Willner v. Vertical Reality, Inc.

Annotate this Case

Plaintiff Josh Willner was injured while climbing a rock wall owned by his employer, Ivy League Day Camp. Willner sued the camp and the manufacturers of the wall and parts contained in the wall, Vertical Reality, Inc. (Vertical Reality), and ASCO Numatics (Numatics), respectively, alleging strict products liability claims and negligence. Throughout trial, evidence was submitted regarding Numatics’ conduct both before and after the incident. Prior to summation, the court dismissed the design defect and failure to warn claims, allowing Willner to proceed only on his strict liability claim of manufacturing defect against Numatics. Vertical Reality’s counsel underscored Numatics’ alleged malfeasance.
Numatics objected and moved for a mistrial. The trial court denied the motion, but instructed the jury to disregard counsel’s comments concerning Numatics’ conduct. Numatics thereafter requested an instruction to the jury regarding the applicability of Numatics’ conduct in the context of Willner’s manufacturing defect claim. The judge denied that proposal and instead provided an instruction that substantially mirrored Model Jury Charges (Civil), 5.40B, “Manufacturing Defect” (2009). The jury found: Vertical Reality’s rock wall was designed defectively; Vertical Reality provided inadequate warnings; and Numatics’ product was manufactured defectively, all proximate causes of Willner’s fall. The jury awarded Willner monetary damages, allocating seventy and thirty percent liability to Vertical Reality and Numatics, respectively. The New Jersey Supreme Court affirmed the trial court's jury instruction under a different standard of review than was used by the Appellate Division: the judge’s actions were harmless error. The Court reversed the imposition of sanctions, holding it would have been unfair to impose sanctions "in a case where the only means for a party to avoid sanctions would be to pay an amount greater than the jury’s verdict against that party, without advance notice of that consequence."

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.)

Josh Willner v. Vertical Reality, Inc. (A-9-17) (079626)

Argued April 24, 2018 -- Decided August 15, 2018

FERNANDEZ-VINA, J., writing for the Court.

In this products liability case, the Court reviews both a trial judge’s jury instruction
related to evidence of a defendant manufacturer’s conduct and the New Jersey rule governing
offers of judgment in cases in which a single plaintiff pursues joint and several liability
against multiple defendants.

The claims against Vertical Reality and Numatics proceeded to a jury trial. Willner’s
strict liability claims against defendants were based on theories of design defect,
manufacturing defect, and failure to warn. Throughout trial, evidence was submitted
regarding Numatics’ conduct both before and after the incident. Prior to summation, the
court dismissed the design defect and failure to warn claims, allowing Willner to proceed
only on his strict liability claim of manufacturing defect against Numatics.

Although any need for evidence of Numatics’ conduct was thereby obviated, during
summation, Vertical Reality’s counsel again underscored Numatics’ alleged malfeasance.
Numatics objected and moved for a mistrial. The trial court denied the mistrial motion, but
instructed the jury to disregard counsel’s comments concerning Numatics’ conduct,
explaining that evidence of Numatics’ actions was not relevant to the remaining issues in the
case. Following summations, Numatics requested an instruction to the jury regarding the
applicability of Numatics’ conduct in the context of Willner’s manufacturing defect claim.
The judge denied that proposal and instead provided an instruction that substantially
mirrored Model Jury Charges (Civil), 5.40B, “Manufacturing Defect” (2009). Numatics’
attorney requested a meeting with the judge at sidebar during the judge’s reading of that
charge, which the judge granted. Counsel asked, “I assume, Judge, that if you made the
request in writing and you did not instruct it, there’s no way to reiterate it? . . . There’s no
need to address it any further at this point? You’ve ruled?” The Court replied, “I think I . . .
ruled on everything this morning?” No formal objections were made to the instruction.
1
The jury found that: Vertical Reality’s rock wall was designed defectively and was a
proximate cause of Willner’s fall; Vertical Reality provided inadequate warnings, which
were a proximate cause of Willner’s fall; and Numatics’ product was manufactured
defectively and was a proximate cause of Willner’s fall. The jury awarded Willner a total of
$358,000, allocating seventy and thirty percent liability to Vertical Reality and Numatics,
respectively. Following a hearing, the trial court awarded attorney fees of $62,963.00, costs
of $12,160.83, and prejudgment interest of $115,727.70 as requested pursuant to Rule 4:58.

Numatics appealed to the Appellate Division, contesting the failure to instruct the jury
regarding the trial evidence related to its conduct and the award of attorney fees and costs.
With respect to the latter issue, Numatics argued that the trial court erred in granting
Willner’s motion for sanctions because its molded share of the total verdict ($107,400) did
not exceed 120% of Willner’s $125,000 offer of judgment. The appellate panel affirmed,
concluding that the trial judge’s “pre- and post-deliberation instructions were proper and
appropriate and did not constitute error, let alone plain error.” The panel found that case law
“does not compel the use of molded judgments in determining” whether sanctions should be
awarded under Rule 4:58. Rather, the panel found that the appropriate figure to compare
with the amount of the offer is “the amount of the jury’s verdict.” Accordingly, the panel
found that because the jury verdict of $358,000 was greater than 120% of the $125,000 offer
of judgment, the trial court’s award of fees and costs was appropriate.

