Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3863-24 THE ESTATE OF RENE MELENDEZ, JR., through its General Administrator and Administrator, ad prosequendum, JANINE MELENDEZ, Plaintiff-Appellant, v. NEW JERSEY TURNPIKE AUTHORITY, THE NEW JERSEY DEPARTMENT OF TRANSPORTATION, THE STATE OF NEW JERSEY, J. FLETCHER CREAMER & SON, INC., ML RUBERTON CONSTRUCTION CO., INC., CASTELLON SA and AUTOLIV, INC. Defendants, and FORD MOTOR COMPANY, Defendant-Respondent. ______________________________ Argued October 6, 2026 – Decided November 12, 2026 Before Judges Gummer, Paganelli, and DeAngelis. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4784-19. Joseph M. Cerra argued the cause for appellant (Lynch Law Firm, PC, attorneys; Joseph M. Cerra and James S. Lynch, on the briefs). Robert M. Palumbos (Duane Morris LLP) of the Pennsylvania bar, admitted pro hac vice, argued the cause for the respondent (Leah A. Mintz and Robert M. Palumbos, attorneys; Leah A. Mintz Robert M. Palumbos, and Tiffany M. Alexander (Nelson Mullins Riley & Scarborough LLP), of counsel and on the brief). PER CURIAM Plaintiff the Estate of Rene Melendez through its General Administrator and Administrator, ad prosequendum, Janine Melendez, appeals from the July 25, 2025 order granting summary judgment to defendant Ford Motor Company and dismissing plaintiff's design-defect and failure-to-warn claims.1 Applying the applicable standards, we affirm the dismissal of the design-defect claim, vacate the order granting summary judgment on the failure-to-warn claim, and remand this matter for further proceedings consistent with this opinion. 1 Because it is the only defendant participating in this appeal, we use "defendant" to refer to Ford Motor Company. A-3863-24 2 I. Because the matter was decided on summary judgment, we recite the facts from the record in the light most favorable to plaintiff, the non -moving party. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). In September 2016, decedent Rene Melendez, Jr. purchased a 2016 Ford Transit van from All American Ford for use in his HVAC business. The van was sold as an empty cargo vehicle. It did not include shelving, a bulkhead, or a partition separating the passenger compartment from the cargo area. Decedent was involved in a single-vehicle accident on September 2, 2018. At the time of the accident, the van was carrying more than 800 pounds of tools and equipment, some stored on shelving and some stored on the floor. The record reflects that shelving, and a barrier or partition had been installed after purchase, although the parties dispute who performed that work. The accident occurred when decedent exited a tollbooth and, while entering Route 78 in Newark, struck a guardrail at approximately forty miles per hour. The seat belts and air bags allowed decedent to survive the initial impact. However, the force of the impact caused the tools and equipment to push forward. The barrier between the passenger compartment and cargo area did not keep the tools and equipment in the cargo area. A-3863-24 3 Decedent was crushed into the steering wheel, and sustained traumatic injuries. Still alive for a short period after the accident, decedent was pinned and could not be removed from the van. The van then ignited, which resulted in decedent being trapped in the burning van until he succumbed to his injuries. Plaintiff commenced this action on June 27, 2019, naming as defendants the New Jersey Turnpike Authority (Authority), the New Jersey Department of Transportation (DOT), the State of New Jersey, and fictitious defendants. Defendant, along with contractors ML Ruberton Construction Co. (Ruberton) and J. Fletcher Creamer & Son, Inc. (Creamer), were added in amended pleadings, including the operative third amended complaint. The court granted Ruberton summary judgment on October 7, 2022, and no appeal was taken from that order. Plaintiff later entered into stipulations of dismissal with prejudice as to Creamer, the Authority, the State, and the DOT. In the third amended complaint, plaintiff alleged defendant had defectively designed the van for its intended use as a cargo van and had failed to warn that a crash-tested cargo barrier was necessary before the van could safely be used to transport cargo. After discovery closed, defendant moved for summary judgment. A-3863-24 4 Before the trial court, the parties disagreed about the cause of decedent's injuries. Defendant argued the guardrail's impact attenuator had been fully compressed in prior accidents and, therefore, could not absorb the force of decedent's collision, resulting in decedent's injuries. Plaintiff attributed decedent's fatal injuries not to the initial impact itself, but to the cargo intrusion into the passenger compartment. In support of its claims, plaintiff relied on expert reports from accident reconstructionist Michael Markushewski, biomechanical expert Ronald Fijalkowski, and human factors and warnings expert Dr. Kenneth Nemire, Ph.D., CPE. Markushewski opined the cargo breached the barrier, forced the driver's seat forward, and caused decedent to become trapped between the steering wheel and the cargo, resulting in fatal injuries. He further