RICHARD LOPEZ and FRANCISCA VALENTIN and CARMELO VALENTIN v. BOROUGH OF SAYREVILLE GPU ENERGY, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0158-06T50158-06T5

RICHARD LOPEZ,

Plaintiff-Appellant,

and

FRANCISCA VALENTIN and

CARMELO VALENTIN,

Plaintiffs,

v.

BOROUGH OF SAYREVILLE,

GPU ENERGY, INC., a/k/a GENERAL

PUBLIC UTILITIES, INC., a/k/a

JERSEY CENTRAL POWER & LIGHT

COMPANY,

Defendants,

and

KAWASAKI MOTORS CORP., U.S.A.,

KAWASAKI MOTORS MANUFACTURING

CORP., U.S.A., and KAWASAKI HEAVY

INDUSTRIES LTD, a/k/a KAWASAKI

HEAVY INDUSTRIES, HERCULES, INC.,

Defendants-Respondents.

____________________________________________________________

 
 

Argued January 7, 2008 - Decided

Before Judges Parrillo, Graves and Alvarez.

On appeal from Superior Court of New Jersey, Law

Division, Middlesex County, Docket No. L-6208-01.

Ronald R. Kogos argued the cause for appellant

(Kogos & Hofmann, P.A., attorneys; Robert A. Hofmann

and Mr. Kogos, on the brief).

William B. McGuire and Richard A. Mueller (Thompson Coburn, LLP) of the Missouri bar, admitted pro hac vice, argued the cause for respondents (Tompkins, McGuire, Wachenfeld & Barry, attorneys; John I. Lisowski, of counsel and on the brief; Matthew P. O'Malley, Mr. Mueller, and Robert K. Miller (Bowman & Brooke, LLP) of the California bar, admitted pro hac vice, on the brief).

PER CURIAM

In this products liability action, plaintiff Richard Lopez suffered an acute spinal cord injury when the four-wheeled all terrain vehicle (ATV) he was riding "overturned backwards," rolled over and landed on him, rendering him a paraplegic. Plaintiff appeals from a final judgment entered on a jury's no cause verdict and an order denying his motion for a new trial.

On appeal, plaintiff presents the following arguments:

POINT I

PLAINTIFF WAS ENTITLED TO A DIRECTED VERDICT ON PROXIMATE CAUSATION BECAUSE DEFENDANT DID NOT REBUT THE HEEDING PRESUMPTION.

POINT II

EVIDENCE OF PLAINTIFF'S ALCOHOL CONSUMPTION WAS HIGHLY PREJUDICIAL, IRRELEVANT ON ANY POINT, AND SHOULD HAVE BEEN EXCLUDED IN IT[S] ENTIRETY FROM THE TRIAL.

POINT III

QUESTION NO. 6 ON THE JURY VERDICT SHEET WAS REDUNDANT AND SHOULD NOT HAVE BEEN INCLUDED ON THE JURY VERDICT SHEET.

POINT IV

THE COURT MISLED AND CONFUSED THE JURY WHEN IT CHANGED THE JURY CHARGE AFTER EIGHT DAYS OF DELIBERATION.

POINT V

ACCEPTING A VERDICT FROM THE JURY WHILE JURY QUESTIONS WERE STILL PENDING IS REVERSIBLE ERROR.

POINT VI

REQUIRING THE PLAINTIFF TO REMOVE CERTAIN PORTIONS FROM THE DAY IN THE LIFE VIDEO WAS ERROR, AND THEREFORE, A NEW TRIAL MUST BE GRANTED.

After reviewing these contentions in light of the record, the applicable law, and the arguments of counsel, we conclude there was ample evidence to support the jury verdict, and there was no prejudicial error warranting a new trial. We therefore affirm.

Plaintiff's complaint sought damages for injuries plaintiff suffered as the result of an ATV accident on May 7, 2000. Plaintiff was born on January 29, 1971, and was twenty-nine years of age at the time of the accident. Although plaintiff's complaint initially included claims on behalf of his mother, Francisca Valentin, and his step-father, Carmelo Valentin, those claims were subsequently dismissed. In addition, the trial court granted summary judgment motions filed by the Borough of Sayreville and GPU Energy, Inc., and those defendants are not part of this appeal. Because one answer was filed on behalf of defendants (Kawasaki Motors Corp., U.S.A.; Kawasaki Motors Manufacturing Corp., U.S.A.; and Kawasaki Heavy Industries Ltd.), we refer to these defendants collectively as either Kawasaki or defendants.

In March 2000, George Lopez, plaintiff's brother, gave plaintiff a used 1998 Kawasaki Bayou KLF220, the ATV involved in the accident. When George, an inexperienced rider, testified, he said that he did "[n]ot really" have any trouble controlling the ATV when he rode it, but "it always shot to one side. . . . or pulled to one side. I forgot which side it was." It was undisputed that the warning labels had previously been removed from the ATV, and that plaintiff did not receive a copy of the owner's manual. The ATV, as originally sold, had contained warning labels cautioning (1) individuals not to ride without a helmet, (2) with a passenger, or (3) after consuming alcohol.

Plaintiff was a "very experienced" ATV rider, and his testimony included the following:

Q. And as a matter of fact, you would agree with me that in terms of your operation of ATVs, you rode them as much as possible; is that right?

A. Yes.

Q. Two, three, four times a week sometime[s]?

A. Yes.

Q. Hours?

A. Yes.

Q. Right? Over a period of ten years, would you say that?

A. Yes.

. . . .

Q. . . . Obviously you were a very experienced operator; is that right?

A. Yes.

Q. But you never read an owner's manual; is that right?

A. No.

Q. And you don't recall ever reading any of the labels, say, for example on Acosta's Honda; is that right?

A. No.

Q. You don't recall reading any of the labels on the Yahama that you operated. Is that also right?

A. No.

. . . .

Q. In any event, whether it was the Kawasaki ATVs, the Honda ATVs, the [Yamaha] ATVs, you never read any of the owner's manuals. You've never read any of the warnings that were on the product; is that right?

A. Yes.

At approximately 9:00 p.m. on May 6, 2000, plaintiff and Liz Velez, his then-girlfriend, arrived at the residence of their friends Michael and Sandra Acosta, who lived near an area known as "the trails" in Sayreville. There they joined Kelly Glaser, another friend, and several other unnamed riders. Plaintiff usually stored his ATV in Michael's garage and frequently rode it at the trails. Plaintiff and his friends, who were all riding ATVs, departed shortly after 9:00 p.m. Plaintiff, who was not wearing a helmet, transported Velez on the back of his ATV. Plaintiff testified he often wore a helmet, but he did not do so that night because there were not enough helmets for everyone. Michael, who also was not wearing a helmet, transported his wife on the back of his ATV, along with a cooler stocked with beer and water.

To get to the trails, the group of riders followed train tracks for a distance, crossed a public thoroughfare (Cheesequake Road), and then entered a partially wooded, hilly area with dirt trails. Plaintiff, Velez, and the rest of the group rode for several hours, climbing many of the steep trails. Plaintiff testified he did not experience any problems operating the ATV that evening, and he had no problems seeing the trails because the ATV was equipped with a headlight.

At some point, the group stopped riding and drank some beer from the cooler. Plaintiff testified he is "not a drinker," and he only drank one "Coors Light." Velez confirmed that plaintiff had just one beer, and further stated that she took sips from his beer. But that testimony was later contradicted by Dr. Richard Saferstein, plaintiff's forensic scientist, who estimated plaintiff drank "[b]etween two and a half to three beers" based on hospital records indicating plaintiff's blood alcohol content following the accident.

In any event, after consuming some alcohol, plaintiff resumed riding the trails. One of the trails, where the accident ultimately occurred, traversed a fairly steep hill, although plaintiff said he had ridden even steeper hills without incident that night. Nonetheless, this particular hill had several trails leading to the top, one of which formed a "Y" shape, with a smoother trail on the left and a more hazardous rutted trail on the right. Plaintiff testified he rode up the left trail on three or four occasions without incident, after dropping Velez off.

However, on his final trip up the hill, plaintiff said he rode approximately three-quarters of the way up the smoother trail on the left when his ATV slowed, lost forward momentum, and then stopped. Plaintiff thought his back tires were "spinning," so he released the throttle to regain traction, but without warning the ATV "shot backwards" and pitched over and landed on him. Plaintiff admitted he did not attempt to apply either the front or the rear brakes, even though he admitted he had done so on another prior date when he stopped his ATV on a hill. Plaintiff also testified as follows:

Q. . . . It was your intention to apply more gas to the ATV at the time you felt it start to slow down; right?

A. Yes.

Q. Okay. But you didn't feed it more gas; right?

A. Because I got to a certain point I started to let off the throttle because I thought my tires were spinning. It wasn't going anymore.