Numatics filed a petition for certification with this Court, challenging: (1) the
standard that the Appellate Division employed in its review of the trial judge’s jury
instructions; (2) the trial court’s instructions; and (3) the award of sanctions under Rule 4:58.
The Court granted certification.
231 N.J. 197 (2017).

HELD: The Court affirms the panel’s approval of the judge’s jury instruction, albeit under a
different standard of review, finding that the judge’s actions were harmless error. The Court
reverses the imposition of sanctions. It would be unfair to impose sanctions in a case where
the only means for a party to avoid sanctions would be to pay an amount greater than the
jury’s verdict against that party, without advance notice of that consequence.

1. Strict products liability claims are governed by
N.J.S.A. 2A:58C-2, which provides that
claims can be brought under three theories of liability: manufacturing defect, failure to warn,
or design defect. A successful showing of the latter two theories necessarily implicates the
manufacturer’s conduct. Conduct evidence, however, is never relevant to a claim of
manufacturing defect. A factfinder’s sole responsibility in those cases is to evaluate (1) the
manufacturer’s design specifications and (2) the actual condition of the product that allegedly
caused the claimant harm, and compare the two. (pp. 15-16)

2. Pursuant to Rule 1:7-2, in order to preserve an issue for appeal, “a party . . . shall make
known to the court specifically the action which the party desires the court to take.” Such an
objection may be offered “in open court, in the absence of the jury.” R. 1:7-2. Without an
objection at the time a jury instruction is given, there is a presumption that the charge was
not error and was unlikely to prejudice the defendant’s case. Therefore, the failure to object
2
to a jury instruction requires review under the plain error standard. When a party has
brought an alleged error to the attention of the trial court, though, the error will not be
grounds for reversal on appeal if it was harmless. An error cannot be harmless if there is
some degree of possibility that the error led to an unjust result. (pp. 16-18)

3. Although offering a jury instruction alone is not adequate to preserve an issue for appeal
under Rule 1:7-2, Numatics’ counsel did more than suggest a charge. Counsel also requested
a sidebar with the judge to confirm the judge’s decision not to adopt counsel’s preferred
charge and to confirm that no further objection was necessary. Such a colloquy is sufficient
to preserve Numatics’ right to contest the charge on appeal pursuant to our rules. The
standard of review for Numatics’ challenge is thus harmless error. (pp. 18-20)

4. Here, the judge’s actions, if error, were harmless. The Court agrees with the Appellate
Division that a limiting instruction would have been appropriate. However, in the absence of
such an instruction, the judge acted appropriately to direct the jury’s attention away from any
newly irrelevant evidence of Numatics’ negligence, and the judge’s adoption of the model
charge for Willner’s remaining manufacturing defect claim effectively informed the jury of
the only evidence necessary for its decision. Consequently, there was no genuine possibility
that the judge’s actions led the jury to reach a verdict it otherwise would not have reached.
The Court accordingly affirms the Appellate Division’s ruling on the trial judge’s instruction.
(pp. 20-21)

5. The offer of judgment rule, R. 4:58, was designed as a mechanism to encourage, promote,
and stimulate early out-of-court settlement of claims. The rule imposes financial
consequences on a party who rejects a settlement offer that turns out to be more favorable
than the ultimate judgment by a certain amount, but leaves unclear the circumstances
triggering the imposition of sanctions on an individual defendant when a single plaintiff
makes a global offer to multiple defendants. Comparing the jury’s full award of damages to
a plaintiff to a single plaintiff’s offer of judgment is uncomplicated. Doing the same in the
joint and several liability setting is not. Forcing plaintiffs to negotiate individually with
defendants in settlement negotiations would create an unfair risk of settling with defendants
that are ultimately found by juries to be significantly liable, for a smaller amount than the
percentage of fault allocated to those defendants. By the same token, mandating that
individual defendants contemplate global offers from a single plaintiff would force
defendants who are likely less liable than their co-defendants to consider settling for an
amount greater than their individual liabilities, simply to avoid significant sanctions. This
case illustrates the problem. The offer of judgment rule must balance the competing interests
of plaintiffs and defendants. If the sanction of fee shifting is to be awarded, there must be
advance notice of that consequence. Here, that did not happen. Consequently, it would be
improper to shift fees and costs in this circumstance. (pp. 21-26)

AFFIRMED in part, REVERSED in part.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-
9 September Term 2017
079626

JOSH WILLNER, An Infant by
his Guardian ad Litem, LESTER
WILLNER, LESTER WILLNER,
Individually, and AMY
WILLNER, Individually,

Plaintiff-Respondents,

VERTICAL REALITY, INC., An
Entity Doing Business in the
State of New Jersey, and
VERTICAL REALITY
MANUFACTURING, INC., An
Entity Doing Business in the
State of New Jersey,

Defendant-Respondents.

and

IVY LEAGUE CAMP, An Entity
Doing Business in the State
of New Jersey,

Defendant,

and

ASCO NUMATICS, improperly
pled as NUMATICS, INC.,

Defendant-Appellant.

