LEE GOLDBERG VS. BMW OF NORTH AMERICA, LLC(L-9481-14, BERGEN COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1765-15T1
    LEE GOLDBERG,
    Plaintiff-Appellant,
    v.
    BMW OF NORTH AMERICA, LLC,
    Defendant-Respondent.
    ———————————————————————————
    Argued May 23, 2017 – Decided          July 5, 2017
    Before Judges Yannotti and Gilson.
    On appeal from the Superior Court of New
    Jersey, Law Division, Bergen County, Docket
    No. L-9481-14.
    Lee Goldberg, appellant, argued the cause pro
    se.
    Michelle Molinaro Burke argued the cause for
    respondent (Porzio, Bromberg & Newman, P.C.,
    attorneys; Roy Alan Cohen and Ms. Burke, on
    the brief).
    PER CURIAM
    In this product liability action, plaintiff Lee Goldberg
    alleges he suffered injuries as a result of a design defect and a
    failure to warn when he burned his calf on the tailpipe of his
    2014 BMW X3 sports utility vehicle (2014 BMW X3).           He appeals from
    a November 20, 2015 order granting summary judgment to defendant
    BMW of North America, LLC (BMW) and dismissing with prejudice his
    complaint.
    We reverse the dismissal of plaintiff's design defect claim
    because BMW failed to establish on summary judgment that the
    tailpipe was an instrumentality with complex components and that
    plaintiff needed an expert to proceed.          We affirm the dismissal
    of plaintiff's failure to warn claim because BMW had provided a
    warning in the owner's manual and plaintiff failed to present
    evidence that the warning was inadequate.
    I.
    We take the facts from the summary judgment record, viewing
    them in the light most favorable to plaintiff, the non-moving
    party.   Globe Motor Co. v. Igdalev, 
    225 N.J. 469
    , 479 (2016); R.
    4:46-2(c).
    In April 2014, plaintiff leased a 2014 BMW X3.          The following
    month, he burned his calf on the vehicle's tailpipe as he was
    removing a folding chair from the rear hatchback cargo area.
    Plaintiff    contends   that   the   tailpipe    of   the    2014   BMW    X3
    unnecessarily extended beyond the rear bumper.              Plaintiff also
    asserts that the extended tailpipe is dangerous because, after the
    vehicle is driven, the tailpipe is hot and people who walk behind
    2                              A-1765-15T1
    the vehicle or use the rear hatchback can come into contact with
    the hot tailpipe and suffer injuries.
    After plaintiff was injured, he contacted BMW to report the
    incident.      BMW sent a representative who inspected plaintiff's
    2014 BMW X3, and that representative informed plaintiff that the
    tailpipe was consistent with the vehicle's specifications.              Thus,
    BMW   took    the   position   that   there   was   nothing   wrong   with   or
    defective about the 2014 BMW X3.
    In October 2014, plaintiff filed a complaint against BMW.
    After some initial proceedings, plaintiff agreed to pursue claims
    under the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-
    1 to -11.      Specifically, plaintiff asserted claims of a design
    defect, a failure to warn, and a manufacturing defect.
    In answers to interrogatories, plaintiff produced a series
    of photographs.      Some of the photographs depicted the rear of his
    2014 BMW X3 and showed that the tailpipe extended beyond the rear
    bumper.      Those pictures also showed that the tailpipe could come
    into contact with the leg of a person who was walking or standing
    behind the 2014 BMW X3.        Other photographs depicted a 2007 model
    of the BMW X3, which showed that the tailpipe in that earlier
    model did not extend beyond the rear bumper. Thus, in that earlier
    model, a person walking or standing behind the vehicle would not
    come into contact with the tailpipe. In his interrogatory answers,
    3                              A-1765-15T1
    plaintiff contended that those photographs showed that there was
    a safer alternative design of the tailpipe.
    During discovery, BMW produced documents showing that before
    2014, it had received a number of complaints from owners of BMW
    X3s who had been burned by the tailpipe. Plaintiff also discovered
    and produced documents showing that in 2008, the United States
    Department of Transportation had ordered BMW to conduct a recall
    of the BMW Mini Cooper S vehicles because the exhaust pipes in
    those vehicles extended beyond the rear bumper and a number of
    customers had been burned when they accessed the rear cargo area
    of the vehicle after the vehicle had been driven.
    While discovery was still being conducted, plaintiff moved
    for   partial   summary   judgment   contending   that   the   photographs
    established a design defect in the 2014 BMW X3.          BMW opposed that
    motion.   After hearing oral argument, the motion court denied the
    motion reasoning that the photographs did not allow the court to
    find as an undisputed fact that an alternative safer design existed
    for the 2014 BMW X3.      The motion court also reasoned that
    a jury could consider the photographs in an
    overall   assessment   of  whether   a   more
    reasonable alternative was available and
    should or could have been incorporated into
    [plaintiff's] vehicle; however, the [c]ourt
    cannot make that determination as a matter of
    law . . . In this case, a jury must consider
    the utility of the product as designed, and
    4                             A-1765-15T1
    whether the alternative design would adversely
    affect that utility.
