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Buchko v. International Truck & Engine Corp.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 14, 2008

ANDREW BUCHKO, PLAINTIFF-APPELLANT,
v.
INTERNATIONAL TRUCK & ENGINE CORP. AND HEIL ENVIRONMENTAL INDUSTRIES, LTD., DEFENDANTS, AND INTERNATIONAL TRUCKS OF CENTRAL JERSEY, INC., DEFENDANT-RESPONDENT, AND
LIBERTY TRUCK EQUIPMENT CO., INC., DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
TILCON NEW YORK, INC., D/B/A TILCON NEW JERSEY'S MILLINGTON QUARRY, THIRD-PARTY DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0376-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2008

Before Judges Wefing, Yannotti and LeWinn.

Plaintiff Andrew Buchko was injured when he slipped and fell while climbing down from a dump truck on which he was working. Alleging that the truck was defectively designed because it lacked a system allowing the operator to safely access the dump body, plaintiff asserted a product liability claim against defendant International Trucks of Central Jersey, the seller of the truck, and other parties.*fn1 The matter was tried to a jury, which returned a verdict of no cause for action. Plaintiff appeals from the judgment entered on August 21, 2007, and an order entered on September 25, 2007, which denied his motion for judgment notwithstanding the verdict or for a new trial. For the reasons that follow, we reverse and remand for a new trial.

I.

On August 21, 2002, plaintiff was employed as a landscaper and equipment operator by Silagy Landscaping, Inc. (Silagy), which is located in Edison, New Jersey. On that date, plaintiff was assigned to pick up a large quantity of stone at the Tilcon Quarry in Millington, New Jersey. Plaintiff was operating a truck with a chassis manufactured by ITEC. It was equipped with an HPT double-axle dump body that was manufactured by Heil.

Defendant purchased the truck chassis and the Heil dump body and had Liberty Truck install the dump body on the chassis. Defendant sold the finished truck to Silagy. The truck was equipped with a semi-automatic tarp system that covered the load so that materials would not spill out during transit. The system requires the driver to manually release a lever located in the body of the truck, which allows the tarp to roll out and cover the load.

Plaintiff arrived at the Tilcon Quarry and drove to the stone pile, where the truck was loaded. Plaintiff visually inspected the load and noticed that some of the stones had fallen on the tarp system. Plaintiff threw his shovel onto the load and began to climb into the dump body. Plaintiff climbed onto the tire of the truck and placed his foot on a sloped side rail on the outside body of the truck. Plaintiff then grabbed a wood board on top of the truck's side and pulled himself over into the load. Once inside the body of the truck, plaintiff began to "trim the load," which involved moving the debris from the tarp system and centering it correctly for transportation. Thereafter, plaintiff climbed onto the side of the truck and placed his foot on the sloped side rail.

Plaintiff lost his footing on the sloped rail and grabbed the wood rail with both hands. Plaintiff was unable to maintain the grip of his right hand, and he was left hanging by his left arm. He testified that he felt a "pop" in his left shoulder, which caused him to release the grip of his left hand. Plaintiff fell to the ground. He said that he looked up and noticed that the sloped rail was wet. Subsequently, plaintiff had arthroscopic surgery on both shoulders and post-surgery physical therapy.

At the trial, plaintiff presented testimony from Thomas J. Cocchiola, a consulting engineer who specializes in mechanical and safety engineering. Cocchiola had previously worked for Bristol-Donald, a manufacturer and distributor of truck equipment, primarily dump trucks. While at Bristol-Donald, Cocchiola had been engaged in truck design work.

Cocchiola testified about Bristol-Donald's "8C" dump body, which has an "access system" that permits the operator to climb into the dump body of the truck. The access system consists of a "stair step" and "ladder rails" attached to the side of the truck body. According to Cocchiola, the system allows the driver to "get up there and check and trim the [l]oad."

Cocchiola stated that all the double or triple axle dump trucks that he has seen are equipped with access systems. He said that such systems are "absolutely necessary" so that the operator could "get inside the body" of the truck to perform routine maintenance.

Cocchiola also testified that, in addition to the dump body on plaintiff's truck, Heil manufactured another type of dump body which is equipped with an access system that consists of a tarp rail and steps. Cocchiola said that the alternative Heil design was available in 2001 when Silagy acquired the truck that plaintiff was operating at the time of the accident.

