New Jersey Snowmobile Case Provides Additional Commentary On “Reasonably Foreseeable Misuse”

Recently, we provided some commentary about an Alabama court’s interpretation of what is “reasonably foreseeable” with regard to the operation (or accidental operation) of a handgun.  As a quick reminder, that case involved a man who wound up shooting himself in the stomach because he carried his gun without any safeties engaged.  That court denied the gun manufacturer’s motion for summary judgment, buying the argument by the plaintiff’s lawyers that a gun manufacturer should have reasonably anticipated that a carrier of the derringer might need to fire the gun so quickly that “a pause to disengage the two safety features [of the derringer] would destroy the defensive advantage he was buying.” Today, we will continue our inquiry into what different jurisdictions perceive to be “reasonably foreseeable” in the products liability context.  Conveniently, this also continues another journey we seem to be on: the search for the stupidest plaintiff.

The case is Mohr v. Yamaha Motor Co., Ltd., A-5194-10T4 (N.J. Super. Ct. App. Div. July 19, 2013).  The plaintiff in this case lifted up the back of his friend’s Yamaha snowmobile–while the engine was running.  The track broke while the end was in the air and gave the plaintiff such a bad leg injury that the leg had to be amputated.

The plaintiff sued Yamaha on theories of products liability, “claiming that . . . Yamaha had failed to provide an adequate warning against lifting the machine while it was running.”  At trial, the jury found Yamaha liable for failure to warn.  There is some interesting commentary about the presence and adequacy of the warnings, but we find the issue of “foreseeable misuse” more interesting, in light of our recent Alabama gun case.  The court in this case provided some reminders about use and misuse under New Jersey law:

To prove that a product is dangerous and thus requires a warning, a plaintiff must address the issue of product misuse, either by proving that the product was not misused, or by proving that the misuse that occurred was foreseeable.  A defendant may still be liable when a plaintiff misused the product, if the misuse was objectively foreseeable.  The absence of misuse is part of the plaintiff’s case. Misuse is not an affirmative defense. Thus, the plaintiff has the burden of showing that there was no misuse or that the misuse was objectively foreseeable.
(internal citations and quotations omitted).  In this case, the court of appeals agreed that the misuse by the plaintiff was foreseeable.  First and foremost, as the court points out, the evidence submitted on the issue of foreseeability was entirely one sided; only the plaintiff provided any evidence on the subject.  That usually signals that the other side has conceded the issue, and therefore signaling to the court that there is “no genuine issue of material fact.”  As the Court pointed out:
In fact, in a colloquy with the court on the first day of the trial, defendants’ attorney essentially conceded that plaintiff’s misuse was foreseeable, and the judge restated his understanding that “as Yamaha’s counsel now states, there is no contention that this particular hazard or risk was not foreseeable.”
Still, it is interesting to hear the plaintiff’s argument.  First, the plaintiff presented expert testimony that it is common practice for snowmobile users to lift the machine while it’s running to perform cursory maintenance, as the plaintiff was doing on the day of his accident.  The experts also explained that handles attached to the rear of the machines were “invitations” to lift it, and that lifting it while the snowmobile’s engine was running was a “reasonably foreseeable use.” While we don’t agree that lifting a moving piece of machinery to repair it while it’s running is “reasonably foreseeable,” apparently, lawyers in New Jersey believe that a New Jersey jury would believe that argument.  That’s the only explanation we can think of.  Then again, we don’t have many snowmobiles here in South Carolina.

Comments

  1. The committee recognizes that manufacturers are not insurers of their products; they are liable in tort only if a defect in the manufacture or design of its product causes injury while the product is being used or misused in a reasonably foreseeable way. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560, 568 fn. 5; see also Wright v. Stang Mfg. Co. (1997) 54 Cal.App.4th 1218, 1235 [a manufacturer must foresee some degree of misuse and abuse of its product, either by the user or by third parties, and must take reasonable precautions to minimize the harm that may result from misuse and abuse]). But the question of where the burden of proof falls on product misuse is one that the committee has been considering for several years. The committee now proposes modifying the instructions to place the burden on the defendant to prove that the plaintiff’s injuries occurred while the product was being misused in an unforeseeable way.