DANIEL LYONS v. CATERPILLAR, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7044-03T37044-03T3

DANIEL LYONS,

Plaintiff-Appellant,

v.

CATERPILLAR, INC., and

FOLEY CO.,

Defendants-Respondents.

 
 

Argued October 26, 2005 - Decided

Before Judges Conley, Weissbard, and Francis.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, L-1594-00.

Marshall E. Kresman argued the cause for

appellant.

James H. Keale argued the cause for respondent

Caterpillar, Inc. (Sedgwick, Detert, Moran
& Arnold, attorneys; Mr. Keale and Lori E. Chapin,

on the brief).

William E. Haddix argued the cause for respondent

Foley Co. (Thomas Dempster, III, attorney; Tracy A.

Redmond, on the brief).

PER CURIAM

Plaintiff Daniel Lyons appeals from an adverse jury verdict in his product liability suit against defendants Caterpillar, Inc. and Foley Co. We reverse and remand for a new trial.

The facts are as follows. In the spring of 1998, plaintiff worked as a heavy equipment mechanic for Trap Rock Industries, a mining company. Plaintiff's primary responsibility was to maintain the company's fleet of equipment, including front-end loaders, bulldozers, haul trucks, and graders. On May 15, 1998, plaintiff was assigned to service equipment at the Kingston Quarry site in Kingston. As part of his duties that morning, plaintiff was asked to add a gallon of oil to a Caterpillar Model 992D Wheel Loader. The 992D was manufactured by defendant Caterpillar, Inc. and distributed by defendant Foley Co. To accomplish this task, plaintiff obtained a one-gallon plastic jug of oil, weighing about fifteen pounds, and proceeded to climb the access ladder on the left side of the machine. Plaintiff set the oil jug down on the platform, but soon realized that the oil fill was located on the other side of the machine.

At that point, plaintiff picked up the oil jug and walked around to the platform on the back part of the machine. He grasped the rail with his left hand and held the oil jug in his right hand as he attempted to cross the platform. As he came to a crosspiece bracket, plaintiff had to release his fingertips from the rail in order to slide his hand over to the other side of the bracket. When he released his grip, he lost his balance and fell backwards to the ground. Plaintiff testified that the weight of the can and the vibrating motor of the machine contributed to his loss of balance. However, Julio DeJesus, the operator of the 992D on the date of the accident, testified that he had turned the machine off before asking plaintiff to add oil.

When plaintiff fell from the platform, he landed on his feet and felt a "tremendous shock" to his lower legs and knees, causing him to fall backwards to the ground. Plaintiff lay on his back for approximately forty-five minutes waiting for an ambulance to arrive and transport him to the Princeton Medical Center. At the hospital, plaintiff underwent numerous tests and had surgery performed on both knees about two weeks after the accident.

At trial, plaintiff testified that he had decided to cross the back platform because he had crossed it safely in the past and had seen other employees cross it without incident. He explained that there were no barricades or warnings not to cross the platform and that he had never been told not to cross it. In addition, plaintiff indicated that the "walkway" had the same textured, non-slip, nonskid surface as the platform he stands on when servicing the oil fill. When asked why he attempted to cross the platform instead of going back down the steps and climbing the ladder on the other side, plaintiff explained that he had only been working for Trap Rock for about three months, and he wanted to perform the job as quickly as possible to avoid criticism. Plaintiff felt pressure to complete the task quickly, as ten haul trucks were running and waiting behind the 992D machine.

Plaintiff's design and construction expert, a civil engineer, testified that the 992D front end loader fails to comply with applicable Occupational Safety and Health Administration (OSHA) standards because the platform does not have a guardrail running across the back, and the platform, being only eight inches wide, is too narrow to function as a walkway. Plaintiff's expert further testified that the hand rail, if intended to be used as such, is essentially useless because the cross-braces prevent a worker from being able to maintain a grip while walking across the platform. As an alternative safe design, plaintiff's expert recommended that, if Caterpillar did not intend the rear platform to function as a walkway, a guard rail or barrier should be installed across the end of the platform to prohibit people from crossing it.

