SUSAN CONFESSORE VS. AGCO CORPORATION (L-0797-14, MONMOUTH COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0947-18T1

SUSAN CONFESSORE, as
ADMINISTRATRIX for the
ESTATE OF MICHAEL J.
CONFESSORE, deceased,
and SUSAN CONFESSORE,
individually,

          Plaintiffs-Appellants,

v.

AGCO CORPORATION,

          Defendant-Respondent,

and

WEMROCK ORCHARDS,
INC., and HIGHTS FARM
EQUIPMENT COMPANY,

     Defendants.
________________________

                   Argued October 5, 2020 – Decided November 16, 2020

                   Before Judges Sabatino, Currier and DeAlmeida.
              On appeal from the Superior Court of New Jersey, Law
              Division, Monmouth County, Docket No. L-0797-14.

              Peter Chamas argued the cause for appellant (Gill &
              Chamas, LLC, attorneys; Jeffrey Zajac, Peter Chamas
              and William A. Bock, on the briefs).

              Jacob Lehman argued the cause for respondent
              (German, Gallagher & Murtagh, attorneys; Jacob
              Lehman, on the brief).

PER CURIAM

        This appeal arises from a jury’s no-cause verdict in a products liability

case.

        Plaintiff’s husband was killed in 2013 when a farm tractor he was

operating at an orchard flipped over while attempting to remove a tree. The

tractor was manufactured in 1975 by defendant’s business predecessor in

interest. Plaintiff and her experts claimed the tractor was defectively designed

because it lacked a rollover protective system (a “ROPS”), which might have

spared her husband’s life.

        In response, defendant and its experts contended the tractor was built in

conformity with the industry's state of the art as of time of its sale in 1975. They

maintained that a ROPS was not installed in 1975 for “low profile” tractors of

the kind used in orchards, where low hanging branches could interfere with the

elevated ROPS attachment.        Defendant also argued that a “foldable” (or

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"collapsible") ROPS, which plaintiff suggested as a design alternative, was not

feasible in 1975, nor practical.

      On appeal, plaintiff mainly challenges various aspects of the instructions

provided to the jury on design defect principles. She also contends the verdict

form was deficient, and that the judge made erroneous and prejudicial

evidentiary rulings during the trial.

      For the reasons that follow, we affirm.

                                        I.

      As of the time of this fatal accident in 2013, decedent Michael J.

Confessore was a nighttime operations manager at AT&T.           He lived with

plaintiff Susan Confessore and their eighteen-year-old son.

      Plaintiff and her husband were long-time friends of Lisa Giunco and

Richard Giunco, a sister and brother who owned Wemrock Orchards (formerly

known as Twin Lakes Orchard) in Freehold. The Giunco family owned the farm,

a large portion of which was orchards, since around the 1950s.

      Plaintiff worked part time at Wemrock.        Decedent initially helped

sometimes with school tours and hayrides at the farm. After Hurricane Sandy,

decedent began to work part-time at Wemrock, removing trees from the orchard

that had fallen in the storm.


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      The Accident

      Martin Becktel, who was working with decedent during the fatal incident,

had been at Wemrock for about a year when the accident occurred. Becktel

explained the tree removal process. Typically, Becktel would cut a tree and then

hook it to the tractor by wrapping a chain around it. Then decedent would drive

the tractor, pulling the tree off to the side. According to Becktel, sometimes a

tree would be really "grown in, so [they] would have to rip it out."

      On the day of the accident, May 17, 2013, decedent and Becktel were

using the tractor for tree removal at Wemrock's property on Gravel Hill Road in

Manalapan. While decedent was driving the tractor, a tree he was trying to

remove would not budge any further. The tractor went up in the air a few times,

and then flipped over, crushing decedent. It is undisputed he died from injuries

caused by the accident.

      The tractor decedent was operating was a Massey Ferguson ("MF") 255

model, which was manufactured in 1975. The tractor was sold to distributor

Hights Farm Equipment Company ("Hights") and ultimately purchased by

Wemrock in 1976 for use in the farm's orchards.1 Edward Szczepanik, the owner


1
  Before trial, plaintiff settled with Hights and voluntarily dismissed her claims
against Wemrock.


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of Hights, stated the tractor was "low profile," and was designed for use in

orchards.2

        Defendant AGCO Corporation purchased MF in 1994 and became its

successor in interest.     As the successor company, AGCO has assumed the

manufacturer's liabilities and defenses for the tractors it sold.

        Expert Testimony

        Most of the testimony at trial centered on the parties' experts' differing

opinions as to whether the tractor had a design defect. 3 We first summarize

some of the main points the experts agreed upon or did not contest. 4

        The key and undisputed usefulness of a "low profile" tractor is its ability

to work in areas, like orchards and barns, that have limited overhead space.

