A New Jersey appellate panel has affirmed a defense verdict for U-Haul in a product liability case arising from an attorney’s fall while exiting the cargo area of a box-type rental truck. The decision addresses two recurring issues in design-defect litigation: the evidentiary burden associated with an “alternative safer design” theory and the limits of pretrial motions aimed at excluding an opposing expert as a “net opinion.” By upholding the trial court’s denial of the plaintiffs’ motions and leaving the jury’s verdict intact, the Appellate Division underscored that identifying a potentially safer design does not, by itself, establish that the challenged product was not reasonably safe under New Jersey law.
The Incident and Claims Against U-Haul
The suit stems from an Aug. 16, 2020 incident in which Francis E. Borowsky Jr. was helping his son move on a rainy day using a 2019 Ford cab chassis box-type truck associated with U-Haul. After multiple loading trips, Borowsky attempted to exit the cargo area and slipped on the step bumper at the rear threshold, falling face-first onto the street. According to the appellate opinion, the fall caused a shattered alveolar bone and the loss of several teeth, along with permanent numbness in the upper lip and mouth and facial disfigurement. Borowsky and his spouse filed suit in October 2021 against U-Haul of Middletown, U-Haul Co. of New Jersey Inc., and U-Haul International Inc., which the opinion identifies as the designer of the truck configuration at issue.
The plaintiffs proceeded on a design-defect theory focused on traction at the cargo-area threshold under wet conditions. Their expert, metallurgical engineer Michaela Kuba, inspected the truck and conducted a coefficient-of-friction test. The opinion indicates she concluded the friction at the threshold was inadequate for wet conditions and identified multiple alternative designs that, in the plaintiffs’ view, U-Haul should have implemented. Those opinions became central both to the requested pretrial relief on liability and to the effort to exclude the defense expert before trial.
Expert Testimony Dispute and Pretrial Motions
Before trial, the plaintiffs moved to bar U-Haul’s expert and separately sought summary judgment on liability, aiming to limit any trial to damages. The defense expert, Zdenek Hejzlar, a safety and human factors consultant, opined that the threshold met or exceeded voluntary industry standards and that the truck was not unreasonably dangerous. He also suggested that the risk of injury was increased by the manner in which Borowsky exited the cargo area, referencing available features such as handholds and a loading ramp. The plaintiffs argued that Hejzlar’s opinions were conclusory and amounted to an impermissible “net opinion,” including because they contended he did not meaningfully address the alternative-design analysis and did not base his conclusions on adequate support.
The Monmouth County Superior Court denied both motions, allowing the defense expert testimony and declining to decide design defect as a matter of law. The case proceeded to trial, where a jury found in favor of U-Haul. On appeal, Borowsky proceeded pro se. The defense was represented by attorneys from McElroy Deutsch Mulvaney & Carpenter LLP, according to court filings, reflecting the case’s posture as a contested design-defect matter turning on competing expert opinions about safety, standards, and the reasonableness of the truck’s threshold design.
Appellate Ruling: Alternative Design Is Not Dispositive
The Appellate Division affirmed in a 20-page decision, holding that the trial court acted within its discretion in rejecting both the effort to exclude the defense expert and the request for summary judgment on liability. The panel emphasized that the plaintiffs’ central appellate theme—an assertedly proven alternative safer design—did not automatically entitle them to judgment as a matter of law. The court explained that it is insufficient to show that a better or safer design exists in the marketplace; a plaintiff must also establish that the challenged product was not reasonably safe. In other words, the alternative design concept functions as part of a broader design-defect inquiry rather than as a standalone dispositive fact.
In evaluating the expert dispute, the panel concluded that Hejzlar’s report directly contested Kuba’s opinions on the design’s safety and the alternative-design test, and that his conclusions were supported by testing referenced by the trial court. The court also rejected the argument that the defense expert failed to conduct a sufficiently thorough examination of competitor designs. By treating the competing expert analyses as presenting factual disputes suitable for resolution by a jury, the panel signaled that pretrial exclusion and liability-only summary judgment remain difficult to obtain when each side offers admissible, method-based testimony on product safety and design reasonableness.
Procedural Posture and What the Decision Signals
The appellate outcome leaves intact the jury’s verdict for U-Haul and affirms the denial of two pretrial motions that would have materially narrowed the case. The decision was issued by a two-judge panel consisting of Judges Kay Walcott-Henderson and Stanley L. Bergman Jr. The plaintiffs’ challenge focused on whether the defense expert’s opinions should have been disallowed and whether the plaintiffs’ expert proof compelled a liability finding. The panel’s affirmance indicates the trial court was permitted to let the factfinder weigh the competing opinions about traction, wet-condition performance, applicable standards, and whether the overall design was reasonably safe for its intended use.
As a practical matter, the ruling highlights that, in New Jersey design-defect litigation, plaintiffs advancing an alternative safer design theory should be prepared to prove not only feasibility and comparative safety, but also that the existing design crosses the line into unreasonable danger. It also reinforces that “net opinion” challenges will often fail when an expert ties conclusions to testing, standards, and articulated reasoning, even if the opposing party disputes the scope or emphasis of the analysis.
