Comparative Fault in a Crashworthiness Case

2/28/2005

Robert J. King, Jr.
Lommen, Nelson, Cole & Stageberg, P.A.

Since the 1968 Larsen¹ decision of the Eighth Circuit Court of Appeals, it has been recognized across the country that manufacturers of safety equipment are responsible for injuries that would not have occurred but for the failure of that equipment. If a child’s car seat, for example, is defective and its young user suffers injuries in a car crash that otherwise would not have resulted, the manufacturer of the car seat is liable in damages for those “enhanced” injuries.
An issue that commonly arises in this type of litigation concerns the application of the law of comparative fault. Our appellate courts have not clearly addressed this issue. It is submitted that a manufacturer in a crashworthiness case may not always have its fault compared with the party that initiated the crash. The manufacturer and the initiating tortfeasor cannot have common liability to the plaintiff if the enhanced injury is divisible from the initiating event. This article will explain the crashworthiness doctrine, discuss pertinent Minnesota and foreign appellate decisions, and analyze the applicability of Minnesota’s comparative fault statute in a crashworthiness case.

HYPOTHETICAL

John and Mary Doe have a two-year-old son, Tommy. They purchased a new car seat for him that utilizes an integral harness system with a buckle latch mechanism located in the seat bottom between the child’s legs. This buckle mechanism features two, alternative slots: the inner slot can be used with small children and the outer slot with larger children. Only one slot can be used at a time. There is a red push button in the front of the seat bottom attached to a single spring-loaded latch that releases the seat belt tab from either slot.

One day, Mary Doe and Tommy were driving in the family SUV. Tommy’s seat was secured in the rear right seating position of the vehicle with the shoulder/lap belt system and Tommy was secured within the seat itself. Mary was in the right lane of a four lane divided freeway. Without warning, another car came up on her left, lost control, and collided with the driver’s side of Mary’s SUV, forcing her off the road. Her SUV hit the far wall of the ditch, flipped, and rolled several times, coming to rest on its wheels. When she looked into the back seat, Tommy was no where to be found. Tommy’s car seat was still strapped into the vehicle, but the harness of his car seat was unbuckled. Tommy was ultimately found in the grass some distance from the car with a traumatic brain injury.

Tommy had been secured in his seat through the use of the outer slot, as he was too large for the inner slot. An investigation by the State Patrol disclosed that when they buckled the latch plate in the outer slot, they heard and felt the expected “click” of the engaging of the buckle. If they tugged hard enough on the harness, however, it came unbuckled. They ultimately concluded that this false latch phenomenon was the result of debris found lodged within the inner, unused slot. The debris was a coin, a U.S. Quarter. No one knows or can determine how or when this coin became lodged in the inner buckle slot.

LEGAL CLAIMS AND DEFENSES

Based upon the input of appropriate experts, Tommy’s guardian ad litem brought an action against the manufacturer of the car seat. As luck would have it, the driver who initiated the rollover was uninsured. Tommy’s experts concluded that Tommy’s car seat failed to restrain him because of the presence of the coin in the unused slot and that Tommy would not have suffered a brain injury if he had remained restrained in his car seat. They further opined that the presence of the debris in the unused slot was the result of the defective, unreasonably dangerous design of the car seat and inadequate warnings and instructions for the seat’s safe use.
The manufacturer’s defenses included the contentions that the negligence of the other driver was the sole cause of the rollover; that the car seat was not defective; and that Tommy sustained his brain injury before coming out of his car seat so that his ejection from the car seat, even if the result of a defect in the design of the seat, was not the cause of his injury.

CRASHWORTHINESS DOCTRINE

The seminal case on the topic of crashworthiness is Larsen v. General Motors Corp., 391 F.2d 495, 503 (8th Cir. 1968). Thirty five years ago, the Eighth Circuit Court of Appeals defied prevailing precedent and determined that a company that manufactures cars has a “reasonable duty of care in the design of its vehicles consonant with the state of the art to minimize the effect of accidents.” Thus was born the doctrine of crashworthiness--that vehicle collisions are foreseeable and that manufacturers have a duty to protect members of the public who might be involved in them. Courts of other jurisdictions have cited Larsen hundreds of times in cases involving automobiles and many other types of products. The decision, which was based upon Minnesota common law, changed the landscape of tort liability.

