Sharpe v. Bestop

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Sharpe v. Bestop, Inc. (A-53-1998)

 
Argued March 29, 1999 -- Decided May 12, 1999

PER CURIAM.

(Note: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment is based substantially on the written opinion of Judge Keefe of the Appellate Division.)

Timothy Patrick Sharpe was the owner of a 1985 Jeep CJ7, manufactured by Chrysler Corporation. As purchased, the Jeep came with a standard hard, fiberglass top and removable steel doors. In the summer of 1988, Sharpe purchased a "Fastback" soft convertible top and doors manufactured by Bestop, Inc. and sold by Sears Roebuck and Company. Sharpe installed the soft top and doors on his Jeep according to the manufacturer's instructions.

In the early morning of August 19, 1988, Sharpe and a friend, Ray Alvarez, were returning to Sharpe's parents' home in Hazlet, traveling northbound on the Garden State Parkway. Sharpe was driving and Alvarez was in the passenger seat. Neither of them had their seat belts on. Sharpe apparently fell asleep behind the wheel of the Jeep and was seriously injured when he was ejected from the vehicle upon impact with a guardrail.

Sharpe brought an action against Bestop, Sears, and Chrysler. His complaint alleged that Bestop and Sears defectively designed the soft convertible top and doors and failed to provide adequate warnings for the top's safe use. As to Chrysler, Sharpe alleged that the Jeep was defectively designed and also that Chrysler failed to provide an adequate warning alerting occupants about the need to wear seat belts when using a soft top and doors.

The jury found that the Jeep was not defective and also that the Bestop soft top and doors were not defectively designed. The jury also exonerated Chrysler on the warning claim. As to the failure to warn claim against Bestop and Sears, the jury found that Bestop and Sears failed to warn consumers of the dangers attendant to the use of their product. The jury further found, however, that the failure to warn was not a proximate cause of Sharpe's injuries. Sharpe's motion for a judgment notwithstanding the verdict, limited to Bestop and Sears and the failure to warn issue, was denied.

Sharpe appealed only as to the verdict on the failure to warn claim against Bestop and Sears. Sharpe argued that Interrogatory No. 5 to the jury misstated the law and had the capacity to produce an unjust result. This interrogatory was to be considered only after the jurors found that Sears and Bestop failed to adequately warn and instruct users as to the need to wear seat belts to safely use their product. Interrogatory No. 5 asked whether the jury found "that had such warning and instruction been provided that Plaintiff probably would have followed the warnings and instruction and worn his safety belts?" The jury answered in the negative. Sharpe contended that he was only required to prove he "might" have heeded the warning if given. Because Sharpe did not object to the form of the interrogatory in a timely manner, his argument was considered under the plain error standard.

The opinion of the Appellate Division, written by Judge Keefe, noted that in Coffman v. Keene Corp., 133 N.J. 581 (1993), the Supreme Court adopted the "heeding presumption" in New Jersey (in a product-liability case alleging a failure to warn, plaintiff is afforded the presumption that he or she would have followed an adequate warning had one been provided). It also cited to Graves v. Chruch & Dwight co., Inc. 267 N.J. Super. 445, certif. denied, 134 N.J. 566 (1993), which addressed the burden-shifting aspects of the presumption in greater detail. Graves held that where the presumption applies, a defendant has the burden to come forward with evidence rebutting the presumption (burden of production), and, if defendant does so, the presumption disappears and plaintiff must prove by a preponderance of the evidence (burden of persuasion) that the failure to warn was a proximate cause of the injury. The Appellate Division agreed with Graves that the ultimate burden of persuasion rests with plaintiff, and found no conflict between Graves and Coffman. The Appellate Division therefore held that Interrogatory No. 5 was an accurate statement of the law regarding burden of persuasion on the issue of proximate cause once the needing presumption had been rebutted.

Sharpe also questioned the substantive proofs used by defendant to rebut the heeding presumption. In a pre-trial ruling, the trial court prohibited defendant from presenting any evidence in respect of Sharpe's consumption of alcoholic beverages on the night in question. Sharpe testified on direct examination that he always wore his seat belt when he was driving the Jeep without any top or doors, but not when the top and doors (even the soft ones) were installed. Sharpe claimed that he would have worn a seat belt with the soft top if he had been warned to do so. The trial court therefore permitted defendant to cross-examine Sharpe as to whether he heeded the warnings that did appear on the sun visor of the Jeep, which cautioned: "WEAR SEAT BELTS AT ALL TIMES -- DON'T DRINK AND DRIVE." Sharpe admitted on cross-examination that notwithstanding these warnings, he did not wear his seat belts "at all times," and that there were occasions when he did drink and drive the Jeep (Sharpe's abstract must have revealed a prior DWI conviction). The trial court cautioned the jury that this testimony could be used only on the issue of Sharpe's "observation of any warnings that may be set forth in the vehicle."