Argued April 24, 2018 – Decided August 15, 2018

On certification to the Superior Court,
Appellate Division.

1
Joseph DiRienzo argued the cause for
appellants (DiRienzo, DiRienzo & Dulinski,
attorneys; Joseph DiRienzo, on the briefs).

Cynthia A. Walters argued the cause for
respondents (Budd Larner, attorneys; Cynthia
A. Walters and Terrence John Hull, on the
brief).

Michael Ferrara argued the cause for amicus
curiae New Jersey Association for Justice
(The Ferrara Law Firm and Lomurro, Munson,
Comer, Brown & Schottland, attorneys;
Michael Ferrara, of counsel, and Christina
Vassiliou Harvey, of counsel and on the
brief).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this products liability case, we review both a trial

judge’s jury instruction related to evidence of a defendant

manufacturer’s conduct and our rule governing offers of judgment

in cases in which a single plaintiff pursues joint and several

liability against multiple defendants.

Plaintiff Josh Willner was injured while climbing a rock

wall owned by his employer, Ivy League Day Camp (Ivy League).

Willner sued the camp and the manufacturers of the wall and

parts contained in the wall, Vertical Reality, Inc. (Vertical

Reality), and ASCO Numatics (Numatics), respectively, alleging

strict products liability claims and negligence. Before trial,

Willner made a single offer of judgment to the defendants in

accordance with Rule 4:58 in the amount of $125,000. No

defendant accepted the offer or counteroffered.

2
By the end of the ensuing trial, the only count remaining

against Numatics alleged a manufacturing defect. Because a

defendant’s conduct is not relevant to adjudicating such a

claim, at the conclusion of the parties’ cases, Numatics

requested a jury instruction that advised the jurors not to

consider evidence of its conduct or negligence. The judge

denied the request and instead provided an instruction tracking

the model jury charge for manufacturing defect claims.

The jury returned a verdict in favor of Willner, awarding

him $358,000 and apportioning Numatics thirty percent of the

liability and Vertical Reality seventy percent. The judge then

granted Willner’s motion for attorney fees and costs pursuant to

the offer of judgement rule, Rule 4:58.

Numatics appealed, and the Appellate Division affirmed.

The panel found that the trial judge’s jury instruction did not

constitute plain error because he correctly advised the jury on

the only evidence relevant to the manufacturing defect claim.

The panel further held the judge’s award of attorney fees and

costs was proper because the jury’s verdict was sufficiently

greater than Willner’s offer to trigger sanctions pursuant to

Rule 4:58.

We affirm the panel’s approval of the judge’s jury

instruction, albeit under a different standard of review,

finding that the judge’s actions were harmless error. We

3
disagree with the panel, and reverse the imposition of sanctions

on Numatics under the offer of judgment rule. It would be

unfair to impose sanctions in a case where the only means for a

party to avoid sanctions would be to pay an amount greater than

the jury’s verdict against that party, without advance notice of

that consequence.

In the summer of 2006, Willner was employed as a junior

counselor at Ivy League in Manalapan. The camp offered a rock

climbing wall for its campers to use. The wall was manufactured

by Vertical Reality and contained parts produced by Numatics.

Willner’s only responsibility in his role as junior counselor

with regard to the rock wall was to assist campers as they put

on harnesses and helmets; the camp employed specialists to

assist with climbing.

On July 19, 2006, Willner was supervising a group of

campers at the rock wall. After his group finished, he was

invited by a specialist to climb as well. He strapped on a

harness and helmet. His harness was inspected by the

specialist, and attached by a rope to an auto-belay system that

was assembled by Vertical Reality and contained parts

manufactured by Numatics.

4
Willner ascended approximately fifteen feet up the wall

before deciding to come down. When he pushed off the wall to

descend, the rope initially supported his weight, but suddenly

and rapidly lost all of its tension after he heard a loud noise.

Willner fell to the ground, fracturing his ankle.

Willner, who was sixteen at the time of the incident, and

his parents filed a complaint against Ivy League, Vertical

Reality, and Numatics, alleging strict products liability,

negligence, and per quod claims. After a period of discovery,

Ivy League was granted summary judgment and dismissed from the

case.

The remaining parties entered settlement negotiations and

Willner made an offer of judgment to the defendants in the

amount of $125,000, which he filed pursuant to Rule 4:58.

Neither party responded to Willner’s offer.

The claims against Vertical Reality and Numatics proceeded

to a jury trial. Willner’s strict liability claims against

defendants were based on theories of design defect,

manufacturing defect, and failure to warn.

At trial, Willner presented an expert in safety

engineering, who testified that Vertical Reality’s design of the

auto-belay system was inadequate for use on Ivy League’s rock

wall. According to the expert, the system should have supported

5
the weight of a 250-pound person -- Willner’s approximate weight

at the time of his accident. The expert testified that the

cylinders specified in the designs of the auto-belay system

supported 250 pounds per square inch. The expert further

testified that, because the fall of a 250-pound person would

create far more force than 250 pounds per square inch, the auto-

belay system was inadequately designed.

