SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1765-15T1

LEE GOLDBERG,

Plaintiff-Appellant,

v.

BMW OF NORTH AMERICA, LLC, 

Defendant-Respondent. 

———————————————————————————

Argued May 23, 2017 – Decided

Before Judges Yannotti and Gilson.

On appeal from the Superior Court of New 

Jersey, Law Division, Bergen County, Docket 

No. L-9481-14.

Lee Goldberg, appellant, argued the cause pro 

se.

Michelle Molinaro Burke argued the cause for 

respondent (Porzio, Bromberg & Newman, P.C.,

attorneys; Roy Alan Cohen and Ms. Burke, on 

the brief).

PER CURIAM

In this product liability action, plaintiff Lee Goldberg 

alleges he suffered injuries as a result of a design defect and a 

failure to warn when he burned his calf on the tailpipe of his

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

July 5, 2017
2 A-1765-15T1

2014 BMW X3 sports utility vehicle (2014 BMW X3). He appeals from 

a November 20, 2015 order granting summary judgment to defendant 

BMW of North America, LLC (BMW) and dismissing with prejudice his 

complaint.

We reverse the dismissal of plaintiff's design defect claim 

because BMW failed to establish on summary judgment that the 

tailpipe was an instrumentality with complex components and that 

plaintiff needed an expert to proceed. We affirm the dismissal 

of plaintiff's failure to warn claim because BMW had provided a 

warning in the owner's manual and plaintiff failed to present 

evidence that the warning was inadequate.

I.

We take the facts from the summary judgment record, viewing 

them in the light most favorable to plaintiff, the non-moving 

party. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016); R.

4:46-2(c). 

In April 2014, plaintiff leased a 2014 BMW X3. The following 

month, he burned his calf on the vehicle's tailpipe as he was 

removing a folding chair from the rear hatchback cargo area. 

Plaintiff contends that the tailpipe of the 2014 BMW X3 

unnecessarily extended beyond the rear bumper. Plaintiff also 

asserts that the extended tailpipe is dangerous because, after the 

vehicle is driven, the tailpipe is hot and people who walk behind 
3 A-1765-15T1

the vehicle or use the rear hatchback can come into contact with 

the hot tailpipe and suffer injuries.

After plaintiff was injured, he contacted BMW to report the 

incident. BMW sent a representative who inspected plaintiff's 

2014 BMW X3, and that representative informed plaintiff that the 

tailpipe was consistent with the vehicle's specifications. Thus, 

BMW took the position that there was nothing wrong with or 

defective about the 2014 BMW X3.

In October 2014, plaintiff filed a complaint against BMW. 

After some initial proceedings, plaintiff agreed to pursue claims 

under the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C1 to -11. Specifically, plaintiff asserted claims of a design 

defect, a failure to warn, and a manufacturing defect.

In answers to interrogatories, plaintiff produced a series 

of photographs. Some of the photographs depicted the rear of his 

2014 BMW X3 and showed that the tailpipe extended beyond the rear 

bumper. Those pictures also showed that the tailpipe could come 

into contact with the leg of a person who was walking or standing 

behind the 2014 BMW X3. Other photographs depicted a 2007 model 

of the BMW X3, which showed that the tailpipe in that earlier 

model did not extend beyond the rear bumper. Thus, in that earlier 

model, a person walking or standing behind the vehicle would not 

come into contact with the tailpipe. In his interrogatory answers, 
4 A-1765-15T1

plaintiff contended that those photographs showed that there was 

a safer alternative design of the tailpipe.

During discovery, BMW produced documents showing that before 

2014, it had received a number of complaints from owners of BMW 

X3s who had been burned by the tailpipe. Plaintiff also discovered 

and produced documents showing that in 2008, the United States 

Department of Transportation had ordered BMW to conduct a recall 

of the BMW Mini Cooper S vehicles because the exhaust pipes in 

those vehicles extended beyond the rear bumper and a number of 

customers had been burned when they accessed the rear cargo area 

of the vehicle after the vehicle had been driven.

While discovery was still being conducted, plaintiff moved 

for partial summary judgment contending that the photographs 

established a design defect in the 2014 BMW X3. BMW opposed that 

motion. After hearing oral argument, the motion court denied the 

motion reasoning that the photographs did not allow the court to 

find as an undisputed fact that an alternative safer design existed 

for the 2014 BMW X3. The motion court also reasoned that

a jury could consider the photographs in an 

overall assessment of whether a more 

reasonable alternative was available and 

should or could have been incorporated into 

[plaintiff's] vehicle; however, the [c]ourt 

cannot make that determination as a matter of 

law . . . In this case, a jury must consider 

the utility of the product as designed, and 
5 A-1765-15T1

whether the alternative design would adversely 

affect that utility. 

