In the decades after Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), approved enhanced injury claims – based on the conclusion that a car company has a “reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents” – judges and scholars have debated: (1) plaintiff’s burden-of-proof on apportioning harm; and (2) whether principles of comparative fault apply.
On the first question, the Huddell approach obligates the plaintiff to prove that the “sole cause” of an enhanced injury was a product defect – meaning that the plaintiff has the burden of apportioning the loss.
An alternative line of cases – called the Fox-Mitchell approach – merely requires the plaintiff to prove that the product defect was a “substantial factor” in causing harm that exceeded the damages that would have otherwise been caused in the underlying accident.
As for the second question, the majority rule is that the usual principles on concurrent causation and contributory fault apply in enhanced injury cases.
Section 16(c) of the Restatement (Third) of Torts: Products Liability adopts the Fox-Mitchell approach to burdens-of-proof in enhanced injury cases, while section 17(b) applies general principles of comparative fault.
Sorting through the “clash of court cases and academic antlers,” the Iowa Supreme Court adopted sections 16 and 17 of the new Restatement. Jahn v. Hyundai Motor Co., 2009 WL 3232781 (October 9, 2009).
Glen Jahn was seriously injured when Grace Burke zoomed past a stop sign and rammed into the side of his Hyundai Elantra. Exacerbating the harm, the driver-side airbag on the Elantra allegedly failed to function.
After settling with Burke, Jahn sued Hyundai Motor America (HMA), alleging enhanced injury because of a product defect.
A federal district judge asked the Iowa Supreme Court whether it would adopt sections 16 and 17.
Section 16 provides:
“(a) When a product is defective at the time of commercial sale or other distribution and the defect is a substantial factor in increasing the plaintiff’s harm beyond that which would have resulted from other causes, the product seller is subject to liability for the increased harm.
“(b) If proof supports a determination of the harm that would have resulted from other causes in the absence of the product defect, the product seller’s liability is limited to the increased harm attributable solely to the product defect.
“(c) If proof does not support a determination under Subsection (b) of the harm that would have resulted in the absence of the product defect, the product seller is liable for all of the plaintiff’s harm attributable to the defect and other causes.
“(d) A seller of a defective product that is held liable for part of the harm suffered by the plaintiff under Subsection (b), or all of the harm suffered by plaintiff under Subsection (c), is jointly and severally liable or severally liable with other parties who bear legal responsibility for causing the harm, determined by the applicable rules of joint and several liability.”
And Section 17 says:
“(a) A plaintiff’s recovery of damages for harm caused by a product defect may be reduced if the conduct of the plaintiff combines with the product defect to cause the harm and the plaintiff’s conduct fails to conform to generally applicable rules establishing appropriate standards of care.
“(b) The manner and extent of the reduction under Subsection (a) and the apportionment of plaintiff’s recovery among multiple defendants are governed by generally applicable rules apportioning responsibility.”
Here are highlights of the Supreme Court’s opinion (with omissions not noted in the text):
As late as 1966, courts rejected the notion that a product manufacturer could be liable for defective products where the negligence of another party was the cause of the underlying accident.
The rationale was generally that manufacturers could be held liable only for injuries resulting from intended use. Despite the forseeability of automobile collisions, they were not considered an intended use.
In the seminal case of Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), the Eighth Circuit broke new ground. The court noted, “No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury all are foreseeable.”
As a result, the Larsen court saw no reason “why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents.”
The Larsen approach was further refined by the Fourth Circuit in Dreisonstok v. Volkswagenwerk, A. G., 489 F.2d 1066 (4th Cir.1974).
In Dreisonstok, the court stated that a manufacturer’s duty extended only to designing a vehicle to avoid “unreasonable risk of injury in the event of a collision.” Dreisonstok, 489 F.2d at 1070 n. 11. See generally Barry Levenstam & Daryl J. Lapp, Plaintiff’s Burden of Proving Enhanced Injury in Crashworthiness Cases: A Clash Worthy of Analysis, 38 DePaul L.Rev. 55, 61 (1988) [hereinafter Levenstam & Lapp].
Under an enhanced injury theory, the product defect is not the cause of the initial accident. As a result, the manufacturer cannot be held liable for injuries arising out of the initial collision.
The manufacturer, however, is liable for enhanced injuries over and above the injuries caused by the initial collision.
Burden of proof
A question arises regarding the plaintiff’s burden of proof to sustain an enhanced injury claim.
One line of cases, often named the Huddell approach after a leading case, holds that the plaintiff has the burden of showing that the “sole cause” of the enhanced injury was a product defect. See Huddell v. Levin, 537 F.2d 726 (3d Cir.1976).
According to the court in Huddell, a plaintiff in an enhanced injury case must prove: (1) the existence of a safer, practicable, alternative design, (2) the extent of the injuries the plaintiff would have suffered had the alternative design been used, and (3) “some method of establishing the extent of enhanced injuries attributable to the defective design.” Id. at 737-38.