Cocchiola opined that the Heil dump body with the access system was a safer, feasible, alternative design to the dump body without the access system. He said that the access system allows the operator "to climb up and over the side of the body . . . without stepping on . . . the tapered [steel] running boards which are [at] an angle and . . . without stepping on the tires, the wheels and the rims[.]" Cocchiola also opined that it was foreseeable that the operator of the truck would climb in and out of the dump body, and without an access system, the design was defective.

Christopher Nappi, a manager in defendant's truck sales department, testified that defendant acquired plaintiff's truck as stock. The truck did not have a ladder or access system and Nappi said that he did not attempt to order one. Nappi stated that, generally, defendant did not stock truck bodies with ladders unless they were specifically ordered. He added that, based on his experience driving dump trucks and working for defendant, he believed that it is dangerous for an individual to climb into the dump body, regardless of whether the truck is equipped with an access system or not.

Defendant also presented expert testimony from David Ruuhela, a self-employed consultant with experience in the design of various parts of heavy-duty trucks. Ruuhela testified that in his opinion, the subject truck was not defective when defendant sold it to Silagy. Ruuhela asserted that State and federal laws and regulations do not require access systems on dump trucks.

Ruuhela further testified that a safe access system should allow for "three-point contact." He stated that "you have two hands and two feet, which constitute four points, and the idea on any access system is that you can have three of those firmly on the access system while [you are] moving one of them." The safe access system should include "slip resistant surfaces on the footrest" to minimize the possibility of slipping.

Ruuhela said that the Heil dump body with the access system that had been proposed by plaintiff did not incorporate these key elements. He stated that there are no handles. There's no non-skid surface. There's no sequence of steps.

There's no meeting some convenient step . . . . There's no handholds or steps beyond the one that's provided to get actually in or out of the dump body. So it's lacking in almost every respect of the recommended practices.

After the evidence portion of the trial concluded, the judge charged the jury and, following its deliberations, the jury informed the judge that it had reached a verdict. However, before the jury announced its verdict, counsel realized that the court clerk had not provided plaintiff's exhibits to the jury for its deliberations.

After discussing the matter with counsel, the judge provided the exhibits to the jury and instructed the jury to "reconsider whatever your verdict might be, in light of the evidence that will be delivered to you[.]" The jury thereafter returned a verdict finding that the design of the subject truck was not defective. On August 21, 2007, judgment was entered for defendant in accordance with the jury's verdict.

Plaintiff thereafter filed a motion for judgment notwithstanding the verdict or for a new trial. The judge denied the motions for reasons that the judge placed on the record on September 25, 2007. The judge found that plaintiff was not entitled to a directed verdict because he failed to prove that the truck had a design defect.

The judge additionally determined that plaintiff was not prejudiced by the clerk's failure to provide the jury with plaintiff's exhibits before it began its deliberations. The judge noted that plaintiff's counsel had agreed to the procedure to address the situation after the error came to light. The judge stated that the jury had been provided with the exhibits, instructed to review them, and told to re-consider its verdict. The judge observed that the exhibits, which consisted mostly of pictures, had been available during the trial and the jury heard testimony about them.

The judge also rejected plaintiff's contention that the jury instructions were erroneous. The jury had been told that evidence regarding plaintiff's conduct could not be considered in determining whether the truck had a design defect, but such evidence could be considered in determining whether plaintiff's conduct was a proximate cause of the accident. The judge stated that the instructions were unambiguous and there was no indication that the jury did not understand the difference between a design defect and proximate cause.

On this appeal, plaintiff raises the following issues for our consideration:

POINT I

IT WAS REVERSIBLE ERROR FOR THE COURT TO INSTRUCT THE JURY THEY COULD CONSIDER PLAINTIFF'S CONDUCT WHEN CONSIDERING THE ISSUE OF PROXIMATE CAUSE AS THERE WAS NO EVIDENCE OF UNFORESEEABLE MISUSE OR PRODUCT ABUSE IN THE CASE.

