ELEANOR V. MADDEN v. COSCO, A DOREL COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0212-08T20212-08T2

ELEANOR V. MADDEN and

JEROME A. MADDEN,

Plaintiffs-Appellants,

v.

COSCO, A DOREL COMPANY,

Defendant-Respondent.

____________________________________________

 

Submitted November 16, 2009 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3437-04.

Eleanor V. Madden and Jerome A. Madden, appellants, pro se (Mr. Madden, on the brief).

Chierici, Chierici & Smith, attorneys for respondent (Donald R. Chierici, Jr., on the brief).

PER CURIAM

Plaintiffs Eleanor Madden and her husband Jerome Madden (the Maddens) appeal from a jury verdict of no cause of action in their products liability claim against defendant Cosco, A Dorel Company (COSCO), the manufacturer of the COSCO chair-stepstool. Eleanor fell off the stepstool. The Maddens alleged that her fall was caused by a design defect in the stepstool that caused a nut to loosen and fall off, rendering the stepstool unstable. The Maddens contended a locknut would have prevented the accident. The jury found that the stepstool was not defective.

According to Eleanor, on December 15, 2002, at approximately 10:00 p.m., she was making holiday gift packages for some friends. She wanted to give one of her friends a jar of homemade jelly, which she kept on the top shelf of her kitchen cabinets. Eleanor pulled the stepstool over to the cabinet and placed it against a lower cabinet to stabilize it. She began climbing the steps. As she put her right foot on the second step, the stepstool wobbled side-to-side and she lost her balance. She fell and broke her leg. The damage to Eleanor's leg required multiple surgeries and rehabilitative therapy. She was seventy-two years old at the time of the accident.

Eleanor did not remember ever attempting to use the second step before that night and did not remember the previous two COSCO-made stepstools she had owned ever wobbling. She did not remember whether she put both feet on the second step before she lost her balance. Eleanor did not notice anything unusual about the stepstool before she used it the night of the accident. She ordinarily took "water pills" to reduce swelling in her right foot, the foot she used to advance to the second step, but could not remember whether she took her pill the day of the accident Jerome did not notice the stepstool was missing a nut, and if he had, he would have replaced it, "taken the chair out of service," or thrown the stepstool away. He never noticed any defects in the prior stepstools the couple had owned. The first time he noticed a problem with the stepstool was when he took it to his attorney's office. He and Eleanor never located the missing nut, bolts or washer from the stepstool and had no idea where or when they might have fallen out.

COSCO has sold more than one million of this model of stepstool since it began producing the model in 1960. In 1971, COSCO approved an engineering change to use locknuts on the stepstool to: "[m]ake unit stronger so won't shake loose and wobble," a change that would increase the cost of production approximately 1.8 cents per unit. Locknuts were never used because, according to a subsequent engineering change, the production machines in use at the time could not tighten locknuts without the risk of over-tightening, which could ultimately weaken the structure of the entire stepstool. COSCO stepstools included a warning sticker located on the underside of the chair seat that read, "[f]or your safety, tighten all screws and/or nuts and bolts for security. Recheck periodically." Eleanor never saw the warning sticker. She did not know when the bolt fell off the stepstool.

The Maddens owned three COSCO-made stepstools, all identical, over a period of approximately thirty years, starting before 1969 when Eleanor and Jerome moved to New Jersey. The Maddens replaced the stepstools as they wore out. Jerome assembled the stepstools.

Before the start of trial, COSCO filed a motion in limine to determine the availability of the comparative negligence defense. The judge declined to rule on the motion at that time, stating, "I'll rule on that at the end of the case." The Maddens objected, arguing that the jury should not be exposed to the evidence at all. They renewed the motion at the charge conference, arguing their conduct was irrelevant to a strict-products liability case. The judge declined to charge the jury with comparative negligence. The judge instructed the jury: "[y]ou have heard evidence about how [Eleanor] was using the step stool. When you are deciding whether the step stool was defective, you are not permitted to consider [Eleanor's] conduct." The judge further explained how proximate causation should factor into the jury's determination as to liability. Specifically, the judge instructed: "[i]f you find that the step stool was defective, then you must decide whether the defect was a proximate cause of the accident. At this point, you may consider [Eleanor's] conduct."