While the opposing experts differed as to whether the tractor in this case should

be classified as "low profile," they agreed that it was a MF model 255 that had

certain "low profile" features. In particular, the experts agreed the tractor was

less than sixty inches tall and had a horizontal exhaust.           At the time, MF


2
  As we discuss, infra, the parties dispute whether the tractor was "low profile"
or a "standard" model with custom-made "low profile" features.
3
  The parties also presented competing experts on economic loss, which are not
germane to the liability issues on appeal.
4
    Neither party contests the qualifications of the opposing experts.
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produced three primary models: the 255, the 265, and the 275. All of those

models came in either "standard utility," "low profile," or "row crop"

configurations, depending on the purchaser's intended use.

      The experts recognized that in 1975 the incidence of rollovers was a

subject of concern in the tractor market. To discourage such accidents, tractors

typically included warning labels about the dangers of rollovers and the hazards

of "high hitching" (i.e., failing to attach a load to the tractor's drawbar when

being pulled).

                                   Plaintiff's Experts

      Kevin Sevart

      Plaintiff's main liability expert was Kevin Sevart, a mechanical engineer.

Sevart inspected the tractor involved in this accident and reviewed the witnesses'

depositions.

      Sevart testified it has been well recognized since the 1930s that

agricultural tractors sometimes flip over. Sevart noted that both Szczepanik and

Richard Giunco had specifically stated in their depositions that the tractor's

intended use was in orchards. Even so, Sevart opined that the tractor was an MF

255 "standard utility" tractor with a horizontal exhaust and "low profile" features

and not technically a "low profile" tractor.


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      Sevart noted that the manufacturer had ultimately developed a ROPS for

the MF 255 tractor. He opined a ROPS not only would have prevented the

tractor from rolling onto decedent, but that one was technologically and

economically feasible in 1975.

      According to Sevart, the presence of a ROPS would not have eliminated

the possibility of a rollover but would have reduced the harm to the operator.

He maintained that the MF 255 without a ROPS was unreasonably dangerous

and defective in design. He noted that by 1975, although not required, all United

States manufacturers of tractors offered some form of optional ROPS that could

be purchased for a nominal fee.

      Sevart acknowledged that the federal Occupational Safety and Health

Administration ("OSHA") requirements do not apply to a 1975 tractor. Even

today, "low profile" tractors are exempt from having a ROPS. Sevart also agreed

that it was not until 1985 that the American Society of Agricultural Engineering

Standards required a ROPS on tractors for the first time.

      Additionally, Sevart recognized that MF never sold a ROPS as standard

equipment, and that a ROPS available in 1975 would have impeded, to some

extent, the usefulness of a "low profile" tractor. Nonetheless, he asserted that

MF could have produced a foldable version of a ROPS in 1975.


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      In this regard, Sevart asserted there were at least three safer tractor designs

available at the time. For instance, as of 1966, manufacturers such as John Deere

included standard forward-mounted fixed ROPS on tractors used in orchards in

Europe. He also noted that a company in California had developed a limb-lifter

ROPS for use in orchards in the early 1970s. Further, companies like Caterpillar

(an industrial machinery company) had developed a folding system for

bulldozers, which he referred to as a ROPS, with what Sevart claimed was a

comparable technology needed for the MF 255.

      Sevart specifically noted the possibility that an appropriate hinge, a key

component in a folding ROPS, could have been developed at the time.

Moreover, Sevart pointed out that by the 1990s MF offered its customers the

opportunity to retrofit a ROPS for older model tractors.

      Scott Batterman

      Scott Batterman was plaintiff's expert in forensic engineering accident

reconstruction and biomechanics. During his brief trial testimony, Batterman

opined that the tractor's steering wheel crushed decedent's chest, and the failure

to have a ROPS was a causal factor in the injury. This opinion on causation was

not countered by the defense.




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                                    Defense Experts

      Defendant presented testimony from three experts who opined on design

defect issues.

      David Murray

      David Murray worked for AGCO as its director of product safety and

standards. The court qualified him as an expert in agricultural mechanical

engineering, product safety and design, safety and manufacturing standards, and

accident investigation.

      Contrary to Sevart, Murray opined that this particular MF 255 tractor was

designed to be "low profile." He pointed to the tractor's wheels, which were

smaller than usual, and its total height of less than sixty inches.

      Murray noted that operators of tractors are supposed to be trained in the

proper use of the equipment, and that OSHA requires yearly updates to that

training. According to Murray, in order for this accident to have occurred, the

tractor had to be pulling twice its capability. He explained that decedent had

been dangerously "high hitching" the tree to the tractor.

