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

NOT FOR PUBLICATION WITHOUT THE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 3, 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
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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,
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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
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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
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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
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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.
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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.
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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
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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.
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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
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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.
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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
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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.
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