                        NOT FOR PUBLICATION WITHOUT THE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.



                                       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          July 5, 2017

              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
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

                                     2                              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:58C-

1 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,

                                       3                              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


                                     4                             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




                                    5                              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

                                      6                                 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.

                                 7                          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.

                                         8                                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


                                9                             A-1765-15T1
feasible alternative design that would have prevented the harm

without substantially impairing the reasonably anticipated or
                                           1
intended function of the product").

     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.

                                     10                                  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

                                        11                                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

                                12                          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.



                                         13                                    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


                                  14                              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.




                               15                          A-1765-15T1