On the other hand, Caterpillar's expert, also a civil engineer, testified that the rear platform is the machine's bumper and is not part of the machine's access system. Both Caterpillar's expert and Foley's expert, a mechanical engineer, testified that the OSHA regulations cited by plaintiff's expert do not apply to the design and manufacture of off-road work machines. Foley's expert further testified that the 992D is not defectively designed and that it complies with applicable Society of Automotive Engineers (SAE) standards.

Treatment for plaintiff's injuries has continued to the present time, and he has undergone additional surgeries. He continues to have pain in both of his knees, numbness in his left knee, and pain in his ankles and feet. His injuries have limited his employment opportunities and his ability to engage in physical activities that he previously enjoyed.

Plaintiff instituted suit on May 5, 2000, and the case came to trial in June 2004. After a six-day trial, the jury, in answer to a special interrogatory, unanimously concluded that the 992D Wheel Loader was not defectively designed. As a result, the jury was not required to decide whether any defective design was a proximate cause of plaintiff's injuries, whether Foley knew of the product's defective design and whether its conduct was a proximate cause of plaintiff's injuries, whether plaintiff was at fault and whether his conduct was a proximate cause of the accident, and the comparison of the fault of each party.

On appeal plaintiff argues that the trial court's charge was erroneous, that a defense expert witness should not have been permitted to testify concerning plaintiff's conduct, and that certain comments by counsel for Foley in summation constituted reversible error. We agree that the jury instructions were erroneous. Since there must be a new trial, we comment briefly on the other arguments.

II

We begin by noting that clear and correct jury instructions are without question essential to a fair trial. Das v. Thani, 171 N.J. 518, 527 (2002). Errors in a charge on matters that are material to the jury's fact-finding process are generally "poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." Id. at 527 (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). However, an incorrect charge constitutes reversible error only if the jury could have reached a different result had the court provided the correct instruction. Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002). In other words, a judgment will not be reversed when the jury would have reached the same result had it been instructed according to the correct legal standard. Murray v. United of Omaha Life Ins. Co., 145 F.3d 143, 156 (3d Cir. 1998).

When examining jury instructions for reversible error, we seek to determine whether the charge was clearly capable of producing an unjust result. Domurat v. Ciba Specialty Chems. Corp., 353 N.J. Super. 74, 93 (App. Div.), certif. denied, 175 N.J. 77 (2002) (citing Zappasodi v. State, 335 N.J. Super. 83, 89 (App. Div. 2000). We must consider the instructions as a whole to determine whether they adequately conveyed the law and did not mislead or confuse the jury. Ibid. Although the parties are not entitled to a charge in their own words, they are entitled to an instruction that "fully, clearly, and as accurately as possible sets forth the fundamental issues." State v. Ball, 268 N.J. Super. 72, 112 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied sub nom, Mocco v. New Jersey, 516 U.S. 1075, 133 L. Ed. 2d 731, 116 S. Ct. 779 (1996).

Here, the trial judge provided the following jury instruction regarding comparative fault:

[D]id plaintiff voluntarily and unreasonably proceed in the face of a known danger?

Defendants contend that plaintiff was at fault for the happening of the accident. On this defense, defendants have the burden of proof and must prove that plaintiff voluntarily and unreasonably proceeded to encounter a known danger, and that his action was a proximate cause of the accident.

The failure of plaintiff to discover a defect in the product or to guard against the possibility of a defective product is not a defense. Rather, to win on this defense, defendants must prove that plaintiff had actual knowledge of the particular danger presented, and that he knowingly and voluntarily encountered the risk.

In the event you find that defendant was at fault, the defense must also prove that plaintiff's fault was a proximate cause of his injury.