Willner’s expert also opined that Numatics’ cylinders were

defectively manufactured, containing “void”-filled retainers.

Numatics produced an expert who testified that, despite the

voids found in the cylinders’ retainers, the retainers were

“manufactured in a manner that was reasonably fit, suitable, and

safe for [their] ordinary and reasonably foreseeable purposes on

[a] 250 PSI rated cylinder.”

Throughout trial, evidence was submitted regarding

Numatics’ conduct both before and after the incident. That

evidence related to Numatics’ knowledge of its cylinders’

deficiency, its failure to evaluate the safety of its products,

and its failure to repair deficient cylinders already in use.

Prior to summation, the court dismissed the design defect

and failure to warn claims, allowing Willner to proceed only on

his strict liability claim of manufacturing defect against

Numatics. Although any need for evidence of Numatics’ conduct

was thereby obviated, during summation, Vertical Reality’s

6
counsel again underscored Numatics’ alleged malfeasance in using

substandard parts in the construction of its cylinders “because

[they were] cheaper.” Numatics objected and moved for a

mistrial. The trial court denied the mistrial motion, but

instructed the jury to disregard counsel’s comments concerning

Numatics’ conduct, explaining that evidence of Numatics’ actions

was not relevant to the remaining issues in the case.

Following summations, Numatics requested that the trial

court give the following instruction to the jury regarding the

applicability of Numatics’ conduct in the context of Willner’s

manufacturing defect claim:

In a products liability case such as this one,
negligence is not an issue for your
consideration. You are not to focus on the
conduct of the parties. Rather, the issue for
your determination is on the condition of the
products that have been alleged to be
defective. . . . Likewise, if you find that
a product is not defective, then you must find
that in favor of that defendant as to
plaintiff’s claim, regardless of that
defendant’s conduct.

The judge denied that proposal and instead provided an

instruction that substantially mirrored Model Jury Charges

(Civil), 5.40B, “Manufacturing Defect” (2009):

Plaintiff has made a manufacturing defect
allegation against the Defendant, Numatics,
alleging that the cast retainer that was on
the cylinder at the time of the accident
contained a void and was weaker and therefore
rendered it defective. Numatics denies this
claim.

7
Let me give you some applicable concepts when
dealing with the claim of a manufacturing
defect, and then I’ll explain what the
Plaintiff must prove to establish a defect in
manufacturing.

So, a manufacturing defect may be established
by proof that as a result of a defect or flaw,
which happened during the production, or while
in Defendant’s control, the product was unsafe
and that unsafe aspect of the product was a
substantial factor in causing the Plaintiff’s
accident.

To establish this claim for a manufacturing
defect, the Plaintiff must prove the following
elements by a preponderance of the credible
evidence: that the cylinder contained a
manufacturing defect, which made the product
not reasonably safe. To determine if the
cylinder had a manufacturing defect, you must
decide what the condition of the cylinder as
planned should have been according to
Numatics’ design specifications or
performance standards and what its condition
was as it was made.

If you find there’s no difference between
these two conditions, then there’s no
manufacturing defect. If there was a
difference you must decide if that difference
made the cylinder not reasonably safe for its
intended or reasonably foreseeable uses. If
the answer is yes, then you found the cylinder
to be defective. Plaintiff need not prove
that Numatics knew of the defect, nor that
Numatics caused the defect to occur.

Numatics’ attorney requested a meeting with the judge at

sidebar for clarification during the judge’s reading of that

charge, which the judge granted. The following conversation

occurred:

8
Counsel: I assume, Judge, that if you made
the request in writing and you did not
instruct it, there’s no way to reiterate it?

. . . .

Counsel: If we made a request in writing that
was omitted, for example, the negligence
language. There’s no need to address it any
further at this point? You’ve ruled?

The Court: I think I -- I thought I ruled on
everything this morning?

Counsel: Exactly. I just wanted to make sure.
Thank you, Judge.

No formal objections were made to the judge’s jury instruction

as given.

During jury deliberations, the judge rejected the jury’s

request for a written copy of the judge’s instructions, but re-

read back his instruction related to the manufacturing defect

claim.

The jury then sent a note to the judge, asking if it could

still assign percentages of fault to both defendants if it found

that Numatics’ cylinder was not manufactured defectively.

Numatics’ counsel expressed concern, asserting that the jury’s

note cast doubt on the jury’s “understanding of the law and its

application.” The judge answered the jury’s question in the

negative, instructing the jury that if it found that there was

no manufacturing defect in Numatics’ cylinder, it could not then

allocate any fault to Numatics.

9
The jury found that: Vertical Reality’s rock wall was

designed defectively and was a proximate cause of Willner’s

fall; Vertical Reality provided inadequate warnings, which were

a proximate cause of Willner’s fall; and Numatics’ product was

manufactured defectively and was a proximate cause of Willner’s

fall. The jury awarded Willner a total of $358,000, allocating

seventy and thirty percent liability to Vertical Reality and

Numatics, respectively.