      As to the question of the use of foldable ROPS, Murray noted that such

safety devices developed over time because the devices needed to be able to fold

down in areas where overhead space was low.


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                                         9
      Beginning in the 1980s, MF was developing a foldable ROPS for "low

profile" tractors. After a change in regulations in the late 1980s, in 1993 MF

began offering a foldable ROPS that could be installed on older models at a

reduced price.     There was little profit made in producing them because,

according to Murray, most farmers were not interested in buying the ROPS for

their older tractors.

      Murray testified that while a hinge for a foldable ROPS may have been

feasible in 1975, the foldable ROPS itself was not possible at the time because

it required much more development. In addition, Murray asserted that Sevart's

suggested alternative ROPS designs developed by other companies were not

feasible and would not have prevented this injury. He noted that the limb lifter

model was not a ROPS by its nature. And, the Caterpillar design was also not a

folding ROPS, but instead a ROPS that could be collapsed to cover the steering

wheel for transport, but such a feature made the ROPS impractical. Moreover,

he claimed, in contrast to Sevart, that as of 1969 John Deere only offered a fixed

ROPS in its parts book, which he doubted was even a ROPS based on its design.

      Clyde Richard

      Clyde Richard was defendant's expert in human factors, mechanical

engineering, and accident reconstruction.


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      To develop his expert opinions for this case, Richard used an exemplar

tractor to do experiments with high hitching and low hitching.

       Richard explained that a tractor cannot flip over rearward, if it is hitched

properly, standing on level ground. According to Richard, the tractor in this

case was being misused when the accident occurred. He further opined the

tractor met the standards for a "low profile" model because of its wheels, exhaust

system, overall height, and fenders.

      Dennis Murphy

      Dennis Murphy was defendant's expert in agricultural safety. Murphy

agreed with the other defense experts that decedent and Becktel were using an

improper hitching technique, instead of hitching to the drawbar, which caused

the tractor to flip. He, too, opined this tractor was "low profile."

      The Verdict

      The trial judge presented an extensive jury charge explaining the legal

concepts of design defect. As part of that charge the jurors were provided with

a verdict form. The form contained a series of liability questions, culminating

with a final question on damages.           The first question, which addressed

defendant's dispositive state-of-the-art defense, read:

            1. Has the defendant Massey Ferguson, Inc. proven by
            a preponderance of the evidence that at the time the

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            tractor left its possession in 1975 there was no practical
            and technically feasible alternative design that would
            have prevented the plaintiff's injury without
            substantially impairing the reasonably anticipated or
            intended essential functions of the tractor?
                 ______ YES          ______ NO          Vote: ______


      This verdict query tracked the recommended model form. See Model Jury

Charges (Civil), 5.40D-4, "Design Defect – Defenses" (approved Apr. 1999; rev.

Oct. 2001). The form and the judge's oral instructions told the jurors that if they

answered this first question in the affirmative, they were to cease their

deliberations.

      On the second day of deliberations, the jury returned a unanimous 9-0

verdict, finding on Question #1 that defendant had met its burden of proof on

the state-of-the-art defense. Plaintiff did not move for a new trial.

      The Issues on Appeal

      This appeal ensued. In her brief, plaintiff argues that: (1) the court erred

in permitting defendant to present a state-of-the-art defense, and the jury should

not have been charged on that defense; (2) the verdict form was deficient by not

including a special factual interrogatory as to whether the tractor used by

decedent was a "standard" or a "low profile" tractor; (3) the charge confusingly

referred to principles of both "risk/utility" and "reasonably safer design"; (4) the

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charge should have included an instruction on "crashworthiness" concepts; (5)

the court erred in admitting evidence of negligence by decedent, Becktel, and

their employer Wemrock; (6) evidence of defendant's post-sale actions was

improperly presented; (7) the court erred in excluding evidence proffered by

plaintiff of a 1966 forklift patent; and, finally, (8) cumulative error.

                                         II.

       We first address plaintiff's various arguments that concern AGCO's

successful state-of-the-art defense, as well as alleged flaws in the jury charge on

liability.

                                         A.

       The New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to -11,

provides:

             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.
             [N.J.S.A. 2A:58C-2 (emphasis added).]


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      The statute establishes in N.J.S.A. 2A:58C-3 an absolute defense to design

defect liability, based on the "state-of-the-art" at the time the product was sold:

            a. In any product liability action against a manufacturer
            or seller for harm allegedly caused by a product that
            was designed in a defective manner, the manufacturer
            or seller shall not be liable if:

            (1) At the time the product left the control of the
            manufacturer, there was not a practical and technically
            feasible alternative design that would have prevented
            the harm without substantially impairing the reasonably
            anticipated or intended function of the product.