    Following the close of discovery, BMW moved for summary
    judgment.      BMW argued that plaintiff had not retained an expert
    and plaintiff needed an expert to establish a design defect.
    Without submitting any certifications or affidavits, BMW contended
    that    the    design   of   a   vehicle's     exhaust   system    was    an
    instrumentality with complicated components and a jury needed
    expert testimony to determine whether there was a safer alternative
    design where the tailpipe did not extend beyond the bumper.              BMW
    also submitted the owner's manual of the 2014 BMW X3, which
    contained a warning regarding the exhaust pipe being hot after the
    vehicle was driven.       BMW thus argued that because plaintiff had
    submitted no evidence to show that that warning was inadequate,
    BMW was entitled to summary judgment on the failure to warn claim.
    In opposition to BMW's summary judgment motion, plaintiff
    conceded that he did not have evidence of a manufacturing defect.
    Plaintiff      maintained,   however,   that   the   photographs   he    had
    produced established that there was a safer alternative design
    available.     Specifically, plaintiff argued that BMW had previously
    marketed and sold the 2007 BMW X3 with a tailpipe that did not
    extend beyond the rear bumper of the vehicle.             Plaintiff also
    5                              A-1765-15T1
    argued that a jury could consider BMW's warning in the owner's
    manual and find that warning inadequate.
    On November 20, 2015, after hearing oral argument, the motion
    court granted summary judgment to BMW and dismissed with prejudice
    plaintiff's complaint.      The court explained the reasons for its
    ruling in a written opinion issued with its order.             On the design
    defect claim, the court found that the design of the exhaust system
    of a BMW X3 is an instrumentality with complicated components.
    Consequently,    the    court    reasoned    that   a   jury   needed    expert
    testimony to determine if there was a safer alternative design.
    Because plaintiff had no expert, the court dismissed his design
    defect claim.
    Addressing the failure to warn claim, the motion court found
    that the owner's manual of the 2014 BMW X3 provided a warning
    concerning the exhaust system. The court then found that plaintiff
    had produced no evidence that the warning was inadequate.
    II.
    On appeal, plaintiff makes six arguments in challenging the
    November   20,   2015    order    granting    summary    judgment   to      BMW.
    Plaintiff contends: (1) summary judgment should have been denied
    because there were disputed issues of material fact; (2) the motion
    court improperly made fact findings concerning the design defect
    claim; (3) expert testimony was not needed to show the design
    6                                 A-1765-15T1
    defect with the tailpipe of the 2014 BMW X3; (4) the motion court
    had previously ruled that plaintiff's design defect claim involved
    questions of fact that a jury needed to resolve; (5) the motion
    court never considered the consumer expectation analysis of his
    design defect claim; and (6) the adequacy of BMW's warning was a
    question of fact for a jury to decide.
    In reviewing a summary judgment order, we use a de novo
    standard of review and apply the same standard employed by the
    trial court.   Davis v. Brickman Landscaping, Ltd., 
    219 N.J. 395
    ,
    405 (2014).    Accordingly, we determine whether the moving party
    has demonstrated that there are no genuine disputes as to material
    facts and, if so, whether the facts, viewed in the light most
    favorable to the non-moving party, entitle the moving party to a
    judgment as a matter of law.     Id. at 405-06; Brill v. Guardian
    Life Ins. Co. of Am., 
    142 N.J. 520
    , 540 (1995); R. 4:46.
    The PLA recognizes three claims: design defect, manufacturing
    defect, and failure to warn.    N.J.S.A. 2A:58C-2; Roberts v. Rich
    Foods, Inc., 
    139 N.J. 365
    , 375 (1995); Dziewiecki v. Bakula, 
    361 N.J. Super. 90
    , 97 (App. Div. 2003), aff'd, 
    180 N.J. 528
     (2004).
    Here, in response to BMW's summary judgment motion, plaintiff
    acknowledged that he was not pursuing a claim of a manufacturing
    defect.   Accordingly, we analyze his claims of a design defect and
    a failure to warn.
    7                          A-1765-15T1
    A.     Design Defect
    To prove a design defect under the PLA, a plaintiff must
    establish that the product was "designed in a defective manner."
    N.J.S.A. 2A:58C-2(c).          Moreover, a plaintiff must demonstrate that
    the product "was not reasonably fit, suitable or safe for its
    intended purpose."         Dewey v. R.J. Reynolds Tobacco Co., 
    121 N.J. 69
    ,   95    (1990)      (quoting   N.J.S.A.   2A:58C-2).       Accordingly,       a
    plaintiff must prove either that the product's risk outweighs its
    utility     or   that    the   product   could   have   been   designed    in    an
    alternative manner so as to minimize or eliminate the risk of
    harm.      Lewis v. American Cyanamid Co., 
    155 N.J. 544
    , 569 (1998).