Willner filed a notice of motion for attorney fees and

costs, pursuant to Rule 4:58, which Numatics opposed. Following

a hearing, the trial court awarded attorney fees of $62,963.00,

costs of $12,160.83, and prejudgment interest of $115,727.70 as

requested pursuant to Rule 4:58.

Numatics appealed to the Appellate Division, contesting the

trial judge’s failure to instruct the jury regarding the trial

evidence related to its conduct and the award of attorney fees

and costs under Rule 4:58. With respect to the latter issue,

Numatics argued that the trial court erred in granting Willner’s

motion for sanctions because its molded share of the total

verdict ($107,400) did not exceed 120% of Willner’s $125,000

offer of judgment.

The appellate panel affirmed in an unpublished per curiam

opinion.

10
Concerning the part played by evidence of Numatics’ conduct

in the jury’s deliberations, the panel found that because

Numatics did not request a limiting instruction at trial, the

trial court’s decision not to provide one should be reviewed for

plain error. Employing that standard, the panel found that the

trial judge “provided the jury with a succinct and accurate

instruction” in response to the jury’s question regarding the

interplay between manufacturing defect and fault. The panel

concluded that the trial judge’s “pre- and post-deliberation

instructions were proper and appropriate and did not constitute

error, let alone plain error.”

Finally, the panel found that our case law “does not compel

the use of molded judgments in determining” whether sanctions

should be awarded under Rule 4:58. Rather, the panel relied on

Gonzalez v. Safe & Sound Security Corp.,
185 N.J. 100, 124

(2005), and found that the appropriate figure to compare with

the amount of the offer is “the amount of the jury’s verdict.”

Accordingly, the panel found that because the jury verdict of

$358,000 was greater than 120% of the $125,000 offer of

judgment, the trial court’s award of fees and costs was

appropriate.

Numatics filed a petition for certification with this

Court, challenging: (1) the standard that the Appellate

Division employed in its review of the trial judge’s jury

11
instructions; (2) the trial court’s instructions; and (3) the

award of sanctions under Rule 4:58. We granted certification,

231 N.J. 197 (2017), and amicus curiae status to the New Jersey

Association for Justice (NJAJ).

II.

Numatics contests the Appellate Division’s plain error

review of the trial court’s jury instruction. In doing so,

Numatics rejects the Appellate Division’s finding that it “did

not object to the absence of a jury instruction as to the

treatment of conduct evidence in the jury charge, which it now

claims requires a new trial.” Numatics believes that its

counsel’s jury charge request was sufficient to preserve the

issue for appeal pursuant to Rule 1:7-2. Therefore, relying on

Panko v. Flintkote Co.,
7 N.J. 55 (1951), and Brown v. Kennedy

Memorial Hospital-University Medical Center,
312 N.J. Super. 579

(App. Div. 1998), Numatics asserts that the Appellate Division

should have evaluated the trial court’s actions for “whether

[they] created the potential for improper influences . . . on

the jury’s verdict[,] thereby requiring a new trial.”

Numatics argues that this failure to deliver the requested

jury instruction led to confusion -- evidenced by the jury’s

question during deliberation -- and, ultimately, to a wrongful

verdict against it. According to Numatics, the proper inquiry

12
in a manufacturing defect claim focuses solely on the safety of

the product, rather than the reasonableness of the

manufacturer’s conduct. Thus, while Numatics concedes that

“evidence of [its] conduct was conditionally relevant and

thereby admissible at trial,” it stresses that, once the design

defect and failure to warn claims against it were dismissed, “it

became incumbent upon the trial court and the parties to ensure

that the jury’s use of this information was limited to the scope

of this information’s relevance.”

Finally, Numatics disputes the Appellate Division’s award

of attorney fees and costs under Rule 4:58. Numatics argues

that under this Court’s decision in Wadeer v. New Jersey

Manufacturers Insurance Co.,
220 N.J. 591 (2015), for the

purposes of offer of judgment sanctions, plaintiffs’ offers

should be compared to defendants’ actual, proportionate

liability -- not the jury verdict in total. Numatics impresses

that “[a]ny other result would be incongruous, as it would

subject individual defendants to sanctions based on the

collective liability of all defendants, including those with

different legal and financial interests.” Therefore, Numatics

contends that because the jury’s verdict apportioned thirty

percent of the liability to Numatics, its share of the verdict

was $107,400 -- less than the $125,000 offer of judgment itself,

let alone 120% greater than the same.

13
B.

Willner urges the Court to affirm the Appellate Division’s

opinion, first agreeing that plain error was the correct

standard to apply in reviewing the trial court’s jury

instructions regarding conduct evidence because Numatics’

“counsel never objected to the [trial judge’s] instruction or

requested a limiting instruction.” Willner avers that because

conduct evidence was, in fact, relevant to all facets of his

claims at trial, the trial court’s instructions did not amount

to reversible, plain error.