            [N.J.S.A. 2A:58C-3a(1) (emphasis added).]
      As elaborated in the Supreme Court's seminal opinion on the defense,

Cavanaugh v. Skil Corp., 

164 N.J. 1

, 4 (2000), the term "state-of-the-art" refers

to "the very safest product of that type which [an] industry could define at the

time of manufacture" or "a product for which [at the time] there was no

reasonable alternative design."

      A manufacturer that asserts a state-of-the-art defense has the burden to

prove what was the existing design technology when the product was

manufactured.

Ibid. However, a plaintiff

must show that such a reasonable

alternative design was feasible at the time.

Ibid. As the Court

in Cavanaugh explained:

            If a defendant can prove that there was no practical or
            technically feasible alternative design that both would

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            have prevented the harm and would not have
            substantially impaired the function of the product, the
            defendant cannot be held liable for failure to provide an
            alternative design.

            [

Id. at

6 (emphasis added; citations omitted) (quoting
            William A. Dreier, The Restatement (Third) of Torts:
            Products Liability and New Jersey Law—Not Quite
            Perfect Together, 50 Rutgers L. Rev. 2059, 2081-83
            (1998)).]

The Court added:

            The plaintiff . . . is usually required to show the
            existence of a reasonable alternative design. . . . Thus,
            a showing of feasibility is the plaintiff's responsibility.

            [Ibid.]

For a manufacturer to prevail on the state-of-the-art defense, there must be an

absence of "both a practical and technically feasible alternative."

Id. at

9-10.
      The state-of-the-art defense is not available if the danger can "feasibly be

eliminated without impairing the usefulness of the product." N.J.S.A. 2A:58C-

3a(2).5 It is the plaintiff's burden to prove this exception exists. Roberts v. Rich

Foods, Inc., 
139 N.J. 365
, 379 (1995) (citing N.J.S.A. 2A:58C-3a(2)).




5
  N.J.S.A. 2A:58C-3a(2) also provides an exception to the state-of-the-art defense,
not applicable here if the product is workplace equipment.


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      As part of the state-of-the art functionality analysis, the product's inherent

characteristics are relevant. "[A] feature of a product that is desirable but not

necessary is not an inherent characteristic: an inherent characteristic must be an

essential characteristic."
 

Id. at

382. 
However, "[t]he elimination of an essential

characteristic might not render the product totally useless, but it would

measurably reduce the product's appropriateness for its central function." Ibid.6

      Plaintiff argues the trial court erred in giving the state-of-the-art jury

instruction because the tractor was standard utility and should have been sold

with a fixed ROPS as mandatory, and not optional, equipment. According to

plaintiff's theory on this point, a fixed ROPS was available as early as 1968 and,

therefore, the lack of a fixed ROPS on a standard utility tractor was a design

defect because it rendered this tractor unsafe as a matter of law.

      Defendant does not dispute that it was selling a ROPS as optional

equipment on its standard tractors as of 1975. Hence, defendant essentially

conceded that if the tractor in this case was an unmodified standard tractor, the

state-of-the-art defense could not justify the omission of a ROPS.


6
  In addition, the existence or absence of a warning is generally not relevant to
the question of design defect. Saldana v. Michael Weinig, Inc., 
337 N.J. Super.
35
, 49 (App. Div. 2001) (citing N.J.S.A. 2A:58C-3). Although there was some
testimony at trial about labels that at one time may have been affixed to this
tractor, no failure-to-warn defect was asserted by plaintiff here.
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      Plaintiff's argument in this regard presupposes that the tractor was

standard utility and not, in any sense, low profile. In fact, this premise was hotly

contested at trial. All defense experts opined that the tractor was low profile or

had been modified from standard for use as low profile. They supported this

assertion by pointing to the tractor's lower height, smaller wheels, its exhaust

system, and fenders. As we noted already, the defense experts further stated that

a fixed ROPS would have interfered with the usefulness of a low profile tractor,

by adding height to the vehicle and preventing its use in environments such as

chicken coops, barns and orchards. Moreover, fact witnesses Richard Giunco

and Szczepanik each stated that the tractor was low profile and intended for use

in orchards.

      Plaintiff points to several places in the record to support her claim that the

tractor was not actually low profile.        She quotes, for example, Murray's

testimony that the tractor was a "standard tractor with low profile features,"

including shell fenders, low exhaust, low profile tires and a height below sixty

inches. She further highlights a page from an MF brochure stating the MF 255

and MF 265 models all came "standard," with three-point linkage for mounted

implements. Plaintiff also notes that Giunco owned other tractors, including an

MF 245, which was a "low profile model."