found that a collision of this kind, at approximately forty miles per hour, was foreseeable and ordinarily survivable if the occupant was adequately protected from cargo intrusion. In addition, he noted that defendant manufactured vans for sale in Europe that were subject to stricter standards requiring a safety barrier to prevent cargo from intruding into the passenger area. Plaintiff alleged defendant was aware of the danger from cargo intrusion but failed to offer a cargo barrier designed to prevent the intrusion of cargo into A-3863-24 5 the passenger area. Plaintiff contended defendant did not market or sell a cargo barrier in the van, did not manufacture one for after-sale installation, and did not recommend one from a third-party manufacturer for installation. Markushewski also conducted a sled test using an exemplar 2016 Ford Transit 250 van loaded with approximately 835 pounds of cargo and equipped with a crash-tested cargo barrier. According to his report, the test dummy occupying the driver's seat was not severely injured. He concluded that an alternative design incorporating that barrier would have prevented decedent's death at a cost of $1,260. Fijalkowski similarly opined that if the partition had not failed, decedent would have sustained only minor to moderate injuries. Dr. Nemire reviewed defendant's customer materials and concluded they did not provide information concerning the installation of a bulkhead or the crash performance of cargo restraint systems. He also noted the absence of warnings in the cargo area and offered examples of warnings he considered appropriate. In his opinion, the warnings provided by defendant were inadequate. Defendant disputed plaintiff's theory of design defect, failure-to-warn, and causation. Defendant's experts maintained the van was intentionally sold as an empty cargo vehicle so purchasers could select equipment suited to their A-3863-24 6 intended use. Defendant also relied on testing in which more than 400 pounds of sand-filled boxes were secured in a van with straps and tie-downs, in which the vehicle crashed head-on at thirty-five miles per hour. According to defendant, the cargo remained secured during that test. Defendant argued that plaintiff's experts did not express an opinion concerning defendant's test of the tie-down anchors. Defendant also maintained that plaintiff had not established defendant had a duty to warn that heavy items in the cargo area could pose a danger in a crash when that danger is obvious. Defendant agreed the van, as sold, did not come with a bulkhead, partition, shelving, or any other aftermarket items. According to defendant, because ultimate purchasers had different uses of the van, it provided anchor points and tie-downs in the vehicle. Defendant maintained that purchasers of the van and third-party upfitters were in the best position to determine the accessories needed for the customer's intended use. Defendant also alleged that its website directed dealers and customers to qualified upfitters. In addition, defendant published instruction manuals to upfitters and customers for the proper installation of aftermarket items. Defendant's experts contended decedent did not use the designated anchor points A-3863-24 7 when installing the shelving and did not use all the designated mounting locations for the barrier. Relying on Berkoski v. Honda Motor Company Ltd., 480 N.J. Super. 379 (App. Div. 2025), defendant maintained that the van was not defectively designed merely because it did not include a manufacturer-installed cargo barrier because a manufacturer is not required to provide every possible safety option. Rather, defendant argued the van was properly designed and manufactured and performed as expected when sold to decedent. Defendant noted the law does not impose a duty on defendant to make an already-safe vehicle safer. Defendant also argued plaintiff's failure-to-warn expert's opinion was a net opinion and was not based on any objective standards. After hearing the parties' arguments on July 25, 2025, the trial court placed a decision on the record and entered an order granting defendant's motion. The trial court concluded plaintiff had not shown the design of the van was defective because it lacked a suitable barrier or because defendant did not supply one. The court also concluded plaintiff's failure-to-warn claim could not survive summary judgment and expressed concerns regarding causation and foreseeability, A-3863-24 8 including whether the cargo had been secured using the available tie -downs. This appeal followed. 2 II. "[A]ppellate court[s] review[] an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). We "review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (first citing Brill, 142 N.J. at 540; and then citing R. 4:46-2(c)). A trial court's determination that a party is entitled to summary judgment as a matter of law is not entitled to any "special deference" and is subject to de novo review. Cypress Point Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 415 (2016). A cause of action for a design defect or failure-to-warn is governed by the Product Liability Act (PLA) N.J.S.A. 2A:58C-1 to -11. "[T]he same elements to establish a cause of action apply when a plaintiff's claim concerning a 2 On October 21, 2026, we granted plaintiff's motion for leave to file a supplemental appendix, but denied plaintiff's motion for leave to file a supplemental brief. Plaintiff filed the supplemental appendix on October 26, 2026. A-3863-24 9 defective product is based on a failure[-]to[-]warn". Coffman v. Keene Corp.