Q. But you didn't depress the gas at that time, did you?

A. No.

Q. Okay. Then you say you started going backwards; is that right?

A. Yeah.

Q. Eventually you got to the bottom of the hill; is that right?

A. We both wound up at the bottom.

Q. Huh?

A. The bike was on top of me, but yeah, I was on the bottom.

However, Sandra Acosta, who was standing at the bottom of the hill with Velez and Glaser, and who witnessed the entire incident, testified that it looked as though plaintiff traveled up the right, more rutted trail. She recalled that when plaintiff had almost reached the top of the hill he "started sliding" backwards. Plaintiff then looked over his shoulder and tried to back down the hill. As plaintiff got close to the bottom of the hill he appeared to be trying to steer the ATV, but it started "swiveling" and then tumbled over. Sandra said it seemed as though the ATV flipped or tumbled "[n]ot straight up. Like sort of on the side." Similarly, Velez, who also witnessed the accident, testified that before plaintiff reached the top of the hill, his ATV "slid back" and "just flipped."

It is undisputed that plaintiff eventually came to rest face down at the bottom of the hill, with the ATV resting on top of him. Michael, who did not witness the accident, ran to join the others who were crowded around plaintiff, and then called 9-1-1. Someone lifted the ATV off plaintiff. Michael, Velez, Grazer, and Sandra remained with plaintiff to wait for the ambulance, but the rest of the riders fled the scene, taking the cooler and plaintiff's ATV with them.

At approximately 12:34 a.m., Patrolman John Ziola, Jr. and Patrolman Poetch of the Sayreville Police Department were dispatched to the scene. Poetch rode on the back of Michael's ATV to where plaintiff was laying, and Ziola followed in his vehicle. Upon arrival, Ziola observed that plaintiff was laying face down, could not move his legs, and was having difficulty breathing, so Ziola administered limited first aid. Ziola said he "didn't get up close" to plaintiff and thus did not know if plaintiff smelled of alcohol. The paramedics arrived shortly thereafter, resuscitated plaintiff who had stopped breathing, and then arranged to have him evacuated by helicopter to the hospital. The paramedics' report did not contain any indication that they suspected intoxication or alcohol consumption.

Ziola then spoke to Michael, who had "a little bit of alcoholic odor on his breath" but did not appear intoxicated. Michael stated that plaintiff had "attempted to [ride his ATV] up a hill but lost control and crashed."

As a result of the accident, plaintiff suffered an acute spinal cord injury, rendering him a paraplegic with only limited ability to bend his elbows and move his wrists. After the accident plaintiff remained in intensive care for six weeks, was on a ventilator, and underwent several surgeries, including a cervical fusion. He was ultimately weaned off the ventilator and transferred to a rehabilitation center, where he remained for approximately three weeks. He then returned to live with his parents.

Plaintiff's forensic scientist, Dr. Saferstein, testified plaintiff's blood alcohol content (BAC) at the time of the accident was .066%. Dr. Saferstein explained that a blood test taken at the hospital at 1:59 a.m. revealed that plaintiff's serum blood alcohol was fifty-four milligrams per deciliter, which converted to a whole blood level of .044% BAC. Dr. Saferstein then extrapolated back and calculated that, given that plaintiff testified he stopped drinking an hour and a half to two hours before the accident, and given an average rate of elimination of .015% per hour, that plaintiff had a BAC of .066% at the time of the accident. However, Dr. Saferstein admitted that if he had used slightly different times and ranges of elimination, plaintiff's BAC at the time of the accident could have been as high as .0737%.

In any event, Dr. Saferstein opined that plaintiff, who was under the then-legal limit of .10% BAC, "was not impaired by alcohol at the time of his accident" and "was not impaired with respect to his performance in the driving of this vehicle." He also testified that plaintiff's judgment, reasoning skills, and motor skills were not "significantly impaired to the point that they were a cause of this accident."

On cross-examination, Dr. Saferstein admitted, however, he had never ridden an ATV and thus was unfamiliar with the skill necessary to operate such a vehicle. He also admitted impairment begins as soon as someone ingests alcohol, and various abilities are affected by the consumption of alcohol, which are increasingly compromised upon additional alcohol consumption. Such abilities included balance, visual acuity, vigilance, judgment, reasoning, and fine motor skills.

Furthermore, Wade Bartlett, plaintiff's expert ATV operator, mechanical engineer, mechanical design engineer, and accident reconstructionist, who was familiar with the skills necessary to ride an ATV, described ATVs as "rider active," meaning that the vehicle is "dramatically affected by the rider." He explained how a rider positions his or her body on an ATV and what he or she does with the controls "makes a very immediate and important difference in how the machine handles."

On August 30, 2000, Howard Sarrett, plaintiff's expert in mechanical engineering, went to the Sayreville Police Department to inspect the ATV, which had been impounded since the accident. Sarrett observed that the ATV had a semi-automatic transmission, was heavily splattered with mud, and had a loose front cowling and fuel line. Sarrett took some measurements of the vehicle but admitted he did not check the vehicle's electrical system, the brakes, the controls, or the headlights. Sarrett noticed the front of the ATV was misaligned, but he did not investigate whether the frame had been bent prior to the accident. In fact, Sarrett admitted he did not attempt to determine if the condition of the ATV may have contributed to the accident.

However, plaintiff's other expert, Wade Bartlett, who inspected the ATV sometime after Sarrett, found several problems with the condition of the vehicle. Notably, a static/non-moving test of the brakes revealed that the rear brakes were fairly "well-worn" and that the front brakes were worn but "functional." He also determined the steering was loose, although he surmised it may have become loosened during the accident. And he found the frame was "tweaked," or bent, and that someone had replaced the original factory installed carburetor with an improperly installed Dynojet carburetor.

Similarly, Ronald Wayne Robbins, defendants' expert in ATV riding, training, and technical performance, inspected the ATV and found that there was "play" in the steering, the front fender was bent, and the front wheels "toe-in" or pointed slightly inward instead of being level with the axle, causing the vehicle to pull in either direction. Robbins also found the frame had been bent, which he said would cause the ATV "to drift one way or the other." He reported the rear "brakes were worn beyond their service limit" and the front brakes "were worn to the service limit," and thus should have been replaced. Robbins concluded the above-described damage preceded the accident. He further noted the improperly installed carburetor could create intermittent fuel metering problems, resulting in erratic loss of engine power.

Hideo Saito, defendants' chief engineer for the design of the KLF220, testified during depositions, which were read to the jury, that defendants had successfully tested the ATV on hills with thirty to forty-degree slopes. However, Makoto Matsuo, an assistant design engineer, admitted in answers to interrogatories that defendants had "been aware that on sufficiently steep hills a KLF220 may begin to roll backwards if the operator causes the ATV to lose momentum while climbing the hill, the throttle is released, and the brakes are not applied." And Makoto testified during depositions, which were also read to the jury, that the KLF220 was last tested in 1989, and that "[t]here was no continual developmental testing," nor had any safety changes been made.

In May 2000, Sarrett and Bartlett visited the scene of the accident and calculated the sloped portion of the very steep hill measured approximately fifty-six feet, and the average slope of the hill was approximately thirty degrees, with some portions, notably that portion of the hill closer to the top, measuring about thirty-five degrees. Sarrett observed two visibly eroded tracks composed primarily of sand and some gravel leading to the top of the hill, noting the right trail had a crevice, while the left trail did not. At the top of the hill was a power line and an approximately five-foot-wide track or roadway. Sarrett admitted he took measurements from the left side of the hill only, because the right side was heavily rutted, steep, and had a ravine running through it, so it would have been hazardous to walk on. Nonetheless, Bartlett claimed that even if plaintiff had been riding on the right trail, the condition of the trail did not contribute to the accident because although the left side was more traversable, riders had apparently successfully climbed the right side.

With regard to the accident itself, neither Sarrett nor Bartlett determined where on the hill the ATV had turned over, or indeed why the ATV had flipped over on that occasion and not during the three or four prior times plaintiff climbed the hill. Nevertheless, Sarrett found that according to the record, plaintiff had lost momentum while climbing the hill, stopped, and then released the throttle, which caused the ATV to accelerate backwards. Sarrett claimed ATVs have "a tendency to overturn when rolling backwards," and application of the rear brakes would have caused the front wheels to lift off the ground and the vehicle to pitch over. According to Sarrett, the only way, as currently designed, to stop the ATV from rolling down the hill would have been to apply the front brakes. Sarrett admitted, however, if the ATV was sliding as opposed to freewheeling, as described by Sandra, it would have been caused by plaintiff having either applied the brakes or turned the steering wheel hard to one side.

Nonetheless, Sarrett opined the ATV was defective because it became "unstable front to rear at an angle of about 30 degrees" and thus could "pitch over backwards on hills and slopes." Sarrett indicated that the term "pitch angle" generally refers to a "front to back angle." He explained that as the ATV proceeded up a hill, the center of gravity and the action vector of the weight, which was originally vertical, begins to move rearward. Eventually, "you get to an angle which the center of gravity is pointed outside the rear wheels. At that point your vehicle is going to go over. It's now unstable."

Sarrett also stated the length of the ATV wheelbase contributed to the instability of the vehicle because "short vehicles will have a tendency to turn over faster than longer vehicles." But he admitted the KLF220's static, or non-moving, pitch stability standard of 1.348 percent exceeded the 1.0 percent criteria set by the American National Standards Institute (ANSI), and therefore met industry standards. Regardless, he maintained ATVs were unsafe, noting that according to the Consumer Products Safety Commission (CPSC) reports, since 1982 over a million ATV accidents resulted in injury to the rider.

