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The Florida Bar Journal
April, 2011 Volume 85, No. 4
The Importance of D’Amario v. Ford and How It Protects Florida’s Consumers

by Theodore J. Leopold, Leslie M. Kroeger, and Diana L. Martin

Page 18

Due to an aggressive campaign seeking to legislatively overrule the Florida Supreme Court’s decision in D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001), the decision may no longer be good law by the time this article is published. The abolition of this decision, which held that the fault of an automobile manufacturer in a crashworthiness case ordinarily may not be apportioned with the fault of the driver of the vehicle who allegedly caused the initial crash,1 will be harmful not only to victims who suffer enhanced injuries in automobile accidents, but also to Florida’s consumers.

Crashworthiness Doctrine
In the 1960s and 1970s, the products liability tort cause of action was developed to allow consumers injured by products to recover for their injuries according to a defect-based, rather than conduct-based, standard.2 Under this new cause of action, a consumer could recover for injuries caused by a product defect, regardless of how the defect arose, because the action focused on the dangerous condition of the product, not the conduct that gave rise to the manifestation of the defect.3 This law broadened the class of consumers injured by products that could recover for their damages from those that could recover only under traditional causes of action for negligence, breach of warranty, and fraud4 by focusing only on the product and not on anyone’s conduct.5

Crashworthiness cases are a subset of products liability actions. The crashworthiness doctrine (also commonly known as the enhanced injury doctrine) places a duty upon all manufacturers “to use reasonable care in design to avoid an unreasonable risk of injury or to minimize the extent of the injury in the event of an accident.”6 This doctrine, which gets its name due to its frequent application to automobile manufacturers,7 has been a part of Florida law for more than 30 years. It was first adopted in Evancho v. Thiel, 297 So. 2d 40 (Fla. 3d DCA 1974), and approved by the Florida Supreme Court in Ford Motor Co. v. Evancho, 327 So. 2d 201 (Fla. 1976). Both courts relied on the reasoning of Larsen v. General Motors, 391 F.2d 495 (8th Cir. 1968), which “recognize[d] a duty of reasonable care on automobile manufacturers based on common law negligence.”8

In Larsen, the plaintiff claimed that due to a design defect in the steering assembly in a Chevrolet Corvair, “he received injuries he would not have otherwise received or, in the alternative, his injuries would not have been as severe.”9 Beginning with the “principle that a manufacturer’s duty of design and construction extends to producing a product that is reasonably fit for its intended use and free of hidden defects that could render it unsafe for such use,”10 the Larsen court focused on the meaning of “intended use” when determining the scope of the manufacturer’s liability. The court reasoned:

Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types. The manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily foresee and when it knows that the probability over the life of its product is high, that it will be involved in some type of injury-producing accident.11

The court held that “[a]ny design defect not causing the accident would not subject the manufacturer to liability for the entire damage, but the manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design.”12

In Evancho, the Florida Supreme Court “adopte[d] the Larsen view [by] holding that [a] manufacturer must use reasonable care in design and manufacture of its product to eliminate the unreasonable risk of foreseeable injury”13 and held “that a manufacturer of automobiles may be liable under certain conditions for a design or manufacturing defect which causes injury but is not the cause of the primary collision.”14 The court, however, specifically noted that it was not attempting to answer the question of whether an automobile manufacturer in a crashworthiness case is a joint tortfeasor with the person that causes the primary collision, or whether a defense of comparative negligence would be appropriate in such cases.15

D’Amario v. Ford
The Florida Supreme Court did not answer the questions that it left open in Evancho until 25 years later in D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001), when it held “that principles of comparative fault concerning apportionment of fault as to the cause of [an] underlying crash will not ordinarily apply in crashworthiness or enhanced injury cases.”16 “Because the manufacturer alleged to be responsible for a defective product that results in a second accident and injury ordinarily may not be held liable for the injuries caused by the initial accident, the fault of the manufacturer may not be compared or apportioned with the fault of the driver of the vehicle who allegedly caused the initial crash.”17