¸133 N.J. 581, 594 (1993). Under N.J.S.A. 2A:58C-2, a plaintiff can prove that a product was defective in one of three ways: A manufacturer or seller of a product shall be liable in a product liability action only 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: a. 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 b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner. A plaintiff must prove: (1) the product was defective; (2) "the defect existed when the product left the defendant's control;" and (3) "the defect caused injury to a reasonably foreseeable user." Coffman, 133 N.J. at 593. "A failure[- ]to[-]warn, or a failure[-]to[-]warn adequately, may constitute a defect in a product sufficient to support a cause of action in strict liability." Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 57 (1996) (citing Becker v. Baron Bros., Coliseum Auto Parts, Inc., 138 N.J. 145, 151-52 (1994)). In other words, a "prerequisite" for recovery under the PLA "is the existence of a defective condition." Id. at 49. Accordingly, "[a] plaintiff must prove either that the product's risks outweighed its utility or that the product could have been A-3863-24 10 designed in an alternative manner so as to minimize or eliminate the risk of harm." Lewis v. Am. Cyanamid Co., 155 N.J. 544, 570 (1998). We recently held that the alternative-design standard has two parts. The first part is that "[a] product . . . is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design . . . [and the second part requir ing that] the omission of the alternative design renders the product not reasonably safe." Berkoski, 480 N.J. Super. at 392-93 (first alteration and omissions in original) (quoting Restatement (Third) of Torts: Prods Liab. § 2(b) (A.L.I. 1998)). Simply put, a plaintiff cannot succeed in a products liability action solely by proffering alternative designs; they must also show that the omission of the alternative design renders the product unreasonably safe. In a failure-to-warn case, "the duty to warn is premised on the notion that a product is defective absent an adequate warning for foreseeable users that 'the product can potentially cause injury.'" Clark v. Safety-Kleen Corp., 179 N.J. 318, 336 (2004) (quoting Coffman, 133 N.J. at 593-94). The failure to provide necessary warnings constitutes a breach of duty. Coffman, 133 N.J. at 598 (citing Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 207-08 (1984) A-3863-24 11 (finding "[a] duty to warn is consonant with a manufacturer's broader duty to place in the stream of commerce only products that are reasonably safe ")). "Initially, the plaintiff must establish that the defendant had a duty to warn." James v. Bessemer Processing Co., 155 N.J. 279, 297-98 (1998). The manufacturer of a product has a duty to warn about any risk relating to the product that it knows or ought to know, Feldman v. Lederle Laboratories, 97 N.J. 429, 434 (1984), unless the risk and the way to avoid it are obvious, Mathews v. Univ. Loft Co., 387 N.J. Super. 349, 357-58 (App. Div. 2006). Once plaintiff establishes a duty to warn, he or she must then establish "that an adequate warning was not provided." James, 155 N.J. at 298. A manufacturer "shall not be liable for harm caused by a failure[-]to[-]warn if the product contains an adequate warning or instruction." N.J.S.A. 2A:58C-4. An "adequate warning" is defined as: [O]ne 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. [Ibid.] A-3863-24 12 "Warnings may be included in printed materials packaged with the product or on labels affixed to the product." Mathews, 387 N.J. Super. at 356. Moreover, warnings "may be in words or pictures, and 'pictorial symbols, rather than simply words, may be required to adequately convey safety warnings to some anticipated users.'" Ibid. (quoting Levey v. Yamaha Motor Corp., 361 N.J. Super. 312, 318 (App. Div. 2003)). A plaintiff must then prove the breach of duty and that "the absence of a warning was a proximate cause of" the accident. Coffman, 133 N.J. at 594. The heeding presumption is "a presumption that plaintiff would have 'heeded' or followed a warning had defendant given one." Id. at 595. The heeding presumption serves to ease a plaintiff's burden of proof on the issue of causation. Id. at 603. "[O]nce the heeding presumption comes into play, the burden of coming forward with evidence, i.e. the burden of production, shifts to the defendant to overcome or rebut the presumption." Sharpe v. Bestop, Inc., 314 N.J. Super. 