The Huddell approach was elaborated upon in Caiazzo v. Volkswagenwerk A. G., 647 F.2d 241 (2d Cir.1981).
In Caiazzo, the court stressed that the plaintiff had the burden of showing not only the fact of enhanced injury but the extent of enhanced injuries attributable to the defective design.
According to Caiazzo, if the plaintiff cannot identify what portion of the injury occurred as a result of the design defect by a preponderance of evidence, the enhanced injury claim fails.
The practical impact of the Huddell rule as applied in Caiazzo is that the plaintiff has the burden of apportioning the loss and loses his enhanced injury claim if he fails to offer proof of apportionment.
This approach has been adopted in a number of cases. See, e.g., Barris v. Bob’s Drag Chutes & Safety Equip., Inc., 685 F.2d 94 (3d Cir.1982) (applying Pennsylvania law); Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir.1980) (applying New Jersey law).
The Huddell approach pulls apart and segregates the injuries and, as a result, principles of joint and several liability do not apply in an enhanced injury case.
A second line of cases imposes a less stringent proof requirement on plaintiffs. Under this second line of cases, often referred to as the Fox-Mitchell approach, the plaintiff must prove only that the product defect was a “substantial factor” in creating damage greater than that attributable solely to the underlying accident. See Mitchell v. Volkswagenwerk, AG, 669 F.2d 1199 (8th Cir.1982); Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir.1978).
If the factfinder is unable to segregate the harm caused by the initial collision from the harm caused by the product defect, the manufacturer is liable for the entire injury.
The rationale of the Fox-Mitchell approach is generally that injuries are often indivisible and that the Huddell approach imposes an unfair burden by requiring the plaintiff to “prove the impossible.”
In addition, the Huddell approach is criticized as inconsistent with orthodox concurrent tortfeasor theory in which apportionment of injuries is not required to impose joint liability for the entire injury.
As is apparent, the Fox-Mitchell approach, which has been adopted in a number of cases, see, e.g., Fouche v. Chrysler Motors Corp., 103 Idaho 249 (Idaho Ct.App.1982); Lee v. Volkswagen of Am., Inc., 688 P.2d 1283 (Okla.1984), produces the opposite result of Huddell in the event of indivisible injury.
Under Huddell, the plaintiff has the burden of showing apportionment, usually through expert testimony, and has no enhanced injury claim if the claim is indivisible.
Application of comparative fault
Another disputed issue relates to the relationship between enhanced injury claims and comparative fault.
The majority view is that the principle of concurrent causation applies to cases involving enhanced injuries and, as a result, the principles of comparative fault apply. See, e.g., Montag by Montag v. Honda Motor Co., 75 F.3d 1414 (10th Cir.1996); Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209 (Alaska 1998); Daly v. Gen. Motors Corp., 20 Cal.3d 725 (Cal.1978); Estate of Hunter v. Gen. Motors Corp., 729 So.2d 1264 (Miss.1999); Harsh v. Petroll, 584 Pa. 606 (Pa.2005); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984).
The majority view may be supported in part on the ground that it imposes upon users the responsibility to safely use products and that it would be unfair to impose costs of substandard plaintiff conduct on manufacturers, who would presumably pass on some or all of those costs to users and consumers, including those who use and consume products safely and wisely. See William J. McNichols, The Relevance of the Plaintiff’s Misconduct in Strict Tort Products Liability, the Advent of Comparative Responsibility, and the Proposed Restatement (Third) of Torts, 47 Okla. L.Rev. 201, 283-84 (1994).
A minority of cases, however, do not apply comparative fault principles or at least limit their application in the enhanced injury context. See, e.g., Binakonsky v. Ford Motor Co., 133 F.3d 281 (4th Cir.1998); D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla.2001); Andrews v. Harley Davidson, Inc., 106 Nev. 533 (Nev.1990); Green v. Gen. Motors Corp., 310 N.J.Super. 507 (N.J.Super.Ct.App.Div.1998); Alami v. Volkswagen of Am., Inc., 97 N.Y.2d 281 (N.Y.2002).
Some of these cases, however, arise in jurisdictions applying contributory negligence and may have been motivated by a desire to prevent the harsh result of completely denying a plaintiff recovery where the plaintiff’s negligence was modest.
The minority viewpoint has its adherents in the academic literature. See generally Robert C. Reichert, Limitations on Manufacturer Liability in Second Collision Actions, 43 Mont. L.Rev. 109 (1982).
The reasoning behind the minority line of cases is often that a manufacturer has a duty to minimize the injurious effect of a crash no matter how the crash is caused and has a duty to anticipate foreseeable negligence of users and third parties.