Similarly, Bartlett, who was a very experienced rider, opined the ATV was defective because it tended to "freewheel backwards" on steep slopes and, as a result, can pitch over. In fact, Bartlett noted that when he drove the exemplar ATV, purchased for testing in this case, up a ramp into his van, he released the throttle to slow down and the ATV "freewheeled back down the ramp[]." Furthermore, Bartlett found there were no mechanical devices installed on the ATV to "prevent a complete pitch over," even though there were "techniques and technologies available" to avoid such an occurrence. Sarrett similarly found there were no "protective devices" installed on the vehicle to eliminate the design defect hazard.

As a result, Sarrett, who admitted he had ridden an ATV for only a couple of minutes and did not like it, proposed three designs to prevent an ATV from freewheeling backwards and pitching over: (1) an anti-pitch over bar or wheelie bar; (2) a warning device consisting of an electronic inclinometer, warning lights, buzzers, and an engine cut-off switch; and (3) an anti-rollback apparatus. It was undisputed, however, that these designs had not been incorporated on any ATV sold in the United States or elsewhere by any manufacturer. Moreover, although Sarrett opined that the ATV was defective because it did not include the three safety devices, Bartlett found the ATV defective solely on the basis of the lack of an anti-rollback device, and he did not recommend installation of the other two proposed safety devices.

First, Bartlett designed, built, installed and tested, both at the accident site and on a test track in New Hampshire, an anti-pitch over bar or wheelie bar on the exemplar ATV. The anti-pitch over bar protruded from the rear of the vehicle and was intended to stop the vehicle from flipping end over end. Sarrett estimated that the design, which he said had been around for "at least ten years," would cost approximately thirty-five to forty-five dollars.

Sarrett found the anti-pitch over bar functioned as designed, and was highly effective in preventing the ATV from pitching over on slopes. Sarrett also claimed the bar did "not seriously impede the utility of the machine" because it did not "get caught to any significant degree in the under brush" on the test trails. And he noted that the bar easily could be dismantled to allow a rider to transport an ATV in a confined trailer or to access the trailer hitch.

In contrast, Bartlett did not recommend the installation of anti-pitch over bars on ATVs, noting the bars had several serious drawbacks. Thus, he was unwilling to conclude the ATV was defective on that basis.

Next, Sarrett suggested, and Bartlett designed, installed, and tested a device that measured the incline slope or pitch angle of the ATV as it traversed up a hill. The device sensed, through mercury or similar switches, the approximate angle of the ATV, and the three-step warning device initially flashed a light when the ATV approached fifteen degrees of incline. Then, as the slope became steeper, the device sounded an audible alarm at twenty degrees of incline, and finally activated an ignition cut-off switch at twenty-five degrees of incline Sarrett and Bartlett maintained that defendants' engineers had determined a thirty-degree angle was an unsafe slope to climb with an ATV. Thus, Sarrett claimed this was an important safety device because it warned the rider when he or she was approaching the critical angle when the ATV was likely to pitch over. Bartlett agreed that, because most individuals are not effective at gauging hill slope, it is better to provide an ATV rider with as much information as possible.

After testing the device, Sarrett concluded it was effective and the lights and buzzers would not be a distraction to the rider. He further claimed the cut-off switch was necessary because given the severe risk of injury, it was better to take the control away from the rider, and automatically shut down the engine.

In contrast, Bartlett did not recommend installation of the device as a means to address the design defect because, although the device provided some "useful information," he had a difficult time paying attention to the warnings when riding an ATV up a steep hill because he wanted to pay close attention to the trail. And Bartlett stated that, traveling twenty-miles per hour, an ATV would have been over the subject hill in approximately two seconds, giving the rider very little time to respond to the warnings.

Finally, Bartlett designed and built a prototype anti-rollback device, using a one-way clutch, but did not install or test it on the exemplar ATV. The device was, however, ultimately built, installed and tested by the defense experts. In fact, defendants' experts transported two modified ATVs to Bartlett's home in New Hampshire to allow him to inspect and test the anti-roll back device, but Bartlett did not avail himself of the opportunity to ride or test the ATVs.

Sarrett explained that he designed the prototype by using a one-way clutch, which he described as "an extremely old engineering idea" that operated to transmit rotation in only one direction. Bartlett similarly explained that a one-way clutch "only allows transmission in one direction of torque." In fact, Sarrett noted that there were two other one-way clutches installed on the ATV in question as originally manufactured, although they were used for different purposes. Bartlett said he purchased the one-way clutches from a Kawasaki dealer and estimated that the device would cost approximately $120.

Bartlett and Sarrett testified the ATV in question was defective because it did not come equipped with an anti-roll back device. Sarrett and Bartlett based their opinion on a review of a videotape of the defense experts' testing and concluded that the device would have prevented the accident. It was undisputed that the anti-roll back device, as designed, caused the ATV to automatically stop when the rider took his or her finger off the throttle, thereby preventing the vehicle from inadvertently freewheeling backwards.

The anti-rollback device could, however, be released by either pulling a lever, or by rocking the machine and engaging the throttle. Once released, the ATV would continue to freewheel down the slope. Nonetheless, Bartlett maintained that even though the device could be disengaged, it was still effective because one of its primary benefits was that it allowed a rider more time to react because it automatically stopped the rearward movement of the ATV. In fact, Bartlett admitted on cross-examination the only benefit of the anti-rollback device, as opposed to application of the front brakes, was extra reaction time. Nonetheless, Bartlett maintained the anti-rollback device would stop an ATV when it began freewheeling down a hill even if the front wheels had lifted off the ground, while application of the front brakes would not.

Kris Kubly, defendants' expert mechanical engineer, and an experienced ATV rider, described the KLF220 as a lightweight vehicle with significant ground clearance for traveling over rough terrain. Kubly, who had extensively tested and ridden an exemplar ATV at the accident site and at defendants' test grounds in Wisconsin, testified the vehicle, which exceeded ANSI standards, was "not defective with regard to stability . . . specifically rear pitch stability." He further stated the ATV was not unreasonably dangerous and was "properly designed" and "well-suited for off-road use" and for riding on steep slopes. He explained the manufacturers had installed an effective safety device intended to prevent rollbacks: the front brakes. And he testified a longer wheelbase, as proposed by plaintiff's experts, would "adversely affect" the vehicle's utility because it limited the ability to maintain ground clearance over rough terrain and to make tight turns.

Similarly, Ronald Robbins described the KLF220 as a "small to medium displacement utility/recreational" ATV. He claimed that under normal use, the front wheels of the KLF220 do not lift up and cause the vehicle to pitch over even when proceeding backwards down a steep hill. He admitted, however, that plaintiff's experts' demonstration videos showed riders performing "wheelies," which caused the front wheels of the ATV to lift up. But he claimed the maneuver was "staged by virtue of accelerating [the ATV] and moving the [rider's] body back at or near or onto the luggage rack." Finally, Robbins and Kubly did not recommend installation of the three safety devices proposed by plaintiff's expert.

Robbins and Kubly built, installed, and tested two different types of anti-pitch over or wheelie bars: one to plaintiff's experts' specification, and the other a redesigned bar with less weight at the outer edges. Robbins found there were "a tremendous number of disadvantages" in using this device and "[a]bsolutely" would not recommend installation. Kubly similarly concluded the device decreased the safety of the vehicle, increased the risk that the vehicle would overturn, and decreased its utility.

For example, the defense experts found the anti-pitch over bar inhibits normal operation of an ATV such as maneuvering or backing up in close quarters, and tends to "get[] hung up on fairly easy terrain such as ditches and trees." The bar also made it difficult to connect a trailer or to transport the elongated vehicle, and once it was removed there was no "incentive . . . to put it back on." Finally, the experts found the device could actually make the ATV less safe in that on a very steep hill, the ATV might rest on the back bar, not the back tires, thereby compromising the rider's directional and braking abilities, or a rider might attempt to carry cargo on the bar thereby shifting the center of gravity to the rear.

Next, Robbins and Kubly installed and tested the warning system, as designed by Bartlett. They concluded the device was "unnecessary and undesirable and, in some cases, dangerous," and "introduce[d] significant hazards that are not present in the stock machine." For example, they found the warning light was "distracting" because it was "constantly flashing" and, in any event, was difficult to see in bright sunlight. Similarly, the buzzer was a "distraction" because it too was "constantly going off," and could not be heard over the noise from a modified exhaust system or through a helmet. Thus, the experts found the device was "unreliable" because the rider tended to "tune[] . . . out" the warnings "because of all the false signals."

The most serious problem with the device, according to the defense experts, was the engine cut-off switch, which Robbins described as a "serious hazard," and which Kubly found was dangerous and unreliable because it tended to activate not just on an incline, but also when the rider accelerated. Thus, Kubly found that the "biggest hazard" with this device was that it shut off the engine while the rider was climbing a hill, explaining:

[I]f you get halfway up a steep hill that you could otherwise climb, and the engine shuts off because you hit a little bump or try to accelerate, now you're stranded on the hill. You have to rely on the brakes. And it introduces a lot of dangers in hill climbing that the standard machine does not have.