54, 67 (App. Div. 1998). "Ordinarily, issues of proximate cause are considered to be jury questions." Perez v. Wyeth Labs. Inc., 161 N.J. 1, 27 (1999). A-3863-24 13 III. We first address the design-defect claim. In issuing its decision, the court held: And with regard to the design expert, there's no analysis to show the van [was] defective because it lacked [a] barrier, Ford failed to provide a barrier. And in fact I believe there was some reference in the moving papers that in fact the [p]laintiff's expert conceded the fact the van . . . was not defectively designed. So on that basis, I believe that summary judgment as to the design issue should be granted. Markushewski in his report concluded that "a properly designed, crash tested cargo barrier would have preserved occupant survival space and prevented fatal compression injuries" and that "a reasonable alternative design was readily available, cost effective, and so safe that it introduced no additional risk of injury to driver or passenger." Nonetheless, Markushewski failed to demonstrate in either his report or deposition that the van was defectively designed. Markushewski did not dispute that if the tie-downs were used, the van would be safe to transport cargo. He conducted a sled test that demonstrated that a crash barrier would have protected the decedent. However, he failed to conduct any tests to determine whether the tie-down system in the van would have prevented the shifting of cargo here. During his deposition, Markushewski testified: A-3863-24 14 Q. Okay. So you do not have the opinion that the Transit van sold by Ford without any cargo barrier is defective in and of itself? A. Well, not really, because the van isn't usable at that point. You can't use the van basically as an empty shell other than, I don't know, to load dirt into or something. And even then you would need a cargo barrier. I think every one of these vans, as pointed out by [defense expert Roger] . . . Burnett, and Ford I've seen in other cases, are custom upfitted to whatever the criteria is for the – for the workers that purchase them. And I believe that Ford has an obligation to make sure that cargo remains in the cargo area, and I don't think that they did that here. .... If it were, in fact, a van that was sold as an empty shell on the lot and Ford washed their hands from the complete process with regard to how it's going to be used in the trades, and the purchaser does his own modifications to the van, then I believe Ford did what it had to do. It provided anchor points and locations in the van for a barrier. . . . [(Boldface omitted).] Markushewski did not specifically offer an opinion on whether the installed barrier at the time of the accident would have failed if it was properly installed. He noted that the installed barrier was not connected to the anchor points provided by defendant. Markushewski also failed to opine on the effectiveness of the van's tie-downs. Any assertion that Markushewski A-3863-24 15 conducted tests demonstrating that the tie-downs were ineffective is not supported by the record. Thus, the evidence supports the court's decision that plaintiff did not demonstrate the van manufactured with tie-downs and anchor points was unsafe for the intended purpose of transporting cargo, even without a third -party upfitter adding additional equipment. Although plaintiff's expert confirmed the existence of a feasible alternative design that would have prevented decedent's injuries, this alone is insufficient for a finding that the van was defectively designed. However, we reach a different conclusion on the failure-to-warn issue. Plaintiff argues that even if the design-defect claim fails, it still has a viable failure-to-warn claim. Defendant contends that the failure-to-warn claim fails because the threat of the contents shifting after a rapid deceleration is open and obvious. In deciding the motion as to plaintiff's failure-to-warn claim, the court did not address defendant's net-opinion argument. Instead, for the purposes of the motion, it assumed Dr. Nemire would "have survived a [Rule 104] hearing." Because the court did not determine whether Dr. Nemire's opinions constituted net opinions or whether a Rule 104 hearing would assist the court in resolving A-3863-24 16 any issues regarding the admissibility of his testimony, we do not address those issues in this opinion. State v. McGuigan, 478 N.J. Super. 284, 307-08 (App. Div. 2024). As stated above, the manufacturer of a product has a duty to warn about any risk relating to the product that it knows or ought to know, Feldman, 97 N.J. at 434, unless the risk and the way to avoid it are obvious, Mathews, 387 N.J. Super. at 357-58. Once a plaintiff shows a duty to warn and the absence of an adequate warning, a rebuttable presumption that the plaintiff would have heeded the warning applies. James, 155 N.J. at 297-98; Coffman, 133 N.J. at 603. "As a result of the heeding presumption, the burden on a plaintiff to establish product defect causation in the failure-to-warn context is not an onerous one." James, 155 N.J. at 297. The court erred in granting summary judgment on plaintiff's failure-to- warn claim based on the view that the hazard was open and obvious and that causation therefore failed as a matter of law. Pursuant to Campos, a perceived danger does not "automatically extinguish" a manufacturer's duty to warn. 98 N.J. at 209. Rather, "the obviousness of a danger, as distinguished from a plaintiff's subjective knowledge of