In D’Amario, the court considered two crashworthiness cases in which the plaintiffs were involved in accidents caused by drunk drivers, but sued the automobile manufacturers for the enhanced injuries they received as a result of defects in their automobiles.18 In the case styled D’Amario v. Ford, a teenager was severely “injured when the car in which he was riding as a passenger collided with a tree and then burst into flames. The car was driven by a friend of [the plaintiff’s] who was allegedly intoxicated and speeding at the time of the accident.”19 The plaintiff sued Ford Motor Company for the injuries he received as a result of a fire that started in the engine area after the accident and created an explosion that engulfed the car in flames, but did not seek recovery for any of the injuries he received as a result of the initial collision when the car hit the tree.20 The trial court allowed Ford to introduce evidence of the driver’s intoxication and excessive speed in order to support its defense that fault should be apportioned to the driver under Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), for causing the initial accident.21 “[T]he jury returned a verdict for the defense, finding that Ford was not a legal cause of the injuries to” the plaintiff.22

In the other case considered by the Florida Supreme Court, styled Nash v. General Motors Corp., 734 So. 2d 437 (Fla. 3d DCA 1999), the victim “was driving to church with her two children in the back seat of her 1990 Chevrolet Corsica, [when] a car approaching from the opposite direction [and operated by a drunk driver] crossed the center line and crashed into” her car.23 The victim’s “head struck the metal post that separates the windshield from the driver’s door [and she] later died as a result of her head injuries.”24 The victim’s estate sued General Motors, the manufacturer of her vehicle, alleging a failure of the vehicle’s seatbelt.25 The trial court allowed General Motors to introduce evidence of the other driver’s intoxication.26 “The jury ultimately found no liability on the part of the automobile manufacturer, General Motors, and therefore did not consider the percentage of fault that should be attributed to the drunk driver who caused the accident.”27

In examining these cases, the Florida Supreme Court was required to consider the dilemma presented by the application of comparative fault principles in a crashworthiness case. The Florida Supreme Court had long before abolished the doctrine of contributory negligence28 in favor of a pure form of comparative negligence in which “each party is apportioned liability based on its percentage of fault.”29 The Florida Legislature directly codified the court’s adoption of comparative liability in F.S. §768.81.30 Under this law, a defendant can usually argue to the jury that fault should be attributed to other tortfeasors, even nonparties, in order to reduce the percentage of damages the defendant is responsible for.31 But this comparative negligence principle “collides with the idea that society should hold manufacturers of faulty automotive equipment liable for defects regardless of what caused an underlying accident.”32 Although “the person who caused the initial accident is responsible for triggering the event that precipitated the failure of the faulty device in the first place, . . . the claimed injuries at issue are only those stemming from the failure of the faulty device.”33 The enhanced injuries were caused by the product defect, regardless of how the underlying accident occurred — by pure accident or due to someone’s neglect.34 Permitting a jury to allocate fault to a person who caused the underlying accident, but not the enhanced injuries, “would partially and unfairly absolve the manufacturer of liability for making a faulty device.”35

In an attempt to reach a just solution to this dilemma, the Florida Supreme Court reached the following holding:

[P]rinciples of comparative fault involving the causes of the first collision do not generally apply in crashworthiness cases. Such a rule, we believe, recognizes the important distinction between fault in causing the accident and fault in causing additional or enhanced injuries as a result of a product defect, a distinction that defines and limits a manufacturer’s liability in crashworthiness cases. In such cases, the automobile manufacturer is solely responsible for the enhanced injuries to the extent the plaintiff demonstrates the existence of a defective condition and that the defect proximately caused the enhanced injuries. Thus, an automobile manufacturer who allegedly designed a defective product may not be held liable for damages caused by the initial collision and may not apportion its fault with the fault of the driver of the vehicle who caused the initial accident.36

The court also determined the introduction of evidence regarding the “issue of the driver’s fault in causing the initial accident [in] the trial of a crashworthiness case tends to unduly confuse the jury by focusing attention on the conduct giving rise to the accident instead of the issues of the existence of a defect and its role in causing the enhanced injuries,” so such evidence should not be admitted.37

Campaign to Overrule D’Amario
The D’Amario decision is viewed as anathema by automobile manufacturers, particularly Ford Motor Company. “Ford has identified the crashworthiness doctrine as it is applied in Florida as the number one most unfair caustic tort issue in the United States.”38 Ford attributes the D’Amario decision with more than quadrupling the number of crashworthiness cases filed against the company.39 It claims that before D’Amario, there were only about 10 crashworthiness cases filed in Florida per year, and they cost the company less than $2.5 million to defend.40 Post-D’Amario, Ford claims that it has to defend between 40 and 50 crashworthiness cases in Florida a year, which costs the company approximately $20 million a year.41 In light of this, Ford “decided that the Florida D’Amario opinion was the worst single law, the most unfair law in the United States [and put] boots on the ground” to fix the issue by having D’Amario overruled by the Florida Legislature.42