Furthermore, Robbins explained that under normal operation, an ATV rider traveling over a series of sinusoidal bumps (or a "whoop section") needs to modulate the throttle and accelerate as he or she is traversing up the bumps. The warning device, as designed by Bartlett, could cut-off the engine just as the rider needed to accelerate, creating a real hazard. As a result, Robbins installed a "damper" which would introduce a delay before activating the warning device. The purpose of the damper was to minimize false alarms, due to the rider hitting a bump, jumping over a rock, or accelerating. Robbins found, however, that although the damper successfully eliminated false alarms, it also eliminated warnings about real hazards. Thus, he concluded it was ineffective.

Finally, Robbins and Kubly built, installed, and tested an anti-rollback device in accordance with Bartlett's design. They found, however, that the device, worked only sporadically because it tended to overload, causing the ATV to sometimes hold on a very gradual hill and on other occasions, "release catastrophically and violently." As a result, Robbins and Kubly redesigned, reinstalled, and tested a similar device, using a one-way brake, instead of a one-way clutch, that similarly automatically engaged when the ATV reversed.

However, although the device effectively stopped an ATV from reversing on a hill, Kubly did not recommend installation because the device introduced hazards not present in the ATV as presently manufactured. He explained that restarting an ATV from a stopped position on a hill "can be very risky" because if you apply too much throttle, the front tires may lift off the ground. Moreover, the automatic device could be disengaged by rocking forward hard enough to switch the over-ride, and once disengaged, the ATV tended to roll back faster than before application, and faster than when the ATV was stopped by use of the front brakes.

Similarly, Robbins concluded that the device was a potentially hazardous addition to the ATV and "absolutely" did not recommend installation. He explained the device "takes a necessary part of vehicle control away from the rider" because it automatically engages the rear brake "no matter what the rider's position, and no matter what the vehicle is doing." He noted that this result was contrary to the safety instructions in the owner's manual, which provides that when applying the brakes on a hill, the ATV rider should shift his or her weight forward to prevent a rear overturn. And, he found that stopping an ATV on a hill may place the rider in a "very disadvantageous position."

William F. Kitzes, plaintiff's expert in warnings and products safety, opined the warnings contained in the KLF220 owner's manual and on the vehicle itself were inadequate to alert a rider to the hazards associated with freewheeling backwards on a steep slope and pitching over. In support of his opinion that defendants had a duty to warn of the hazards associated with riding the KLF220, Kitzes cited extensively to various CPSC reports. For example, a 1986 CPSC hazard analysis revealed that twenty-two percent of all ATV accidents occurred on slopes, and the majority of those accidents occurred because:

"[D]rivers trying to go uphill generally experienced a loss of power. Most accelerated and overturned backwards. Some stalled and started rolling backwards down the hill, either overturning backwards or attempting a K turn and then rolling sideways."

Moreover, a 1998 study reported the rise in ATV injuries was increasing faster than sales. That same study revealed that ATV injuries accounted for thirteen percent of all emergency room visits requiring hospitalization. And subsequent CPSC reports indicated that from 1997 to 2001, the estimated number of ATV-related injuries treated in hospital emergency rooms rose by 104 percent, while the estimated number of ATV drivers rose only thirty-six percent, driving hours rose by fifty percent, and the number of ATVs sold increased by forty percent. The report concluded that "[n]one of these exposure measures accounts completely for the rise in injuries."

Based on the CPSC data, Kitzes calculated that from 1997 to 2001, approximately 26,000 to 27,000 of the four-wheel ATV accidents had involved a pitch over. He further determined that, in a pitch over situation, the ATV landed on the rider approximately fifty-six percent of the time. Thus, he concluded defendants, who had access to and relied on the CPSC data, should have been alerted to the hazards posed by ATVs and should have performed a risk assessment or design review to reduce the injury rate. He maintained that defendants never performed such a review, noting that they had not monitored the safety of their product regarding rearward overturns, and did not have a "written corporate safety policy." He also claimed defendants had not made any safety-related changes to the design of the ATV since 1998, the year it was introduced.

Furthermore, Kitzes found that except for some minor non-safety related changes, no modifications had been made to the KLF220 owner's manual, which Kitzes opined was inadequate because it failed to specifically warn of the hazards associated with operating a KLF220; namely, pitching over while accelerating backwards down a slope. Instead, the manual included a section in red, distinguished from the balance of the text in black, that warned a rider to "never operate the ATV on hills too steep for the ATV and your abilities." Kitzes concluded this warning was inadequate because it did not provide the consumer with a definition, such as slope angle, or any other indication of how to judge slope limitations. For example, Kitzes noted the owner's manual for an ATV manufactured by Polaris Industries specifically warned a rider never to operate the vehicle "on grades steeper than 25 degrees," and further provided a drawing depicting that angle. An identical warning label was also placed on the Polaris vehicle. Kitzes concluded a similar specific warning should have been included in the KLF220 owner's manual and on the vehicle.

Kitzes also found the warning inadequate, as contained in the KLF220 manual, cautioning riders never to "climb a hill which is excessively slippery or loose." Kitzes conceded this warning identified the hazard, but claimed it was deficient because it provided no specific information to the rider as to how to judge a dangerous slope.

Next, Kitzes opined that the KLF220 manual was deficient because it failed to warn a rider not to release the throttle while riding up a hill. In fact, Kitzes noted defendants had warned about that specific hazard in the owner's manual for a Kawasaki Prairie 300 ATV, which provided that "when the throttle lever is released completely and engine speed drops to near idle, the vehicle has no engine braking." And in the owner's manual for a Kawasaki Prairie 400 ATV, which warned "if you release the throttle completely, the engine will not brake you, and you will begin to roll backwards." Kitzes maintained a similar warning should have been included in the KLF220 manual and on the vehicle.

Finally, Kitzes concluded that the breach of duty, the failure to adequately warn, was a proximate cause of the accident. Kitzes admitted that although he could not predict what plaintiff would have actually done had he been properly warned, "providing that kind of information reduces the risk of injury and increases the likelihood that someone will be safe."

Similarly, Sarrett opined that the ATV was defective because it contained no warnings, cautions, or instructional materials advising the rider that a thirty-degree slope would be hazardous and that the ATV could pitch over on steep hills. And Sarrett found there was "no warning on the vehicle or in its accompanying manual that release of the throttle will, on a hill, even when in gear, cause or allow the vehicle to roll backwards when forward momentum is not present."

Alan Dorris, defendants' expert in warnings and safety management, opined that the labels on the ATV were "reasonable, appropriate and adequate," that the warnings in the owner's manual were "suitable and proper," and moreover that when read together, they provided "good, basic safety information in an appropriate fashion." For example, he noted the warning labels on the ATV directed the rider to read the owner's manual and further cautioned individuals not to ride up steep hills, and not to ride without a helmet, with a passenger, or after consuming alcohol. Dorris explained that although no set of labels can describe every hazardous encounter, the labels on the ATV in question were similar to, if not better than, warning labels provided on other ATVs and provided sufficient information to minimize risk. In fact, Dorris stated it is widely recognized that if a manufacturer provides too much information on a product label, a user will simply not read it, and even if he or she reads the label, it would be difficult to determine what the most serious warnings were.

With regard to the manual, Dorris noted defendants had specifically warned a rider not to "attempt to climb hills or steep inclines until you have mastered the controls and basic riding techniques for this vehicle." The manual further warned: "Do not attempt to climb hills that are too steep for the ATV or for your abilities." Dorris concluded those warnings sufficiently alerted a rider to the dangers associated with climbing steep hills.

Moreover, Dorris testified a specific warning as to a slope angle, such as a warning not to climb a hill with an angle greater than twenty-five degrees, would not be helpful. He explained some riders may not be able to "figure out what 25 degrees means," nor are most hills uniformly sloped, so that although the average slope of a hill may be less than twenty-five degrees, undulations in the hill, rocks, or roots, could briefly but substantially increase the steepness of a hill. Most important, however, Dorris concluded it would be unwise to suggest that all riders, regardless of their experience, could traverse a twenty-five degree slope under all circumstances. Instead, Dorris stated defendants followed the better approach by warning riders to only climb hills commensurate with their abilities.

According to Dorris, providing a drawing of an angle, as contained in the Polaris owner's manual, would similarly not be helpful because it could not be used to determine an actual slope angle, given that hills are generally not uniformly sloped. Furthermore, Dorris noted the angle depicted in the Polaris owner's manual was not twenty-five degrees as described, but rather was approximately thirty-five degrees or more. And in any event, Dorris found a warning identifying a particular angle would not have been effective in this case because plaintiff successfully rode up the hill three or four times prior to the accident.

Next, Dorris found the manual appropriately warned a rider how to handle instances where the ATV loses forward momentum on a hill. For example, the manual warned a rider not to "apply power suddenly or change gears while climbing or the front wheels might rise off the ground. If the vehicle does not have power to reach the top of the hill and starts to lose forward momentum, turn around and ride downhill if you have enough space." The manual further provided that "[i]f a vehicle stalls on a hill, apply the brakes before the vehicle starts to roll backwards. If the vehicle should start to roll backwards on a hill, dismount on the side immediately and try to stop using the front brake only."

Importantly, the manual also specifically warned the rider, within a blocked off section highlighted by the international safety alert symbol, as follows:

HAZARD

Stalling, rolling backwards or improperly dismounting while climbing a hill.

WHAT CAN HAPPEN

Could result in ATV overturning.

HOW TO AVOID THE HAZARD

Use proper gear and maintain steady speed when climbing a hill.