Following the close of discovery, BMW moved for summary 

judgment. BMW argued that plaintiff had not retained an expert 

and plaintiff needed an expert to establish a design defect. 

Without submitting any certifications or affidavits, BMW contended 

that the design of a vehicle's exhaust system was an 

instrumentality with complicated components and a jury needed 

expert testimony to determine whether there was a safer alternative 

design where the tailpipe did not extend beyond the bumper. BMW 

also submitted the owner's manual of the 2014 BMW X3, which 

contained a warning regarding the exhaust pipe being hot after the 

vehicle was driven. BMW thus argued that because plaintiff had 

submitted no evidence to show that that warning was inadequate, 

BMW was entitled to summary judgment on the failure to warn claim.

In opposition to BMW's summary judgment motion, plaintiff 

conceded that he did not have evidence of a manufacturing defect. 

Plaintiff maintained, however, that the photographs he had 

produced established that there was a safer alternative design 

available. Specifically, plaintiff argued that BMW had previously 

marketed and sold the 2007 BMW X3 with a tailpipe that did not 

extend beyond the rear bumper of the vehicle. Plaintiff also 
6 A-1765-15T1

argued that a jury could consider BMW's warning in the owner's

manual and find that warning inadequate.

On November 20, 2015, after hearing oral argument, the motion 

court granted summary judgment to BMW and dismissed with prejudice 

plaintiff's complaint. The court explained the reasons for its 

ruling in a written opinion issued with its order. On the design 

defect claim, the court found that the design of the exhaust system 

of a BMW X3 is an instrumentality with complicated components. 

Consequently, the court reasoned that a jury needed expert 

testimony to determine if there was a safer alternative design. 

Because plaintiff had no expert, the court dismissed his design 

defect claim.

Addressing the failure to warn claim, the motion court found 

that the owner's manual of the 2014 BMW X3 provided a warning 

concerning the exhaust system. The court then found that plaintiff 

had produced no evidence that the warning was inadequate.

II.

On appeal, plaintiff makes six arguments in challenging the 

November 20, 2015 order granting summary judgment to BMW. 

Plaintiff contends: (1) summary judgment should have been denied 

because there were disputed issues of material fact; (2) the motion 

court improperly made fact findings concerning the design defect 

claim; (3) expert testimony was not needed to show the design 
7 A-1765-15T1

defect with the tailpipe of the 2014 BMW X3; (4) the motion court 

had previously ruled that plaintiff's design defect claim involved 

questions of fact that a jury needed to resolve; (5) the motion 

court never considered the consumer expectation analysis of his 

design defect claim; and (6) the adequacy of BMW's warning was a 

question of fact for a jury to decide.

In reviewing a summary judgment order, we use a de novo 

standard of review and apply the same standard employed by the 

trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 

405 (2014). Accordingly, we determine whether the moving party 

has demonstrated that there are no genuine disputes as to material 

facts and, if so, whether the facts, viewed in the light most 

favorable to the non-moving party, entitle the moving party to a 

judgment as a matter of law. Id. at 405-06; Brill v. Guardian 

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46.

The PLA recognizes three claims: design defect, manufacturing 

defect, and failure to warn. N.J.S.A. 2A:58C-2; Roberts v. Rich 

Foods, Inc., 139 N.J. 365, 375 (1995); Dziewiecki v. Bakula, 361 

N.J. Super. 90, 97 (App. Div. 2003), aff'd, 180 N.J. 528 (2004). 

Here, in response to BMW's summary judgment motion, plaintiff 

acknowledged that he was not pursuing a claim of a manufacturing 

defect. Accordingly, we analyze his claims of a design defect and 

a failure to warn.
8 A-1765-15T1

A. Design Defect

To prove a design defect under the PLA, a plaintiff must 

establish that the product was "designed in a defective manner." 

N.J.S.A. 2A:58C-2(c). Moreover, a plaintiff must demonstrate that 

the product "was not reasonably fit, suitable or safe for its 

intended purpose." Dewey v. R.J. Reynolds Tobacco Co., 121 N.J.

69, 95 (1990) (quoting N.J.S.A. 2A:58C-2). Accordingly, a

plaintiff must prove either that the product's risk outweighs its 

utility or that the product could have been designed in an 

alternative manner so as to minimize or eliminate the risk of 

harm. Lewis v. American Cyanamid Co., 155 N.J. 544, 569 (1998). 