While D’Amario v. Ford is still the law in Florida as of the writing of this article, it may not be by the time of publication. Efforts have been successful in getting Florida Senator Garrett Richter to introduce S.B. 142 in the 2011 legislative session. This bill, which has already been favorably received by both the Judiciary Committee and Commerce and Tourism Committee,43 would change the law to require the following language be added to F.S. §768.81: “In a products liability action alleging that injuries received by a claimant in an accident were greater than the injuries the claimant would have received but for a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them.”44 The bill includes language expressing the legislative intent behind it:

The Legislature intends that this act be applied retroactively and overrule D’Amario v. Ford Motor Co., 806 So. 2d 29 424 (Fla. 2001), which adopted what the Florida [S]upreme [C]ourt acknowledged to be a minority view. That minority view fails to apportion fault for damages consistent with Florida’s statutory comparative fault system, codified in s. 768.71, Florida Statutes, and leads to inequitable and unfair results, regardless of the damages sought in the litigation. The Legislature finds that, in a products liability action as defined in this act, fault should be apportioned among all responsible persons.45

Representative H. Marlene O’Toole also introduced House Bill 201 with language identical to Senate Bill 142.46

Support for the D’Amario Decision
Established Law Regarding Initial and Subsequent Tortfeasors — In searching for an analogy to help resolve the issues presented in D’Amario, the Florida Supreme Court turned to the law regarding medical malpractice, which does not allow for apportionment between initial and subsequent tortfeasors.47 The court found persuasive two principles of law regularly applied in medical malpractice cases: “(1) [T]he cause of an initial injury which may require medical assistance is not ordinarily considered as a legal cause of injuries resulting from the subsequent negligence of the medical-care provider; and (2) an initial wrongdoer who causes an injury is not to be considered a joint tortfeasor with a subsequent medical provider whose negligence enhances or aggravates injuries caused by the initial wrongdoer.”48

Unlike joint tortfeasors whose “conduct combines to produce a single injury,”49 initial and subsequent tortfeasors produce separate and distinct injuries.50 In a medical malpractice case, the initial tortfeasor causes the initial injury, but a subsequent medical provider causes injury in addition to that original injury.51 The action of the initial tortfeasor in causing the underlying injury only furnishes the occasion for the subsequent and supervening negligence of the medical provider, it is not the proximate cause of the result of that subsequent negligence.52 In an action against the medical provider, it would be inappropriate to apportion any fault to the initial tortfeasor because the medical provider is solely at fault for the medical negligence.53

Similarly, in crashworthiness cases, the plaintiff is suing a subsequent tortfeasor to recover only those damages resulting from “a distinct and second injury caused by a defective product”; not the damages suffered as a result of the initial accident that would have been suffered even without the product defect.54 Asking the jury to apportion fault to the initial tortfeasor55 in such a case is inappropriate because the “rule of damages in crashworthiness cases [already] effectively acts to apportion fault and responsibility between the first and second collisions and their respective causes.”56 The concept that an automobile manufacturer is liable only for the enhanced injuries caused by a product defect “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.”57

Avoiding Prejudice to Plaintiffs — Asking the jury to apportion fault between the person who caused the initial accident and the automobile manufacturer of the defective product that caused a plaintiff’s enhanced injuries will be asking the jurors to engage in cognitive dissonance, and will inevitably prejudice plaintiffs.

[B]y definition, a manufacturer in a second collision action has zero percent accident-causing fault, so there is always 100 percent accident-causing fault to be considered in mitigation of a manufacturer’s injury-enhancing fault. One hundred percent accident-causing fault compared with a manufacturer’s injury-enhancing fault will always constitute a superseding cause of enhanced injuries, thereby insulating a manufacturer from liability in every second collision action and contradicting the holding in Larsen and the axiom.58

This prediction is borne out by what occurred in the D’Amario and Nash cases, as well as by Ford’s own statistics. The juries in D’Amario and Nash were unable to get past the fault of the drunk drivers in causing the initial accidents to even reach the issue of apportioning any of the plaintiffs’ enhanced injury damages to the automobile manufacturer defendants.