a danger, is merely one element to be factored into the analysis to determine whether a duty to warn exists." Id. at A-3863-24 17 207. Thus, "[a] manufacturer is not automatically relieved of [its] duty to warn merely because the danger is patent." Ibid. The Court has stated: More relevant questions in the warning context include the following. Is the lack of the warning consonant with the duty to place in the stream of commerce only products that are reasonably safe, suitable, and fit? Will the absence of a duty encourage manufacturers to eliminate warnings or to produce inadequate warnings? Is the danger so basic to the functioning or purpose of the product — for example, the fact that a match will burn — that a warning would serve no useful purpose? [Id. at 207-08.] Here, the pertinent risk was not merely that cargo in a van can shift. Instead, the risk was that, in a frontal collision or sudden deceleration, inadequately restrained heavy cargo could breach the occupant space and pin or crush the driver if the van lacked a proper barrier or bulkhead. That risk is not akin to the sort of danger that is so basic to the product's ordinary function that a court can conclude as a matter of law a warning would serve no purpose. See Campos, 98 N.J. at 208; Mathews, 387 N.J. Super. at 358-63. Unlike the risk in Mathews, where the court found no useful warning could tell a sleeping college student how not to roll out of the top bunk of a bunk bed, here a reasonable factfinder could conclude a warning could have conveyed concrete, useful information that could have served a purpose: that a cargo van used to transport A-3863-24 18 heavy equipment should be equipped with a barrier or crash-tested cargo restraint system to protect the driver from cargo intrusion in a collision. A reasonable factfinder could conclude that risk is the kind of risk that can be reduced or avoided through an adequate warning. Viewing the record in the light most favorable to plaintiff, the record contains sufficient evidence to create a genuine dispute of material fact as to the failure-to-warn claim. Plaintiff presented evidence defendant knew of the safety value of an installed cargo barrier and of the risk posed by cargo intrusion into the occupant compartment. Defendant's witness, Burnett, testified that a barrier "can provide a separation for things moving into the occupant, the driver's seat area," and acknowledged that defendant had been aware of this safety benefit for more than twenty years. Burnett further testified that defendant had warned commercial upfitters in its Body and Equipment Mounting Manual that the "vehicle should be equipped with a bulkhead to give [the] best protection to driver and front passenger," yet conceded that no comparable warning appeared in the owner's manual provided to end users or customers. Dr. Nemire opined defendant had failed to warn end users or customers in the owner's manual "of the risks posed by inadequate cargo restraints," failed to advise them "of the necessity to install a crash tested barrier," and failed to A-3863-24 19 provide instructions for installation even though defendant had engineered mounting points for aftermarket cargo barriers. Because the court assumed, for purposes of summary judgment, that plaintiff's expert's opinion was admissible, plaintiff presented sufficient evidence to defeat summary judgment. Here, the court could not resolve causation on summary judgment by assuming decedent would not have heeded a warning. Campos expressly distinguishes between duty and a plaintiff's subjective awareness, holding that even if an injured user perceived the danger, that knowledge does not automatically negate duty; at most, it may bear on causation. 98 N.J. at 209-10. As explained in Campos, the plaintiff's awareness must be considered "in terms of causation rather than duty." Id. at 209. And where causation depends on how the facts are viewed in context, the issue should be resolved by the factfinder. Mathews, 387 N.J. Super. at 358 (citing Campos, 98 N.J. at 210) (recognizing that causation must be considered in the factual context of the case). The court drew factual inferences against plaintiff. It reasoned that even though tie-downs were available, decedent "didn't use them anyway," and therefore that plaintiff could not establish causation. Plaintiff disputed whether the record supported that premise. Moreover, instead of drawing a negative inference against plaintiff, the court should have applied the heeding A-3863-24 20 presumption and left it to the jury to determine whether any evidence about a failure to use the tie-downs was sufficient to overcome that presumption. Because plaintiff produced evidence from which a factfinder could have concluded defendant knew of the relevant risk, recognized the protective role of a bulkhead, and included bulkhead-related instructions for upfitters, but did not provide a comparable warning to end users, the trial court erred in granting summary judgment on the failure-to-warn claim. We therefore vacate that portion of the July 25, 2025 order. Affirmed in part; vacated in part; and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. A-3863-24 21