Sharpe argued that the trial court improperly permitted testimony about drunk driving, and that evidence of alcohol consumption may never be introduced. The Appellate Division rejected this contention, noting that the evidence did not include any reference to Sharpe's consumption of alcohol on the day of the accident. However, the Appellate Division went on to caution that a defendant cannot rebut the heeding presumption with evidence that a plaintiff failed to follow warnings or instructions on a few occasions, explaining that this was the type of character evidence prohibited by N.J.R.E. 404(a). The Appellate Division stated that for the evidence to be admissible, it must rise to the level of "habit" or "routine practice," as permitted by N.J.R.E. 406(b).

Applying these principles to these facts, the Appellate Division held that the evidence about Sharpe's failure to heed the existing warning to wear seat belts at all times was admissible because it is clear that he had a habit of not wearing seat belts when the top and doors were on the Jeep. But the Appellate Division determined that there was nothing in the record to demonstrate that Sharpe had a habit of drinking and driving. It therefore held that the evidence of Sharpe "occasionally" failing to heed the warning not to drink and drive was inadmissible. The Appellate Division concluded, however, that this error was harmless, since the testimony was brief, not linked to the accident, and it paled in comparison to Sharpe's failure to obey the seat belt warning, which was directly linked to the premise of his case against the defendants.

Judge Wecker wrote a separate, concurring opinion, expressing the view that Coffman required that the heeding presumption shifted not only the burden of producing evidence to the defendant, but the burden of proof, as well.

The Supreme Court granted Sharpe's petition for certification.

HELD: When the heeding presumption applies, a defendant has the burden to come forward with evidence rebutting the presumption (burden of production), and, if defendant does so, the presumption disappears and plaintiff must prove by a preponderance of the evidence (burden of persuasion) that the failure to warn was a proximate cause of the injury.

The Supreme Court affirms substantially for the reasons stated in Judge Keefe's opinion. In addition, it notes the Appellate Division's careful distinction between habit and character evidence when offered by product manufacturers seeking to overcome the heeding presumption.

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.

 
 

SUPREME COURT OF NEW JERSEY
A- 53 September Term 1998

TIMOTHY PATRICK SHARPE,

Plaintiff-Appellant,

v.

BESTOP, INC., a corporation of the State of Colorado and SEARS ROEBUCK AND CO., a corporation of the State of New York,

Defendants-Respondents,

and

CHRYSLER CORPORATION, a corporation of the State of Delaware, Individually and as successor to American Motors Corp., and ABC Companies 1-10, fictitious corporations or entities,

Defendants.

Argued March 29, 1999 -- Decided May 12, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 314 N.J. Super. 54 (1998).

John B. Collins argued the cause for appellant (Bongiovanni, Collins & Warden, attorneys, Mr. Collins and Anthony P. Caivano, on the brief).

Robert G. Hampson argued the cause for respondents.

PER CURIAM

We affirm the judgment of the Appellate Division substantially for the reasons stated in its opinion reported at 314 N.J. Super. 54 (1998). We wish simply to note the court's careful distinction between habit and character evidence when offered by product manufacturers seeking to overcome the heeding presumption that was established in Coffman v. Keene Corp., 133 N.J. 581 (1993). Specifically, the Appellate Division in this case held that only evidence of a habit related to the specific situation of a seat-belt warning, not a character trait, may be offered to rebut the heeding presumption. 314 N.J. Super. at 77, 79.
In State v. Radziwil, 235 N.J. Super. 557 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990), this Court approved of the following analysis of the distinction between habit and character evidence:
The two are easily confused. People sometimes speak of a habit for care, a habit for promptness, or a habit of forgetfulness. They may say that an individual has a bad habit of stealing or lying. Evidence of these habits would be identical to the kind of evidence that is the target of the general rule against character evidence. Character is a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness. Habit, in the present context, is more specific. It denotes one's regular response to a repeated situation. If we speak of a character for care, we think of the person's tendency to act prudently in all the varying situations of life -- in business, at home, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of responding to a particular kind of situation with a specific type of conduct. Thus, a person may be in the habit of bounding down a certain stairway two or three steps at a time, of patronizing a particular pub after each day's work, or of driving his automobile without using a seatbelt. The doing of the habitual act may become semi-automatic, as with a driver who invariably signals before changing lanes.