And, according to Ford, in states about the size of Florida that allow comparative negligence in crashworthiness cases, there are generally about 10 cases filed per year, which cost the company approximately $2.5 million annually.59 But since D’Amario, that number has risen to over 40 cases per year in Florida and over $20 million.60 Ford thinks these numbers mean that it is paying more than its fair share in Florida, but that begs the normative question of why Ford shouldn’t pay for the damages that were caused by its defective products. In these crashworthiness cases, plaintiffs have alleged injuries caused by product defects and are seeking only those damages caused by the product defects. It would undermine the goals of products liability law, and its focus on the product defect rather than the defect-manifesting conduct, to allow an automobile manufacturer to escape liability by allocating fault to the person who caused the initial accident, as well as prejudice plaintiffs by preventing them from fully recovering for their damages.

Avoiding Juror Confusion Senator Richter, R–Naples, has stated that the legislature’s enactment of Senate Bill 142 will permit jurors to hear all facts leading up to a products liability case.61 But the jury never gets to hear all facts leading up to any case. Florida’s Evidence Code limits the admissibility of evidence to only that which is relevant to the issues in a case in that the evidence tends to prove or disprove a material fact,62 and the probative value of which is not “substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.”63

Aside from how the initial accident occurred, the occurrence of prior accidents is another subject on which the jury often does not get to hear all the facts leading up to a crashworthiness case. Evidence regarding the occurrence of prior accidents is admissible only where “the evidence pertains to the same type of equipment under substantially similar circumstances.”64 So, for instance, in a lawsuit against an airplane manufacturer for damages suffered in a plane crash as a result of a faulty carburetor, evidence of 100 other accidents involving similar faulty carburetors is not admissible unless each of those accidents occurred under substantially similar conditions as the accident in the underlying litigation.65 Evidence of actions a product manufacturer takes to make a product safer after an accident are also excluded from evidence because it might “confuse and mislead the jury” into believing these subsequent changes are a “tacit admission of prior negligence.”66

While Florida’s Evidence Code gives trial judges the discretion to determine relevancy and admissibility of evidence,67 Senator Richter’s bill would eliminate that discretion by requiring jurors to consider the fault of all persons who contributed to an accident, regardless of the relevancy of that evidence in the crashworthiness case and regardless of the likelihood that such evidence will confuse and mislead the jury into believing the automobile manufacturer is not liable for all the damages caused by the product defect at issue in the litigation.

Imagining a World Without D’Amario
Plaintiffs Will Be Unable to Fully Recover for their Enhanced Injuries — Assuming Ford’s statistics are accurate, many plaintiffs who believe they have suffered enhanced injuries in automobile accidents will decide not to even file a lawsuit because of the unlikelihood that they will recover if the manufacturer gets to allocate fault to the person who caused the initial accident. While some of these damages may be recoverable from the person who caused the initial accident, not all of them will be. Inevitably, the state will be called on to subsidize care for those crashworthiness victims who are underinsured and unable to receive a full recovery of their damages through the tort system. This is particularly true in cases involving catastrophic injuries, in which the victims will often require lifetime care that can cost millions of dollars.

Automobile Manufacturers Will Have Less Incentive to Make Safe Products — “[P]roducts liability law ‘is one of several forces that induce manufacturers to consider making pro-safety decisions in the marketplace,’ [and a finding of liability in products liability cases has] ‘seemed to cause safety improvements to occur more quickly than they would have occurred in the absence of liability.’”68

Product manufacturers are motivated by the bottom line. Unfortunately, even with the threat of being haled into civil court to account for injuries caused by a defective product, manufacturers knowingly leave unsafe products in the hands of unwitting consumers. For instance, in Buell-Wilson v. Ford Motor Co., 73 Cal. Rptr. 3d 277, 312 (Cal. App. 4 Dist. 2008), the court found:

[There was] evidence, which the jury accepted, that Ford knew of dangerous instability defects in the Explorer. Ford’s own testing showed that the Explorer was unstable and prone to rollover on flat dry pavement at less than highway speeds. Ford knew before the Explorer was released for sale that the same instability characteristics in that vehicle led to serious injuries to Bronco II drivers. . . . Ford knew that the Explorer’s roof was weak and that roof crush caused injury during rollover accidents. Ford had the technology to make the Explorer stable and strengthen the roof, but did not use it. The modifications to strengthen the roof would have cost approximately $20 per vehicle.69

And in Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 813 (Cal. App. 4 Dist. 1981), the court stated:

Through the results of the crash tests Ford knew that the Pinto’s fuel tank and rear structure would expose consumers to serious injury or death in a 20 to 30 mile-per-hour collision. There was evidence that Ford could have corrected the hazardous design defects at minimal cost but decided to defer correction of the shortcomings by engaging in a cost-benefit analysis balancing human lives and limbs against corporate profits. Ford’s institutional mentality was shown to be one of callous indifference to public safety. There was substantial evidence that Ford’s conduct constituted “conscious disregard” of the probability of injury to members of the consuming public.70

It stands to reason that without the threat of significant civil liability for the damages caused by defective products, manufacturers will have less incentive to produce safe products.

Regulators Will Have Less Awareness of Product Dangers — “The filing of litigation is presumably sometimes necessary for the discovery of the newsworthy story behind a product’s dangers, and litigation can itself be news that focuses consumer attention on alleged product dangers and attracts regulatory attention.”71 With 40 to 50 crashworthiness cases filed a year, regulators are more likely to notice when there is a recurring defect in a particular product. By deterring consumers from filing crashworthiness cases, recurring defects are more likely to go unnoticed, thereby increasing the opportunities for those defects to cause harm.

Conclusion
The Florida Supreme Court’s holding in D’Amario v. Ford properly balances a consumer’s right to recover in a crashworthiness case for enhanced injuries caused by product defects with the limitation of a product manufacturer’s liability for damages to only those for enhanced injuries, not damages resulting from the initial collision. Although proposed legislation requiring jurors to consider the fault of the person who caused the initial accident in crashworthiness cases may reduce the amount of money automobile manufacturers are required to spend in defense of such cases each year, it will also harm consumers by preventing plaintiffs from obtaining full recovery for their enhanced injuries, reducing the incentive manufacturers have to create safe products, and reducing the visibility of recurring product defects. Hopefully, for Florida’s consumers, the attack on D’Amario v. Ford will be unsuccessful.


1 D’Amario v. Ford, 806 So. 2d 424, 426 (Fla. 2001).

2 John C.P. Goldberg & Benjamin C. Zipursky, The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell, 123 Harv. L. Rev. 1919, 1923 (2010).

3 Id. at 1923-24.

4 Id.

5 Thomas V. Van Flein, Allocation of Fault and Products Liability: A Comment on Safety Products and Human Error, 19 Alaska L. Rev. 141, 154 (2002).

6 Harrison v. McDonough, 381 F. Supp. 926, 930 (S.D. Fla. 1974) (citing Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968)).

7 See Tafoya v. Sears Roebuck & Co., 884 F.2d 1330, 1337 n.14 (10th Cir. 1989).

8 Ford Motor Co. v. Evancho, 327 So. 2d 201, 203 (Fla. 1976).

9 Larsen v. General Motors, 391 F.2d 495, 497 (8th Cir. 1968).

10 Id. at 501.

11 Id. at 501-02.

12 Id. at 503.

13 Evancho, 327 So. 2d at 204.

14 Id. at 201.

15 Id. at 204 n.4.

16 D’Amario v. Ford, 806 So. 2d 424, 426 (Fla. 2001) (footnote omitted).

17 Id.

18 Id. at 427-30.

19 Id. at 427 (footnote omitted).

20 Id. at 428.

21 Id.

22 Id.

23 Id. at 429.

24 Id.

25 Id.

26 Id. at 430.

27 Id.

28 Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).

29 Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 468 (Fla. 2005).

30 Id. at 469.

31 Bearint v. Dorell Juvenile Group, 389 F.3d 1339, 1345-46 (11th Cir. 2004).

32 Id. at 1346.

33 Id.

34 Id.

35 Id.

36 D’Amario, 806 So. 2d at 441.

37 Id. at 440.

38 In-house Counsel, Ford Motor Company, Remarks at Fla. S. Jud. Comm. Meeting in support of S.B. 142 (Jan. 11, 2011).

39 Id.

40 Id.

41 Id. In-house Counsel, Ford Motor Company, Remarks at Fla. H. Civ. Jus. Subcomm. Meeting in support of H.B. 201 (Feb. 9, 2011).