    Under      a   "risk-utility   analysis,"    a    manufacturer   is     held
    liable "if the danger posed by the product outweighs the benefits
    of the way the product was designed and marketed."                 Johansen v.
    Makita USA, Inc., 
    128 N.J. 86
    , 95 (1992).               Our Supreme Court has
    identified seven factors relevant to such inquiries.                O'Brien v.
    Muskin Corp., 
    94 N.J. 169
    , 182 (1983).            Those factors include:
    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.
    8                                A-1765-15T1
    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.
    [Ibid.]
    A   risk-utility    analysis    ordinarily    involves       "the
    consideration of available alternatives."    
    Id. at 184
    ; see also
    Restatement (Third) of Torts: Products Liability § 2(b) (1998).
    A plaintiff must generally prove that the product "could have been
    designed in an alternative manner so as to minimize or eliminate
    the risk of harm."   Lewis, 
    supra,
     
    155 N.J. at 570
    .    This burden
    includes the duty to prove "the existence of an alternative design
    that is both practical and feasible."       
    Id. at 571
    ; see also
    N.J.S.A. 2A:58C-3(a)(1) (instructing that a manufacturer may not
    be held liable "if . . . [a]t the time the product left the control
    of the manufacturer, there was not a practical and technically
    9                             A-1765-15T1
    feasible alternative design that would have prevented the harm
    without substantially impairing the reasonably anticipated or
    1
    intended function of the product").
    An expert opinion is ordinarily needed to establish that a
    reasonable alternative design existed. Rocco v. New Jersey Transit
    Rail Operations, Inc., 
    330 N.J. Super. 320
    , 341 (App. Div. 2002).
    Expert   testimony   is   required    when     the    subject   matter    to    be
    addressed "is so esoteric that jurors of common judgment and
    experience cannot form a valid judgment as to whether the conduct
    of the party was reasonable."             
    Ibid.
     (quoting Butler v. Acme
    Markets, Inc., 
    89 N.J. 270
    , 283 (1982)).             "Where the case involves
    a complex instrumentality, expert testimony is needed in order to
    help the fact-finder understand 'the mechanical intricacies of the
    instrumentality' and help to exclude other possible causes of the
    accident."   
    Ibid.
     (quoting Jimenez v. GNOC, Corp., 
    286 N.J. Super. 533
    , 546 (App. Div.), certif. denied, 
    145 N.J. 374
     (1996)).
    1
    An evaluation of the seven factors identified in O'Brien "may
    justify a conclusion that even though there is presently no
    alternative design which would make a product safer, the product
    is 'so dangerous and of such little use that under the risk-utility
    analysis [the] manufacturer [should] bear the cost of liability
    of harm to others.'" Smith v. Keller Ladder Co., 
    275 N.J. Super. 280
    , 283-84 (App. Div. 1994) (alterations in original) (quoting
    O'Brien, supra, 
    94 N.J. at 184
    ).      In this case, plaintiff is
    arguing that there was an alternative design.
    10                                  A-1765-15T1
    An expert is not, however, always needed to establish a design
    defect in a product liability claim.                A plaintiff can produce
    circumstantial evidence of a defect "such as proof of proper use,
    handling    or   operation   of   the    product    and   the   nature    of   the
    malfunction, [which] may be enough to satisfy the requirement that
    something is wrong with [the product]."            Scanlon v. General Motors
    Corp., 
    65 N.J. 582
    , 591 (1974).              The res ipsa loquitur doctrine,
    however, is not available to product liability plaintiffs.                 Myrlak
    v. Port Auth., 
    157 N.J. 84
    , 102 (1999).
    In this case, plaintiff argues that the design defect in
    question was a self-evident defect and no expert testimony was
    required.    See Suter v. San Angelino Foundry & Mach. Co., 
    81 N.J. 150
    , 170-71 (1979).      To support that position, plaintiff relies
    on the photographs that he produced during discovery.                    As noted
    earlier, the photographs of his 2014 BMW X3 show that the tailpipe
    extended beyond the bumper and could come into contact with a
    person walking or standing behind the vehicle.                  Plaintiff also
    submitted photographs of a 2007 BMW X3 model where the tailpipe
    did not extend beyond the bumper.             Consequently, plaintiff argues
    that a jury could review these photographs and determine that a
    safer alternative design existed.
    Plaintiff also supports his arguments by relying on the
    complaints of other BMW X3 owners and the recall of the BMW Mini
    11                                A-1765-15T1
    Cooper S.   In that regard, documents produced by BMW in discovery
    showed that before 2014, BMW had received a number of complaints
    from owners of BMW X3 vehicles who had been burned by the tailpipe.
