NJ Laws Directions to Ken Vercammen and Associates Ken Vercammens Resume Ken Vercammen articles

Kenneth Vercammen & Associates
A Law Office with Experienced Attorneys for Your New Jersey Legal Needs

2053 Woodbridge Ave.
Edison NJ 08817
732-572-0500
1-800-655-2977

Personal Injury and Criminal
on Weekends 732-261-4005

Princeton Area
68 South Main St.
Cranbury, NJ 08512
By Appointment Only
Toll Free 800-655-2977


Civil Model Jury Charge 5.40D-1 Design Defect-Generally

5.40D-1 Design Defect Generally (Approved 4/99; Revised 5/10)

Note to Judge

A design defect may be established by different methods. One method is the Consumer Expectations Test. Another method is applying the Reasonable Safer Design standard or the Risk-Utility Analysis.[1]

The Consumer Expectations Test[2] typically applies where the product like a bicycle whose brakes do not hold because of an improper design is self-evident(ly)...not reasonably suitable and safe and fails to perform, contrary to the users reasonable expectation that it would safely do the jobs for which it was built. Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 170-171 (1979).

The design of a product is obviously defective when there are no relevant considerations which make the danger inherent in the product, or reasonably necessary to its functioning. In this respect, such defects are akin to manufacturing defect cases in which the defect is proven by circumstantial evidence. For such a product the usual Risk-Utility Analysis is unnecessary. The only material question is whether the product has been so designed that it poses a danger that is contrary to the users reasonable expectations. See N.J.S.A. 2A:58C-2, note 3 below.

A product falling within the Consumer Expectations Test category was a food slicing machine which was not equipped with an interlocked safety device to stop the blade from running after the guard was removed to wipe clean the blade. Mettinger, supra, note 1.[3] The existence of a defect can be proven by circumstantial evidence. Myrlak v. Port Authority of New York and New Jersey et al., 157 N.J. 84 (1999) [adopting Indeterminate Product Test of section 3 of the Restatement (Third) of Torts: Products Liability].

Another method of proving the existence of a design defect is the Risk- Utility Analysis. There the defect is established by proof that the products risks or dangers outweigh its usefulness and therefore, a reasonably careful manufacturer or seller would not have sold the product at all in the form in which it was sold. This involves a balancing or weighing of a number of factors known as risk/utility factors. Cepeda v. Cumberland Engineering Co., 76 N.J. 152 (1978); OBrien v. Muskin Corp., supra[4]; Brown v. U.S. Stove, 98 N.J. 155, 173 (1984); Michalko v. Cooke Color & Chemical Co., 91 N.J. 386 (1982); N.J.S.A. 2A:58C-2[5].

 

In many or perhaps most cases the core issue is whether or not a Reasonable Safer Design would have reduced the risk or dangers of the product to the greatest extent possible consistent with the products continued utility, i.e., without impairing its usefulness and without making it too expensive for it to be reasonably marketable. In such cases, only the charge on reasonable safer design need be given. There, the plaintiff has only to show the existence of a safe and reasonably feasible alternative to the defendants product and that, in light of the omitted safer alternative, the product was not reasonably safe as manufactured or sold. Lewis v. American Cyanamid Co., supra; Smith v. Keller Ladder Co., 275 N.J. Super. 280 (App. Div. 1994).[6] The Restatement (Third) of Torts: Products Liability is fundamentally consistent with New Jerseys products liability case law and statute regarding product defect.[7]

There are three affirmative statutory defenses to certain design defect claims.[8] They are: 1) there was not a practical and technically feasible alternative design, 2) the harm was caused by an unsafe aspect of the product that is an inherent characteristic[9] of the product[10], and 3) the harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction.



[1] The Committee has weighed the phrases alternative safer design, reasonable alternative design and reasonable safer design. We have concluded that they are identical substantively but that the phrase reasonable safer design most clearly conveys the plaintiffs burden that the designers choice was unreasonable because it omitted an alternative that was practical, feasible, and safer overall. Lewis v. American Cyanamid, 155 N.J. 544, 571 (1998).

The principle is expressed in the Restatement (Third) of Torts: Products Liability, (b), Reporters Note, Cmt f:

2. The proposition that, in order to determine that a design is not reasonably safe, the alternative must contribute to greater overall safety needs no citation; it is axiomatic. If the alternative design proffered by the plaintiff does not make the product safer, let alone if it makes it more dangerous, such an alternative is not reasonable. In such a case, the fact that the alternative design would have avoided injury in a specific case is of no moment.

[2] This theory is usually not charged. It should be charged only in cases where the Risk-Utility Analysis is not appropriate. See, for example Suter v. San Angelo Foundry & Machine Co., supra; Feldman v. Lederle Laboratories, 97 N.J. 429 (1984); Mettinger v. W.W. Lowensten, Inc., 292 N.J. Super. 293 (App. Div. 1996), modified o.b., 153 N.J. 371 (1998); and OBrien v. Muskin, 94 N.J. 169 (1983).

[3] Consumer expectations also may be a defense, under N.J.S.A. 2A:58C-3(a)(2). For example, if a reasonable consumer expects a knife blade to be sharp, its sharpness, although dangerous, is not a defect. The defense does not apply to equipment used in the workplace or to dangers that can be feasibly eliminated without impairing the usefulness of the product.

[4]OBrien has been limited by statute, N.J.S.A. 2A:58C‑3b. An alternative safer design need not be shown

if the court, on the basis of clear and convincing evidence, makes all of the following determinations:

(1) The product is egregiously unsafe or ultra-hazardous;

(2) The ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the products risks, or the product poses a risk of serious injury to persons other than the user or consumer; and

(3) The product has little or no usefulness.

