Jury Awards $2.55 Million to the Widow and Four Children of a 28-Year-Old Oiler Backed Over by a Flatbed Trailer Sold Without a Back-Up Alarm, and the Appellate Division Affirms

On November 12, 1986, Walter Tirrell was working as an oiler, the trainee responsible for maintaining a backhoe, on a crew laying a gas line from Lambertville to Belle Mead. He was 28 and a half years old, earning about $35,000 a year, and the operating engineer he worked under, Louis O'Rourke, was about to recommend him for promotion to operator, a job that paid $65,000 to $80,000 with overtime. He had a wife and four children, aged one, nearly four, six, and seven.

That day the crew was sent to a spot on Route 31 near Ringoes where the pavement had settled. The backhoe had been driven to the site on a flatbed trailer built by Rogers Brothers Corporation and pulled by a tractor. Tirrell and O'Rourke were standing with their foreman in the middle of the southbound lane, which had been closed to traffic, when the driver started backing the rig up from the curb. No one was posted to watch the truck, though the crew's practice was to have a spotter whenever even the backhoe moved, and the trailer had no audible back-up alarm. O'Rourke did not hear it coming. He caught the movement out of the corner of his eye when the trailer was already close enough to brush his arm and knock the foreman aside. He grabbed for Tirrell, who was knocked to the ground, and the trailer's rear wheels rolled slowly over Tirrell's chest. The driver stopped with Tirrell between the two sets of tires. He raised his head slightly, then slumped, dead.

Donna Tirrell, as administratrix of her husband's estate, sued the tractor manufacturer Navistar and the trailer manufacturer Rogers Brothers under the Product Liability Act, which had taken effect four months before the accident. Her theory was design defect: the trailer's own engineer admitted in deposition that with a backhoe loaded, the driver could see nothing behind the trailer even with extended mirrors, and Rogers Brothers' president conceded the company knew its trailers hauled backhoes but ran no safety tests for blind spots, did not install back-up alarms unless a customer asked, and never told customers alarms existed. Her engineering expert testified that electrical and mechanical back-up alarms had been available since the 1950s, cost roughly $35, and were the only safe way, other than a flagman, to reverse a vehicle with an obscured rear view. John M. Blume argued the appeal and Carol L. Forte was on the brief for the estate for Blume, Vazquez, Goldfaden, Berkowitz & Donnelly.

The jury found the trailer defective and the tractor not defective, and awarded $2,500,000 on the wrongful death claim and $50,000 for Tirrell's conscious pain and suffering, a total of $2,550,000.

Rogers Brothers appealed on many grounds: that the plaintiff should not have been allowed to drop her negligence counts and try only strict liability, that a Newsweek article titled "The Selling of Safety" had been seen lying on the jury room table, that O'Rourke should not have been allowed to describe Tirrell's likely promotion, that family photographs inflamed the jury, and that the verdict was excessive given the economist's $104,000 net loss to the time of trial. On May 21, 1991 the Appellate Division, in a published opinion by Judge Dreier, rejected every point and affirmed. The court acknowledged that the award would give a family whose breadwinner earned about $35,000 a year far more than he could have provided, but held that on the evidence, including the expert proof of lost earnings, household services, and the children's loss of their father's companionship, guidance, and counsel, the verdict was not so disproportionate as to shock the conscience. The Supreme Court of New Jersey denied certification later in 1991.