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      Having reviewed the record as a whole, we are satisfied there was ample

evidence from which a jury could have reasonably concluded that the tractor

was low profile, and, therefore, did not require a fixed ROPS. Among other

things, Murphy, Murray, and Richards all testified the tractor was low profile

either because of its wheels, exhaust system, fenders, height below sixty inches

or a combination thereof.

      Plaintiff does not dispute that at the time the tractor left defendant's

control in 1975, a low profile tractor did not require a fixed ROPS. Given the

reasonable factual support showing this was a low profile tractor, defendant

appropriately asserted the state-of-the-art defense. Hence, the court was correct

to deliver an instruction on state-of-the-art to the jury.

      In a related point, plaintiff contends the trial court committed reversible

error by declining to include a specific jury interrogatory on the verdict form,

requiring them to determine whether (a) the tractor was standard or (b) low

profile. We disagree.

      Special interrogatories on verdict forms are utilized to prompt 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." Sons of Thunders, Inc. v. Borden, Inc., 
148 N.J. 396
, 419 (1997)


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(quoting Wenner v. McEldowney & Co., 
102 N.J. Super. 13
, 19 (App. Div.

1968)). Claimed flaws in verdict interrogatories are generally not grounds for

reversal unless they are shown to be "misleading, confusing, or ambiguous."
 

Id. at

418.
      The trial court is reposed with substantial discretion in deciding whether

to include a special interrogatory on a verdict form, and, if so, how to phrase it.

See R. 4:39-2 (providing that the trial court "may submit to the jury, together

with forms for a general verdict, written interrogatories upon one or more issues

of fact the decision of which is necessary to a verdict.").

      Here, the trial judge did not abuse her discretion in sustaining defendant's

objection to plaintiff's requested query on the jury form. Plaintiff's binary

question, asking whether the tractor was either standard or low profile, ignores

the nuance and complexity involved in categorizing this particular tractor.

      Several witnesses used qualifying language in describing or classifying

this tractor. For example, defense expert Murray described the tractor as "a

standard tractor" with "low profile features." Another defense expert, Richard,

described the tractor as "a standard tractor made low profile," due to

modifications.




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      The classification of standard versus low profile defied a simple one-or-

the-other jury inquiry. The jury could have found it impossible to answer such

a binary question.    No judicial discretion was misapplied in omitting the

proposed query.

      Plaintiff further argues that even if the tractor was low profile, a foldable

ROPS was technically feasible and practical in 1975, and it was a design defect

for defendant not to include some type of ROPS as mandatory equipment.

Plaintiff contends this negates any reliance by defendant upon a state-of-the-art

defense. We disagree.

      To assert the state-of-the-art defense, defendant needed to show that at the

point the tractor left MF's control in 1975, there was no practical or technically

feasible alternative design that would have prevented decedent's injury. The

evidence reasonably bore out that, in 1975, the state-of-the-art in the tractor

industry was such that a foldable ROPS was not practical or technically feasible.

Data had not yet been accumulated indicating a ROPS was necessary on a low

profile tractor. Moreover, according to Murray's expert testimony, a folding

ROPS that would be used sometimes and folded at other times presented

significant risks that the tractor operator might forget to raise the ROPS after

leaving the low profile area.


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      Plaintiff argues the court erred in giving the state-of-the-art instruction

because defendant allegedly challenged only the practicality, and not the

technical feasibility, of including a folding ROPS in 1975. She spotlights

several portions of the record to support her claim.

      For example, defense expert Richard testified that a foldable ROPS was

technically feasible in 1975, but it just had not been done yet. But Richard then

elaborated, "[w]hat happens in engineering is there's an accumulation of data,

and there's some accumulation of data . . . then different things pop up. But

there hadn't been, at that point, I believe, an accumulation of data in the early

'70s." Richard also testified that a foldable ROPS in 1975 was not feasible

because it had not been engineered, proof tested, or field tested "to make sure it

wouldn't create accidents." In essence, Richard's opinion was that the state-of-

the-art in 1975 was such that the technical data had not yet indicated the need

for a folding ROPS on a low profile tractor and, therefore, one had not yet been

designed.

      Plaintiff also points to Murray's testimony that it would have been feasible

but not practical to design a folding ROPS in 1975. But Murray also testified

that low profile tractors were a "relatively small part of the market," and "it took

time to get the statistics" to determine the actual risk of having a low profile


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tractor where the driver might forget to put the ROPS back up when no longer

in a low profile situation. When asked whether in 1975 it was feasible to have

a hinge that connected a ROPS to a low profile tractor, Murray responded,

"[t]here's a lot more involved than just a hinge."