If you lose all forward speed:

Keep weight uphill.

Apply the brakes.

Lock parking brake, after you are stopped.

If you begin rolling backwards:

Keep weight uphill.

Never apply the rear brake while rolling backwards.

Apply the front brake.

When fully stopped, apply rear brake as well, and then lock parking brake.

Dismount on uphill side or to a side if pointed straight uphill.

Turn the ATV around and remount, following the procedure described in this manual.

Dorris concluded that given the foregoing proper and detailed warnings, no additional specific warning as to the lack of engine braking was required. He noted the engine braking warnings provided by defendants for the Prairie ATVs were not applicable here because the KLF220 had a semi-automatic transmission, while the Prairie ATV had an automatic transmission.

Dorris also testified that even though the warning labels had been removed from the ATV involved in the accident, the warning labels would not have altered plaintiff's behavior on the night of the accident. Dorris explained plaintiff previously rode an ATV with identical warning labels, but nonetheless chose to ignore several of them, including riding with a passenger and consuming alcohol. And Dorris opined that a different or more specific warning would not have altered plaintiff's behavior because he successfully rode up the hill several times on the night in question.

According to Dorris, defendants' design process was not deficient. He testified that he was familiar with the process because in April 1997, he had visited Kawasaki's Akashi facility in Japan. While there, he met with several engineers, quality assurance people, and test riders, and observed actual product testing. He concluded that defendants' design process was "excellent," noting the design system incorporates safety from the time of the very first concept through building a prototype, preproduction planning, pilot testing, and post-production. Moreover, defendants used expert riders to test their products, and utilized feedback from the testing and quality assurance in designing and producing the vehicles. Dorris conceded the process used by defendants was "not identical" to that used by many American companies, but he nonetheless found every design function was "covered in an appropriate fashion." And he further found defendants should not be faulted for not having a "written corporate safety policy," because "[i]t's what you do . . . not what you write down which matters."

At the close of plaintiff's case, and at the close of all the evidence, defendants, not plaintiff, moved for judgment pursuant to Rule 4:40-1 on the failure-to-warn claim. The court denied the motions.

However, during the charge conference, plaintiff argued he was entitled to the benefit of the heeding presumption. The court rejected that argument, finding defendants presented sufficient evidence to rebut the presumption because plaintiff ignored the warnings not to operate the ATV without a helmet, with a passenger, and after consuming alcohol.

Similarly, in denying plaintiff's motion for a JNOV, the court found defendants met their burden of rebutting the heeding presumption because plaintiff had testified that:

[H]e operated an ATV on . . . multiple occasions for a period of ten years. He testified that he was a very experienced operator at the time of the accident. He indicated he was aware of the risk . . . associated with operating ATV's. He testified he had never read an owner's manual or a label or any of the warnings on the product.

Therefore, the [plaintiff has] not shown clear and convincing evidence demonstrating a miscarriage of justice occurred . . . in my decision as to the heeding presumption.

In addition . . . this issue is really an Appellate issue. I . . . would incorporate all the reasons I gave on the record at trial as to my reasons why . . . I decided the issue in the manner in which I did.

In deciding a motion for a JNOV under Rule 4:40-2(b), the court must accept as true all the evidence which supports the position of the non-moving party, according him or her the benefit of all legitimate inferences, and if reasonable minds could differ, the motion must be denied. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005); Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2008). "The purpose of the test is to ensure that the jury resolves disputed factual matters." Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998). On appeal, the court applies the same standard. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003).

A cause of action for failure to warn is governed by the Products Liability Act (PLA) N.J.S.A. 2A:58C-1 to -11. Under N.J.S.A. 2A:58C-2, a plaintiff can prove that a product was defective in one of three ways:

A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner.

The elements for proving a product defect are essentially the same for both a design defect and a failure-to-warn claim. Jurado v. W. Gear Works, 131 N.J. 375, 385 (1993). A plaintiff must prove: (1) the product was defective; (2) the defect existed when the product left the defendant's control; and (3) the defect caused injury to a reasonably foreseeable user. Coffman v. Keene Corp., 133 N.J. 581, 593 (1993). "A failure to warn, or a failure to warn adequately, may constitute a defect in a product sufficient to support a cause of action in strict liability." Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 57 (1996). In a failure-to-warn case, "the duty to warn is premised on the notion that a product is defective absent an adequate warning for foreseeable users that 'the product can potentially cause injury.'" Clark v. Safety-Kleen Corp., 179 N.J. 318, 336 (2004) (quoting Coffman, supra, 133 N.J. at 593-94). The failure to provide necessary warnings constitutes a breach of duty. Coffman, supra, 133 N.J. at 598.

Initially, the plaintiff must establish that the defendant had a duty to warn. James v. Bessemer Processing Co., 155 N.J. 279, 297-98 (1998). The manufacturer of a product has a duty to warn about any risk relating to the product that it knows or ought to know, Feldman v. Lederle Labs., 97 N.J. 429, 434 (1984), unless the risk and the way to avoid it are obvious. Mathews v. Univ. Loft Co., 387 N.J. Super. 349, 358 (App. Div.), certif. denied, 188 N.J. 577 (2006). The jury found that plaintiff met that burden here.

Once plaintiff establishes a duty to warn, he must then establish that an adequate warning was not provided. James, supra, 155 N.J. at 298. A manufacturer "shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction." N.J.S.A. 2A:58C-4. An "adequate warning" is defined as:

[O]ne 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 . . . .

[Ibid.]

"Warnings may be included in printed materials packaged with the product or on labels affixed to the product." Mathews, supra, 387 N.J. Super. at 356. Moreover, warnings "may be in words or pictures, and 'pictorial symbols, rather than simply words, may be required to adequately convey safety warnings to some anticipated users.'" Ibid. (quoting Levey v. Yamaha Motor Corp., 361 N.J. Super. 312, 318 (App. Div. 2003)).

The plaintiff must then prove the breach of duty, that is the absence of a warning, was a proximate cause of the accident. Coffman, supra, 133 N.J. at 594. "Causation is a fundamental requisite for establishing any product-liability action," and a "plaintiff must demonstrate . . . the defect in the product was a proximate cause of the injury." Ibid. "Ordinarily, the jury considers issues of proximate cause." Shelcusky v. Garjulio, 172 N.J. 185, 206 (2002) (Verniero, J., concurring in part, dissenting in part).

However, to reinforce the duty to provide necessary warnings, courts in New Jersey apply a rebuttable "heeding presumption" to ease the plaintiff's burden in establishing that the lack of a warning was a proximate cause of the injury. Ibid.; James, supra, 155 N.J. at 297; Coffman, supra, 133 N.J. at 603; Sharpe v. Bestop, Inc., 314 N.J. Super. 54, 68 (App. Div. 1998), aff'd o.b., 158 N.J. 329 (1999). The presumption is that the plaintiff would have followed an adequate warning had one been provided. Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366, 377 (2003); Coffman, supra, 133 N.J. at 591. "As a result . . . the burden on a plaintiff to establish product-defect causation in the failure-to-warn context is not an onerous one." James, supra, 155 N.J. at 297.

In order to rebut the heeding presumption, the defendant must produce evidence sufficient to demonstrate that had a warning been provided, it would have been disregarded. Coffman, supra, 133 N.J. at 603; Theer v. Philip Carey Co., 133 N.J. 610, 614 (1993). There are two methods by which a defendant can rebut the presumption: (1) a defendant can offer evidence concerning the plaintiff's knowledge of the risk that the absent warning was supposed to address; and (2) a defendant can introduce evidence of a plaintiff's attitude and conduct apart from knowledge of the product's risk, demonstrating an indifference to safety warnings. Coffman, supra, 133 N.J. at 603; Theer, supra, 133 N.J. at 621; Sharpe, supra, 314 N.J. Super. at 74. "The burden of coming forward with evidence to rebut the presumption is on the defendant, but the burden of proof never shifts from the plaintiff." Graves v. Church & Dwight Co., 267 N.J. Super. 445, 460 (App. Div.), certif. denied, 134 N.J. 566 (1993).

If the heeding presumption is not rebutted, the failure to warn is presumed to have been the proximate cause of the plaintiff's injuries, the issue of proximate cause need not be submitted to the jury, and the court is required to enter judgment in favor of the plaintiff on causation. Coffman, supra, 133 N.J. at 595; Sharpe, supra, 314 N.J. Super. at 69; Facendo v. S.M.S. Concast, Inc., 286 N.J. Super. 575, 585 (App. Div. 1996). "If, however, the defendant presents rebuttal evidence such that reasonable minds could differ as to whether the warning, if given, would have been heeded by the plaintiff, the defendant has satisfied its burden of production and the plaintiff loses the benefit of the presumption." Sharpe, supra, 314 N.J. Super. at 69. "The plaintiff must then carry the burden of persuasion as to proximate cause." Ibid.

In this case, plaintiff claimed defendants failed to warn that the ATV could pitch over while accelerating backwards down a slope, not to release the throttle while riding up a hill, and not to climb hills with a slope greater than twenty-five degrees. It was, however, undisputed that plaintiff was a very experienced, self-taught rider, who had been riding ATV's for about ten years, and who did not need advice on how to operate an ATV.