POINT II

PLAINTIFF/APPELLANT WAS ENTITLED TO A DIRECTED VERDICT ON THE ISSUE OF DESIGN DEFECT AS THE DEFENSE FAILED TO PRODUCE EVIDENCE THAT WOULD RAISE AN ISSUE OF MATERIAL FACT THAT A SAFER DESIGN WAS NOT FEASIBLE.

A. THE COURT SHOULD HAVE DIRECTED A VERDICT IN FAVOR OF THE PLAINTIFF ON THE ISSUE OF DESIGN DEFECT AT THE CLOSE OF [DEFENDANT'S] CASE.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN EXCLUDING PLAINTIFF'S EVIDENCE WITH RESPECT TO TWO RELEVANT POINTS:

(1) THE BRISTOL-DONALD ACCESS SYSTEM CONSTITUTED A SAFER ALTERNATIVE DESIGN;

(2) THE PLAINTIFF/APPELLANT AND HIS EXPERT'S TESTIMONY REGARDING THEIR EXPERIENCE AND CUSTOM AND USAGE OF ACCESS SYSTEMS IN THE TRADE.

A. PLAINTIFF/APPELLANT'S EVIDENCE THAT [THE] BRISTOL-DONALD ACCESS SYSTEM CONSTITUTED A SAFER ALTERNATIVE DESIGN.

B. IT WAS ERROR TO EXCLUDE EVIDENCE FROM THE PLAINTIFF/APPELLANT THAT IT IS CUSTOMARY IN THE TRADE TO USE AN ACCESS SYSTEM.

POINT IV

PLAINTIFF/APPELLANT WAS ENTITLED TO A NEW TRIAL BASED UPON THE CLERICAL ERROR COMMITTED BY THE COURT CLERK IN FAILING TO GIVE PLAINTIFF/APPELLANT'S [DOCUMENTARY] EVIDENCE TO THE JURY.

II.

We turn first to plaintiff's argument that the trial judge erred by limiting Cocchiola's testimony about the Bristol-Donald dump bodies and by precluding plaintiff from testifying about the custom in the trucking industry with regard to the use of dump trucks with access systems. To place the judge's rulings in context, we begin with a brief description of plaintiff's claim and his evidentiary burden.

Here, plaintiff asserted a product liability claim based on an alleged design defect. To prevail on such a claim a plaintiff must prove that "(1) the product was defective; (2) the defect existed when the product left the hands of the defendant; and (3) the defect caused the injury to a reasonably foreseeable user." Jurado v. W. Gear Works, 131 N.J. 375, 385 (1993) (citing O'Brien v. Muskin Corp., 94 N.J. 169, 179 (1983)). The plaintiff must establish that the product "'is not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes[.]'" Ibid. (quoting Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 169 (1979)).

Whether a product is defective "because it is 'not reasonably fit, suitable and safe' for its intended purposes reflects a policy judgment under a risk-utility analysis." Ibid. (quoting O'Brien, supra, 94 N.J. at 181). "That analysis seeks to determine whether a particular product creates a risk of harm that outweighs its usefulness." Ibid. The following factors are relevant to a "risk-utility analysis":

(1) The usefulness and desirability of the product -- its utility to the user and to the public as a whole.

(2) The safety aspects of the product -- the likelihood that it will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would meet the same need and not be as unsafe.

(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

(5) The user's ability to avoid danger by the exercise of care in the use of the product.

(6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. [O'Brien, supra, 94 N.J. at 182 (quoting Cepeda v. Cumberland Eng'g Co., Inc., 76 N.J. 152, 174 (1978)).]

Thus, an "assessment of the utility of a design involves the consideration of available alternatives." Id. at 184. "If no alternatives are available, recourse to a unique design is more defensible. The existence of a safer and equally efficacious design, however, diminishes the justification for using a challenged design." Ibid.

In this case, plaintiff alleged that his truck had a design defect because it did not have an access system or rail affixed to the dump body. Plaintiff claimed that, because the truck did not have such a system, he had to step on the sloped rail on the side of the truck when he climbed out of the dump body on August 21, 2002. Plaintiff alleged that there were safer, feasible alternatives to the design of the dump body on his truck.

