 2007, an order was entered dismissing the complaint.

In February 2007, plaintiff filed a notice of motion for judgment notwithstanding the verdict or a new trial, alleging error in the jury charge. The judge heard oral argument on March 2, 2007, rendered an oral opinion and denied the motion. An order was entered accordingly on that same date. On April 4, 2007, plaintiff filed a timely notice of appeal from the two orders.


Plaintiff contends that the judge erred in denying his motion for a new trial. First, he asserts that the judge plainly erred in admitting evidence of, and instructing the jury on, his negligence, which should have been disregarded in this workplace setting. Second, he argues that the judge plainly erred in failing to instruct the jury that it could only consider plaintiff's fault if it was the sole proximate cause of the injury. Third, he urges that the jury should have been instructed, during the trial and at the final charge, that LaBrie had the burden to prove that the negligence of Frank's and Denson was the sole intervening cause of the accident and, if LaBrie failed to do so, their negligence was not relevant. Fourth, he contends that the charge was confusing, especially as the judge failed to separate the concepts of sole proximate cause and intervening cause.

Rule 2:10-2 governs our review of errors and omissions during trial:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

An error in a jury charge presents a question of law to be decided by us without deference to the trial judge. However, in reviewing the charge to a jury, "'[r]eversible error will not be found where the charge, considered as a whole, adequately conveys the law and would not confuse or mislead the jury, even though part, standing alone, might be incorrect.'" Feldman v. Lederle Labs., 132 N.J. 339, 345 (1993) (quoting Latta v. Caulfield, 79 N.J. 128, 135, (1979)); see also Mogull v. CB Commercial Real Estate, 162 N.J. 449, 466 (2000); Rendine v. Pantzer, 276 N.J. Super. 398, 438 (App. Div. 1994), aff'd, 141 N.J. 292 (1995).


In a product liability case, contributory negligence at one time was a defense under some circumstances. Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463 (1969); Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434 (1965).

However, the nature of that contributory negligence is sharply circumscribed. Thus, plaintiff's negligence is unavailable as a defense when it consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. See Restatement (Second) of Torts § 402A, Comment n (1965) . . . . Comment n further explains that the "form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger . . . is a defense . . . ." Thus, generally[,] where a plaintiff with actual knowledge of the danger presented by the defective product knowingly and voluntarily encounters that risk, a trial court should submit the defense of contributory negligence to the jury. See Cintrone v. Hertz Truck Leasing & Rental Service, supra, 45 N.J. at 458-459.

As in any contributory negligence context, it is the defendant's burden to prove that the plaintiff's conduct was improper and was a substantial factor in causing his injury. [Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 158-59 (1979) (footnote omitted).]

The Suter Court held that the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.3, would apply to product liability actions generally. Id. at 162-63. However, the Court expressed the view that "an employee engaged at his assigned task on a plant machine . . . has no meaningful choice. Irrespective of the rationale that the employee may have unreasonably and voluntarily encountered a known risk, we hold as a matter of policy that such an employee is not guilty of contributory negligence." Id. at 167.

The imposition of a duty on the manufacturer to make the machine safe to operate whether by installing a guard or, as in Cepeda,*fn5 by making it inoperable without a guard, means that the law does not accept the employee's ability to take care of himself as an adequate safeguard of interests which society seeks to protect. The policy justification for Bexiga*fn6 is sound. We see no reason to depart from Bexiga's elimination of contributory negligence where an employee is injured due to a defect (whether design or otherwise) in an industrial accident while using a machine for its intended or foreseeable purposes. The defendant manufacturer should not be permitted to escape from the breach of its duty to an employee while carrying out his assigned task under these circumstances when observance of that duty would have prevented the very accident which occurred. [Id. at 167-68 (footnote omitted).]

The Court in Suter explained: "It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against." Id. at 167 (quoting Bexiga, supra, 60 N.J. at 412).

LaBrie contended, and the judge found, that Suter should not apply to the facts of this case because, unlike factory workers using plant machinery, plaintiff here had a meaningful choice to ride in the cab. We disagree. The record establishes that riding on the step increased the efficiency of collecting recyclables and it was common practice for lifters to ride on the outside of the truck between collection points and only return to the cab of the truck for longer drives. Indeed, LaBrie's manual anticipated that lifters would ride on the side step when it recommended that drivers "should also make sure that the helper is securely positioned on the side step beside the hopper . . . firmly holding on to the body."

The judge's reasoning that plaintiff was responsible for his own safety is contrary to the public policy set forth in Suter that an employee on the job has no meaningful choice to reject the equipment provided and is unable to take care of himself. Ibid. The very anomaly identified by Suter came to fruition here: LaBrie had a duty to install grab handles or issue a warning but the breach of that duty resulted in no liability for the very injury the duty was meant to prevent when plaintiff fell from the truck because there were no grab handles and no warning.