Under a "risk-utility analysis," a manufacturer is held 

liable "if the danger posed by the product outweighs the benefits

of the way the product was designed and marketed." Johansen v. 

Makita USA, Inc., 128 N.J. 86, 95 (1992). Our Supreme Court has 

identified seven factors relevant to such inquiries. O'Brien v. 

Muskin Corp., 94 N.J. 169, 182 (1983). Those factors include:

1. The usefulness and desirability of the 

product—its utility to the user and to the 

public as a whole.

2. The safety aspects of the product—the

likelihood that it will cause injury, and the 

probable seriousness of the injury.

3. The availability of a substitute product 

which would meet the same need and not be as 

unsafe.
9 A-1765-15T1

4. The manufacturer's ability to eliminate 

the unsafe character of the product without 

impairing its usefulness or making it too 

expensive to maintain its utility.

5. The user's ability to avoid danger by the 

exercise of care in the use of the product.

6. The user's anticipated awareness of the 

dangers inherent in the product and their 

avoidability, because of general public 

knowledge of the obvious condition of the 

product or of the existence of suitable 

warnings or instructions.

7. The feasibility, on the part of the 

manufacturer, of spreading the loss by setting 

the price of the product or carrying liability 

insurance.

[Ibid.]

A risk-utility analysis ordinarily involves "the 

consideration of available alternatives." Id. at 184; see also

Restatement (Third) of Torts: Products Liability § 2(b) (1998). 

A plaintiff must generally prove that the product "could have been 

designed in an alternative manner so as to minimize or eliminate 

the risk of harm." Lewis, supra, 155 N.J. at 570. This burden 

includes the duty to prove "the existence of an alternative design 

that is both practical and feasible." Id. at 571; see also

N.J.S.A. 2A:58C-3(a)(1) (instructing that a manufacturer may not 

be held liable "if . . . [a]t the time the product left the control 

of the manufacturer, there was not a practical and technically 
10 A-1765-15T1

feasible alternative design that would have prevented the harm

without substantially impairing the reasonably anticipated or 

intended function of the product"). 1

An expert opinion is ordinarily needed to establish that a 

reasonable alternative design existed. Rocco v. New Jersey Transit 

Rail Operations, Inc., 330 N.J. Super. 320, 341 (App. Div. 2002). 

Expert testimony is required when the subject matter to be 

addressed "is so esoteric that jurors of common judgment and 

experience cannot form a valid judgment as to whether the conduct 

of the party was reasonable." Ibid. (quoting Butler v. Acme 

Markets, Inc., 89 N.J. 270, 283 (1982)). "Where the case involves 

a complex instrumentality, expert testimony is needed in order to 

help the fact-finder understand 'the mechanical intricacies of the 

instrumentality' and help to exclude other possible causes of the 

accident." Ibid. (quoting Jimenez v. GNOC, Corp., 286 N.J. Super.

533, 546 (App. Div.), certif. denied, 145 N.J. 374 (1996)).

 

1 An evaluation of the seven factors identified in O'Brien "may 

justify a conclusion that even though there is presently no 

alternative design which would make a product safer, the product 

is 'so dangerous and of such little use that under the risk-utility 

analysis [the] manufacturer [should] bear the cost of liability

of harm to others.'" Smith v. Keller Ladder Co., 275 N.J. Super.

280, 283-84 (App. Div. 1994) (alterations in original) (quoting 

O'Brien, supra, 94 N.J. at 184). In this case, plaintiff is 

arguing that there was an alternative design.
11 A-1765-15T1

An expert is not, however, always needed to establish a design 

defect in a product liability claim. A plaintiff can produce 

circumstantial evidence of a defect "such as proof of proper use, 

handling or operation of the product and the nature of the 

malfunction, [which] may be enough to satisfy the requirement that 

something is wrong with [the product]." Scanlon v. General Motors 

Corp., 65 N.J. 582, 591 (1974). The res ipsa loquitur doctrine, 

however, is not available to product liability plaintiffs. Myrlak 

v. Port Auth., 157 N.J. 84, 102 (1999). 

In this case, plaintiff argues that the design defect in 

question was a self-evident defect and no expert testimony was 

required. See Suter v. San Angelino Foundry & Mach. Co., 81 N.J.