COSCO also moved in limine to exclude two letters and a report describing prior incidents involving that model of stepstool, arguing the reports were alternately hearsay, prejudicial and irrelevant. The documents included a report from 1980 describing an incident when someone fell off the stepstool and crashed into it, bending the legs of the chair portion, and a handwritten letter from a woman saying: "[i]t seemed to need tightening of the screws quite often." The various documents were included in COSCO's interrogatory answers; Madden asserted they were, therefore, adoptive admissions. Madden alternatively argued that the documents were not hearsay because they merely put COSCO on notice of a defect in the product. The judge granted COSCO's motion to exclude the documents.

During juror voir dire, one prospective juror stated that he thought "there are [too] many frivolous lawsuits." The next juror interviewed stated that he agreed that "there is [sic] too many frivolous lawsuits and people sue -- tend to sue a lot of times for just something -- they did something stupid and now they want to make the corporation pay for it."

The Maddens argued that both jurors should be dismissed for cause and their comments tainted the entire jury pool. The judge declined to dismiss the jurors for cause because both stated they could be fair and impartial. The Maddens used peremptory challenges to excuse both jurors. A third juror stated he took issue with late-night commercials for personal injury attorneys. The judge dismissed him for cause.

At trial, Eric William Constans, Ph.D., was qualified as an expert in mechanical engineering and design. He opined that the ideal fastener for the stepstool would be a locknut or "something similar" that would permanently attach the nut to the bolt. This would prevent the nut from "vibrating loose" or unscrewing over the course of ordinary use. He also opined that the lack of a locknut meant the chair was defectively designed and a missing nut on the chair portion could affect the stability of the footstool portion.

COSCO's expert, David Guido, an engineer, opined that the stepstool "was designed in accordance with accepted engineering practice and violated no known applicable codes or standards." He further opined the missing bolt had no effect on the stability of the steps. Further, there was paint loss around the area of the missing bolt, suggesting the two pieces joined by the bolt had been rubbing together "for some time" and the bolt had been missing for an extended period.

The jury returned a unanimous verdict finding the Maddens had not proved Eleanor's fall was caused by the failure to use a locknut on the stepstool. On June 30, 2008, the judge entered a final order of judgment of no cause. The Maddens filed this appeal on November 14, 2008. COSCO filed a motion to dismiss the appeal on the grounds of untimeliness. We denied the motion. Madden v. COSCO A Dorel Co., No. M-1096 (App. Div. Nov. 14, 2008). This decision was based on an earlier order permitting filing of the appeal as within time. Madden v. COSCO A Dorel, No. M-4117-08 (App. Div. April 6, 2009).

On appeal, the Maddens contend the judge erred by permitting the jury to consider their conduct in using the stepstool, making several improper evidentiary rulings and making general comments during juror voir dire that tainted the jury's ability to impartially evaluate the proceedings. The Maddens also contend that the jury verdict was against the weight of the evidence.

COSCO initially contends Madden waived all issues raised on appeal by not raising them in a post-trial motion for a new trial. However, the Maddens objected to these issues during trial. We conclude that these issues were appropriately preserved for appellate review. R. 1:7-2.

The Maddens argue that the verdict was against the weight of the evidence. However, the Maddens never made the appropriate motion for a new trial before the trial court. R. 2:10-1. Regardless of the procedural deficiency, we conclude that the jury verdict is supported by the evidence adduced at trial. The verdict is supported by expert testimony that established that the nut had been missing for an extended period of time before the accident, the missing nut would not have affected the stability of the steps portion of the stepstool and the type of nut used on the stepstool was the product of a legitimate design choice.

The Maddens argue that the jury was improperly permitted to consider evidence of the Maddens' conduct. To establish a prima facie claim in a strict products liability design defect action, "a plaintiff must prove that (1) the product was defective; (2) the defect existed when the product left the hands of the defendant; and (3) the defect caused the injury to a reasonably foreseeable user." Jurado v. W. Gear Works, 131 N.J. 375, 385 (1993); N.J.S.A. 2A:58C-2. The use of comparative negligence in a products liability action is limited to "evidence that 'plaintiff with actual knowledge of the danger posed by the defective product voluntarily and unreasonably encountered that risk.'" Ladner v. Mercedes-Benz of N. Am., Inc., 266 N.J. Super. 481, 495 (App. Div. 1993), certif. denied, 135 N.J. 302 (1994) (quoting Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 562-63 (1980)).

