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The New Jersey state judiciary has issued model civil jury charges that implement a new standard of proof in automobile crashworthiness cases, making it clear that automakers now have the burden of proving their vehicles provide occupants adequate protection. The new charges, published last week and effective immediately, come amid what practitioners say is a recent upswing in crashworthiness claims. The instructions include a note reminding judges that such cases are “extremely complex, varied and fact sensitive.” The charges draw from New Jersey Appellate Division rulings in two automotive product liability suits that established a standard for apportioning damages between the first collision, in which the plaintiff’s car hits another vehicle or object, and the second collision, an event inside the vehicle — such as intrusion of the roof — that causes injuries. The model instruction asks the jury to determine whether the vehicle as designed was crashworthy based on the principles of reasonable, safer alternative designs. “If the defendant vehicle manufacturer/designer claims that all or part of the injuries would have occurred anyway, then the defendant, not the occupant of the vehicle, has the burden of proving what part/percentage of the plaintiff occupant’s injuries would have occurred even if reasonable alternative safer designs had been supplied in their vehicle,” the new jury instructions state. “If the defendant can prove that an apportionment can be reasonably made, separating those injuries the occupant would have suffered anyway, even in a crashworthy vehicle, from those enhanced injuries the plaintiff occupant suffered due to the absence of reasonably safer designs, then the defendant’s liability would be limited only to that portion/percentage of the injuries the defendant proves is related to the plaintiff’s increased or enhanced harm,” the new jury instructions state. The instructions are filled with blank spaces where plaintiffs’ lawyers fill in their specific design element claims, such as inadequate interior padding or lack of roof reinforcement. In one of the rulings that led to the charges, Poliseno v. General Motors Corporation, 328 N.J. Super. 41 (2000), the court held that a plaintiff in a crashworthiness claim must establish only that a vehicle defect “increased or enhanced the injury” and “that the presence of the alleged defect was a substantial factor in producing an injury that would not have occurred, or would have been substantially diminished, in the absence of the defect.” Having shown that the defect was a substantial factor, the plaintiff need not show the extent that the second collision enhanced the injury. “Rather, if the defendant seeks credit against the verdict for an injury that it claims resulted, in part, from the first collision, defendant shall have the burden of proof on that issue,” Judge John Keefe wrote in an opinion joined by Judges James Havey and Jack Lintner. In Poliseno, a jury found that defective door beam welds in a 1985 Chevrolet Corvette caused enhanced injuries to the plaintiff’s husband, who died in the crash. The jury found the defective welds were 20 percent responsible for the driver’s death and the accident itself was 80 percent responsible. But the appeals court ruled that, contrary to the trial court’s jury instructions, the plaintiff was not obligated to prove what injury, if any, the driver would have suffered if the welds were not defective. The new instructions have a familiar ring to Maurice Donovan, the plaintiff’s lawyer in Green v. General Motors Corporation, 310 N.J. Super. 507 (1998), the other ruling that spawned the new charges. When he was trying the case, lawyers had to use a modifed version of a product liability jury charge, says Donovan, of the Law Offices of Benjamin Del Vento in West Orange, N.J. “When we went over the Green charge, we spent hours and hours on it,” Donovan says. “When you try to use the general product liability charge, it’s so confusing to try to apply it in this framework. Jurors would just sit there with their faces glazed over. This is going to make it much clearer for jurors.” Donovan’s client was a 24-year-old auto dealership employee rendered paralyzed after colliding with a school bus in a brand new Chevrolet Camaro IROC Z28 he was driving in excess of 50 mph in a 25 mph zone. Donovan argued that the Camaro’s removable “T-roof” panels made the vehicle less crashworthy and made Green’s injuries more severe. The new charges adopted the Green court’s holding that foreseeable conduct by plaintiff should be excluded from consideration of vehicle design or manufacturing defect claims. Such foreseeable conduct is also unavailable as a comparative negligence defense, according to the ruling by Judge William Dreier, who was joined by Judges Paul Levy and Barbara Byrd Wecker. The cases and jury charges form the latest extension of a strict liability doctrine established in 1960 in Henningsen v. Bloomfield Motors, 32 N.J. 358, in which the New Jersey Supreme Court found that an express warranty did not negate the implied warranty of fitness. “As far as I’m concerned, the consumer’s rights are advanced every time the burden of establishing the safety of a product is shifted to the manufacturer,” says Gerald Baker of Hoboken, N.J.’s Baker, Garber, Duffy & Pedersen, who represented the plaintiff in Henningsen. Thomas Vesper, of West Atlantic City, N.J.’s Westmoreland, Vesper & Schwartz, hails the new charges but predicts they won’t answer every question in jurors’ minds. “This is a wonderful set of instructions which I think could be a little clearer,” says Vesper, who represents plaintiffs in automobile injury suits. He says the charges need a clearer definition for the terms “crashworthiness” and “substantial factor.” “It can be 1 percent, as long as that 1 percent was a meaningful event in this causation chain of events,” Vesper says. While the new charges are plaintiff-friendly, they still require plaintiffs to establish a defect, which is a very high burden, says Thomas Moore, a partner at Carpenter, Bennett & Morrissey in Newark, N.J., who has defended the Ford Motor Co. in product liability suits. Moore was unfazed by the new challenge he is likely to face in such suits. “It’s no big surprise, after reading the court’s opinions in Green and Poliseno. Those two opinions were rather cutting edge. I give the committee credit for an attempt to put down a jury instruction that courts can follow.” Moore doesn’t plan any change in strategy in light of the new charges. “You evolve when you read the opinion and you attempt to deal with every case as it comes in, to do the best you can,” he says.

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