Plaintiff's counsel objected to charging the jury that contributory fault is a "defense," but the judge rejected his argument, explaining his reasoning as follows:

I think the first -- the critical to -- for plaintiff is whether or not the Court would charge comparative fault in what you consider to be a work setting on a piece of defectively designed machinery. . . .

And if the jury finds that it was defectively designed for any number of reasons that have been set forth on the record, we have a situation in my judgment where the plaintiff had choices, that he could use the ladder on the side of the machine. That was his means of getting up on the platform, which is five and a half feet off the deck, or he could have done what he did do.

It's different than someone who is essentially on the assembly line or at a machine, a workplace, without any choice or any alternatives other than to go ahead and do the job, or the person who is given the saw without a guard or a piece of equipment that is somehow defective, but is really constrained to using that piece of equipment without any freedom of choice or else not do the job, and perhaps risk the job security and so forth. . . .

And [defendants are] essentially saying that if he voluntarily and unreasonably proceeded in the face of a known hazard, I think that's the issue before the jury. Is there a design defect and is it a hazardous condition, as you say it is, and if so, whether or not the choice made by your client was one where he voluntarily and unreasonably proceeded in the face of a known hazard.

Plaintiff argues that the trial judge committed reversible error in charging the jury to consider plaintiff's comparative fault as a defense because our case law prohibits introducing comparative fault into strict liability actions regarding defective machinery in a workplace setting. We agree.

The Court considered the applicability of contributory negligence and the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.3, to the conduct of a plaintiff in a strict liability suit in Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150 (1979). There, the Court held that an employee who is injured while working at his assigned task on a plant machine has "no meaningful choice," and "[i]rrespective of the rationale that the employee may have unreasonably and voluntarily encountered a known risk, we hold as a matter of policy that such an employee is not guilty of contributory negligence." Id. at 167. The Court specifically declined to comment on other situations in which an employee may similarly be found to have had no meaningful choice. Id. at 167 n. 5.

In Green v. Sterling Extruder Corp., 95 N.J. 263, 270 (1984), the Court explained the Suter holding by noting that the minority in Suter would have retained contributory negligence as a defense in strict liability actions in those limited instances in which the plaintiff "voluntarily and unreasonably proceeds to encounter a danger known to him," and indicated that the Court remained divided on that issue. The Court declined to revisit the issue, as the plaintiff in Green demonstrated only ordinary carelessness. Ibid.

Defendants argue that the Suter rule is inapplicable in this case because plaintiff had a "meaningful choice" regarding how to get to the other side of the machine. The Suter rule, however, has been clarified by subsequent case law which has firmly established that contributory or comparative negligence is not applicable when an employee is injured in the workplace setting while performing an aspect of his or her job; the workplace need not be a factory setting. Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 401 (App. Div.), certif. denied, 126 N.J. 390 (1991). As to whether an employer should be absolved from the consequences of a workplace injury when the worker voluntarily and unreasonably encounters a known risk, we quoted Crumb v. Black & Decker (U.S., Inc.), 204 N.J. Super. 521, 527 (App. Div.), certif. granted, 102 N.J. 386 (1985), appeal dismissed, 104 N.J. 432 (1986), for a proper interpretation of the Suter rule: "The essence of the Suter rule is that the employee had no meaningful choice. He either worked at his assigned task or was subject to discipline or being labeled a troublemaker." Tirrell, supra, 248 N.J. Super. at 401. We also stated that Colella v. Safway Steel Products, 201 N.J. Super. 588, 592-93 (Law Div. 1985), a case that refused to apply the Suter protection upon finding that the worker had meaningful choice, was to be considered overruled to the extent it conflicted with Suter. Id. at 401 n.8. Thus, Tirrell directs that a court cannot use a finding of meaningful choice to deny a worker the Suter prohibition on contributory negligence when the worker is injured while performing a job task.