As noted by the New Jersey Supreme Court, “once it is established that the defendant has a duty to protect persons from the consequences of their own foreseeable faulty conduct, it makes no sense to deny recovery because of the nature of the plaintiff’s conduct.” Green v. Sterling Extruder Corp., 95 N.J. 263 (N.J.1984) (quoting Patricia Marschall, An Obvious Wrong Does Not Make a Right: Manufacturer’s Liability for Patently Dangerous Products, 48 N.Y.U. L.Rev. 1065, 1088 (1973)).
This viewpoint was reiterated in Jimenez, where the court observed that “the concept of ‘enhanced injury’ effectively apportions fault and damages on a comparative basis; defendant is liable only for the increased injury caused by its own conduct, not for the injury resulting from the crash itself.” Jimenez v. Chrysler Corp., 74 F.Supp.2d 548 (D.S.C.1999), rev’d in part and vacated in part by Jimenez v. DaimlerChrysler Corp., 269 F.3d 439 (4th Cir.2001).
In addition, some cases support the minority rule on the ground that product manufacturers should be encouraged to design products that protect the user in the event of an accident. Andrews, 796 P.2d at 1095.
Restatement (Third) of Torts.
Against the above clash of court cases and academic antlers, the American Law Institute in the Restatement (Third) of Torts: Products Liability considered the proper approach to enhanced injury claims in sections 16 and 17.
Section 16 of the Restatement (Third): Products Liability provides:
“(a) When a product is defective at the time of commercial sale or other distribution and the defect is a substantial factor in increasing the plaintiff’s harm beyond that which would have resulted from other causes, the product seller is subject to liability for the increased harm.
“(b) If proof supports a determination of the harm that would have resulted from other causes in the absence of the product defect, the product seller’s liability is limited to the increased harm attributable solely to the product defect.
“(c) If proof does not support a determination under Subsection (b) of the harm that would have resulted in the absence of the product defect, the product seller is liable for all of the plaintiff’s harm attributable to the defect and other causes.
“(d) A seller of a defective product that is held liable for part of the harm suffered by the plaintiff under Subsection (b), or all of the harm suffered by plaintiff under Subsection (c), is jointly and severally liable or severally liable with other parties who bear legal responsibility for causing the harm, determined by the applicable rules of joint and several liability.” Restatement (Third) of Torts: Products Liability § 16 (1998).
Section 17 provides:
“(a) A plaintiff’s recovery of damages for harm caused by a product defect may be reduced if the conduct of the plaintiff combines with the product defect to cause the harm and the plaintiff’s conduct fails to conform to generally applicable rules establishing appropriate standards of care.
“(b) The manner and extent of the reduction under Subsection (a) and the apportionment of plaintiff’s recovery among multiple defendants are governed by generally applicable rules apportioning responsibility.” Id. § 17, at 256.
With respect to the issue of indivisible harm in an enhanced injury case, the language of section 16(c) supports the Fox-Mitchell approach.
This interpretation is confirmed by the Reporter’s Note to section 16, which expressly states that the Fox-Mitchell approach is the majority viewpoint and is embraced in the Restatement (Third).
The Reporter’s Note emphasizes, however, that section 16(c) does not formally shift any burden of proof to the defendant. Instead, according to the Reporter’s Note,
“if the plaintiff has established that the product defect increased the harm over and above that which the plaintiff would have suffered had the product been nondefective, and if, at the close of the case, proof does not support a determination of the harm that would have resulted in the absence of the product defect, then the defendant is liable for all the harm suffered by the plaintiff.”
On the issue of application of comparative fault, the Restatement (Third) section 17(b) indicates that generally applicable comparative fault principles should apply among multiple defendants.
The official comments to section 17, however, address only the issue of apportionment of plaintiffs’ fault. The Reporter’s Note emphasizes that a majority of courts utilize comparative fault to reduce the recoveries of product liability plaintiffs, but does not discuss the issue of applying comparative fault principles among defendants.
Adoption of Fox-Mitchell Approach to Causation and Rejection of Divisible Injury Requirement
As stated in the Reporter’s Note, the Restatement (Third) section 16(c) expressly adopts the Fox-Mitchell approach to indivisible harm.
Although Hubbell has a few adherents, on this issue of first impression, we adopt the Fox-Mitchell approach. We believe the Fox-Mitchell approach to causation and the rejection of a requirement that plaintiff show a divisible harm is the soundest approach.
Specifically, we hold that in an enhanced injury case, the plaintiff has the burden of showing the fact of enhanced injury. This burden can be met by offering evidence that the design defect was a substantial cause of injury above and beyond that which would have occurred without the design defect. There is no requirement that a plaintiff prove a divisible injury.
We regard the above statement of law as consistent with Restatement (Third) of Torts: Products Liability section 16(b) and (c).
Application of Comparative Fault and Joint and Several Liability
In light of the Restatement (Third), the evolving case law from other jurisdictions, we align our law with the Restatement (Third) and the majority of jurisdictions.
Conclusion.
We adopt the Fox-Mitchell approach to the required causation in enhanced injury cases.
We further hold that the principles of comparative fault and joint and several liability apply in enhanced injury cases.
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