It was also undisputed that plaintiff had ridden various ATVs and other vehicles with manual and semi-automatic transmissions, and thus understood that by releasing the throttle on a hill, the ATV would roll backwards. Moreover, plaintiff knew that while riding up a slope, he had to lean forward to prevent the front wheels from lifting off the ground, and he further understood the risk of climbing steep hills because he asked Velez to get off the back of his ATV when he did so. Thus, there was evidence that plaintiff had knowledge of the very risks that the warnings were supposed to address; namely, that it was dangerous to climb steep hills, and that the ATV would accelerate backwards if plaintiff released the throttle, the front wheels could come up, and the ATV could pitch over. Plaintiff's knowledge of the risk directly affected the issue of causation. Coffman, supra, 133 N.J. at 603.

The court also found defendants presented sufficient evidence to rebut the presumption under the second method; namely, plaintiff's attitude and conduct, including failing to read safety manuals or labels, and operating in derogation of warnings by riding without a helmet, with a passenger, and after consuming alcohol, demonstrated an indifference to safety warnings. In applying this method, the Sharpe court wrote, "it must be remembered that the purpose of the rebuttal evidence is to create a jury question as to whether the plaintiff is the type of person who ordinarily would not follow safety warnings when given." 314 N.J. Super. at 75. In that regard, the evidence:

[M]ust be such that a jury could fairly infer that because the plaintiff did not heed safety warnings in other circumstances, it is likely that a warning would not have been heeded if given in the circumstances of the particular case. Thus, the type of evidence that may be introduced to rebut the heeding presumption must be sharply focused on the question of whether plaintiff is the type of person who ordinarily does not follow safety warnings when given.

[Ibid.]

However, "the appropriate quantum of evidence needed to rebut the heeding presumption is that which will demonstrate that a given plaintiff has a 'habit' of ignoring safety warnings." Id. at 78. The court in Sharpe explained:

[I]t is consistent with our evidence rules then that a defendant may only introduce rebuttal evidence of plaintiff's failure to heed warnings if such evidence rises to the level of habit or routine practice. Again, we return to the general principle that a defendant's purpose in presenting rebuttal evidence is to show that the plaintiff would have acted in a manner consistent with prior instances of not heeding safety warnings and, thus, even if the defendant had provided an adequate warning, plaintiff would not have followed it.

[Id. at 77.]

Thus, the issue here is whether plaintiff's conduct in ignoring safety warnings rose to the level of habit. Our rules provide that evidence "of habit or routine practice is admissible to prove that on a specific occasion a person . . . acted in conformity with the habit or routine practice." N.J.R.E. 406(a). "Evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice." N.J.R.E. 406(b). The degree of specificity distinguishes habit from character evidence. Sharpe, supra, 158 N.J. at 332. "Habit evidence depicts, with specificity, a routine practice in a particular situation." Showalter v. Barilari, Inc., 312 N.J. Super. 494, 512 (App. Div. 1998). It involves a "'regular practice of responding to a particular kind of situation with a specific type of conduct.'" Sharpe, supra, 158 N.J. at 330 (quoting State v. Radziwil, 235 N.J. Super. 557, 564 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990)).

In the present matter, there was ample evidence that plaintiff demonstrated an indifference to safety warnings. Thus, had a warning been provided, plaintiff would have disregarded it. For example, it was undisputed that plaintiff had never read an owner's manual or the warning labels on any of the ATVs or other vehicles he had operated. This conduct was not occasional, but rather rose to the level of habit or routine. Sharpe, supra, 314 N.J. Super. at 77. Moreover, owner's manuals and warning labels contain information directly related to safety. Id. at 75. Therefore, the jury could infer that because plaintiff did not bother to read the safety warnings in other circumstances, he would have acted in conformity with that practice in the circumstances of this case and would not have read or heeded an adequate warning. See Graves, supra, 267 N.J. Super. at 463 (evidence that the plaintiff gave inconsistent testimony regarding whether he had read the label and evidence that his conduct was so instinctive that no warning would have helped, created sufficient facts to rebut the presumption).

Furthermore, there was evidence that plaintiff routinely failed to follow safety warnings. For example, although plaintiff was warned to wear a helmet while operating an ATV, and claimed he often wore one, he admitted that he did not wear a helmet whenever there were not enough helmets available. Thus, it would not have been unreasonable for the jury to have concluded that plaintiff's violation of that clear warning to wear a helmet was unreasonable and exhibited a disregard of personal safety. See Sharpe, supra, 314 N.J. Super. at 79 (evidence that the plaintiff did not wear a seatbelt when the top and doors were on his jeep was sufficient evidence of habit).

However, the evidence of plaintiff's alcohol consumption on the date of the accident, while clearly admissible, did not rise to the level of habit. Evidence of alcohol consumption has been held relevant in a failure to warn case to rebut the "heeding presumption." Hulmes v. Honda Motor Co., 960 F. Supp. 844, 854 (D.N.J. 1997). But here, there was no evidence that plaintiff had a habit of consuming alcohol while riding his ATV. Sharpe, supra, 314 N.J. Super. at 79-80. At best, the evidence revealed that on the date of the accident plaintiff consumed two-and-half to three beers, and thus had on that one occasion ignored the warning not to ride an ATV after consuming alcohol. Plaintiff's admission that on one occasion he failed to heed a warning was not admissible to prove he was the type of person who ordinarily would not follow safety warnings. Id. at 80. Similarly, there was insufficient evidence to show plaintiff habitually or routinely ignored the warning not to ride on pubic roads, or with a passenger.

Nonetheless, as set forth above, defendants presented ample evidence to rebut the heeding presumption because plaintiff was aware of the risks associated with riding ATVs in general and on a hill in particular, and he habitually chose to ignore warnings by never reading manuals or warning labels, and routinely riding without a helmet when there were not enough available. Accordingly, the court did not err in denying plaintiff's motion for a JNOV.

Plaintiff also contends the jury verdict on proximate causation "was infected by the introduction of inflammatory and prejudicial testimony concerning plaintiff's alcohol consumption."

Plaintiff moved in limine to bar evidence that he had consumed alcohol approximately an hour and a half to two hours prior to the accident. The court found the evidence was relevant and admissible but agreed to carefully voir dire the potential jurors about their views on alcohol consumption to alleviate any potential prejudice. The court subsequently denied plaintiff's motion for reconsideration, and we denied plaintiff's motion for leave to appeal from the interlocutory orders.

Trial courts are granted broad discretion in determining the relevance of evidence and whether its probative value is substantially outweighed by its prejudicial nature. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Relevant evidence is defined as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "To be relevant, evidence must have 'probative value, which is the tendency of the evidence to establish the proposition that it is offered to prove.'" State v. Koskovich, 168 N.J. 448, 480 (2001) (quoting State v. Wilson, 135 N.J. 4, 13 (1994)). In determining whether evidence is relevant, courts focus on the logical connection between the evidence and a fact in issue, and the evidence should be admitted if it makes the inference to be drawn more logical. Ibid.; State v. Covell, 157 N.J. 554, 565 (1999); State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990).

However, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. "The burden is clearly on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2008). A court's determination under "N.J.R.E. 403 should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted.'" Green, supra, 160 N.J. at 492 (quoting State v. Carter, 91 N.J. 86, 106 (1992)).

Here, as the trial court properly found, the evidence that plaintiff had consumed alcohol shortly before the accident was probative and relevant to plaintiff's failure-to-warn claim on the issues of misuse and proximate cause. Wallace v. Ford Motor Co., 318 N.J. Super. 427, 433 (App. Div. 1999). See also Hulmes, supra, 960 F. Supp. at 854; Hulmes v. Honda Motor Co., 936 F. Supp. 195, 201 (D.N.J. 1996), aff'd, 141 F.3d 1154 (3d Cir.), cert. denied, 525 U.S. 814, 119 S. Ct. 49, 142 L. Ed. 2d 38 (1998).

The question remains, however, whether the probative value of the evidence was substantially outweighed by its potential prejudice. Gustavson v. Gaynor, 206 N.J. Super. 540, 545 (App. Div. 1985), certif. denied, 103 N.J. 476 (1986); Guzzi v. Clarke, 252 N.J. Super. 361, 365 (Law Div. 1991). In New Jersey, evidence of alcohol consumption will be excluded under N.J.R.E. 403 as unfairly prejudicial unless there is sufficient supplementary evidence that reliably supports a conclusion that the party was actually impaired or unfit to drive. Gustavson, supra, 206 N.J. Super. at 544-45.

The mere fact that a driver had consumed some alcoholic beverages is by itself insufficient to warrant an inference that the driver was intoxicated and that the intoxication was of such a degree as to render him unfit to drive at the time of the accident. The admission of such testimony without supporting evidence is unduly prejudicial in view of its capacity to inflame the jury.

[Id. at 545.]

Examples of supporting evidence of intoxication or impairment include "conduct such as excessive drinking, driving at an excessive speed, recklessness or erratic driving, drunken behavior at the accident scene, or similar acts suggestive of an unfitness to drive." Ibid. For example, in Gustavson, an automobile negligence case, the court found insufficient supplementary evidence where the plaintiff consumed two or three bottles of beer five to six hours before the accident, exhibited no signs of impairment at the scene, and the accident was caused when the plaintiff veered into the opposite lane. Id. at 542-46.