Subsequent case law supports this analysis. For example, in Ramos v. Silent Hoist and Crane Co., 256 N.J. Super. 467, 478 (App. Div. 1992), we stated that the comparative fault of a plaintiff who is injured while performing his job activities at the workplace is to be disregarded; we made no reference to the consideration of whether the employee had meaningful choice. Similarly, in Fabian v. Minster Machine Co., 258 N.J. Super. 261, 277-78 (App. Div.), certif. denied, 130 N.J. 598 (1992), we stated that, "[i]t is undisputed that defendant's defenses of contributory and comparative negligence were properly stricken on the first day of trial" because "[n]either contributory nor comparative negligence is applicable where an employee is injured at a workplace task." See also Conguisti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 134 (App. Div. 1997) (stating that there is "no question" that comparative negligence of plaintiff is generally disregarded in workplace setting and making no mention of whether plaintiff had choice in use of product); Grier v. Cochran W. Corp., 308 N.J. Super. 308, 325 (App. Div. 1998) (stating that manufacturers of industrial equipment cannot reduce comparative liability because of employee's conduct and cannot use obviousness of product's danger as absolute statutory shield from liability). The Model Jury Charge on manufacturing defects further confirms this analysis, stating that the defense of contributory or comparative negligence is not applicable to workplace injuries when the plaintiff performs a task reasonably assumed to be part of the assigned duties. New Jersey Standard Jury Instructions, 5.34A(6) n. 7 (citing Ramos, supra, 256 N.J. Super. at 478; Suter, supra, 81 N.J. at 167-68; Tirrell, supra, 248 N.J. Super. at 401-02).

Moreover, our statutory law now embodies the Suter prohibition against charging contributory and comparative negligence when an employee is injured on workplace machinery or equipment. N.J.S.A. 2A:58C-3(a)(2) provides that a manufacturer or seller shall not be liable for a defectively designed product if:

The characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended, except that this paragraph shall not apply to industrial machinery or other equipment used in the workplace. . . .

[emphasis added]

The leading commentators have explained the relationship between the statutory exception and the Suter rule:

N.J.S. 2A:58C-3a(2) explicitly excepts, however, those users who are operating workplace equipment, thus preserving that portion of the Suter ruling which established that even the narrowed contributory and comparative negligence defense was inapplicable in the workplace setting where it could never be said that the worker voluntarily encountered the risk: "In our view an employee engaged at his assigned task on a plant machine . . . has no meaningful choice." [Suter, supra, 81 N.J.] at 167. The general comment in the committee statements to 2 through 4 specifically notes that the Suter "principle of comparative fault in cases involving workplace injuries" was not changed by the Act. Thus the N.J.S. 2A:58C-3a(2) defense is, by its terms, inapplicable to design defect cases involving workers using workplace equipment [citations omitted]. The Legislature has, indeed, stated a broader exception than that explicitly stated by Suter, insofar as Suter referred only to employees at assigned tasks on plant machines, but the legislative exception covers all use of all workplace equipment.

[Dreier, Goldman & Katz, New Jersey Products Liability and Toxic Torts Law 14:3-2 at 381 (2001).]

As a result, we reject defendants' argument that comparative fault applies to this case. The judge should not have instructed the jury that comparative negligence was a defense because plaintiff was injured at his workplace when attempting to service the oil fill, a task that fell within his assigned duties as a heavy equipment mechanic. Contributory and comparative negligence do not apply to such situations.

Caterpillar argues that, even if the judge improperly instructed the jury that contributory and comparative negligence were applicable, any error was harmless because the jury ended deliberations after finding no design defect and, thus, never reached the issue of comparative fault. We disagree. The Court has indicated that when contributory negligence is not applicable to a case in which the jury hears evidence of plaintiff's conduct, limiting instructions are necessary to clarify the proper use of such evidence, Johansen v. Makita, U.S.A., Inc., 128 N.J. 86, 100 (1992), even when the jury finds no defect and does not reach the question of proximate cause. Id. at 93. Thus, limiting instructions were necessary in this case in order to ensure that the jury correctly understood the proper use of the evidence of plaintiff's conduct and did not confuse plaintiff's conduct with the issue of design defect. Accordingly, the trial court committed reversible error in charging the jury on contributory and comparative negligence and in failing to provide a limiting instruction that plaintiff's conduct was not a defense to the strict liability claim. See id. at 102-03.