[5] N.J.S.A. 2A:58C‑2. 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.

[6] Citing Restatement (Third) of Torts at 2(b) (Tent. Draft No. 1 1994):

Under this provision, to establish a prima facie case of defect, plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented plaintiffs harm. Id., comment d.

This principle has now been adopted in the final version of the American Law Institutes Third Restatement of the Law Torts: Products Liability, adopted, May 22, 1997, which provides, in section 2(b):

Section 2. Categories of Product Defect

A product ... (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the (cont.) adoption of a Reasonable Alternative Design ... and the omission of the alternative design renders the product not reasonably safe.

The Reporters, in Comment d. Design defects: general considerations, remark:

Assessment of a product design in most instances requires a comparison between an alternative design and the product design that caused the injury, undertaken from the point of view of a reasonable person.

[7] Congiusti v. Ingersoll-Rand, 306 N.J. Super. 126, 138-139 (App. Div. 1997) [(I)n this case, as in most other design defect cases that are not controlled by the absolute defenses to design defect claims in the Products Liability Act, N.J.S.A. 2A:58C‑3a, the issue centers upon whether, in the words of the Restatement (Third) of Torts: Products Liability at 2(b) (1997 Proposed Final Draft), there was a Reasonable Alternative Design ... and the omission of the alternative design renders the product not reasonably safe.]; Grzanka v. Pfeifer, 301 N.J. Super. 563 (App. Div. 1997) [Plaintiff must show not only alternative design, but reasonably foreseeable risk such that the the omission of the alternative design renders the product not reasonably safe...]; but see Saez v. S&S Corrugated Paper Machinery Co., 302 N.J. Super. 545 (App. Div. 1997) [Third Restatement strongly criticizes New Jersey law on product line successors liability.] See also, William A. Dreier, Design Defects Under the Proposed Section 2(b) of the Restatement (Third) of Torts: Products Liability - a Judges View, 30 U. of Michigan Journal of Law Reform 221 (1997); William A. Dreier, The Restatement (Third) of Torts: Products Liability and New Jersey LawNot Quite Perfect Together, 50 Rutgers Law Review 2059 (1998), reprinted in Dreier, et al., New Jersey Products Liability and Toxic Torts Law (Gann 1999).

[8] N.J.S.A. 2A:58C‑3. Defenses

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; or

(2) The characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended, except that this paragraph shall not apply to industrial machinery or other equipment used in the workplace and it is not intended to apply to dangers posed by products such as machinery or equipment that can feasibly be eliminated without impairing the usefulness of the product; or

(3) The harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction as defined in section 4 of this act.

 

b. The provisions of paragraph (1) of subsection a. of this section shall not apply if the court, on the basis of clear and convincing evidence, makes all of the following determinations:

(1) The product is egregiously unsafe or ultra-hazardous;

(2) The ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the products risks, or the product poses a risk of serious injury to persons other than the user or consumer; and

(3) The product has little or no usefulness.

c. No provision of subsection a. of this section is intended to establish any rule, or alter any existing rule, with respect to the burden of proof.

[9] Roberts v. Rich Foods, 139 N.J. 365, 380, 382 (1995) explains that:

an inherent danger arises from an aspect of the product that is indispensable to its intended use...a feature of a product that is desirable but not necessary is not an inherent characteristic: an inherent characteristic is an essential characteristic. The elimination of an essential characteristic might not render the product totally useless, but it would measurably reduce the products appropriateness for its central function. We make one final observation about jury evaluation of the second exception to the 3(a)(2) defense: juries will inevitably weigh the extent to which the elimination of the inherent danger would impair usefulness against the extent to which the change would improve a hazardous condition. See also Mercer Mutual Ins. Co. v. Proudman, et al., 396 N.J. Super. 309, certif. denied, 194 N.J. 270 (2007).

[10] Since most product liability cases involve equipment used in the workplace, this defense is usually inapplicable. N.J.S.A. 2A:58C-3(a)(2).

 

Source: http://www.judiciary.state.nj.us/civil/civindx.html

   
FOR POTENTIAL CLIENTS TO CONTACT US DURING NON-BUSINESS HOURS, PLEASE FILL OUT THE FORM.
Name:
Cell Phone:
E-Mail Address


If You Do Not Include a Complete E-Mail Address, Network will not Forward Your Contact Form to the Law Office.

Details of the Case
Agree
By typing " agree" into the box you are confirming that you wish to send your information to the Law Office of Kenneth Vercammen

kenv
Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

New Article of the Week

Meet with an experienced Attorney to handle your important legal needs.
Please call the office to schedule a confidential "in Office" consultation.
Attorneys are not permitted to provide legal advice by email.

Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means: YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

Admitted In NJ, US Supreme Court and Federal District Court.

Contact the Law Office of
Kenneth Vercammen & Associates, P.C.
at 732-572-0500
for an appointment.

The Law Office cannot provide legal advice or answer legal questions over the phone or by email. Please call the Law office and schedule a confidential "in office" consultation.

.Ken Vercammen articles

Ken Vercammens Resume
Directions to Ken Vercammen and Associates




Disclaimer This web site is purely a public resource of general New Jersey information (intended, but not promised or guaranteed to be correct, complete, or up-to-date). It is not intended be a source of legal advice, do not rely on information at this site or others in place of the advice of competent counsel. The Law Office of Kenneth Vercammen complies with the New Jersey Rules of Professional Conduct. This web site is not sponsored or associated with any particular linked entity unless specifically stated. The existence of any particular link is simply intended to imply potential interest to the reader, inclusion of a link should not be construed as an endorsement.

Copyright 2018. Kenneth Vercammen & Associates, P.C.