The liability of the product manufacturer in a crashworthiness case is carefully proscribed:


Larsen, 391 F.2d at 502-503. Minnesota recognizes the crashworthiness cause of action. E.g. Rebehn v. General Motors Corp., 1995 WL 146662, at p. 4 (Minn. App. Ct. 1995)(“Crashworthiness cases concern those alleged design defects which cause or fail to prevent injuries resulting from accidents, not the defects which cause the accidents themselves.”).

COMPARATIVE FAULT

A question not yet faced by Minnesota’s appellate courts is whether or not a manufacturer in a crashworthiness case can have its fault compared to the fault of the party that caused the crash itself. This is a critically important question given Minnesota’s comparative fault statute. Section § 604.02 subd. 1 of Minnesota Statutes provides that when two or more persons are severally liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except that a person whose fault is greater than 50 percent is jointly and severally liable for the whole award. In a crashworthiness case, then, a manufacturer is not required to pay the entire award to even a fault-free plaintiff when its fault is 50 percent or less. This statute provides considerable incentive for the manufacturer to try to spread the fault among as many parties as possible.

An analysis of Minnesota’s comparative fault statute, case law, and persuasive foreign authority leads to the conclusion that the crashworthiness defendant may not always have its fault compared to the fault of the party who initiated the crash. A crashworthiness manufacturer is liable only for injuries resulting from its defective product. If a jury concludes that the product was defective and caused injury over and above what would have resulted from the crash itself, the manufacturer is wholly liable for that injury.

MINNESOTA LAW

Minnesota’s comparative fault statute comes into play only “[w]hen two or more persons are jointly liable. . . .” Minn. Stat. § 604.02. E.g. Maday v. Yellow Taxi Co. of Minneapolis, 311 N.W.2d 849, 850 (Minn. 1981) (“It has always been the law of this state that parties whose negligence concurs to cause injury are jointly and severally liable. . . . This common-law rule has been incorporated into our comparative negligence statute. . . .”); Fiedler v. Spoelhof, 483 N.W.2d 486, 489 (Minn. App. Ct. 1992) (parties whose negligence concurs to cause an injury are jointly and severally liable for the plaintiff's total award). Moreover, Minnesota’s statutory comparative fault scheme still requires proof of causation. See Minn. Stat. § 604.01 subd. 1a.

A crashworthiness defendant and the tortfeasor who initiated the crash are not necessarily concurrently at fault as envisioned by the comparative fault statute. Also, their individual fault is not always the legal cause of plaintiff’s entire loss, given that the manufacturer is only responsible for enhanced injuries.

This conclusion is supported by analogy to Minnesota’s line of cases involving the indivisible injury rule. Courts generally impose joint and several liability when "two or more persons acting independently cause harm to a third person through consecutive acts of negligence closely related in point of time." Canada by Landy v. McCarthy, 567 N.W.2d 496, 507 (Minn. 1997). Defendants are only jointly and severally liable for a plaintiff’s injuries when their separate acts of negligence are incapable of division. Maday, 311 N.W.2d at 850 (parties whose negligence concurs to cause an indivisible injury are jointly and severally liable) Erickson v. Whirlpool Corp., 731 F. Supp. 1426, 1430-31 (D. Minn. 1990). This is known as the "single-indivisible-injury" rule. The purpose of this rule is fairness in that it prevents a plaintiff from having to prove which impact in a chain of collisions did which harm. Whether or not the harm to plaintiff is capable of apportionment among two or more causes is a question of law. Mathews v. Mills, 178 N.W.2d 841, 845 (Minn. 1970). In complying with fairness and equity principles, the court generally places the burden of proving apportionment on defendant, who is usually the party seeking it. See, e.g., Jenson v. Eveleth Taconite Co., 130 F.2d 1287, 1293-95 (8th Cir. 1997) (applying reasoning of Landy). When the harm is capable of division, the court can assign responsibility to each defendant and each defendant is liable for their entire damages. Mathews, 178 N.W.2d at 844.