      Murray did ultimately acknowledge that it would have been feasible in the

1970s to do the necessary studies, but a foldable ROPS presented other serious

risks for operators of low profile tractors. He noted that, even currently, OSHA

regulations specifically state that a foldable ROPS on a low profile tractor is not

feasible.

      Murray testified that, although the component of a hinge was feasible in

1975, a foldable ROPS “was not feasible at that time.” Murray explained that

there was not yet a basis to ensure that such a hinge “was strong enough to meet

the qualifications of a ROPS at that point in time.”

      Murphy similarly testified that standards for such a device “hadn’t even

been invented yet.” He further noted that an OSHA Committee considered, and

apparently agreed with, testimony during the rulemaking process that it was “not

feasible” to require a ROPS on tractors used in low profile situations.




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      Lastly, Richard testified that a folding ROPS had not been designed or

"proof tested" for safety and was not “technically feasible and practical back in

1975.”

      Plaintiff contends that Murray and Richard “admitted” technological

feasibility by acknowledging the feasibility of a hinge component. However, a

jury reasonably could have found persuasive Murray’s caveat that it was not yet

technologically clear in 1975 that such a hinge would have met the strength

requirements for a foldable ROPS. She also points to testimony Richard gave

at his pretrial deposition agreeing that a foldable ROPS could have been built in

1975. But when confronted about that earlier statement on cross-examination at

trial, Richard explained the reason one had not yet been built as of 1975 was

because “there were too many unknowns.”

      Despite the attempted impeachment of these two witnesses by plaintiff's

skillful advocacy, the jury could have reasonably accepted their explanations,

along with Murphy’s own testimony and the lack of OSHA approval, and

concluded a foldable ROPS was not yet technologically feasible when this

tractor was manufactured. The record simply is not as one-sided as plaintiff

portrays it.




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      Plaintiff cites Barker v. Deere & Co., 
60 F.3d 158
, 166-67 (3d Cir. 1995),

for the proposition that the nonexistence of a safety device is not evidence of its

non-feasibility.   That case is readily distinguished because it specifically

analyzed Pennsylvania law, and not whether a jury should be instructed on New

Jersey's state-of-the-art defense. Also, as we have noted, several experts opined

that there were risks associated with a foldable ROPS, inasmuch as a tractor

operator might forget to raise it when leaving a "low profile" area. No data

existed in the 1970s establishing that the risks of such a foldable ROPS

outweighed the benefits.

      Viewing the record as a whole, there was substantial evidence presented

that it was not practical or technically feasible to design the folding ROPS in

1975, given that the data had not yet indicated the need for it. The jury was

appropriately asked to resolve whether these proofs supported defendant's

position. The court was correct to give the state-of-the-art instruction.

      Once defendant asserted the defense, it became plaintiff's burden to

establish that there was a superior design available that would not impair the

usefulness of the tractor. It was for the jury to decide whether defendant

correctly asserted the defense and whether plaintiff met her burden of proof.

The jury concluded on Question #1 that the defense had been established.


                                                                            A-0947-18T1
                                       24
      When determining on appeal whether jury instructions were erroneous,

the question is whether the charge was clearly capable of producing an unjust

result. Domurat v. Ciba Specialty Chems. Corp., 
353 N.J. Super. 74
, 93 (App.

Div. 2002). A reviewing court must consider the instructions as a whole to

determine whether they adequately conveyed the law and did not mislead or

confuse the jury.
 Ibid. Instructions given in 
accordance with the model charge,

or which closely track the model charge, are generally not considered erroneous.

Mogull v. CB Commercial Real Estate Grp., Inc., 
162 N.J. 449
, 466 (2000).

      To summarize, the trial court did not err in allowing defendant to present

a state-of-the-art defense at trial, and in so instructing the jury on that defense.

The court's instructions and verdict form on state-of-the-art closely tracked the

model jury charge for the state-of-the-art defense. The instructions and verdict

form were not capable of producing an unjust result or prejudicing substantial

rights. R. 2:10-2.

      The evidence reasonably supported a jury finding that the tractor was low

profile, and therefore there was no practical or technically feasible ROPS

available when the tractor left defendant's control in 1975.




                                                                            A-0947-18T1
                                        25
                                        B.

      Plaintiff argues the court erred in giving the jury instructions on both "risk

utility" and "reasonably safer design" concepts. At trial, there was extensive

discussion between counsel and the judge as to whether the court should give

the model instructions on both risk utility and reasonably safer design. The court

agreed that the overlap in the two charges could be confusing, but nevertheless,

decided to give both charges.

