On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0376-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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 ...