Similarly, in Wood v. United States, 963 F. Supp. 1381 (D.N.J. 1997), another automobile negligence case, the court excluded evidence of pre-accident alcohol consumption, finding the proffered supplementary evidence insufficient to establish plaintiff was impaired or unfit to drive. Id. at 1389-90. In that case: the plaintiff admitted he had consumed three beers over the course of a seven hour day, with the last beer being consumed at least an hour before he operated his vehicle; the investigating officer detected the odor of alcohol; and the plaintiff admitted that he was traveling fifty miles-per-hour on a rainy night, in an area where there were warning signs limiting speed to twenty miles-per-hour in the intersection. Ibid.

Here, defendants proffered the following supplementary evidence: (1) plaintiff's admission that he consumed alcohol within an hour and a half to two hours before the accident; (2) Dr. Saferstein's testimony that plaintiff's BAC at the time of the accident was .066%, or possibly as high as .0737%, and his testimony that impairment began upon ingestion of alcohol; (3) plaintiff's admission that he did not apply his brakes when the ATV started rolling backwards; and (4) Sandra's testimony that plaintiff rode up the trail on the right, which was more rutted and hazardous. While this evidence was not overwhelming, it was sufficient to satisfy the Gustavson test because it reliably supported a conclusion that plaintiff was impaired or unfit to operate an ATV at the time of the accident, and the probative value of the evidence was not outweighed by its potential prejudice.

In plaintiff's third argument, he contends the court erred in submitting a confusing and redundant question on the verdict sheet, and in improperly shifting the burden of proving misuse to him in its supplemental charge. The court submitted the following written jury questions on the issue of design defect:

5. Has plaintiff proven by a fair preponderance of the credible evidence that the KLF220 was defectively designed and, therefore, not reasonably fit, suitable and safe for its intended purposes because the foreseeable risk of harm could have been reduced or avoided by the adoption of a reasonable safer design?

. . . .

6. Has the [p]laintiff proven by a preponderance of the credible evidence that the omission of the alternative designs rendered the product not reasonably safe for its intended use?

There is no indication in this record that plaintiff objected to the verdict form during the charge conference, although as he points out, some of the conference was conducted off the record. Moreover, at one point during deliberations, plaintiff's counsel conceded questions five and six concerned "separate issues," indicating a lack of objection.

In any event, after six days of deliberation, the court, in accordance with the jury's request, reread the charge on the design defect claim. The jury also informed the court that it had been at "a [standstill] for three days on question six." At the end of the following day, the jury asked the court to "reword question number six" and to "reread the recharge of the design defect [claim] very slowly." The court reserved, but before it could address the requests on the following morning, the jury announced that it had reached a verdict. Immediately before the jury read the verdict, plaintiff's counsel said:

I actually had an application this morning, which I don't know if we are going to get to, . . . to eliminate question 6, because I thought it was redundant. It may be - -

THE COURT: It's whatever it is. Okay.

The jury then returned a verdict answering yes to question five and no to question six.

In denying plaintiff's motion for a new trial, the court initially found plaintiff had not raised this objection during the charge conference. Nonetheless, the court addressed the argument and found question six was not duplicative of question five because it focused the jury's attention on plaintiff's specific alternative designs.

A proper jury charge is essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002); Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 570 (App. Div.), certif. denied, 107 N.J. 48 (1986). A jury charge "'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them.'" Reynolds, supra, 172 N.J. at 289 (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000)). "The failure to tailor a jury charge to the given facts of a case constitutes reversible error where a different outcome might have prevailed had the jury been correctly charged." Ibid. "[A]n appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)). That same standard applies on appeal when evaluating the adequacy of jury interrogatories or a verdict sheet. Ibid.; Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 467-68 (2000).

"'The framing of [jury] questions in clear and under-standable language cannot be overemphasized.'" Ponzo v. Pelle, 166 N.J. 481, 491 (2001) (quoting Benson v. Brown, 276 N.J. Super. 553, 565 (App. Div. 1994)) (alteration in original). "Interrogatories are meant to serve particular purposes: 'to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized.'" Id. at 490-91 (quoting Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968)).

"Ordinarily, 'a trial court's interrogatories to a jury are not grounds for reversal unless they were misleading, confusing, or ambiguous.'" Id. at 490 (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997)). On appeal, the plain error standard applies when a party fails to object to the form of the interrogatory, that is, that "the interrogatory will withstand attack unless it was clearly capable of producing an unjust result." Ibid. Nonetheless, in reviewing an interrogatory for reversible error, an appellate court should consider the question "in the context of the charge as a whole." Id. at 491. Thus, "[a]n accurate and thorough jury charge often can cure the potential for confusion that may be present in an interrogatory." Ibid.

Here, it is unclear whether plaintiff objected to questions five and six below. Nonetheless, as the trial court found, the questions were not redundant and thus did not impose a double burden on plaintiffs.

In this defective design case, plaintiff claimed the ATV was unsafe because it failed to employ a reasonably safer design; namely, the three safety devices proposed by plaintiff's experts. In that regard, the court charged, without objection, and in accordance with the Model Jury Charge (Civil), 5.34C-3 "Products Liability" (1999), that "[a] design defect exists if the foreseeable risks of harm posed by the KLF220 could have been reduced or avoided by the adoption of a reasonably safer design, and the omission of the alternative design renders the product not reasonably safe" (emphasis added). Question five properly addressed the more general first portion of that test, and question six addressed the second part; namely, whether the omission of the specific proposed alternative designs rendered the product not safe for its intended use. Although related, the two concepts are separate and distinct and the jury verdict questions were neither redundant, nor did they improperly impose a double burden on plaintiff. Therefore, the court did not commit reversible error in submitting the questions, which accurately set forth the law, to the jury.

Plaintiff also argues, as plain error, that the court improperly shifted the burden of proving misuse to him in its supplemental charge. In its main charge on design defect, the court appropriately charged the jury that plaintiff bore the burden of proving that at the time of the accident, the ATV was not being misused in a way that was neither intended nor reasonably foreseeable. Jurado, supra, 131 N.J. at 386 ("The absence of misuse is part of the plaintiff's case."). The trial court also appropriately charged that defendants bore the burden of proof, on their affirmative defense, of proving plaintiff's misuse of the KLF220 was the proximate cause of the accident, or more specifically, that plaintiff "voluntarily and reasonably proceeded to encounter a known danger, and that [plaintiff's] action was a proximate cause of the accident."

In its supplemental charge on design defect, the court repeated that plaintiff bore the burden of proving "the KLF220 was not being misused in a way that was neither intended [nor] was reasonably foreseeable." That instruction was proper and appropriately referred to plaintiff's burden of proof on his claim, which the jury found he had met, and not defendants' burden of proof on its affirmative defense. Thus, the court did not improperly shift the burden of proof to plaintiff.

In his fourth point, plaintiff argues the court erred in its supplemental jury charge on design defect and in denying his application to present a supplemental closing. In its main charge, the court instructed the jury without objection and substantially in accordance with Model Jury Charge (Civil), supra, at 5.34C-3, that the plaintiff:

[C]laim[ed] that the KLF220 was defectively designed because it did not employ a reasonable safer design. To establish this claim of design defect, he must prove by a greater weight of the credible evidence that, one, that the product was designed in a defective manner. A design defect exists if the foreseeable risks of harm posed by the KLF220 could have been reduced or avoided by the adoption of a reasonably safer design, and the omission of the alternative design renders the product not reasonably safe.

In proving a defect in the design of the product, the plaintiff need not prove that the defendant, Kawasaki, knew that the accident in this case would happen as it did. Knowledge of the dangers of the product is legally placed upon the manufacturer/seller. The question for you to decide is whether, assuming the defendant[s] knew the dangers of the product, they were nevertheless reasonably careful in the manner in which they designed or marketed or sold the KLF220.

Richard Lopez claims that the KLF220 should have contained one or more of the following devices: One, an inclinometer; two, an audio and visual signal with an engine cutoff; three, an anti-pitch bar; four, an anti-roll back device.

Kawasaki, on the other hand, claims that the KLF220 should not have contained the devices because the KLF220 was a reasonably safe design for its intended use, and that the plaintiff's injuries were a result of his own improper conduct, including the misuse of the KLF220. You are to decide whether the safety benefits from altering the design as proposed by plaintiff were greater than the resulting costs or disadvantages caused by the proposed design, including any diminished usefulness or diminished safety.

If the failure to incorporate a practical and technically feasible safer alternative design made the KLF220 not reasonably safe, then the KLF220 was designed in a defective manner.

If, on the other hand, plaintiff hasn't proven there existed a practical and technically feasible safer alternative, or if you find that the KLF220 as designed was reasonably safe, then the KLF220 was not designed in a defective manner.

During deliberations, the jury asked several questions, including requests to have Kubly's testimony reread and to view Kubly's videotape of his testing the anti-rollback device. On the sixth day of deliberations, the jury asked for a recharge on the design defect claim and informed the court that they had been at "a [standstill] for three days on question number six." The court found the original charge was not adequately tailored to the facts of the case and proposed supplementing the model charge with an instruction that plaintiff must prove the alternative design "work[s] properly, not that it's a good idea and Kawasaki should consider the prototype and improve on it so as to make it practical and feasible." Plaintiff objected and asked the court to reread the original charge.