Nevertheless, even though a defense of contributory or comparative negligence is not available when an employee is injured at the workplace while performing a job task, evidence of a plaintiff's negligence is admissible on the issue of proximate cause. Fabian, supra, 258 N.J. Super. at 278; Conguisti, supra, 306 N.J. Super. at 135 n. 1; Johansen, supra, 128 N.J. at 102. In other words, even in the workplace setting plaintiff's negligence may be considered when a defendant claims that the plaintiff's conduct is the sole proximate cause of the injury, as opposed to a contributing factor. Grier, supra, 308 N.J. Super. at 324. Thus, in this case, the jurors were free to consider evidence of plaintiff's lack of due care in determining whether the manner in which plaintiff used the machine was the sole cause of the accident. See Johansen, supra, 128 N.J. at 103.

Indeed, plaintiff does not contend that evidence of his conduct was irrelevant to proximate cause. Rather, he argues that the trial court should have provided a limiting instruction, informing the jury that plaintiff's conduct may be considered only on the issue of proximate cause and is irrelevant to the issue of design defect. Because this argument is closely intertwined with the issue plaintiff raises regarding the risk-utility analysis charge, we discuss it in connection with that portion of plaintiff's argument.

We have adopted the risk-utility analysis as a framework for determining whether a product is defectively designed. Johansen, supra, 128 N.J. at 95. This analysis instructs a jury to hold the manufacturer of a product liable "if the danger posed by the product outweighs the benefits of the way the product was designed and marketed." Ibid. Manufacturers cannot avoid liability on the grounds that plaintiff misused or abnormally used the product if the use associated with the injury was objectively foreseeable. Ibid. Several factors are typically taken into consideration in determining whether the risks posed by a product outweigh its utility. Id. at 96 (citing Cepeda v. Cumberland Eng'g Co., 76 N.J. 152, 174 (1978)); see also New Jersey Standard Jury Instructions, 5.34C-3(3)(a). The fifth factor, which is at issue in this case, is "the user's ability to avoid danger by the exercise of care in the use of the product." Ibid.

Here, the trial court properly instructed the jury to consider the risk-utility factors in determining whether the 992D front end loader was defectively designed. In explaining factor five, the judge referred to "the ability of foreseeable users to avoid danger by the exercise of care in the use of the loader." However, the judge provided no further elaboration on the factor, and did not provide the limiting instruction specifically requested by plaintiff, which would have instructed the jury that testimony regarding the conduct of this particular plaintiff was not to be considered when deciding whether the product was defective but was only to be considered on the issue of proximate cause. Plaintiff argues that the trial court's jury charge regarding risk-utility analysis was an "incomplete and improper" statement of the law because the charge did not include such a limiting instruction. We agree.

It is well-established that the fifth factor of the risk-utility analysis refers to the average, hypothetical user of the product and not to the particular plaintiff in the case at hand. Johansen, supra, 128 N.J. at 101; Dixon v. Jacobsen Mfg. Co., 270 N.J. Super. 569, 590 (App. Div.), certif. denied, 136 N.J. 295 (1994); Grier, supra, 308 N.J. Super. at 324; see also New Jersey Standard Jury Instructions, 5.34C-3(3)(a)(5) n. 15 (noting that fifth factor is objective test of foreseeability by designer of product with respect to class of users and is not subjective test of knowledge of plaintiff in particular case). The question of whether a product is defectively designed must be decided without considering the specific conduct or knowledge of the individuals involved in the case because product safety can only be determined in the context of the average consumer, and the post-marketing conduct of a particular plaintiff is not relevant to that determination. Dixon, supra, 270 N.J. Super. at 590 (citing Johansen, supra, 128 N.J. at 101). We have explained that this principle is "common sense" because one cannot argue that a plaintiff's conduct has any relevance to the question of whether the product was defective when it was marketed years earlier. Ladner v. Mercedes-Benz of N. Am., 266 N.J. Super. 481, 491 (App. Div. 1993), certif. denied, 135 N.J. 302 (1994). Thus, evidence of the plaintiff's use of the 992D front end loader was irrelevant to the determination of whether the machine was defectively designed.