The two evidentiary rulings at issue on this appeal pertain to plaintiff's proofs on these issues. In considering plaintiff's arguments regarding those rulings, we apply the following standard of review. Trial judges have "broad discretion" in making decisions regarding the "relevance and admissibility" of evidence and these decisions should not be disturbed on appeal "absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div. 2008), certif. denied, sub nom. Lydon v. Silverman, ___ N.J. ___ (2008). Furthermore, "[e]ven where there may have been error, reversal is required only when an unjust result occurred." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991) (citing Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982)).

A. Cocchiola's Testimony

As stated previously, on direct examination, Cocchiola was shown a photograph of a Bristol-Donald dump body. It depicted an access system comprised of a stair step and ladder rails. Cocchiola explained that the system allowed the operator "to climb up, check the load, [and] trim the load." Cocchiola testified that Heil manufactured a dump body with an access system. He said that this dump body was a safer, practical, and technically feasible alternative to the dump body on plaintiff's truck.

Cocchiola also testified that the Heil access system was not the only access system available to defendant and other sellers of trucks. He stated:

[t]here are many ways that you can provide an access system for a dump body. This particular one is Heil's way of integrating the access system into the dump body so that it's almost a seamless fit. But you could also, and it's done all the time, weld or bolt vertical ladders to the side of the dump body, you can use a stirrup step and bar, a bar design such as I described before for the Bristol-Donald truck. There's various designs, but typically they all provide an access ladder or access system directly behind the driver's side door of the cab.

Plaintiff's counsel asked Cocchiola whether Bristol-Donald had ever designed or sold a dump body for a double-axle or tandem-axel dump truck that did not have some form of an access system. Defendant's attorney objected to this question, and the court sustained the objection. The judge instructed the jury to disregard the question. The judge stated, "The fact that [Bristol-Donald] did or didn't is not pertinent."

Plaintiff's counsel also asked Cocchiola whether he had ever undertaken an investigation to determine whether Bristol-Donald still manufactures and sells double-axle dump bodies with access systems. Defendant's attorney objected, and the court sustained the objection. Plaintiff's attorney argued that the evidence was relevant to the issue of alternative design. The judge disagreed, stating:

But you're not getting it. I know what you want, but you don't get it that way out of this question. . . . You're getting testimony about the validity of the design and the lack of . . . safety, but what they did in [Bristol-Donald] . . . is of no moment[.]

Cocchiola then was asked whether the dump bodies sold in 2001 by Bristol-Donald all had some form of access system. Again, defendant's attorney objected. The judge sustained the objection. The judge stated:

[w]hatever that is and how it relates to this case is of no moment. Whether they built one, two, [or] five ladders on a truck, it doesn't make any difference in this case. You can get it as a generic proposition from the experience, but who cares what they did in Bristol-Donald in 1991 or 2001? It doesn't make any difference.

Plaintiff's counsel also asked Cocchiola about the practice in the truck manufacturing industry with regard to the design and sale of dump bodies with access systems. Cocchiola replied that it was his experience that double-axle dump trucks all have access systems "at least on the driver's side."

Plaintiff maintains that the judge erred by excluding the testimony about the Bristol-Donald dump bodies because the testimony supported his claim that there were safer, feasible alternatives to the design of the dump body in plaintiff's truck. Plaintiff contends that the judge's rulings substantially prejudiced his ability to prove a prima facie case of design defect.

In response, defendant correctly points out that the evidence regarding the Bristol-Donald dump bodies did not, standing alone, establish that plaintiff's truck was defective. However, the evidence was relevant to whether the Bristol-Donald dump bodies presented practical and feasible alternatives to the dump body on plaintiff's truck. Indeed, if all of Bristol-Donald's dump bodies include access systems, a jury could rationally infer that those dump bodies are both practical and feasible. Furthermore, Cocchiola's testimony indicates that the Bristol-Donald dump bodies with access systems are similar to those manufactured by Heil. Thus, Cocchiola's testimony about the Bristol-Donald dump bodies supports an inference that the Heil dump bodies with access systems also are practical and feasible.

We therefore conclude that the judge mistakenly exercised his discretion by limiting Cocchiola's testimony regarding the Bristol-Donald dump bodies.

B. Plaintiff's Testimony

Plaintiff further contends that the judge erred by barring him from testifying that it is customary in the trade for manufacturers to provide access systems to the bodies of dump trucks and, other than the truck involved here, he had never operated a dump truck without such a system.