Willner also notes that Wadeer was narrowly decided in the

uninsured/underinsured motorist (UM/UIM) setting and that

Numatics mistakenly attempts to broaden the reach of that

decision. Willner emphasizes that Gonzalez clearly dictates

that the criteria for sanctions under Rule 4:58 compare the

total jury verdict to the plaintiff’s total offer. Thus,

Willner urges this Court to affirm the trial court’s imposition

of attorney fees and costs.

NJAJ supports Willner’s argument that the trial court and

Appellate Division properly interpreted Rule 4:58 in imposing

sanctions on Numatics. NJAJ highlights the plain language of

the rule, which expressly compares “a monetary judgment” to the

offer. (quoting R. 4:58-1). NJAJ advises that “[i]f the Rule

14
was to apply to the judgment based upon fault, the plain

language should reflect that requirement.” NJAJ therefore urges

this Court to adhere to our decision in Gonzalez, where we held

that the amount of an offer is to be related to the jury’s full

verdict, rather than the amount of each defendant’s respective

liability.

NJAJ argues that, if we decide that a money judgment should

be allocated by the molded verdict’s percentage of fault, we

should similarly allocate the original offer by that percentage

as well. NJAJ explains that Numatics would still be liable for

sanctions under that framework because the portion of damages

for which the jury found it liable ($107,400) exceeded 120% of

its thirty percent proportion of Willner’s offer ($45,000).

Consequently, NJAJ recommends that we affirm the trial court’s

award of attorney fees and costs.

III.

We address first the issue of the trial judge’s jury

instruction regarding evidence of Numatics’ conduct that was

adduced at trial.

Strict products liability claims are governed by
N.J.S.A.

2A:58C-2, which provides that

[a] manufacturer . . . shall be liable . . .
if the claimant proves by a preponderance of
the evidence that [a] product causing the harm

15
was not reasonably fit, suitable or safe for
its intended purpose because it . . . deviated
from the design specifications . . . of the
manufacturer . . . or . . . failed to contain
adequate warnings . . . or . . . was designed
in a defective manner.

Thus, strict liability claims can be brought by claimants under

three theories of liability: manufacturing defect, failure to

warn, or design defect.

A successful showing of the latter two theories necessarily

implicates the defendant manufacturer’s conduct. Feldman v.

Lederle Labs,
97 N.J. 429, 451 (1984) (“When the strict

liability defect consists of an improper design or warning,

reasonableness of the defendant’s conduct is a factor in

determining liability.”).

Conduct evidence, however, is never relevant to a claim of

manufacturing defect. Under that theory of strict products

liability, the only inquiry for the factfinder to make is

whether the product in question was assembled “in a substandard

condition based on the manufacturer’s own standards or identical

units that were made in accordance with the manufacturing

specifications.” Myrlak v. Port Auth. of N.Y. & N.J.,
157 N.J.
84, 98 (1999). A factfinder’s sole responsibility in those

cases is to evaluate (1) the manufacturer’s design

specifications and (2) the actual condition of the product that

allegedly caused the claimant harm, and compare the two.

16
Numatics therefore argues that once the failure-to-warn and

design-defect claims against it were dismissed at trial, the

judge should have issued a limiting instruction, explaining to

the jury that any evidence of Numatics’ conduct that was

proffered at trial was not relevant to the remaining claims.

Numatics contends that the judge’s eventual jury instruction was

insufficient and constituted reversible error because it caused

jury confusion, as evidenced by the question posed during

deliberation.

Pursuant to Rule 1:7-2, in order to preserve an issue for

appeal, “a party . . . shall make known to the court

specifically the action which the party desires the court to

take or the party’s objection to the action taken and the

grounds therefor.” Such an objection may be offered “in open

court, in the absence of the jury.” R. 1:7-2.

“Without an objection at the time a jury instruction is

given, 'there is a presumption that the charge was not error and

was unlikely to prejudice the defendant’s case.’” State v.

Montalvo,
229 N.J. 300, 320 (2017) (quoting State v. Singleton,

211 N.J. 157, 182 (2012)). Therefore, “the failure to object to

a jury instruction requires review under the plain error

standard.” State v. Wakefield,
190 N.J. 397, 473 (2007) (citing

State v. Bunch,
180 N.J. 534, 541 (2004)). Under that standard,

“[a]ny error or omission shall be disregarded by the appellate

17
court unless it is of such a nature as to have been clearly

capable of producing an unjust result.” R. 2:10-2. We have

held that merely suggesting a jury instruction to the trial

judge is not sufficient to preserve an issue for appeal or to

preclude plain error review -- the appealing party must have

objected to the instruction as given to do so. Dynasty, Inc. v.

Princeton Ins. Co.,
165 N.J. 1, 17-18 (2000).

