USA – NEW JERSEY Trends and Developments Contributed by: Mark Silver, Thomas Cotton, Joseph Amoroso and Timothy Duffy, Schenck, Price, Smith & King, LLP
Affirmative defences Section 3 of the NJPLA, N.J.S.A. 2A:58C-3, establish - es several affirmative defences available to manufac - turers and sellers. Most significant among these is the “inherent characteristic” or “consumer expectations” defence under Section 3 (a)(2), which bars liability where the harm was caused by an unsafe aspect of the product that is an inherent characteristic recog - nised by the ordinary consumer. This defence embeds a hybrid “consumer expectations” test into the stat - ute, combining the consumer expectations doctrine with an obvious-danger component drawn from risk- utility analysis. The defence does not apply to indus - trial machinery used in the workplace, or to dangers that can feasibly be eliminated without impairing the product’s usefulness. Other defences under Section 3 include the state-of- the-art defence ‒ where the product complied with the best available scientific knowledge at the time of manufacture ‒ and compliance with applicable gov - ernment standards or mandatory specifications. Punitive damages The NJPLA addresses punitive damages in N.J.S.A. 2A:58C-5, which permits punitive damages in product liability actions but contains an important carve-out: punitive damages are precluded when the product was approved or licensed, or is generally recognised as safe and effective pursuant to conditions estab - lished by the U.S. Food and Drug Administration (FDA) or comparable regulatory body. This provision, as explored in the case law below, has been inter - preted narrowly by New Jersey courts, particularly in the medical device context. Recent Case Law Interpreting the NJPLA The five decisions surveyed below span 2021 to 2025 and address the NJPLA’s application across a diverse range of products and legal issues. Together they define the outer boundaries of design defect liability, clarify the exclusivity and subsumption doc - trines, address the admissibility of federal regulatory evidence, and identify who qualifies as a covered defendant under the statute.
Berkoski v Honda Motor Co., Ltd., 480 N.J. Super. 379 (App. Div. 2025) The New Jersey Appellate Division’s January 2025 decision in Berkoski is a significant statement on the scope of design defect liability under the NJPLA, hold - ing that a motor vehicle is not defectively designed merely because it lacks available driver-assistance technologies that are not mandated by law. The case arose from a fatal 2018 car accident on Cape May County Road 657, in which a 2016 Honda CR-V crossed the centre line and struck a vehicle driven by Dr Ann Ramage, killing both drivers. Crash data established that for the five seconds before impact the steering torque on the Honda CR-V was zero, indi - cating the driver had applied no steering input. Plain - tiff ‒ Dr Ramage’s widower and estate administrator ‒ argued that the 2016 Honda CR-V was defectively designed because it was not equipped with a lane departure warning (LDW) system or a lane keeping assist (LKA) system, both of which were available in 2016 and installed in Honda’s higher-end models. The court affirmed summary judgment for Honda, hold - ing as a matter of law that the absence of the available driver-assistance systems did not render the 2016 Honda CR-V defectively designed within the meaning of the NJPLA. The court’s analysis turned on the Sec - tion 3 (a)(2) consumer expectations defence. Because ordinary consumers understand that a vehicle must be steered within its lane of travel, and because the inher - ent risk of lane departure is recognised by the ordinary person who drives a car, the court held that Honda was entitled to the statutory defence. The court further held that the feasibility exception did not apply: even if LDW and LKA systems were available and could have been added, those systems could not “feasibly eliminate” the inherent risk of driving because they are driver-assistance aids, not substitutes for driver control, and because drivers are well aware they bear responsibility for controlling their vehicles. More broadly, Berkoski reaffirms that the NJPLA does not impose a duty on manufacturers to incorporate every available safety technology into every product. The court cited the long-standing principle that a man - ufacturer is not required to produce an accident-proof vehicle under New Jersey law and expressly reject -
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