New Jersey





Statute of Limitations (NEW JERSEY)


Personal Injury - 2 yrs. [N.J.S.A. 2A:14-2]

Wrongful Death - 2 yrs. [N.J.S.A. 2A:31-3]

Property Damage - 6 yrs. [N.J.S.A. 2A:14-1]

Contracts (Written and Oral) - 6 yrs. [N.J.S.A. 2A:14-1]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [N.J.S.A. 12A:2-725]


Statute of limitations runs when injured party possesses actual or constructive knowledge of that state of facts which may equate in law with a cause of action, and basis of such a cause of action is constituted solely by the material facts of the case [Baird v. American Medical Optics, 713 A.2d 1019 (N.J. 1998)].

Statute of Repose (Products) (NEW JERSEY)




Admissibility of Expert Testimony (NEW JERSEY)


Court must determine whether the expert’s opinion is derived from a sound and well-founded methodology that is supported by some expert consensus in the appropriate field.  Support for an expert's methodology may be found in professional journals, texts, conferences, symposia, or judicial opinions accepting the methodology.  Courts also may consider testimony from other experts in the field who use similar methodologies [Kemp v. State, 809 A.2d 77 (N.J. 2002)].





Causes of Action (NEW JERSEY)


Statutory Cause of Action pursuant to the Product Liability Act (“Act”).  “Product liability action” means any claim or action brought by a claimant for harm caused by a product, irrespective of the theory underlying the claim, except actions for harm caused by breach of an express warranty [N.J.S.A. 2A:58C-1].


A manufacturer or seller of is liable in a product liability action 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: (1) 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 (2) failed to contain adequate warnings or instructions; or (3) was designed in a defective manner [N.J.S.A 2A:58C-2].


The Act leaves unchanged the three theories under which a manufacturer or seller may be held strictly liable: defective manufacture, defective design, and defective warnings.  The Act also leaves unchanged the definition of duty: a manufacturer or seller of a product is liable if the product causing the harm was not reasonably fit, suitable, or safe for its intended purpose [Dewey v. R.J. Reynolds Tobacco Co., 577 A.2d 1239 (N.J. 1990)].


Breach of Express Warranty – Not codified by the Act.  Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise [N.J.S.A. 12A:2-313].






Definition of “Defect” (NEW JERSEY)


Products placed into the stream of commerce must be safe when used for their intended purposes.  The term “defect” is not self-defining and has no universally accepted meaning suitable for every strict products liability case. Defects are classified as design defects, manufacturing defects or inadequate warning defects. Generally, the emphasis in strict products liability analysis is on the safety of the product, not on the reasonableness of the manufacturer's conduct. However, the ultimate question to be resolved in design-defect and failure-to-warn cases is whether the manufacturer acted in a reasonably prudent manner in designing and fabricating a product [Zaza v. Marquess & Nell, 675 A.2d 620 (N.J. 1996)].


A product is not in a defective condition when it is safe for normal handling or consumption [Jurado v. W. Gear Works, 619 A.2d 1312 (N.J. 1993)].


Also, see discussion below re: design defects.


Liability of Sellers (NEW JERSEY)


“Product seller” means any person who, in the course of a business conducted for that purpose: sells; distributes; leases; installs; prepares or assembles a manufacturer’s product according to the manufacturer’s plan, intention, design, specifications or formulations; blends; packages; labels; markets; repairs; maintains or otherwise is involved in placing a product in the line of commerce [N.J.S.A 2A:58C-8].  


In any product liability action against a product seller, the product seller may file an affidavit certifying the correct identity of the manufacturer of the product which caused the injury.  Upon filing the affidavit, the product seller is relieved of all strict liability claims, unless: (1) the identity of the manufacturer given to Plaintiff was incorrect; (2) the manufacturer has no known agents, facility, or other presence within the United States; or (3) the manufacturer has no attachable assets or has been adjudicated bankrupt and a judgment is not otherwise recoverable from the assets of the bankruptcy estate [N.J.S.A 2A:58C-9].


Defenses (NEW JERSEY)     


Comparative Negligence – New Jersey follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [N.J.S.A. 2A:15-5.1].  Applies in product liability cases [Lewis v. Am. Cyanamid Co., 715 A.2d 967 (N.J. 1998)].


Assumption of Risk – A form of contributory negligence (which consists in voluntarily and unreasonably proceeding to encounter a known danger) [Lewis v. Am. Cyanamid Co., 715 A.2d 967 (N.J. 1998)].


Product Misuse – The absence of misuse is part of Plaintiff’s case.  Misuse is not an affirmative defense.  Plaintiff has the burden of showing that there was no misuse or that the misuse was objectively foreseeable [Jurado v. W. Gear Works, 619 A.2d 1312 (N.J. 1993)].