When a party has brought an alleged error to the attention

of the trial court, though, the error “will not be grounds for

reversal [on appeal] if it was 'harmless.’” State v. J.R.,
227 N.J. 393, 417 (2017) (quoting State v. Macon,
57 N.J. 325, 338

(1971)). An error cannot be harmless if there is “some degree

of possibility that [the error] led to an unjust result.” State

v. Lazo,
209 N.J. 9, 26 (2012) (alteration in original) (quoting

State v. R.B.,
183 N.J. 308, 330 (2005)). For an error to be

reversible under the harmless error standard, “[t]he possibility

must be real, one sufficient to raise a reasonable doubt as to

whether [the error] led the jury to a verdict it otherwise might

not have reached.” Ibid. (quoting R.B.,
183 N.J. at 330).

With those principles in mind, we affirm the opinion of the

Appellate Division with respect to the jury instruction issue.

18
Regarding the applicable standard of review, we disagree

with the appellate court and also reject Numatics’ request to

adopt a standard unfounded in our case law.

Numatics urges us to apply the holdings of Panko and Brown

to review the trial judge’s instruction for whether it

improperly influenced the jury, resulting in jury confusion.

But such an argument misconstrues the thrust of those cases. In

both, the alleged impact on the jury’s verdict was created by

extraneous sources. See Panko,
7 N.J. at 60 (granting new trial

after non-party placed telephone call to juror to obtain

“information which would have a bearing on the verdict in the

pending case”); Brown,
312 N.J. Super. at 589-91 (affirming

grant of new trial after exhibits not meant for jury were left

in jury room and viewed by jurors). As no such outside

interference has been alleged here, that line of cases provides

no guidance to our analysis in the instant appeal.

The proper standards of review of jury instructions are

well-settled: if the party contesting the instruction fails to

object to it at trial, the standard on appeal is one of plain

error; if the party objects, the review is for harmless error.

Although offering a jury instruction alone is not adequate

to preserve an issue for appeal under Rule 1:7-2, Dynasty,
165 N.J. at 17-18, Numatics’ counsel did more than suggest a charge.

Counsel also requested a sidebar with the judge after the jury

19
was instructed to confirm the judge’s decision not to adopt

counsel’s preferred charge and to confirm that no further

objection was necessary. We find that such a post-instruction

colloquy is sufficient to preserve Numatics’ right to contest

the charge on appeal pursuant to our rules. See R. 1:7-2. The

standard of review for Numatics’ challenge is thus harmless

error.

Assessing Numatics’ argument through that lens, we hold

that the judge’s actions, if error, were harmless. It is clear

that while evidence of Numatics’ conduct was certainly germane

to Willner’s failure to warn and defective design claims, it was

rendered irrelevant by the dismissal of those causes of action.

We agree with the Appellate Division that a limiting instruction

would have been appropriate at that time. However, in the

absence of such an instruction, the judge acted appropriately to

direct the jury’s attention away from any newly irrelevant

evidence of Numatics’ negligence. When Vertical Reality’s

counsel highlighted Numatics’ misconduct in summation, the judge

quickly instructed the jury that such evidence was not to be

considered. Further, the judge’s adoption of the model charge

for Willner’s remaining manufacturing defect claim effectively

informed the jury of the only evidence necessary for its

decision. Consequently, there was no genuine possibility that

20
the judge’s actions led the jury to reach a verdict it otherwise

would not have reached.

We accordingly affirm the Appellate Division’s ruling on

the trial judge’s instruction.

IV.

We turn now to the trial court’s award of attorney fees and

costs.

The offer of judgment rule, R. 4:58, was “designed . . . as

a mechanism to encourage, promote, and stimulate early out-of-

court settlement of . . . claims that in justice and reason

ought to be settled without trial.” Schettino v. Roizman Dev.,

Inc.,
158 N.J. 476, 482 (1999) (quoting Crudup v. Marrero,
57 N.J. 353, 361 (1971)). To incentivize such pre-trial

settlement, “the rule imposes financial consequences on a party

who rejects a settlement offer that turns out to be more

favorable than the ultimate judgment” by a certain amount.

Ibid.

To invoke the rule, “any party may, at any time more than

20 days before the actual trial date, serve on any adverse

party, without prejudice, and file with the court, an offer to

take a monetary judgment in the offeror’s favor . . . for a sum

stated therein.” R. 4:58-1(a).

Generally, when a suit involves one plaintiff and one

defendant, “if the offer of a [plaintiff] is not accepted and

21
the [plaintiff] obtains a money judgment, in an amount that is

120% of the offer or more,” the plaintiff shall be awarded

sanctions, consisting of attorney fees, expenses, and costs of

suit, including prejudgment interest, from the defendant from

the time of the offer. R. 4:58-2(a). Conversely, in single

plaintiff-single defendant cases, when the defendant makes the

offer of judgment in accordance with Rule 4:58-1, if the

plaintiff obtains a money judgment that is “favorable to the

[defendant] as defined by this rule,” the defendant is awarded

sanctions. R. 4:58-3(a). “A favorable determination . . .

under this rule is a money judgment . . . in an amount . . .

that is 80% of [defendant’s] offer or less.” R. 4:58-3(b).