A good example of a practical application of the indivisible injury rule that is rooted in Minnesota case law is the medical negligence incident that follows the initial negligence of another party that resulted in the need for medical care. The “single indivisible injury” rule does not relate to subsequent medical malpractice, even when closely related in time, because the legal duties of the two tortfeasors are entirely different. Couillard v. Charles T. Miller Hospital, Inc., 92 N.W.2d 96 (Minn. 1958) (holding that doctor was a subsequent tortfeasor, rather than joint tortfeasor, where doctor misdiagnosed a fractured vertebra after a fall on a public bus); Bondy v. Allen, 635 N.W.2d 244 (Minn. App. Ct. 2001) (refusing to apply indivisibility rule to defendant ambulance service and defendant motorist because ambulance service was a subsequent tortfeasor only liable for addition harm caused by negligent treatment.).

The closest analysis of Minnesota law in a crashworthiness case occurred in Mitchell v. Volkswagenwerk, AG, 669 F.2d 1199 (8th Cir. 1982) (applying Minnesota law). There, the plaintiff was injured when he was ejected from a vehicle during a rollover accident. He brought suit to recover for his injuries against the driver of the vehicle and the vehicle manufacturer. There was a dispute regarding how the plaintiff’s quadriplegic injury was sustained. Citing Larsen, the Mitchell court agreed that in the context of product defect cases,


Id. at 1205. In Mitchell, the Eighth Circuit vacated and remanded the decision of the district court because that court failed to rule whether or not the damages caused by the driver versus the manufacturer were capable of apportionment. Id. at 1209. The district court has the judicial responsibility to make apportionment determinations and its failure to do so is plain error. Id.

In our hypothetical, the cause of Tommy’s brain injury is divisible as a matter of law: either, as claimed by plaintiff, Tommy was injured due to his car seat’s defective condition that caused him to be ejected, placing liability on the manufacturer, or, as claimed by the manufacturer, he was injured before any product failure, exonerating the manufacturer from fault. The jury’s verdict, on the basis of the expert opinions, has to be one or the other insofar as the crashworthiness claim is concerned. Consequently, there can be no joint liability between the manufacturer and the motorist who initiated the crash. With no joint liability, there can be no comparison of the fault of these two parties. The motorist is fully liable for all of the damages, while the manufacturer is fully liable only for damages relating to the brain injury, the “enhance injury” in the nomenclature of a crashworthiness claim.

FOREIGN DECISIONS

The best analysis of this issue has been performed by the Florida Supreme Court in D'Amario v Ford Motor Co, 806 So.2d 424 (Fla 2001). In D’Amario, the court held that principles of comparative fault concerning apportionment of fault as to the cause of the underlying crash will not ordinarily apply in enhanced injury cases. Id., at 426. The negligence of another party or non-party may be asserted by the manufacturer only when it contributed to the cause of the enhanced injuries. Id., at 426, n. 1.

D’Amario involved the consolidation of two separate automobile accident cases. In one of them, the Nash case, the car of a mother and her two children was struck by a car that was being driven by a drunk driver and had crossed the centerline. The mother’s head struck a post between the driver’s door and the rear passenger door and she was killed. Her estate sued the car’s manufacturer, claiming that a failure of the seatbelt was to blame for her death. The trial court permitted the manufacturer to introduce evidence about the conduct of the other driver. On appeal from a defense verdict, the appellate court reversed. The supreme court affirmed.