In Johansen, supra, 128 N.J. at 101, the Court stated that when evidence of a plaintiff's conduct is offered at trial, "an instruction that the plaintiff's conduct not be considered in the context of the risk-utility analysis is essential" (emphasis added). The Court explained that when the trial court does not provide such a limiting instruction, the jury might inadvertently compare a plaintiff's and defendant's fault in deciding the issue of design defect. Ibid. In other words, without an instruction not to consider the plaintiff's conduct in determining whether a product is defectively designed, a jury might find that a product is improperly designed but is not defective because the plaintiff could have avoided the danger by exercising due care. Ibid. In Ladner, supra, 266 N.J. Super. at 492-93, we also explained how the absence of a limiting instruction may mislead the jury in deciding the issue of design defect: "Without that explanation, the jury was free to reason that plaintiff was a foreseeable user; the standard of care applied to her; she violated the standard; and she would not have been injured had she not done so: ergo, the [product's] design was not defective."

The risk that the lack of a limiting instruction may confuse or mislead the jury in its determination of design defect was particularly high in this case. In Johansen, supra, 128 N.J. at 102, the Court noted that the danger that the jury might improperly consider plaintiff's conduct in determining whether the product was defective was "especially acute" because defendants had emphasized plaintiff's conduct in using the product throughout the trial; therefore, the jury should have been instructed not to consider evidence relating to plaintiff's behavior in deciding the issue of product defect. Likewise, defendants in this case repeatedly emphasized plaintiff's conduct, and even introduced an expert, Mr. Geier, to testify specifically about plaintiff's conduct. Thus, an instruction not to consider evidence concerning plaintiff's conduct in deciding whether the 992D front end loader was defectively designed was especially necessary for clarification.

Moreover, the judge himself was apparently confused as to whether plaintiff's conduct could be considered as part of the risk-utility analysis, as evidenced during the colloquy with counsel regarding whether Geier could testify, during which the judge stated, "he should be allowed to testify and that is because I do think the issue of fault, certainly with regard to proximate cause, probably also with regard to factor five of the risk utility analysis . . . it is appropriate that he can testify." Similarly, in Ladner, supra, 266 N.J. Super. at 493, the trial judge had stated during a discussion with counsel that plaintiff's conduct does have a bearing on the risk-utility analysis. We concluded that this statement bolstered the conclusion that the charge had the capacity to improperly lead jurors to consider plaintiff's conduct in the risk-utility analysis. Ibid. The same reasoning applies to this case.

Due to the risk that the jury may have been confused or misled regarding the proper use of evidence concerning plaintiff's conduct, the error in failing to provide a limiting instruction cannot be deemed harmless. As in Johansen, 128 N.J. at 103, the trial court should have instructed the jury that evidence of plaintiff's conduct was "neither a defense to the strict-products-liability claim nor relevant to the jury's application of the fifth factor of the risk-utility analysis." An instruction informing the jury that plaintiff's conduct was only relevant to the issue of proximate causation was "essential to a fair trial" and requires a remand. Dixon, supra, 270 N.J. Super. at 590; see also Johansen, supra, 128 N.J. at 103 (remanding for new trial for failure to provide limiting instruction on use of plaintiff's conduct); Ladner, supra, 266 N.J. Super. at 494 (concluding that failure to provide limiting instruction on use of plaintiff's conduct in context of risk-utility analysis is not harmless and ordering new trial on issue of design defect).