Rule 4:58-4(b) attempts to outline the respective sanctions

framework for offers of judgment made by plaintiffs in cases

involving a single plaintiff seeking a joint and several

judgment from multiple defendants. It deals particularly with

the role of counteroffers. Pursuant to that rule, if the

plaintiff makes a global offer of judgment to all defendants and

a single defendant makes a counteroffer of less than his pro

rata share of the plaintiff’s offer, calculated by dividing the

amount of the plaintiff’s offer by the number of defendants in

the case, the defendant’s counteroffer cannot be deemed an

acceptance of the plaintiff’s offer. R. 4:58-4(b). However, if

a single defendant makes a counteroffer “that is no less than”

22
80% of its share of an eventual jury verdict -- as determined by

the percentage of fault allocated by the jury -- it would be

“inequitable” to impose sanctions on the counteroffering

defendant. Pressler & Verniero, Current N.J. Court Rules, cmt.

6.1 on R. 4:58 (Pressler, cmt. 6.1); see also R. 4:58-4.

The rule leaves unclear the circumstances triggering the

imposition of sanctions on an individual defendant when a single

plaintiff makes a global offer to multiple defendants, there is

no acceptance of the offer, and no counteroffer is made in

response.

Each of the parties in this case argues that either Wadeer

or Gonzalez should govern our decision here because the

rationales guiding those decisions are applicable here. But

both of those cases were decided in explicitly limited

circumstances not present here.

In Wadeer, we determined that comparing the amount of a

reduced verdict with an offer amount in the UM/UIM context was

inappropriate because the lessening of the verdict was performed

by the judge to conform to the plaintiff’s insurance policy’s

limit, not to “reflect allocation of liability.”
220 N.J. at
611. We held that any other outcome would contravene the aims

of Rule 4:58 because insurance carriers would have no incentive

to settle the case for an amount reasonably beneficial to

plaintiffs, knowing that the amount measured against the offer

23
can only be as high as the policy limit. Ibid. Our reasoning

was similar in Gonzalez: in our Rule 4:58 sanctions inquiry, we

declined to use a verdict that was artificially lowered by a

decree of a bankruptcy court because doing so would disregard

the rule’s purpose of incentivizing settlement.
185 N.J. at
124-25. Here, Willner’s verdict was molded only by the jury’s

apportioning of fault. Our analyses in Wadeer and Gonzalez are

therefore irrelevant.

Moreover, neither of those cases directly addresses the

requirements of Rule 4:58-4. They rely solely on the language

of Rule 4:58-2. See Wadeer,
220 N.J. at 611-12; Gonzalez,
185 N.J. at 124-25. Rule 4:58-2 provides for the award of fees and

costs to a plaintiff when the jury’s verdict is greater than

120% of its offer to a defendant. Comparing the jury’s full

award of damages to a plaintiff to a single plaintiff’s offer of

judgment is uncomplicated. Doing the same in the joint and

several liability setting is not.

We have found that, in offering judgment to multiple

defendants, “plaintiffs are permitted to act in respect of the

total judgment.” Schettino,
158 N.J. at 483; Pressler, cmt. 6.1

(“[T]he intention of R. 4:58-4 is to permit the [plaintiff] to

deal exclusively in terms of the total judgment rather than to

require him to accept pro rata shares from individual

defendants.”). Forcing plaintiffs to negotiate individually

24
with defendants in settlement negotiations would create an

unfair risk of settling with defendants that are ultimately

found by juries to be significantly liable, for a smaller amount

than the percentage of fault allocated to those defendants. The

onus of that risk would “shift to plaintiffs, when evaluating

the fairness of a settlement offer, the burden of determining a

single defendant’s share of liability.” Schettino,
158 N.J. at
484. Thus, we have held that “plaintiffs need consider only an

offer to settle the entire liability on behalf of all

defendants.” Ibid.

By the same token, mandating that individual defendants

contemplate global offers from a single plaintiff, as advanced

by Willner, is problematic as well. Such a requirement would

force defendants who are likely less liable than their co-

defendants to consider settling for an amount greater than their

individual liabilities, simply to avoid significant sanctions.

This case illustrates the problem. The jury awarded

Willner a total of $358,000 and found Numatics thirty percent

responsible for those damages. Numatics’ molded share of

liability was therefore $107,400. Willner’s offer of judgment

was for $125,000, presented to all defendants. Under Willner’s

view, because the total verdict was greater than 120% of his

offer, Numatics is liable for sanctions. This interpretation

would dictate that the only way Numatics could have escaped an

25
award of sanctions would have been to accept Willner’s global

offer -- for an amount greater than the amount that Numatics was

ultimately determined to be at fault. We find such an outcome

to be unfair.

Our offer of judgment rule must balance the competing

interests of plaintiffs and defendants.

The effect of the offer of judgment rule and how it should

operate in this case is unclear. If the sanction of fee

shifting is to be awarded, there must be advance notice of that

consequence. Here, that did not happen. Consequently, it would

be improper to shift fees and costs in this circumstance.

Accordingly, we affirm the judgment of the Appellate

Division with respect to the jury instruction, but reverse with

respect to the award of attorney fees and costs.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA’s
opinion.

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