[235 N.J. Super. at 564 (quoting McCormick on Evidence, 195 at 574-75 (3d ed. 1984) (footnotes omitted)) (emphasis added).]

In Radziwil, supra, the court concluded that evidence of the defendant regularly becoming intoxicated each weekend at a specific bar was admissible as habit evidence to prove that the defendant was intoxicated when he fatally injured an individual in an automobile accident.
In this case, the Appellate Division concluded that plaintiff's habitual disregard of the identical product safety warning to WEAR SEAT BELTS AT ALL TIMES was admissible as evidence of a regular response to a repeated situation (including this occasion when only the vehicle's soft top was on), while his occasional disregard of warnings not to drink and drive was not admissible, although it found that error to be harmless. 314 N.J. Super. at 79-80. (There was no evidence that plaintiff habitually drove while impaired, and the many circumstances in which driving after one or two drinks would not be unsafe made the evidence especially suspect, in contrast to the defendant's habitual intemperance in Radziwil.)

New Jersey Rule of Evidence 406 is derived from Federal Rule of Evidence 406, which provides: Evidence of the habit of a person . . . is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit or routine practice. As stated in Thompson v. Boggs, 33 F.3d 847, 854 (7th Cir. 1994), cert. denied, 514 U.S. 1063, 115 S. Ct. 1692, 131 L. Ed. 2d 556 (1995):
[T]he Advisory Committee [on the Federal Rules] noted in its Comment to Rule 406 [that] habit describes one's regular response to a repeated specific situation. [B]efore a court may admit evidence of habit, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere 'tendency' to act in a given manner, but rather, conduct that is 'semi-automatic' in nature. Simplex, Inc. v. Diversified Energy Systems, Inc., 847 F.2d 1290, 1293 (7th Cir. 1988).

The party offering the evidence must establish the habitual nature of the alleged practice. * * * Although there are no precise standards for determining whether a behavior pattern [such as bounding down stairs two or three at a time] has matured into a habit, two factors are considered controlling as a rule: adequacy of sampling and uniformity of response. United States v. Newman, 982 F.2d 665, 668 (1st Cir. 1992), cert. denied, 510 U.S. 812, 114 S. Ct. 59, 126 L. Ed. 2d 28 (1993).

In short, [s]pecificity distinguishes 'habit' from 'character.' 23 Fed. Practice and Procedure Evid. 5273 (R. 406) n.53 (citing Jones v. Southern Pacific R.R. Co., 962 F.2d 447, 449 (5th Cir. 1992) (holding that nine diverse safety violations do not show habit of negligence). Thus, for example, we would not find that evidence of one's repeated failure to follow a doctor's advice to lose weight, is sufficiently similar in character and quality to establish the likelihood of a similar response to a safety warning concerning boating waters. See Verdun v. State, Through Dep't of Health and Human Resources, 598 So. 2d 1091, 1095 (La. Ct. App.), writ denied, 604 So. 2d 1003 (La. 1992).
We would also hesitate to endorse rebuttal evidence that focuses on the product user as one who may be illiterate, . . . irresponsible or lax in judgment . . . . Technical Chem. Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972) (quoted in Coffman, supra, 133 N.J. at 604). The latter two factors are clearly character traits. Unless a claimant has somehow put character at issue, these traits would appear to be inadmissible. The first factor is of little relevance in this context. Some unlettered people are far more proficient than the lettered in dealing with machinery. Moreover, in Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 208 (1984), the Court emphasized that product warnings must be tailored to the circumstances of the user when known, including the needs of the unskilled or [those] who do not read English.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-53

SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court

TIMOTHY PATRICK SHARPE,

Plaintiff-Appellant,

v.

BESTOP, INC. a corporation of the
State of Colorado and SEARS ROEBUCK
AND CO. , a corporation of the State
of New York,

Defendants-Respondents,

and

CHRYSLER CORPORATION, a corporation
of the State of Delaware, Individually and as
successor to American Motors Corp., and ABC
companies 1-10, fictitious corporations or entities,
corporations or entities,

Defendants.

DECIDED May 12, 1999
Chief Justice Poritz

PRESIDING
OPINION BY Per Curiam CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
AFFIRMED CHIEF JUSTICE PORITZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
7