Product Alteration/Modification – Even a significant subsequent alteration of a manufactured product will not relieve the manufacturer of liability unless the change itself creates the defect that constitutes the proximate cause of the injury.  If the original defect, although not the sole cause of the accident, constituted a contributing or concurrent proximate cause in conjunction with the subsequent alteration, the defendant will remain liable [Brown v. United States Stove Co., 484 A.2d 1234 (N.J. 1984)].

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (NEW JERSEY)


Consumer may not bring an action in negligence and strict liability for economic losses arising from purchase of a defective product [Alloway v. General Marine Industries, L.P., 695 A.2d 264 (N.J. 1997)].  If damage to product is purely economic, and parties are of relatively equal bargaining power, their contractual agreement and allocation of risk contemplated therein should govern, even if damage occurred in sudden and calamitous manner [Naporano Iron & Metal Co. v. American Crane Corp., 79 F.Supp.2d 494(D.N.J. 1999)].


ELD is codified by the Act.  “Product liability action” means any claim or action brought by a claimant for harm caused by a product.  But “Harm” is defined as physical damage to property, other than to the product itself [N.J.S.A. 2A:58C-1].


Note: there is a federal court decision holding that ELD does not apply to consumers [Easling v. Glen-Gery Corp., 804 F.Supp. 585 (D. N.J. 1992)]







Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (NEW JERSEY)


Circumstantial evidence (such as proof of proper use, handling, or operation of the product, and the nature of the malfunction) may be enough to satisfy the requirement that something was wrong with the product.  Accordingly, in the absence of direct evidence, it is necessary to negate other causes of the failure of the product for which the defendant would not be responsible in order to make it reasonable to infer that a dangerous condition existed at the time the defendant had control [Scanlon v. Gen. Motors Corp., Chevrolet Motor Div., 326 A.2d 673 (N.J. 1974)].


Design Defects (NEW JERSEY)


In a product liability action for harm caused by a product that was designed in a defective manner, the manufacturer is not liable if: (1) at the time the product left his control, 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 the product with the ordinary knowledge common to the class of persons for whom the product is intended [N.J.S.A. 2A:58C-3].


To succeed under a strict-liability design-defect theory, a plaintiff must prove that: (1) the product was defective; (2) the defect existed when the product left the hands of the defendant; and (3) the defect caused the injury to a reasonably foreseeable user [Jurado v. W. Gear Works, 619 A.2d 1312 (N.J. 1993)].


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 Plaintiff’s harm. To determine this, the jury is required to perform a risk-utility analysis [Lewis v. Am. Cyanamid Co., 715 A.2d 967 (N.J. 1998)].


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 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.  Plaintiff in a design-defect products-liability suit may succeed even if the product was misused, as long as the misuse or alteration was objectively foreseeable [Jurado v. W. Gear Works, 619 A.2d 1312, 1314 (N.J. 1993)].


Defendant may assert the “state-of-the-art” affirmative defense. Under that defense, the manufacturer is not liable if, at the time the product left the control of the manufacturer, there is 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.  Codes or regulations not in effect at the time of manufacture of the product cannot be admitted to establish the standard for that design [Lewis v. Am. Cyanamid Co., 715 A.2d 967 (N.J. 1998)].


Failure to Warn (NEW JERSEY)


Manufacturer is not liable for harm caused by a failure to warn if the product contains an adequate warning or instruction or, in the case of dangers a manufacturer discovers or reasonably should discover after the product leaves its control, if the manufacturer provides an adequate warning or instruction. An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons by whom the product is intended to be used [N.J.S.A. 2A:58C-4].


A claim for failure-to-warn differs from one based on a design defect. Although the Act provides defendants in design-defect case with absolute defense if design of product was state of the art at time it left their control, the Act imposes a continuing duty to warn on defendants in failure to warn cases [Lewis v. Am. Cyanamid Co., 715 A.2d 967 (N.J. 1998)].


When the strict liability defect consists of an improper design or warning, reasonableness of the defendant's conduct is a factor in determining liability. The question in strict liability design-defect and warning cases is whether, assuming that the manufacturer knew of the defect in the product, he acted in a reasonably prudent manner in marketing the product or in providing the warnings given. Thus, once the defendant’s knowledge of the defect is imputed, strict liability analysis becomes almost identical to negligence analysis in its focus on the reasonableness of the defendant's conduct [Zaza v. Marquess & Nell, 675 A.2d 620 (N.J. 1996)].


The heeding presumption applies and provides the plaintiff with a rebuttable presumption on the issue of proximate cause (i.e., if a warning or instruction had been given, such warning or instruction would have been heeded by the plaintiff) [Sharpe v. Bestop, Inc., 713 A.2d 1079 (N.J. Super. Ct. App. 1998)].


Independent Cause of Action for Evidence Spoliation (NEW JERSEY)


New Jersey does not recognize a separate tort action for intentional spoliation.  However, New Jersey recognizes a tort action for fraudulent concealment of evidence (at least against a party in the case) [Rosenblit v. Zimmerman, 166 N.J. 391 (N.J. 2001)].