NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2068-07.
Robert J. Kelly argued the cause for appellants (Littleton Joyce Ughetta Park & Kelly, attorneys; Mr. Kelly, Christen E. Moffa, Jason R. Schmitz, and Christine M. Delany, of counsel and on the brief).
Herbert M. Korn argued the cause for respondent (Herbert M. Korn, P.C., attorneys; Mr. Korn, Robert D. Westreich and William E. Reutelhuber, on the brief).
Before Judges Reisner, Yannotti and Harris.
Defendants Yamaha Motor Company, Ltd. and Yamaha Motor Corp., U.S.A. (collectively, Yamaha) appeal from a May 17, 2011 amended judgment, incorporating a May 6, 2011 judgment for approximately $2.5 million in favor of plaintiff Dennis Mohr.
Plaintiff suffered the loss of his right leg, after he lifted up the back of his friend's 1995 Yamaha snowmobile, in an effort to clear what he believed was a fouled spark plug. The snowmobile's track broke, striking and partially severing plaintiff's leg. As a result, the leg had to be amputated above the knee. Plaintiff filed a product liability suit against Yamaha, claiming that the snowmobile had a design defect and that Yamaha had failed to provide an adequate warning against lifting the machine while it was running. The jury found no cause on the design defect claim but found liability on the issue of failure to warn. The parties stipulated to $507, 000 in medical expenses. The jury returned a verdict of $500, 000 for lost wages and $100, 000 for pain and suffering. On plaintiff's motion, the judge ordered a $900, 000 additur or a new trial on damages for pain and suffering. Defendants rejected the additur. A second jury trial, limited to the pain and suffering issue, resulted in a verdict of $1.5 million.
On this appeal, defendants argue that: (a) the trial judge should have granted their motion for a new trial due to various errors, including the erroneous grant of a directed verdict on whether plaintiff's misuse of the snowmobile was objectively foreseeable; and (b) the judge erred in granting plaintiff's additur motion. Defendants do not challenge the $1.5 million pain and suffering award as excessive. Having reviewed the entire trial record, we find no merit in any of defendants' appellate arguments, and we affirm.
The essential facts are recited at length in the trial judge's October 25, 2010 oral opinion on the post-trial motions, and need not be repeated here in the same level of detail. We will further discuss the facts, where relevant, when we address the legal issues. We provide the following summary as background.
At the time of the accident, plaintiff was a fifty-two year old high school graduate, who owned an excavating business. He had considerable experience operating heavy equipment. Due to his training, and the fact that he tended to buy used machines that did not come with owner's manuals, plaintiff typically did not rely on manuals to learn how to use equipment. However, if he had an owner's manual for a machine, he would use it as a reference guide when he had a problem with the machine. Some years before the accident, a friend had taught plaintiff to ride a snowmobile. When plaintiff bought his own snowmobile, he did not read the owner's manual.
On February 5, 2005, he was at the home of Richard Kennedy in upstate New York, for the purpose of riding snowmobiles with Kennedy and several other friends. Plaintiff stored his snowmobile at Kennedy's house, but on this day he borrowed one of Kennedy's machines, a 1995 Yamaha snowmobile, because plaintiff's snowmobile was not working. When plaintiff test drove the borrowed machine, he noticed it was hesitating and concluded that it had a fouled sparkplug. Kennedy suggested that they try to clear the plug by lifting up the machine and revving the engine, a procedure several witnesses testified was a common practice among snowmobile owners. The snowmobile had a rear handle, placed there for the purpose of facilitating the lifting of the machine.
At Kennedy's direction, plaintiff stood to the left rear of the snowmobile, while Patrick O'Brien stood to the right rear, and each man grasped the rear handle. As they lifted the rear of the machine off the ground, Kennedy stood at the front and revved the engine a couple of times. The second or third time Kennedy revved the engine, the snowmobile's track broke, flew backward, and partly severed plaintiff's leg.
There is no evidence in the record as to whether the owner's manual for the 1995 snowmobile was available on the day of the accident, either aboard the machine or in Kennedy's house. However, among a list of fifty warnings, the manual contained warnings against standing behind the snowmobile while the engine was running and against lifting the rear of the snowmobile while the engine was running. The machine itself contained a printed sticker, near the front windshield, warning users to read the owner's manual before using the machine and offering other advice. But the sticker did not warn against standing behind the machine or lifting it while the engine was running.
At trial, plaintiff presented expert testimony that the warnings in the owner's manual were inadequate, that a warning about the specific danger of lifting the machine while it was running should also have been placed on the machine near the rear handle, and that at least one other snowmobile manufacturer had placed such a warning on its machines. There was conflicting expert testimony about whether the snowmobile track had been properly maintained, whether it was in good or bad condition, and whether Kennedy had improperly placed studs on the snowmobile tracks.
As a result of his injury, plaintiff underwent multiple surgical procedures, but his leg could not be saved. Due to the loss of his leg and the medication required to treat his constant pain, plaintiff was no longer able to operate heavy equipment. He lost his business and his life savings, his usual recreational and household activities were curtailed, and he suffered ongoing severe pain that could only be mitigated with daily doses of narcotic drugs.
In completing the verdict sheet, the jury answered yes to questions one and two (whether the 1995 snowmobile "failed to contain an adequate warning or instruction" and "whether the failure to adequately warn or instruct existed before the snowmobile left the control of defendant Yamaha"); question three (whether plaintiff was a "foreseeable user" of the machine); question four ("whether plaintiff would have followed an adequate warning or instruction if it had been provided"); and question five ("whether the failure to warn or instruct was a proximate cause of the accident").
The jury answered "no" to question six ("whether the snowmobile was defectively designed"); question 10 ("whether any of Richard Kennedy's actions was an intervening cause of the accident"); and question eleven ("whether plaintiff voluntarily and knowingly proceeded to encounter the danger of a broken track and debris when lifting the snowmobile by the rear bumper or grip handle with the ...