When you are talking about automotive litigation you will have 1 of 3 possibilities:

1.         Manufacturing defect cases;

2.         A design defect in the automobile causes the accident to happen, e.g. defective     accelerator; and

3.         The design defect didn’t cause the accident but instead “enhanced” the injury. The car’s   lack of crashworthiness enhanced the injury. Instead of suffering a normal injury, you       have a catastrophic one or even death. Also referred to as second-collision cases       meaning, the first collision is when you hit a tree. The second collision is your body colliding with the interior of the car.

Point 1: The Crashworthiness doctrine stems from the recognition that an automobile accident is a foreseeable misuse of a car.  Accidents happen all the time.  An accident is not an intended use of your car but it is a foreseeable misuse. The duty to design a crashworthy car stems from the fact that accidents are foreseeable misuses. That’s where the basic duty comes from.

Point 2: Burden of Proof.  If you’re arguing in a crashworthiness case that you are paralyzed and you only should have had whiplash, is it the plaintiff’s burden to prove that but for the defect I’m only minimally injured and instead I’m paralyzed or does the defendant bear the burden that the alternative design you suggest, it wouldn’t have helped and you’d still be in the same condition given the dynamics of this accident. Who has that burden of either proving or disproving the enhancement?  Third Restatement Section 16 puts the burden on the defendant. If the defendant is unable to prove that enhancement – if they are unable to divide up the harm, they are on the hook for the severe injury. A majority of jurisdictions follow the Third Restatement on this.

Point 3: Should the plaintiff’s conduct in causing the accident count against him in crash worthiness case? If you were drunk and you drive into a tree. Your door is not sufficiently reinforced. Should the fact that you were drunk be something the defendant could use against you? I would argue no, because accidents are foreseeable drunk or not.  Accidents happen, let’s see how the car reacts. Under the Third Restatement and the majority of jurisdictions, plaintiff’s conduct is fair game for the defendant to raise in crash-worthiness.

Point 4: These cases often involve that issue where reasonable alternative design made defeat the very nature of the vehicle. It comes up a lot in crashworthiness cases.

Important Crashworthiness Cases

Burgos v. Lutz

New York Supreme Court, 1987

The expert failed to explain how the proposed design would have prevented any of the decedent’s injuries under the circumstances of the actual collision. The plaintiff’s expert failed to indicate how the alternative design would have absorbed more energy than the steering column design used in the decedent’s vehicle.

These are the most expensive cases to litigate. You divide up the injury in cases where the plaintiff did not wear his seatbelt.

For purposes of products liability, crashworthiness is not exclusively automobiles – it is any moving vehicle.

Crashworthiness cases are the most costly. They are interesting and complex and they are exceedingly expensive. The costs of these cases are well into the 6 figures. They are expert dependent. You have to be careful in deciding which cases to take, especially with Daubert. Given Daubert and the exactitude of expert testimony now required, not only do you need a lot of experts but also you need the best ones and they charge a lot of money for their time. It would not be at all unrealistic if you put a $200,000 into the preparation of a case and that’s fine if you get $4.2 million verdict. It’s not fine if you get no-caused or a $300,000 verdict – not to mention a 3 month trial. If you are a sole practitioner, that’s 3 months of new business that you are not focusing on.

Sumnicht v. Toyota

Supreme Court of WI, 1984

Third Restatements (RIII) § 16 Comment b: In connection with a design defect claim in the context of increased harm, the plaintiff must establish that a reasonable alternative design (RAD) would have reduced the plaintiff’s harm.

One of the thematic issues is dividing up the harm. Crashworthiness cases are so hypothetical – what would have happened had the car been crashworthy? In this case it is apparent that his injuries would have been minor.

Plaintiff’s liability experts included an accident reconstructionist, a mechanical engineer, a biomedical engineer, a safety engineer, a metallurgist, and a neurosurgeon.

Burden of Proof

Should the plaintiff bear the burden of proof of what would have happened had the car been crashworthy? Does the plaintiff have to prove that but for the lack of crashworthiness I have chipped teeth, scrapes and bruises – in essence, parcel out the crashworthiness issue or does the defendant find themselves liable for the entirety of the injury unless they can divide it up?

The Huddell court placed the burden on the plaintiff to make that division. The contrary position is represented by the Fox case. In Fox the 10th circuit found no reason to require plaintiffs in second collision cases to bring forth proof in addition to what you have to do in any case.

The position of both the Fox court (majority view) and the RIII is the plaintiff need not prove a negative. The plaintiff need not prove, but for the defect, I have chipped teeth.

Comment b

Proof of defect does not, on itself, establish as case of increased harm. The plaintiff must also establish that the defect was a substantial factor in increasing the plaintiff’s harm beyond the harm that would have occurred from other causes. When proof does not support a determination of increased harm, the product seller is liable for all harm suffered by the victim.

If the harm cannot be divided – if the defendant cannot satisfy that burden, they are on the hook for the whole thing. That is the Fox approach and the majority approach.

In addition to expert testimony, design defectiveness can be established by the presentation of circumstantial evidence. You can negate other causes with circumstantial evidence. It is also helpful in crashworthiness cases as a proof issue.

Dreisonstok v. VW – classic crashworthiness case. Does the RAD solve one problem and create another? In Dreisonstock, does the RAD perhaps defeat or compromise the very purpose of the vehicle? A VW microbus is a van-type multipurpose vehicle. The design was developed to provide maximum cargo space. There was no way to improve the crashworthiness of the vehicle that would have made it consistent with its purpose. Time and time again, this is an issue in crashworthiness cases. You can’t have it both ways. You buy this car for the express purpose of maximizing cargo space, recognizing that when you are sitting in the front seat, you don’t have much space. Be mindful of that when you talk about RAD in crashworthiness cases – Is the alternative being suggested inconsistent with the inherent purpose of the vehicle?