Plaintiff's choice to ride on the side step was no more negligent or reckless than Suter's choice not to turn off the motor before reaching into the machine or to reach into the other side of the machine. See also Green v. Sterling Extruder Corp., 95 N.J. 263, 270-72 (1984) (defendant manufacturer may not assert contributory fault as a defense to a worker's negligence action, alleging that a machine lacking a protective guard was defective, when worker's hand was crushed while reaching inside the machine to remove an obstruction). Neither may Suter and Green be distinguished based on the locus of the accident because a garbage truck is a piece of industrial equipment and the workplace includes the public streets. See Straley v. United States, 887 F. Supp. 728, 741-42 (D.N.J. 1995) ("Allegations that [Straley] acted negligently in that activity, whether by encountering the known risk of the riding step or by improperly directing the garbage truck in reverse, are barred by N.J.S.A. 2A:58C-3(a).").

The PLA, which was enacted in 1987, is consistent with Suter and Green. The PLA provides a single cause of action for product liability; common-law negligence actions "are subsumed within the new statutory cause of action." Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 398 (App. Div.), certif. denied, 126 N.J. 390 (1991). Under the PLA, a manufacturer or seller of a product is liable if the claimant proves that the product "failed to contain adequate warnings or instructions," or "was designed in a defective manner." N.J.S.A. 2A:58C-2(b) and (c).

The PLA allows manufacturers to defend against design defect claims by showing that the products' characteristics are known to the ordinary user and that the unsafe aspect of the product that caused the harm is an inherent characteristic that the ordinary user would recognize. N.J.S.A. 2A:58C-3(a)(2). However, that statutory section specifically provides that this defense does not apply "to industrial machinery or other equipment used in the workplace and is not intended to apply to dangers posed by products such as machinery or equipment that can feasibly be eliminated without impairing the usefulness of the product." Ibid.

The plaintiff in Tirrell was injured at work on the road. He was hit by a tractor-trailer carrying equipment for the installation of a gas line when the trailer backed up without sounding an alarm. 248 N.J. Super. at 394. We explained that "by the Legislature's use of the term 'workplace injuries' [in N.J.S.A. 2A:58C-3(a)], any limitation of the Suter principle to a factory setting would now clearly be inappropriate." Id. at 401. We also interpreted Committee Statements to "indicate that the Legislature did not want to change the comparative fault rules of Suter." Ibid.

In deciding Tirrell, we overruled Colella v. Safeway Steel Products, 201 N.J. Super. 588, 592-93 (Law Div. 1985), where the court held that comparative negligence was a defense to a product-liability claim because the plaintiff had a meaningful choice to use a ladder instead of an allegedly defective scaffold. Id. at 401 n.8. Here, plaintiff's decision to ride on the side step rather than inside the cab was an analogous workplace choice and not a basis for comparative fault.

Subsequent cases have repeatedly held that workers injured on the job remained protected from the defense of comparative negligence in product liability actions under the PLA. See Coffman v. Keene Corp., 133 N.J. 581, 605 (1993); Johansen v. Makita U.S.A., 128 N.J. 86, 94 (1992); Saldana v. Michael Weinig, Inc., 337 N.J. Super. 35, 49 (App. Div. 2001); Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 182 (App. Div. 1999), aff'd 164 N.J. 1 (2000); Congiusti v. Ingersoll-Rand Co., Inc., 306 N.J. Super. 126, 134 (App. Div. 1997); Fabian v. The Minster Mach. Co., 258 N.J. Super. 261, 278 (App. Div.), certif. denied, 130 N.J. 598 (1992); Ramos v. Silent Hoist and Crane Co., 256 N.J. Super. 467, 478 (App. Div. 1992).

LaBrie argues that any error in the charge on comparative fault was harmless because the jury never reached this issue. We are not persuaded by this argument because evidence of the plaintiff's conduct remained relevant to the question of proximate cause, Johansen, supra, 128 N.J. at 102, and the jury was not given adequate instructions on proximate cause. The Johansen Court recognized that a jury "could deny plaintiff recovery if it found he was entirely responsible for the accident," but could not deny recovery if it found plaintiff and defendant manufacturer of a defective product both partially responsible. Ibid. (emphasis added).

The concept of plaintiff's entire responsibility was not adequately conveyed to the jury when the judge twice charged on proximate cause after instructing the jury on design defect and failure to warn. The judge also never defined the term "substantial factor" when he gave these two proximate-cause charges, leaving the jury in the dark as to how to measure "substantiality" in the context of proximate cause.*fn7 And the judge never communicated that the jury could only deny recovery if plaintiff was entirely at fault. If the plaintiff was not entirely at fault, then any negligence on his part was not to be considered in deciding whether the defective product and the lack of warning was a substantial factor in proximately causing the accident. Crumb v. Black & Decker (U.S., Inc.), 204 N.J. Super. 521, 528-29 (App. Div. 1985) ("[A] plaintiff's conduct will only be considered if it constitutes a voluntary and unreasonable encountering of a known danger."), appeal dismissed, 104 N.J. 432 (1986). These nuances, too, were never conveyed to the jury.

