N.J. Model Civil Jury Charge 5.40E

5.40E CRASHWORTHINESS — SPECIAL ISSUES (Approved 5/01)

NOTE TO JUDGE

In Poliseno v. General Motors , 328 N.J. Super. 41 (App. Div. 2000),

certif. denied, 165 N.J. 138 (2000), and Green v. General Motors, 310

N.J. Super. 507, certif. denied , 156 N.J. 381 (1998), the Appellate

Division has defined the parameters of a specialized type of products

liability claim known as a crashw orthiness claim and has also

established a different burden of proof that shifts the burden of

apportionment of damages in such claims to the defendant. In

addition, the Poliseno court found that failure to provide specific

factual tailoring of jury instructi ons in such cases was reversible

error.1 The design issues and causation issues in crashworthy

engineering design cases are extrem ely complex, varied and fact

sensitive. However, to assist tr ial judges and practitioners the Model

Charge uses typical crashwort hy design theories as illustrative

examples.

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

passengers from enhanced injuries after a collision. Crashworthiness has also been

defined as the protection a motor vehicl e gives its passengers against personal

injury or death from a motor vehicle accident. If injuries from a “second collision”

of some part of the car intruding into the occupant’s comp artment space or the

occupant being propelled outside of a safe survival space were avoidable, or could

1 Poliseno v. General Motors , 328 N.J. Super at 62-63 (“. . . in complex cases of this nature, the

jury should be instructed on legal principles in th e context of the particular facts of the case and

the parties’ contentions, rather than on abstract principles of law”).

have been reduced or lessened by a reasona ble alternative design, then the motor

vehicle would not be crashworthy. Strict liability is imposed on a manufacturer for

injuries sustained in an accident involving a design or manufacturing defect that

enhanced the injuries the occupants su ffer although the defect did not cause the

accident. Enhanced injury refers to th e degree by which a defect, which I have

already defined for you, aggravates collision injuries beyond those that would have

been sustained because of the impact or collision absent the defect. A

manufacturer or designer’s liability is premised upon their legal duty to design and

manufacture a reasonably crashworthy vehicle.

Since accidents or collisions, no matter who was at fault or who caused the

accident, are a foreseeable part of use of vehicles, reasonably designed, properly

functioning safety devices or designs [here the court and counsel should fill in

examples appropriate to the case such as seat belts, air bags, collapsible steering

columns, interior padding, an exterior safe ty cage or a wider wheel base, et

cetera] may be required to make a vehicle crashworthy.

The plaintiff maintains that: [here insert defect claims such as, e.g., three

point rather than lap belt only seat belts; se at belts with pre-tensioning devices or

dual retractors or locking latch plates; padded interior pillars and/or dash; a re-enforced strengthened roof less susceptible to crush (the general defect in Green v.

General Motors); a wider wheel base to allow greater stability] were reasonably

safer alternative designs that should have been used in this vehicle to make it

crashworthy.

2

The defendant maintains that th e design and manufacture of its [here insert

the defendant’s design element claim, e.g., se at belt, interior pillars, door frame,

roof, steering column and/or wheel base, et cetera] were reasonably safe and that

plaintiff’s proposed alternative design was not feasible or practical and/or would

not have improved the crashworthiness of the vehicle.3

2 In addition to separate delineation of distinct defect claims in the charge to satisfy Poliseno,

separate jury interrogatories on each defect claim have been strongly recommended by the

Supreme Court. Kassick v. Milwaukee Electric Tool Corp. , 120 N.J. 130, 134-135 (1990). In

Ponzo v. Pelle , 166 N.J. 481 (2001), the Supreme Court reaffirm ed the need for separate jury

interrogatories where there are separate liability or damage claims.

3 The following excerpt from a jury charge which was used in the trial of a seat belt crashworthy

claim is a good example of how a crashworthy ch arge can incorporate the distinct defect

allegations of the parties.

Plaintiff claims that the seat belt shoul d have contained the following alternative

designs. And let’s see. Plaintiff claims that the seat belt should have contained

any of the following alternative designs, any of the following. One is that there

should have been no comfort feature or wi ndow shade device at all. Another one

was that it should have contained a pre- tensioner or a mechanical device that

would have eliminated slack in the seat be lt. And another one is that there should

have been a change in the seat belt geometry.

Defendant, on the other hand, claims that the seat belt should not have contained

the reasonable safer designs claimed by th e plaintiff for a number of reasons.

They say the benefits of the comfort feature outweigh any disadvantages and,

therefore, a system with the comfort feature, it’s just not defective, also that a pre-

You must determine whether the vehicle as designed was or was not

crashworthy based on the principles of reasonable, safer alternative designs that I

have already given you. If you find that th ere were reasonable, safer alternative

designs that should have been, but were not used in this vehicle that would have

improved the protection it gave its occupant s against personal injury or death from

a foreseeable motor vehicle accident, then you will have found this vehicle

uncrashworthy. On the other hand, if you find that there were not reasonable,

alternative designs that would have improve d the ability of this vehicle to protect

its occupants in case of a collision, th en you will have found in favor of the

defendant car manufacturer or designer on the issue of crashworthiness.