Duty, Burden of Proof, and Reasonable Alternative Design

1.         Duty. The duty to design reflects the fact that accidents are foreseeable misuses.

2.         Burden of Proof. Does the plaintiff bear the burden of but for your lack of crashworthiness I would have suffered a minor injury but instead I am paralyzed. It is the defendant’s burden to divide up the harm. If the defendant is unable to divide up the harm, they will be responsible for the entirety of the injury.

3.         Reasonable Alternative Design. If you are trying a design defect, without it, you will not make it to a jury. Time and time again in crashworthiness cases the RAD solves one problem, but it creates another problem or perhaps it defeats the very purpose for which you bought the vehicle. That’s the tradeoff that you made. You bought the car because of that feature of cargo space.

Dawson v. Chrysler – had the vehicle been designed differently it would have bounced off the pole, not wrapped around it. Chrysler’s experts say the design offered by Dawson would be less safe. Is it true that this design is not the best for this specific accident? Yes, but for most accidents Chrysler’s design is better. It is unsettling that we are giving a jury the power to say in a particular case like this that we disagree with Chrysler.

Fixing the Dawson problem – The fear in Dawson. Most courts today would probably conclude that a manufacturer is protected from Dawson-type claims, on the ground that reasonable automotive design safety necessarily involves tradeoffs that will result in injury to certain occupants in certain crash situations in order to protect against more serious types of risks to other occupants in other crash situations.

Products Liability Restatement: “When evaluating the reasonableness of a design alternative, the overall safety of the product must be considered. It is not sufficient that the alternative design would have reduced or prevented the harm suffered by the plaintiff if it would also have introduced into the product other dangers of equal or greater magnitude.

Chrysler’s expert testimony has to carry the day.

Cars without airbags are federally preempted. See Geier.

If you are representing an automaker in a crashworthiness case, as a defense lawyer you have two new arrows: (1) RAD; and (2) implied preemption arguments from the Geier case.

Fair and practical note. Juries are very sympathetic in these cases despite the merits. Regardless of what the merits of the case may be, is the jury really listening to the experts? Especially since design engineers pre-planned for such accident scenarios but don’t bank on jury sympathy with marginal cases.

Quintana-Ruiz v. Hyundai Motor Corp.

US Court of Appeals, PR, 2002

Classic airbag case with a small person in the car

15 year old Ines suffered multiple injuries to her arm when the airbag was deployed. Her experts claim that the airbag should not deploy until a higher Barrier equivalent velocity (BEV). Many disastrous accidents happen at BEV levels similar to the one in this case – it is the classic tradeoff discussion again. Yes airbags will frequently harm and at times kill smaller people in cars, but that’s the tradeoff for saving thousands of others. Recognize the tradeoffs in most RAD arguments.

Federal law preempted any failure to warn claim. Federal preemption is a lurking issue in these crashworthiness issues.

The jury charge is both a consumer expectation and risk-utility charge. The verdict cannot stand because of the negative ramifications of the alternative design.

Driver’s Fault

Lowe v. Estate Motors

Supreme Court of MI, 1987

Two major comparative fault issues:

1.         Seatbelt Issue

2.         Intoxication Issue

For purposes of comparative fault, failure to wear a seatbelt is admissible. What the court says about failure to wear a seatbelt and crashworthiness I find to be inscrutable.

Seatbelt evidence in a crashworthiness case: If you represent a defendant, you are absolutely going to bring up failure to wear a seatbelt for comparative fault. Failure to wear a seatbelt visa vie crashworthiness, certainly it is fair game for an automobile manufacturer to argue that an integral part of the crashworthy design of their car is for the user to wear his or her seatbelt. When you are talking about causation in a crashworthiness case of enhanced injury, a good defense lawyer can bring in failure to wear a seatbelt for purposes of comparative causation and how this enhancement occurred.

The critical thing is the jury finds the plaintiff’s failure to wear a seatbelt 60% responsible for causing the injuries.

RIII. A plaintiff’s failure to use a seatbelt is relevant to plaintiff’s fault and to the apportioning of damages. The RIII also acknowledges that seatbelt evidence is relevant in both contexts – comparative fault and enhancement of injuries.

Interesting and problematic. Should the plaintiff’s negligent conduct in causing the accident matter? If you are drunk and you hit a tree, should your drunkenness be considered against you visa vie crashworthiness? Henke: No because you could have just as easily hit the tree by hitting a patch of ice, or swerving to avoid hitting a deer, or whatever the case might be. Hitting the tree is the foreseeable event irrespective of how your driving contributed to it – it could have happened anyway.

Some courts hold that the manufacturer’s duty to build crashworthy cars should protect occupants no matter what the cause of the crash. The majority view is that comparative fault should be applied to such an enhanced injury case. We just don’t see it. Your car is either crashworthy or it’s not.

If your vehicle turned out to be defective in a car crash, call the Las Vegas crashworthiness attorneys at The Law Office of Brett Whipple today at 702.731.0000.

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About Attorney Bret Whipple

Bret Whipple is one of only four Board Certified Criminal Trial Specialists in the entire State of Nevada. He has extensive experience in every Nevada county, including the Nevada Supreme Court. Bret is also licensed to practice in Arizona. When you choose a national board certified trial attorney, you know that your Nevada Lawyer is the best in the business.