The jury thus could have accepted LaBrie's argument that plaintiff, Frank's and Denson were all partially responsible in finding that neither the design defect nor the failure to warn were a proximate cause of plaintiff's fall. These partial findings of fault could not, however, result in a denial of recovery under Johansen, supra, 128 N.J. at 102, and Fabian, supra, 258 N.J. Super. at 276. We are left to wonder whether the jury concluded that plaintiff, Frank's and Denson mostly caused the accident whereas the defective product only caused the accident partially. The error in the charge on plaintiff's comparative negligence was thus not harmless, because it was clearly capable of producing this unjust result. R. 2:10-2.

This brings us to the charge on intervening cause. Plaintiff contends that the acts of his employer and fellow servants do not relieve a manufacturer from liability for injuries caused while using a defective product unless those acts in fact were the sole cause of the accident. He argues that LaBrie was required to prove that the acts of Frank's and Denson "bore a 100 percent causal relationship to the injuries." Plaintiff contends that the charge was not sufficiently specific to make it clear that the actions of Frank's, and Denson as its employee, needed to be found as the only cause of the accident in order to absolve LaBrie.

In Fabian we said: "It is not disputed that defendant's duty was not delegable to plaintiff's employer. A manufacturer cannot delegate its duty to provide safety devices or warnings to a down-stream purchaser." 258 N.J. Super. at 275-76. Fabian claimed that the defense attempted to shift responsibility to his employer. Id. at 276. We determined that this did not occur and commented:

Even if defendant had tried to shift responsibility to the employer and claimed that the employer's conduct was the sole proximate cause of the accident, such an "empty chair defense" is not improper. This defense, actually a claim that the defendant's conduct was not a substantial contributing factor to the accident, merely focuses the jury's attention upon the plaintiff's duty to prove that defendant's conduct or defective product was a proximate cause of the accident. [Id. at 276-77 (citation omitted).]

The Straley court followed this ruling and, on a pretrial motion, allowed the defendants to introduce evidence of the driver's negligence "to prove that it was the sole proximate cause of Straley's injuries." Straley, supra, 887 F. Supp. at 743. The court emphasized that the jury had to find that the driver's negligence "bears a 100% causal relationship to the injuries"; if it did not, "the issue of supervening causation will be destroyed and [the driver's] negligence will cease to be relevant." Ibid.

Here, the judge did charge that the intervening cause had to be the sole cause of the accident, but he did not explain that the jury could not consider the actions of Frank's and Denson for any other purpose if the jury concluded that those actions were only one of the causes of the accident. Like the charge on comparative negligence, the jury might have considered Frank's and Denson's conduct in comparison with that of LaBrie and disregarded the manufacturer's conduct as a proximate cause because it viewed the conduct of Frank's and Denson to be a more immediate cause of the accident. Thus, the charge on intervening cause was also clearly capable of producing an unjust result. R. 2:10-2.

Because plaintiff is entitled to a new trial on the issue of causation, we must determine whether the issues of product defect and failure to warn must also be retried. Previously, we have ordered a new trial on negligence and causation when the issues are so interrelated that they cannot be tried separately. Ahn v. Kim, 281 N.J. Super. 511, 534-35 (App. Div. 1995), aff'd, 145 N.J. 423 (1996). The Supreme Court affirmed this conclusion, stating:

That ruling comports with the general rule that issues in negligence cases should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues. See Beggs v. Pasalano, 14 N.J. Super. 549, 552 (App. Div. 1951); see also Gasoline Products v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931) (articulating comparable federal standard on partial retrials). The ruling comports also with the proposition that negligence and causation generally intertwine. Conklin v.

Hannoch Weisman, 145 N.J. 395, 410 (1996).

Whether issues are sufficiently separable to warrant a partial retrial ultimately depends on the circumstances of each case.

See Ragusa v. Lau, 233 N.J.Super. 84, 90 (App. Div. 1989), rev'd on other grounds, 119 N.J. 276 (1990). [Ahn, supra, 145 N.J. at 434-35.]

Ahn was a medical malpractice case in which the plaintiff alleged that the defendants had failed to manage the risk that the plaintiff's decedent would commit suicide. The Supreme Court found that "the risk that the patient would commit suicide interrelates with the alleged negligence in such matters as the hospital's admission procedures, custodial care, and search." Id. at 435 (citing Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 136 (1990) (ordering new trial on product defects, misuse of product, and proximate cause because issues were interrelated)). The Court noted that the jury finding of a deviation from standards of practice did not "indicate whether the deviation related to the staff's duties pertaining to nursing or security." Ibid. Absent that basis, "a second jury could not determine whether the deviation caused the patient's death." Ibid.

That is not the case here. The defect in the product was the failure to install grab handles and the failure to warn of the danger of riding on the side step without grab handles.

These issues are not so interrelated with proximate cause as to require a retrial on all issues.

Reversed and remanded for a new trial on the issue of proximate cause.

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