      Specifically, the court instructed the jury that: a defendant must design a

product that is reasonably safe; a design defect exists if the foreseeable risk of

harm could have been reduced or avoided by adoption of a reasonably safer

design; and, that if defendant failed to include a practical and technically

feasible safer alternative design, the tractor had a design defect . However, if

plaintiff failed to provide a practical and technically feasible safer design, or if

the tractor was designed reasonably safe, then there was no design defect.

      Additionally, the court instructed the jury to weigh the "risk utility"

factors, which are: (1) the usefulness and benefit of the tractor as it was

designed; (2) safety aspects of the tractor; (3) if there was a substitute design

that was feasible and practical; (4) the ability of defendant to eliminate the

unsafe character of the tractor without impairing its usefulness; (5) the ability


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                                        26
of a foreseeable user to avoid danger by the exercise of care; and, (6) the

awareness of the user of dangers because of general public knowledge or the

existence of warnings or instructions.

      Plaintiff contends the court should have given only the "reasonably safe

design" jury charge and omitted any "risk utility" charge. In fact, the product

liability statute and case law in design defect matters meld these two concepts,

to some extent.

      The delineation of an actionable "design defect" under N.J.S.A. 2A:58C-

3a(1) includes a consideration of both: (1) whether there existed "a practical and

technically feasible alternative design that would have prevented the harm" —

which concerns the availability of reasonably safer alternative designs; and, (2)

whether that design "would have prevented the harm without substantially

impairing the reasonably anticipated or intended function of the product" —

which involves an evaluation of the utility of the product.
 Ibid.

      The statute entails 
weighing the risks of not adopting the alternative

design against the utility of that design change and its impact upon the product's

functionality. As the Supreme Court has explained:

            The decision whether a product is defective because it
            is "not reasonably fit, suitable and safe" for its intended
            purposes reflects a policy judgment under a risk-utility
            analysis. . . . That analysis seeks to determine whether

                                                                          A-0947-18T1
                                         27
            a particular product creates a risk of harm that
            outweighs its usefulness. . . . Risk-utility analysis is
            especially appropriate when a product may function
            satisfactorily under one set of circumstances and yet,
            because of a possible design defect, present an
            unreasonable risk of injury to the user in other
            situations. . . .

            [Jurado v. W. Gear Works, 
131 N.J. 375
, 385-86 (1993)
            (emphasis added) (citations omitted).]

      We recognize the Notes to the Model Jury Charges advise that in a design

defect case, generally the court should provide the jury with either the charge

on "reasonably safe design" or "risk utility," but not both. See Model Jury

Charges (Civil), 5.40D-3, "Design Defect – Legal Tests of Product Defect"

(approved Apr. 1999). The Notes advise that either charge can be appropriate

because they essentially focus on the same principles.
 Ibid. However, the Notes

go on to say the trial court may issue the reasonably safer charge but may also

"use the additional risk-utility factors only if the case is unusual in that it

requires one or more of these additional elements."
 Ibid.

      Although it may 
have sufficed here for the court to have issued only the

"reasonably safer" charge and omitted the "risk utility" charge, the overlap or

redundancy of those charges in this case was not unduly prejudicial. The overlap

does not provide grounds for setting aside this verdict.



                                                                        A-0947-18T1
                                      28
      The experts on both sides debated whether a foldable ROPS was an

available "reasonably safer" design that could reduce the risks of rollovers. In

addition, they also debated whether such a safer device significantly reduced the

utility of a tractor used in low profile settings because such a device needed to

be raised and lowered by the operator. Both risk and utility were part-and-parcel

of the contested issues.

      The additional concepts the court mentioned in the "risk utility"

instruction were not demonstratively prejudicial to plaintiff. Moreover, any

alleged prejudice to plaintiff arising out of overlapping charges is conjectural.

That is because the jury never reached this defect issue, having concluded on

Question #1 of the verdict form that the state-of-the-art defense foreclosed

liability, regardless of the comparative risks and benefits of an alternative design

that the jury found simply did not exist in 1975. In sum, the overlap of the

instructions was not of consequence here.

                                        C.

      Plaintiff further criticizes the jury charge for not containing an instruction

on the concept of "crashworthiness."

      "'Crashworthiness' is defined as the ability of a motor vehicle to protect

its passengers from enhanced injuries after a collision." Poliseno v. Gen. Motors


                                                                            A-0947-18T1
                                        29
Corp., 
328 N.J. Super. 41
, 51 (App. Div. 2000) (citation omitted). "Strict

liability is imposed on a manufacturer for injuries sustained in an accident

involving a design or manufacturing defect that enhanced the injuries, but did

not cause the accident."
 