Plaintiff testified that he has nineteen years of experience driving and maintaining large dump trucks. Plaintiff identified six manufacturers of cabs and seven manufacturers of dump bodies. Plaintiff asserted that he has operated dump trucks or trucks with dump bodies built by all of those manufacturers. Plaintiff was prepared to testify that each of those trucks had dump bodies equipped with access systems; however, the judge barred plaintiff from doing so.

The judge rejected plaintiff's contention that the testimony was relevant to whether there were safer alternatives to the design of plaintiff's truck. The judge stated that merely because plaintiff had observed other dump trucks with access systems and never operated a truck without such a system, that evidence was not relevant to the issue of whether plaintiff's truck had a design defect.

In our judgment, the judge's ruling was a mistaken exercise of discretion. Plaintiff's proferred testimony was admissible under N.J.R.E. 701. The rule provides that a lay witness may testify "in the form of opinions or inferences" if such testimony "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Plaintiff's testimony was "rationally based" on his own observations. Moreover, plaintiff's testimony would assist the jury in determining whether the alternative truck designs proposed by plaintiff's expert are practical and feasible.

Defendant argues that the judge's ruling was correct. Defendant maintains that the presence of access systems on other trucks does not establish that those trucks are safer, or that a truck is defective if it does not have an access system for the dump body. That may be so, but the evidence was relevant on the critical issue of whether the alternative designs proposed by plaintiff are practical and feasible. Furthermore, the widespread use of dump bodies with access systems in the trucking industry also supports an inference that the alternative designs proposed by plaintiff are practical and feasible.

Our conclusion regarding the admissibility of plaintiff's proffered testimony is supported by Myrlak v. Port Auth. of N.Y. and N.J., 302 N.J. Super. 1, 9 (App Div. 1997), aff'd in part, rev'd in part, on other grounds, 157 N.J. 84 (1999), where we noted that in cases in which a claim is made that a product is defective, lay opinion testimony can be offered by "'knowledgeable employees.'" Ibid. (quoting Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 583 (App. Div.), certif. denied, 107 N.J. 48 (1986)).

We recognize that plaintiff was not a "knowledgeable employee" of a truck manufacturer. However, plaintiff testified that he has operated and maintained large dump trucks for nineteen years. Moreover, the testimony addressed an issue that is not complex: whether most dump trucks used in the industry are equipped with access systems on the dump bodies. In our judgment, plaintiff's observations concerning dump trucks and access systems were an appropriate subject for lay opinion testimony.

We therefore conclude that the judge erred by barring plaintiff's testimony on these issues.

III.

Although we are convinced that the judge mistakenly exercised his discretion by limiting Cocchiola's testimony, and by precluding plaintiff from testifying about his observations and experience with dump trucks, that does not conclude our analysis. We must determine whether the judge's rulings so prejudiced plaintiff that the jury's verdict represents "a manifest denial of justice." Lanco, supra, 400 N.J. Super. at 275.

We recognize that Cocchiola described the Bristol-Donald trucks that are equipped with access systems. He testified that in his experience, double or triple-axle dump trucks all have access systems "at least on the driver's side." Cocchiola also testified that Heil manufactures a dump body with an access system that would have eliminated the potential danger to the driver and that plaintiff's truck was not suitable and safe for its intended purposes.

Nevertheless, we are convinced that plaintiff's proofs regarding the alternative designs were substantially limited by the judge's rulings. The jury may have found Cocchiola's testimony regarding the alternative designs to be more persuasive if he had been allowed to testify as to the extent to which Bristol-Donald incorporated access systems on its dump trucks. Moreover, plaintiff's testimony regarding his observations and experience with dump trucks would have provided additional support for the claim that the alternative designs were practical and feasible.

Had the jury heard this evidence, it might have been less inclined to conclude that plaintiff's truck was not "'reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes[.]'" Jurado, supra, 131 N.J. at 385 (quoting Suter, supra, 81 N.J. at 169). Simply put, with a full airing of the evidence on alternative designs, the jury might not have returned a verdict of no cause for action. We therefore conclude that plaintiff is entitled to a new trial.

In view of our determination that a new trial is required because of the judge's erroneous evidentiary rulings, there is no need to consider any of the other issues raised by plaintiff.

Reversed and remanded for a new trial.


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