You must remember in deciding this issue that your focus must not be on

who or what caused the accident. Instead , to evaluate the design issue properly

you must focus your deliberations on how and why the occupants of the vehicle

suffered enhanced injury or death in the collision and whether reasonable

tensioner would not be capable of removing twelve or thirteen inches of webbing

from the shoulder belt, that it promotes possible submarining by an occupant

under the lap belt, and that there is no field accident data showing that pre-

tensioners are providing a benefit in real world accidents.

They also claim that no feasible or practical mechanical comfort feature design

exists that could remove webbing from the shoulder belt upon sensing a crash

and, finally, that the lap belt anchor point was properly located to provide good

restraint to all size occupants, and that a motorized system would have provided

no better restraint, but would have been more complicated and less reliable.

alternative safety devices would have lessened or decreased the likelihood of injury

or death after a collision.4

CAUSATION AND APPORTIONMENT

If you decide that the defendant’s vehi cle was not reasonably crashworthy,

then you must decide the extent of the passengers’ or occupants’ enhanced injuries.

If under all of the circumstances here [here insert specific circumstances such as a

rollover of the vehicle or an offset frontal collision, or rear or side impact, et

4 In affirming two trial courts’ decisions to expressly exclude considerations of plaintiff’s

conduct from the initial design or manufacturing defect issues, the Green and Poliseno courts

both pointed out that once plaintiff’s conduct or misconduct is found foreseeable, it becomes

irrelevant on defect issues and is unavailable as a comparative negligence defense to strict

liability crashworthy claims. See Green , 310 N.J Super. at 518-521 (since the plaintiff driver’s

excessive speed of 45-75 MPH in a 25 mph zone still did not exceed the foreseeable closing

speeds for crashworthy design parameters, the jury was properly instructed to exclude it from

their crashworthy design decision) and Poliseno, 328 N.J. Super. at 57-58. The same two courts,

however, recognized that the negligent or non-negligent circumstances of the first collision,

sometimes make issues of plaintiff’s speed or other conduct relevant to the apportionment

defense that it was the first impact that caused some or all of the occupants’ injury either before

the second collision defect occurred or independently of the second collision defect. Green, 310

N.J. Super. at 522.; Poliseno, 328 N.J. Super. at 59-60.

Therefore, as the Poliseno court explicitly recognized, a limiting instruction such as

Model Civil Charge 5.40I, subsection G (2), which also incorporates the specifics of the case, is

required to guide the jury as to when and how they may consider the plaintiff’s conduct.

Poliseno, 328 N.J. Super. at 61-62. The Poliseno court went on to emphasize that the jury must

be instructed that only causative fault by the plai ntiff that preceded his second collision injuries

could be considered by them in apportioning injury as part of proximate causation. Id. Thus in

that case, the jury should have been instructed th at if they found that the plaintiff’s speed or loss

of control caused some of his injuries before the defective door weld broke (as part of the first

collision) and then greater injuries were suffered as part of a second collision due to a door weld

defect, then and only then would there be an a pportionment issue for them to decide in which

plaintiff’s speed or loss would be relevant. Poliseno, 328 N.J. Super. at 57, 61-62.

cetera] you find that the occupants would ha ve suffered lesser injuries with a

reasonably safer alternative design, then the car manufacturer/designer is liable for

the occupants’ increased injuries. On the other hand, if you find that the occupants

would have suffered the same or greater injuries even with reasonably safer

alternative designs, then the vehicle’s safe ty defect or lack of crashworthiness

caused no enhanced injuries and defendants are not liable.

If you find that the plaintiff has proven there were reasonably safer

alternative designs required to make this vehicle crashworthy, then you must

determine whether the plaintiff also prove d that those designs would have lessened

the occupant’s ultimate crash injury to some extent. If you find the plaintiff met

that burden, you will find in favor of the plaintiff because the plaintiff need not

have quantified or put a percentage on the extent to which the design or

manufacturing defects added to all of the plaintiff’s final injuries.

If the defendant vehicle manufacturer/designer claims that all or part of the

injuries would have occurred anyway, then the defendant, and not the occupant of the

vehicle, has the burden of proving what par t/percentage of the plaintiff occupant’s

injuries would have occurred even if reas onable alternative safer designs had been

supplied in their vehicle. 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. On the other hand, if you find

that the defendant car manufacturer/designer has not met its burden of proving that

plaintiff’s injuries can be reasonably a pportioned, then the defendant would be

responsible for all of the occupant’s harm or injury.5

5 The following jury questions should be asked in a crashworthy case either at Model Civil

Charge 5.40B subsection 5, for a manufacturing defect or at Model Civil Charge 5.40D-3

subsection 4 (d), for a design defect:

1) Has the plaintiff proved that the ma nufacturing/design defect was a proximate

cause, i.e., a substantial factor, in increasing plaintiff’s harm or injury beyond that

which would have resulted if there had not been a defect?

If the manufacturer has sought a credit and has presented evidence that would permit

apportionment, the following question together w ith an ultimate outcome charge and percent

apportionment verdict sheet should also be given to the jury.

2) If plaintiff has proved that his/her injuries were worsened or increased to some

extent by uncrashworthy manufacture/design, has the defendant met its burden of

proving that plaintiff’s total injuries (deat h/paralysis, etc.) are capable of being

reasonably apportioned on a percentage basis as to injuries the occupant of the

vehicle would have suffered from the first collision in the absence of a

crashworthy defect versus those he/she suffered here as the result of a second

collision crashworthy defect?