The court supplied the parties with copies of the proposed charge and after a lengthy argument, revised parts of it. Plaintiff then moved to "resum-up to the jury" to enable him to address the "new burdens" imposed by the amended charge. The court denied the application explaining it was simply "clarifying some issues," not imposing a "new burden." The court recharged the jury, in accordance with the charge as set forth above. But then, after defining the proposed devices, instructed the jury:

[T]he designs proposed by the plaintiff's expert, Mr. Bartlett, must be practical, feasible and safer. It cannot be an idea that will ultimately create more risk. Kawasaki says the design is not practical, safer and feasible. You must be convinced by the preponderance of the credible evidence that this device as submitted by Mr. Bartlett will meet those requirements, not that it is a start to a good idea, which with some improvements might do that in the future. The technology must exist and not be just some hypothetical ideas which may work in just one type of situation.

[(Emphasis added).]

The underlined language is not included in the model charge.

Plaintiff objected and moved for a mistrial arguing that the court erred in amending the charge instead of simply rereading it, that the above underlined section constituted a misstatement of the law, and that the court erred in denying his application to "resum-up." The court reserved on the motion, but before it could make a decision, the jury returned a verdict. However, in denying plaintiff's motion for a new trial, the court stated it had attempted to "amplify and clarify" the charge in light of the jury's evident confusion with the concept of design defect.

A trial court must grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). The standard for appellate review is also whether "a miscarriage of justice under the law" occurred. R. 2:10-1; Dolson v. Anastasia, 55 N.J. 2, 5 (1969).

"A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it . . . was designed in a defective manner." N.J.S.A. 2A:58C-2. In determining whether a product was defectively designed, courts apply a risk-utility analysis. Cavanaugh v. Skil Corp., 164 N.J. 1, 8 (2000); Lewis, supra, 155 N.J. at 570. "A plaintiff must prove either that the product's risks outweighed 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, supra, 155 N.J. at 570. Under the second method, the one asserted in this case, a plaintiff must prove "the existence of an alternative design that is both practical and feasible" and "safer" than that used by the manufacturer. Id. at 571; Diluzio-Gulino v. Daimler Chrysler Corp., 385 N.J. Super. 434, 438 (App. Div. 2006).

In products liability actions in particular, our Supreme Court has directed trial courts to tailor the model charge "to the factual situation to assist the jury in performing its fact finding responsibility." Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 176 (1979). "Moreover, the trial judge is obliged to answer jury questions posed during the course of deliberations clearly and accurately and in a manner designed to clear its confusion, which ordinarily requires explanation beyond rereading the original charge." Pressler, Current N.J. Court Rules, comment 7 on R. 1:8-7 (2008).

On appeal, plaintiff argues that the supplemental charge "improperly labeled the plaintiff's proposed alternative design as merely just a good idea." We do not agree. The court charged the jury that plaintiff must prove their device was "practical, feasible and safer," and that plaintiff could not simply show "that it is a start to a good idea, which with some improvements might do that in the future." Thus, the court did not "label" the proposed devices as merely a "good idea," but rather properly instructed the jury that they must find the alternate design was in fact more than simply a "good idea," and was in fact practical, feasible, and safer. It logically follows that an alternative design cannot be a mere hypothetical that a manufacturer could consider, develop, and refine over time.

Moreover, the instruction was tailored to the facts of this case. Here, plaintiff's experts designed and built a prototype anti-rollback device, but did not actually install or test it. The defense experts, particularly Kubly, then built, installed, and tested the device. The experts found the device, as designed by plaintiff's experts, did not function consistently, so they redesigned it using a one-way brake. It was undisputed that the newly designed device worked, that is, it automatically engaged when the ATV reversed, but neither defense expert recommended its installation, opining the device would make the ATV less safe. Thus, the supplemental charge properly focused the jury's attention on the question of whether the prototype device was practical, feasible, and safer, and not just a good idea that might work effectively at some point in the future.

Plaintiff also contends the court erred in denying his application to present a supplemental closing. Rule 1:8-7(a) provides in part, "[t]he court shall, on the record, rule on the requests [to charge] prior to closing arguments to the jury." And Rule 1:7-1(b) provides in part, "[a]fter the close of the evidence and except as may be otherwise ordered by the court, the parties may make closing statements in the reverse order of opening statements."

In State v. Speth, 324 N.J. Super. 471, 475-76 (Law Div. 1997), aff'd, 323 N.J. Super. 67 (App. Div. 1999), after the jury had begun deliberations, the trial court granted the prosecutor and defense attorneys' requests to make supplemental closing statements explaining:

[H]aving considered the length of the trial, the complexity of the issues, the length of the deliberations, the breaks in the deliberations, the numerous jury questions, the expressed inability of the jury to agree as to two of the three counts of the indictment, and the fact that both the State and the defense have joined in this request, this court has determined in the interest of justice to permit each counsel to present to the jury a brief supplemental closing statement of no more than 20 minutes in length.

Moreover, in State v. Rovito, 99 N.J. 581, 588 (1985), the trial court decided, after summations, to instruct the jury on the provisions of N.J.S.A. 2C:2-3 (causal relationship between conduct and result). The court granted each attorney an additional ten minutes to present a supplementary summation. Ibid. The Court found "the trial court's conduct was consistent with the purpose of Rule 1:8-7, which is to permit counsel to conform their summations to the charge." Ibid.

In the present matter, the trial court did not abuse its discretion in denying plaintiff's application to present a supplemental closing to the jury. In contrast to Speth, the jury deliberations were not interrupted. And, in contrast to Rovito, the judge did not charge the jury on a new area of law. Therefore, plaintiff failed to establish a sufficient basis to reopen the case for supplemental instructions.

In his fifth point, plaintiff argues the court erred in accepting a verdict from the jury while jury questions were pending. During deliberations on Friday, May 19, 2006, the court, in response to a jury question, reread the charge on design defect. Later that day, the jury asked the court to "reword question number six," and to again reread the charge on design defect. The jury also submitted a lengthy request asking the court if they could test an exemplar ATV at Englishtown Raceway. The court advised counsel it would address the jury questions on Monday, but noted it was not inclined to allow the jurors to test ride an ATV.

On Monday morning, before the court had responded to the questions, the jury informed the court that it had reached a verdict. Plaintiff did not object to the court's accepting the verdict. In denying plaintiff's motion for a new trial the court found:

[T]here's no legal precedent that requires a [c]ourt to address all jury questions prior to accepting a verdict. The [c]ourt was and is satisfied that question number six was adequately worded. . . .

The jury was, . . . by virtue of the fact that they said they had a verdict indicating that they were no longer confused. Again, I don't find that accepting the verdict at the time that there was a question pending after all these days of deliberation was a miscarriage of justice.

"It is firmly established that '[w]hen a jury requests a clarification,' the trial court 'is obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)) (alteration in original). Furthermore, "the trial court must respond substantively to questions asked by the jury during deliberations and must assure itself that it understands the import of the questions." State v. Middleton, 299 N.J. Super. 22, 30 (App. Div. 1997). See also State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995) ("[W]hen the jury's question is ambiguous, the judge is obliged to clear the confusion by asking the jury the meaning of its request.").

Nonetheless, in State v. Bey (III), 129 N.J. 557, 606 (1992), supplemented by, 137 N.J. 334 (1994), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995), "[t]he jury submitted a question regarding defendant's eligibility for parole, and then, approximately one hour later, returned its verdict, without the question having been answered." The Court held the trial court's delay in responding to the jury question did not constitute reversible error, explaining:

[T]he jury question regarding defendant's eligibility for parole is best characterized as an issue of fact that did not implicate any legal concerns over the weighing of aggravating and mitigating factors. The court's delay was not inordinate, and was due in part to its deliberations with counsel. Most importantly, though, the jury answered the question for itself by continuing its deliberations and reaching a unanimous verdict.

[Id. at 607 (citation omitted).]

See also United States v. Rodriguez, 765 F.2d 1546, 1554 (11th Cir. 1985) (no reversible error where court was not able to respond to the jury's question before the jury rendered a verdict); United States v. Barnes, 586 F.2d 1052, 1060 (5th Cir. 1978) (no error where verdict returned while judge and defense counsel were discussing how to answer jury's question); Ebens v. State, 518 So. 2d 1264, 1268 (Ala. Crim. App. 1986) (no error in court's failure to address jury question where jury chose to continue deliberations and reached a verdict without additional instructions).

Similarly, in the present matter, the court's failure to address the jury's questions before entry of the verdict did not constitute reversible error. The jury clearly understood they could continue deliberating until the court answered their questions, if they had wanted to do so. Here, as in Bey (III), supra, 129 N.J. at 607, the jury apparently answered the questions for itself by continuing deliberations and reaching a verdict. Moreover, the delay was not inordinate, given the jury submitted the questions late in the day, and furthermore, earlier that day, the jury had been recharged on the design defect claim. Therefore, the court did not err in accepting the jury's verdict prior to answering the jury's questions.

We do not address plaintiff's final argument pertaining to the editing of the day-in-the-life video, which was admissible to assist the jury in understanding the nature of plaintiff's injuries because the jury did not determine damages. In addition, any arguments we have not specifically addressed are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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July 9, 2008