III

Over the objection of plaintiff's counsel, the trial court permitted Joseph Geier, an individual who had spent over forty years operating and training others how to operate heavy equipment, to testify as an expert witness regarding plaintiff's conduct on the day of the accident. Prior to Geier's testimony, the judge explained to counsel his reasons for permitting the testimony:

He has some knowledge of this particular machine. I've concluded that he should be allowed to testify and that is because I do think the issue of fault, certainly with regard to proximate cause, probably also with regard to factor five of the risk utility analysis, and moreover, I think just as a comparative measure in this particular case for reasons that we're going to go into in depth, it is appropriate that he can testify.

Geier testified that plaintiff failed to exercise proper caution in his decision to cross the platform to get to the other side of the machine. More specifically, Geier stated that a worker can safely service the 992D by following Caterpillar's recommended practice of "three point contact," which involves keeping one's hands free if needed for stability. In Geier's opinion, plaintiff should have dismounted the machine, moved the oil can to the other side and placed it on the platform, and then climbed the ladder on the other side of the machine, continuing to maintain a "three point contact."

As explained above, plaintiff's conduct was relevant to the issue of proximate cause in this case. See Fabian, supra, 258 N.J. Super. at 278. Thus, the trial court's decision to allow Geier to testify regarding plaintiff's conduct was not in itself reversible error. The problem, as also explained above, was in the judge's failure to provide a limiting instruction as to the use of that testimony, namely, that it was not to be considered in determining the issue of design defect but was only relevant to the issue of proximate cause. See Dixon, supra, 270 N.J. Super. at 590.

IV

During cross-examination of Matthew Burkhart, plaintiff's engineering expert, counsel for Foley elicited testimony, without objection, that OSHA applied to the employees at Trap Rock Industries and that Trap Rock was not investigated by or cited by OSHA regarding plaintiff's accident. Additionally, during direct-examination of Jerry Meyers, the director of personnel and safety at Trap Rock, Foley's counsel raised the issue of the absence of a Mine Safety and Health Administration (MSHA) citation filed against Trap Rock regarding plaintiff's accident. Plaintiff's counsel objected to this line of questioning and the court sustained the objection.

In his summation, counsel for Foley again raised the issue of the absence of OSHA or MSHA violations filed against plaintiff's employer regarding the accident:

But what did you also hear? You heard Jerry Meyers from Trap Rock Industries say, our operation, our quarry is governed by the Mining Safety and Health Administration. Not only that, you heard that the machine shop where Mr. Lyons worked out of is controlled by the Mining Safety and Health Administration.

You heard that if that machine had to go in for other than routine service into that shop the activities in that shop are controlled by the Mining Safety and Health Administration. What did you also hear? You heard Trap Rock was not investigated by the Mining Safety and Health Administration for this accident.

What did you also hear? That OSHA did not investigate nor cite Trap Rock for this injury. That tells you a couple of things, ladies and gentleman. It tells you, one, OSHA had no involvement at this work cite.

Two, it tells you, even if OSHA had involvement, they didn't think their regulations were applicable to this machine or that there was a violation of the record -- their regulations, and three, it tells you that MSHA didn't see that there was any violation of any workplace standard for what happened on May 15, 1998.

Plaintiff's counsel promptly objected to these statements. The judge sustained the objection and provided a curative instruction, in the following colloquy:

[Plaintiff's counsel]: Your Honor.

The Court: Yes.

[Plaintiff's counsel]: I don't believe that was in evidence as to -- in fact, there was an objection. I think that --

The Court: I'm going to ask you to stand. What?

[Plaintiff's counsel]: I said, I believe OSHA -- what OSHA and MSHA did with regard to this violation is not in evidence and I would ask that the jury be, you know, instructed in that. He's citing OSHA and MSHA citations, which --

The Court: He's citing the lack of them.

[Plaintiff's counsel]: Yeah, and that was not in evidence, Your Honor.