However, absent a comparative negligence defense, a plaintiff's conduct is also relevant to establishing proximate cause. Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 97-99 (1992). The jury must be instructed that the plaintiff's conduct may be considered only in the context of a proximate causation analysis and not in the determination of whether a product was defectively designed. Id. at 99-100.

It should be noted that the evidence of the Maddens' conduct was inextricably intertwined with the essential facts of the accident: the Maddens could not have presented a prima facie case without detailing Eleanor's actions in using the stepstool. Other factual elements, such as whether the Maddens ever tightened the nuts on the stepstool or knew of the warning printed on the bottom of the chair, were admissible with regard to whether Eleanor "encountered a known risk" in using the stepstool.

Here, there was no evidence Eleanor was actually aware of any dangers caused by the alleged design defect. Accordingly, the judge properly determined not to charge the jury with comparative negligence in the strict products liability context. However, evidence of the Madden's conduct was relevant to the issue of proximate causation.

Although there was a risk that evidence of the Maddens' conduct could affect the jury's determination as to whether the stepstool was defective, the judge gave a proper limiting instruction. A jury is presumed to follow judicial instructions. See Windmere, Inc. v. Int'l Ins. Co., 208 N.J. Super. 697, 715 (App. Div. 1986), aff'd, 105 N.J. 373 (1987). Moreover, the verdict form required the jury to first determine whether the stepstool was defectively-designed before addressing issues of causation.

The Maddens next argued that the judge erred in granting COSCO's motion to exclude various documents included in COSCO's answers to interrogatories. The Maddens contend that, through their inclusion in the interrogatories, the documents became adoptive admissions. We disagree.

The documents included a report from 1980 describing an incident when someone fell off the same model stepstool and crashed into it, bending the legs of the chair portion, and a handwritten letter from a woman saying: "[i]t seemed to need tightening of the screws quite often." The documents themselves have not been submitted on appeal. The judge granted COSCO's motion to exclude the documents.

Relevant evidence is generally admissible, subject to the limitations of N.J.R.E. 403, under which "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." Hearsay is generally inadmissible unless it falls within an enumerated exception. N.J.R.E. 802.

Evidentiary rulings are reviewed pursuant to the abuse of discretion standard and "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.'" Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

Here, the judge properly excluded the documents. The document describing the man who crashed into and bent the legs of the stepstool was irrelevant to the question of a design defect and the handwritten letter that suggested the "screws" required frequent tightening was inadmissible hearsay. Although the Maddens contend these documents are adoptive admissions, they do not cite any authority for this proposition nor have they included the interrogatory answers in their appendix, precluding an independent analysis. Finally, it is highly unlikely that COSCO either expressly or implicitly proffered these potentially damaging documents for their truth.

Finally, we note that both jurors stated they were capable of being fair and impartial and the judge therefore refused to dismiss them for cause. The Maddens used peremptory challenges to dismiss both jurors. The Maddens contend the juror statements impermissibly tainted the entire panel. We note that the Maddens made no specific request for the entire panel to be dismissed, although they suggested that "this panel has been completely polluted as a result of these outbursts . . . ." We will assume this constituted a timely objection and motion to empanel a new jury.

"[T]rial court decisions whether to excuse prospective jurors for cause are given substantial deference. They are discretionary decisions which engage the trial judge's superior ability to evaluate the whole person in the courtroom." Catando v. Sheraton Poste Inn, 249 N.J. Super. 253, 258 (App. Div.), certif. denied, 127 N.J. 550 (1991).

Here, the remarks, although potentially inflammatory and capable of influencing other jurors, do not necessitate reversal. There is no evidence to suggest the beliefs espoused by two potential jurors tainted or impugned the ability of the remaining jurors to evaluate the case in a fair and impartial manner. Both jurors asserted their ability to evaluate the case fairly and neither was ultimately empanelled. Further, the verdict is supported by evidence adduced at trial.

Assuming a motion was made for the judge to dismiss the entire jury panel and the judge affirmatively denied such motion, he did not abuse his discretion in doing so. Evaluating these contentions under the plain error standard does not dictate a different result. R. 2:10-2.

 
Affirmed.

(continued)

(continued)

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A-0212-08T2

July 19, 2010