150, 170-71 (1979). To support that position, plaintiff relies 

on the photographs that he produced during discovery. As noted 

earlier, the photographs of his 2014 BMW X3 show that the tailpipe 

extended beyond the bumper and could come into contact with a 

person walking or standing behind the vehicle. Plaintiff also 

submitted photographs of a 2007 BMW X3 model where the tailpipe 

did not extend beyond the bumper. Consequently, plaintiff argues 

that a jury could review these photographs and determine that a 

safer alternative design existed.

Plaintiff also supports his arguments by relying on the 

complaints of other BMW X3 owners and the recall of the BMW Mini 
12 A-1765-15T1

Cooper S. In that regard, documents produced by BMW in discovery 

showed that before 2014, BMW had received a number of complaints 

from owners of BMW X3 vehicles who had been burned by the tailpipe. 

Plaintiff also produced documents showing that in 2008 the BMW 

Mini Cooper S was recalled because the tailpipe extended beyond 

the bumper and was causing burn injuries. Recall letters can 

serve as evidence of prior remedial conduct by defendants and can 

be admissible on the issue of a defect and culpable conduct. See

Shatz v. TEC Tech. Adhesives, 174 N.J. Super. 135, 141-42 (App. 

Div. 1980); Lavin v. Fauci, 170 N.J. Super. 403, 409 (App. Div. 

1979).

In support of its motion for summary judgment, BMW contended 

that the exhaust system of the 2014 BMW X3 was an instrumentality 

with complex components and plaintiff needed an expert to establish 

that there was a practical and feasible alternative design. BMW 

did not, however, submit a certification or affidavit establishing 

that position. In moving for summary judgment, BMW relied on 

arguments in its brief. Such arguments do not establish an 

undisputed fact for purposes of summary judgment. 

Accordingly, we are compelled to reverse the grant of summary 

judgment on plaintiff's design defect complaint. BMW was the 

movant and had the burden to establish that there was no genuine 

dispute of material fact. Plaintiff presented evidence that there 
13 A-1765-15T1

was such a dispute. BMW did not counter with a certification; 

rather, BMW asked the trial court to take judicial notice that the 

exhaust system of the 2014 BMW X3 was a complex instrumentality. 

As framed by plaintiff, however, his claim was about the exhaust 

pipe only and not the entire exhaust system. Thus, BMW did not 

carry its burden of production on the summary judgment motion.

Plaintiff also argues that the trial court failed to consider 

the consumer expectations test. Under that test, an expert is not 

required when "it is self-evident that the product is not 

reasonably suitable and safe and fails to perform, contrary to the 

user's reasonable expectation that it would 'safely do the jobs 

for which it was built.'" Suter, supra, 81 N.J. at 170-71 (quoting 

Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 64 (1963)). 

In Suter, the Court provided an example of a bicycle "whose brakes 

did not hold because of an improper design[.]" Id. at 171. Unlike 

a bicycle whose brakes do not function because of improper design,

it is not self-evident that the 2014 BMW X3 was not reasonably 

suitable and safe to do the job for which it was built, 

transporting occupants from one location to another. Indeed, 

plaintiff has presented no evidence that the exhaust pipe 

interfered with his ability to safely drive the vehicle. Thus, 

the consumer expectations test does not apply in this case. 
14 A-1765-15T1

B. Failure to Warn

The PLA defines "a warning defect by defining its opposite, 

an adequate warning." Zaza v. Marquess & Nell, 144 N.J. 34, 55 

(1996). N.J.S.A. 2A:58C-4 provides:

In any product liability action the 

manufacturer or seller shall not be liable for 

harm caused by a failure to warn if the product 

contains 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[.]

Here, BMW provided a warning. In the owner's manual of the 

2014 BMW X3, BMW warned owners that the exhaust pipe could be hot. 

Specifically, the manual states that the exhaust pipe becomes hot 

and it warned: "Do not touch hot exhaust pipes; otherwise, there 

is the danger of getting burned." At his deposition, plaintiff 

conceded that he never read the owner's manual. More 

significantly, plaintiff presented no evidence that an alternative 

or more complete warning should have been provided. Instead, 

plaintiff contends that he should be allowed to argue to a jury 

that the warning in the owner's manual was not adequate. Such an 

argument does not carry plaintiff's burden on a failure to warn 
15 A-1765-15T1

claim. Accordingly, because BMW did present a warning, and because 

there was no contrary evidence that that warning was inadequate, 

BMW was entitled to summary judgment on plaintiff's failure to 

warn claim.

The dismissal of plaintiff's design defect claim is reversed. 

That claim is remanded for further proceedings. The dismissal of 

plaintiff's failure to warn claim is affirmed.

Affirmed in part, reversed in part, and remanded for further 

proceedings. We do not retain jurisdiction.