Id. at

52.
      Here, it is undisputed that a ROPS would not have prevented the rollover

accident itself.    Rather, plaintiff claims that a ROPS, whether standard or

foldable, would have lessened the impact upon her husband once the rollover

occurred.

      We are mindful of the Restatement (Third) of Torts: Products Liability §

16 (Am. Law Inst. 1998) (Restatement), which explains the concept of

crashworthiness in a manner that arguably could fit this kind of tractor rollover

case. Under such a concept, "[t]he plaintiff must . . . establish that the defect

[in lacking a design that is 'crashworthy'] was a substantial factor in increasing

the plaintiff's harm beyond, the harm that would have occurred from other

causes."
    Ibid.   Indeed, the Restatement 
presents a scenario that depicts a

situation with a tractor rollover accident occurring when a tractor lacked a

ROPS.
 Id. at 
cmt. b, illus. 4.

      Despite these Restatement passages, our Supreme Court has yet to

prescribe that a jury charge on crashworthiness is appropriate to use in a


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                                       30
products liability case that involves a tractor, rather than an automobile or a

truck. In the absence of such a mandate, the trial judge did not err in denying

plaintiff's novel request for the charge in this tractor setting.

      Moreover, the detailed charges which the court did issue on design defect

principles furnished the jurors with helpful guidance in considering the possible

benefits of having a ROPS installed to prevent the decedent from sustaining

greater harm in a rollover.

      Lastly, the absence of a crashworthiness charge is inconsequential because

the jurors found the state-of-the-art defense was applicable and did not reach the

issue of damages.

                                         III.

      The remaining arguments posed by plaintiff are likewise unavailing. We

briefly canvass them here. All of them concern rulings of evidential relevance

and admissibility, as to which civil judges generally have wide discretion. See,

e.g., Green v. N.J. Mfrs. Ins. Co., 
160 N.J. 480
, 492 (1999).

      First, we are unpersuaded the court abused its discretion in admitting

certain proofs of negligent conduct on the part of decedent, Becktel, and

Wemrock. Their conduct was germane to the issues of proximate causation. For

example, if the jury found the accident could have been avoided if the chain


                                                                          A-0947-18T1
                                        31
attached to the tree had not been "high-hitched," such a finding would weigh

against a finding that an alleged design defect in the tractor proximately caused

the harm. See Fabian v. Minster Mach. Co., Inc., 
258 N.J. Super. 261
, 278 (App.

Div. 1992).

      Next, the court did not abuse its discretion in admitting proof of

defendant's post-sale actions in marketing a folding ROPS in 1993.          That

evidence was admissible under N.J.R.E. 401 because it was relevant to defense

expert Murray's general discussion about the evolution of the ROPS from the

1960s through the present time. The court also gave a limiting instruction that

reasonably explained to the jury the limited probative nature of this post-sale

evidence.

      Plaintiff further argues the court erred in admitting evidence of the OSHA

standard regarding low profile tractors, because the standard was adopted in

1976, after the tractor was manufactured. The court ruled that the OSHA

standard could be discussed in opening and closing statements and the court

would instruct the jury that opening and closing statements are not evidence .

The court also ruled the parties could bring out in testimony the fact that OSHA

standards for ROPS were adopted after 1975. In making these rulings, the court

did not abuse its discretion.


                                                                         A-0947-18T1
                                      32
       The timing of the evolution of the OSHA standards provided the jurors

with useful context. Moreover, at least one expert pointed out OSHA has not

required foldable ROPS to be installed on low profile tractors, even to this day.

The evidence had sufficient probative value under N.J.R.E. 401 to be presented

and was not so substantially prejudicial as to require its exclusion under N.J.R.E.

403.

       Plaintiff further argues the court erred in permitting defendant to introduce

evidence of the manufacturer's 1993 marketing campaign.                The court's

instructions clearly asked the jury to determine whether there was a design

defect according to the state-of-the-art in 1975. Even if every aspect of the post-

1975 marketing campaign was not entirely relevant, it was appropriate for the

jury to understand the evolution of the ROPS, as part of its assessment of

whether there was a reasonable safer design alternative available in 1975.

       As a final claim of evidential error, plaintiff argues the court erred by

disallowing her to introduce evidence of a 1966 patent for a retractable overhead

guard for a forklift. The court excluded the forklift patent because it was not

designed to prevent a tractor rollover. We detect no abuse of discretion under

N.J.R.E. 403 in the court's exclusion of this attenuated proof concerning a

different product.


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                                        33
      Plaintiff's claim of cumulative error and all other points raised on appeal,

to the extent we have not already addressed them, lack sufficient merit to be

discussed here. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                      34

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