    Plaintiff also produced documents showing that in 2008 the BMW
    Mini Cooper S was recalled because the tailpipe extended beyond
    the bumper and was causing burn injuries.      Recall letters can
    serve as evidence of prior remedial conduct by defendants and can
    be admissible on the issue of a defect and culpable conduct.     See
    Shatz v. TEC Tech. Adhesives, 
    174 N.J. Super. 135
    , 141-42 (App.
    Div. 1980); Lavin v. Fauci, 
    170 N.J. Super. 403
    , 409 (App. Div.
    1979).
    In support of its motion for summary judgment, BMW contended
    that the exhaust system of the 2014 BMW X3 was an instrumentality
    with complex components and plaintiff needed an expert to establish
    that there was a practical and feasible alternative design.      BMW
    did not, however, submit a certification or affidavit establishing
    that position.    In moving for summary judgment, BMW relied on
    arguments in its brief.      Such arguments do not establish an
    undisputed fact for purposes of summary judgment.
    Accordingly, we are compelled to reverse the grant of summary
    judgment on plaintiff's design defect complaint.       BMW was the
    movant and had the burden to establish that there was no genuine
    dispute of material fact.   Plaintiff presented evidence that there
    12                          A-1765-15T1
    was such a dispute.        BMW did not counter with a certification;
    rather, BMW asked the trial court to take judicial notice that the
    exhaust system of the 2014 BMW X3 was a complex instrumentality.
    As framed by plaintiff, however, his claim was about the exhaust
    pipe only and not the entire exhaust system.                      Thus, BMW did not
    carry its burden of production on the summary judgment motion.
    Plaintiff also argues that the trial court failed to consider
    the consumer expectations test.            Under that test, an expert is not
    required    when   "it    is   self-evident         that    the    product     is    not
    reasonably suitable and safe and fails to perform, contrary to the
    user's reasonable expectation that it would 'safely do the jobs
    for which it was built.'" Suter, 
    supra,
     
    81 N.J. at 170-71
     (quoting
    Greenman v. Yuba Power Products, Inc., 
    59 Cal. 2d 57
    , 64 (1963)).
    In Suter, the Court provided an example of a bicycle "whose brakes
    did not hold because of an improper design[.]"                
    Id. at 171
    .       Unlike
    a bicycle whose brakes do not function because of improper design,
    it is not self-evident that the 2014 BMW X3 was not reasonably
    suitable    and    safe   to   do    the      job   for    which    it   was    built,
    transporting occupants from one location to another.                           Indeed,
    plaintiff    has    presented       no   evidence     that    the     exhaust       pipe
    interfered with his ability to safely drive the vehicle.                         Thus,
    the consumer expectations test does not apply in this case.
    13                                    A-1765-15T1
    B.    Failure to Warn
    The PLA defines "a warning defect by defining its opposite,
    an adequate warning."     Zaza v. Marquess & Nell, 
    144 N.J. 34
    , 55
    (1996).    N.J.S.A. 2A:58C-4 provides:
    In   any   product    liability    action   the
    manufacturer or seller shall not be liable for
    harm caused by a failure to warn if the product
    contains an adequate warning or instruction
    . . . An adequate product warning or
    instruction is one that a reasonably prudent
    person in the same or similar circumstances
    would have provided with respect to the danger
    and that communicates adequate information on
    the dangers and safe use of the product,
    taking into account the characteristics of,
    and the ordinary knowledge common to, the
    persons by whom the product is intended to be
    used[.]
    Here, BMW provided a warning.       In the owner's manual of the
    2014 BMW X3, BMW warned owners that the exhaust pipe could be hot.
    Specifically, the manual states that the exhaust pipe becomes hot
    and it warned: "Do not touch hot exhaust pipes; otherwise, there
    is the danger of getting burned."        At his deposition, plaintiff
    conceded    that   he   never   read   the   owner's   manual.        More
    significantly, plaintiff presented no evidence that an alternative
    or more complete warning should have been provided.              Instead,
    plaintiff contends that he should be allowed to argue to a jury
    that the warning in the owner's manual was not adequate.          Such an
    argument does not carry plaintiff's burden on a failure to warn
    14                              A-1765-15T1
    claim. Accordingly, because BMW did present a warning, and because
    there was no contrary evidence that that warning was inadequate,
    BMW was entitled to summary judgment on plaintiff's failure to
    warn claim.
    The dismissal of plaintiff's design defect claim is reversed.
    That claim is remanded for further proceedings.   The dismissal of
    plaintiff's failure to warn claim is affirmed.
    Affirmed in part, reversed in part, and remanded for further
    proceedings.   We do not retain jurisdiction.
    15                          A-1765-15T1