On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4952-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Messano.
In this design defect products liability case, plaintiffs Patricio and Laura Paredes appeal from a final judgment following a jury verdict of no-cause of action in favor of defendant Ford Motor Company (Ford or defendant). For the following reasons, we reverse.
On August 24, 2001, plaintiffs' 2000 Ford Explorer, which they had purchased only months before, rolled over three times after Patricio, the driver, engaged in emergency maneuvers to avoid another vehicle. Moments before, while traveling westbound in the left lane of Route 78, with his wife Laura in the passenger seat, Patricio observed two cars passing on the right. Immediately after the first car passed, the second car, a silver Volvo driven by Thomas Vivian, changed lanes in front of plaintiffs' vehicle and braked.
Because neither of the Paredes' could recall the details of what happened next, Ford's accident reconstruction expert, Michael Holcomb, opined, based on the Explorer's tire marks on the highway, that Patricio braked and performed three steering maneuvers. He first steered the Explorer to the left, causing the vehicle to veer toward the median. To compensate, he then steered to the right, causing the vehicle to re-enter the left lane and slide at an angle for approximately 250 feet. He next steered back to the left, causing the vehicle to slide sideways for another 50 feet, at which point it raised off the ground, rolled over three times, and came to rest on its roof in the grassy median on Route 78.
As a result of the accident, Patricio suffered skull fractures, respiratory failure, and traumatic brain injuries. After several weeks in the hospital, he spent another three weeks in acute rehabilitation. He claims his injuries are permanent and have affected his ability to concentrate and recall.*fn1
Plaintiffs sued defendant in strict products liability, alleging that the 2000 Ford Explorer was defectively designed.*fn2
Defendant answered and asserted contributory negligence as an affirmative defense, but later abandoned that defense.*fn3 At the ensuing trial, plaintiffs' expert opined that the 2000 Ford Explorer was defectively designed because it rolled over during a foreseeable emergency avoidance maneuver, and that the Explorer should have been equipped with electronic stability control (ESC) and designed with smaller wheels and a wider wheel base to lower its center of gravity. Defendant's experts, on the other hand, claimed that ESC would not prevent a vehicle from rolling over but merely "reduce[s] side slip," and that the design and development of the Explorer was "consistent with the industry" and resulted in a vehicle with "good handling characteristics," "steering characteristics," and "a high resistance to roll-over." Defendant also proffered evidence of the Explorer's sun visor warning, which advised the driver of a Sport-Utility Vehicle's (SUV) rollover risk. Evidence of the sun visor warning was admitted not only to impeach Patricio, who claimed he did not know that SUVs had a higher rollover risk than cars, but also to demonstrate that Ford had not ignored inherent SUV rollover risks in designing the Explorer, as plaintiffs alleged.
Much of the expert testimony at trial focused on Patricio's conduct at the wheel. Evidence of his steering maneuvers was admitted as relevant to the issue of proximate causation. In this regard, the defense was that Patricio "overcorrected" his steering inputs and that this conduct was a substantial factor in causing the Ford Explorer to roll over. To this end, defense expert Michael Holcomb testified extensively about Patricio's response maneuvers, concluding that "[t]he tire marks tell me, Wow, he held the steering way too long for this circumstance because halfway through this, he could have straightened out," "[t]hat over correction was clearly involved," and that "[y]ou might not have to swerve very much is what I mean." Another Ford expert, Donald Tandy, testified that "a combination of steering maneuvers" amounting to "overcorrection" caused the rollover. In closing arguments, Ford's counsel emphasized this theme, commenting about plaintiff's second steering input, "I submit to you, ladies and gentlemen, that that simply is not a reasonable avoidance maneuver."
Although evidence of plaintiff's steering maneuvers was admitted as relevant to the issue of proximate causation, the trial judge never gave a limiting instruction that the jury could not consider such evidence on the issue of whether the Ford Explorer was defectively designed. This, despite the fact that pre-trial, plaintiffs requested Model Jury Charge 5.40I be given, which instructs the jury, among other things, not to consider a plaintiff's conduct when deciding whether the product was defective. Again, at the close of evidence, plaintiffs' counsel expressly requested "that the jury be instructed not to consider Mr. Paredes' negligence," but the trial judge refused the request, stating that the charge would include no reference to plaintiff's conduct whatsoever, although counsel for both parties would be permitted to refer to it in closing arguments.
Prior to jury deliberations, the court reviewed with the parties a verdict sheet containing interrogatories. Once again, plaintiffs objected to the charge as formulated:
[Y]ou need to tell the jury there is not a comparative claim in this case and explain to them in brief what that means, that they may not consider the driver's conduct in determining those issues. . . . And I think the jury needs direction or they're going to be very confused on all that. I think they can talk about whether the vehicle performed properly in this event, but when they talk about the driver over-correcting, that is a different thing. That is that comparative claim that they dropped and that's exactly what Green [v. General Motors Corp., 310 N.J. Super. 507 (App. Div.), certif. denied, 156 N.J. 381 (1998)] addresses. And the Court needs to give this jury some direction on that or they're going to be very confused. . . . .
Your honor, the Green case quotes, "Once the defendant has a duty to protect persons from the consequences of their own foreseeable faulty conduct, it makes no sense to deny recovery ...