The supreme court reasoned that the underlying rationale for imposing liability against manufacturers for secondary injuries caused by a design defect makes the triggering factor in an accident’s cause irrelevant. Id., at 433. The court emphasized that the manufacturer is liable only for enhanced damages, not damages that otherwise resulted from the initial negligence. Id.  The court also noted that the rule of damages in crashworthiness cases also effectively acts to apportion fault and responsibility between the first and second collisions and their respective causes:


Id.  The court was concerned that permitting a manufacturer to apportion fault with a third party’s fault in causing the accident would result in the manufacturer effectively avoiding liability for designing a defective product, thus undermining the essential purpose of the crashworthiness doctrine. Id., at 434. The court also relied by analogy on medical malpractice law to the effect that the cause of an initial injury that necessitates medical care is not considered a legal cause of injuries resulting from the subsequent negligence of the medical provider. Id., at 435-7. Finally, the court expressed concern about the risk of juror confusion if the manufacturer is allowed to insert into the trial the issue of the initial tortfeasor’s fault in causing the initial harm. This would distract the jury’s attention from the issues of the existence of a product defect and its role in causing the enhanced injuries. Id., at 440.

Noting that Florida had adopted Larsen and that Larsen “has subsequently received widespread approval throughout the country,” the D’Amario court recognized that any other result would render Larsen a dead letter:


Id. at 427, 434. Quoting with approval a law review article on the subject, the court explained:


Id. at 434, quoting Robert C. Reichert, Limitations on Manufacturer Liability in Second Collision Actions, 43 Mont. L. Rev. 109, 117-18 (1982). D’Amario was followed in Griffin v. Kia Motors Corp., 843 So. 2d 336 (Fla. App. 2003), and General Motors Corp. v. McGee, 837 So. 2d 1010 (Fla. App. 2002).

Other states are in agreement with the analysis employed in D’Amario. In Cota v. Harley Davidson, 684 P.2d 888 (Ariz. App. 1984), the plaintiff caused his one-vehicle collision when he rode on the wrong side of the road while drunk. His claim was limited to enhanced injuries from the rupture of a gasoline tank. The trial court excluded evidence of this drinking and driving and told the jury not to speculate regarding how the collision occurred. The appellate court affirmed, stating that the evidence was both irrelevant and prejudicial. Similarly, the Nevada Supreme Court granted the plaintiff a new trial in a crashworthiness claim on the grounds that the trial court erred when it admitted evidence of the plaintiff’s drinking. Andrews v. Harley Davidson, Inc., 796 P.2d 1092 (Nev. 1990). The Iowa Supreme Court reached exactly the same conclusion in Reed v. Chrysler Corp., 494 N.W.2d 224 (Iowa 1992). New Jersey courts agree. Crispin v. Volkswagenwerk, AG, 591 A.2d 966 (N.J. App. 1991).

In Gerow v. Mitch Crawford Holiday Motors, 987 S.W.2d 359 (Mo. App. 1999), the plaintiff driver in a one-car accident claimed that the defective placement of the fuel tank resulted in a second collision and enhanced damages. The trial court specifically rejected a defense-proposed instruction comparing fault, and the appellate court agreed with this ruling. The Court of Appeals granted a new trial because defense counsel stated in closing argument that the driver had fallen asleep--an assertion that was both irrelevant and prejudicial.

Interpreting South Carolina law, the Fourth Circuit Court of Appeals upheld the trial court’s exclusion of testimony that the plaintiff-driver had gone through a red light. The court determined that this evidence was irrelevant to a claim that a defective door latch enhanced damages. Jamenez v. DaimlerChrysler Corp., 269 F.3d 439 (4th Cir. 2001).

CONCLUSION

A crashworthiness defendant is responsible only for enhanced injuries, that is, injuries resulting from product defect. It may not have its fault compared to the fault of the tortfeasor who caused the crash, and thereby potentially reduced, unless the injuries are incapable of division. The practitioner is encouraged to carefully analyze medical causation in case there is a basis to divide the cause of the injuries between the fault of the various wrongdoers.

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¹Larsen v. General Motors Corp., 391 F.2d 495, 503 (8th Cir. 1968).
2 Because the initial wrongdoer and the manufacturer or the healthcare provider are not joint tortfeasors, the initial wrongdoer is not liable to indemnify the secondary wrongdoer with respect tot he enhanced injury damages.  See D'Amario, 806 So. 2d, at 427, n. 3.