The Court: All right. There's an objection by counsel that it was not explored. There was some testimony it seems to me that Mr. Haddix is relating to. Whether that testimony is persuasive or not in any form or fashion is really the underpinnings of this objection.

I am going to rule from the Bench right now that it is not relevant to your consideration. We don't know what, if anything, was done or was not done or what the reasons were. Didn't have OSHA people here to ask them questions about, did they investigate, did they not; were complaints made, were they not; how do you get complaints up, and if so, how are they processed. We do not.

So the absence of any activity or actions is really speculative at this point. The objection is sustained.

Plaintiff contends that the trial court's attempted curative instruction and any other instruction that the court could have given to the jury at the time of summation would not have eliminated the prejudicial effect of defense counsel's repeated statements that OSHA and MSHA violations had not been issued to plaintiff's employer. We disagree.

Juries are ordinarily deemed capable of following curative instructions to ignore prejudicial information. Williams v. James, 113 N.J. 619, 632 (1989). Cautionary instructions, however, do not always eliminate the probability of prejudice. Geler v. Akawie, 358 N.J. Super. 437, 471 (App. Div.), cert. denied, 177 N.J. 223 (2003) (quoting Fineman v. Armstrong, 774 F. Supp. 266, 270 (D.N.J. 1991), aff'd, 480 F.2d 171 (3d. Cir. 1992)). In some instances, after a jury is repeatedly exposed to prejudicial information, cautionary instructions cannot sufficiently eliminate the harm. Ibid. The Court has noted that the decision regarding whether inadmissible evidence can be cured by a cautionary or limiting instruction is one that is "peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984). When weighing the effectiveness of a curative instruction, the reviewing court should give "equal deference" to the trial court's determination. Id. at 647.

A review of the record in this case fails to establish that defense counsel's inappropriate references to the lack of MSHA or OSHA citations led the jury to a result it might not otherwise have reached. Rather, any prejudice created by the remarks was curable by a proper limiting instruction, which the judge provided.

The only statement relating to the lack of MSHA or OSHA citations that the jury heard without objection was made during the cross-examination of plaintiff's expert. Since plaintiff's counsel did not object when the remarks were made, it cannot be said that he thought the remarks were prejudicial at that time. See State v. Papasavvas, 163 N.J. 565, 625 (2000). Improper remarks are generally not deemed prejudicial when no objection is made to them. Ibid.

Plaintiff's counsel promptly objected to defense counsel's second reference, which occurred during the Meyers testimony, and the judge sustained the objection before any statement indicating the absence of a citation was elicited from the witness. The third reference occurred during defense counsel's summation, and the judge issued a curative instruction immediately following the statements. There is no evidence that the jurors were unable to or did not follow the judge's instructions. See State v. Mays, 321 N.J. Super. 619, 633 (App. Div.), certif. denied, 162 N.J. 132 (1999) (assuming jury "faithfully followed" judge's instruction not to consider certain evidence); State v. Loftin, 146 N.J. 295, 367 (1996) (noting that jury presumably followed trial court's limiting instruction regarding courtroom outburst and concluding that any prejudice resulting from outburst was harmless error); State v. Manley, 54 N.J. 259, 271 (1969) (declining to make assumption that jury did not "faithfully follow" trial court's limiting instruction). Thus, the judge's prompt instruction likely cured any prejudice resulting from defense counsel's inappropriate references to the lack of MSHA or OSHA citations. Since the case must be retried, the entire matter of MSHA or OSHA citations, or lack thereof, should be dealt with in limine.

 
Reversed and remanded for a new trial.

Plaintiff's counsel had submitted to the trial court a suggested jury instruction that modeled New Jersey Standard Jury Instruction, 5.34G(2), entitled "Limiting Instruction Where Comparative Negligence Is Not Applicable -- Plaintiff's Conduct May Only Be Considered On Issue of Proximate Cause."

(continued)

(continued)

28

A-7044-03T3

December 12, 2005