42 In-house Counsel, Ford Motor Company, Remarks at Fla. S. Jud. Comm. Workshop in support of S.B. 744 (Mar. 4, 2010).

43 See History of S.B. 142, available at http://www.flsenate.gov/Session/Bill/2011/142.

44 S.B. 142 at 3, available at http://www.flsenate.gov/Session/Bill/2011/0142/BillText/ c1/HTML.

45 Id. at 4, available at http://www.flsenate.gov/Session/Bill/2011/0142/BillText/c1/HTML.

46 H.B. 201, available at http://www.flsenate.gov/Session/Bill/2011/0201/BillText/Filed/HTML. That bill was amended by the Civil Justice Subcommittee to include the following language: “In a products liability action brought by the claimant alleging that because of a defective product the injuries received by the claimant in a motor vehicle accident were greater than the injuries the claimant would have received but for the defective product, the trier of fact shall consider only the fault of the persons responsible for the accident in regard to the injuries directly caused by the accident and shall consider only the fault of the persons responsible for the defective product in regard to the injuries directly caused by the defective product, unless the trier of fact cannot distinguish the injuries directly caused by the defective product, in which case the trier of fact shall consider the fault of all persons who contributed to the accident and the injuries and apportion liability between them.” H.B. 201 c1, available at http://www.flsenate.gov/Session/Bill/2011/0201/BillText/c1/HTML.

47 D’Amario, 806 So. 2d at 435.

48 Id. (footnotes omitted).

49 Id. at 435, n.12 (citing Davidow v. Seyfarth, 58 So. 2d 865, 868 (Fla. 1952)).

50 Id. at 436-37.

51 Id. at 437.

52 Id. at 436 (citing Whitehead v. Linkous, 404 So. 2d 377 (Fla. 1st D.C.A. 1981)); Vendola v. Southern Bell Tel., 474 So. 2d 275, 279 (Fla. 4th D.C.A. 1985).

53 See D’Amario, 806 So. 2d at 435-36.

54 Id. at 436-37.

55 In a medical malpractice case it is clear that the initial tortfeasor is the person who caused the accident that required the plaintiff to seek medical treatment because that is the person that first set the ball in motion toward plaintiff’s injuries. But the situation in a crashworthiness case is not as simple because the automobile manufacturer had to first put the defective product into the marketplace before the vehicle could be involved in an accident. Thus, it is somewhat of a misnomer to call the person who caused the initial automobile accident the initial tortfeasor in a crashworthiness case.

56 D’Amario, 806 So. 2d at 433.

57 Id. (quoting Jimenez v. Chrysler Corp., 74 F. Supp. 2d 548, 565 (D. S.C. 1999), reversed in part and vacated, 269 F.3d 439 (4th Cir. 2001)).

58 D’Amario, 806 So. 2d at 434 (quoting Robert C. Reichert, Limitations on Manufacturer Liability in Second Collision Actions, 43 Mont. L. Rev. 109, 118 (1982)).

59 In-house Counsel, Ford Motor Company, Remarks at Fla. S. Jud. Comm. Workshop in support of S.B. 744 (Mar. 4, 2010).

60 Id.

61 Senator Garrett Richter, Remarks at Fla. S. Jud. Comm. Meeting in support of S.B. 142 (Jan. 11, 2011).

62 Fla. Stat. §§90.401 and 90.402.

63 Fla. Stat §90.403.

64 Hogan v. Gable, 30 So. 3d 573, 574 (Fla. 1st D.C.A. 2010) (citations omitted).

65 Godfrey v. Precision Airmotive Corp., 46 So. 3d 1020 (Fla. 5th D.C.A. 2010).

66 Voynar v. Butler Mfg. Co., 463 So. 2d 409, 412 (Fla. 4th D.C.A. 1985).

67 Trees By & Through Trees v. K-Mart Corp., 467 So. 2d 401, 403 (Fla. 4th D.C.A. 1985).

68 John C.P. Goldberg & Benjamin C. Zipursky, The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell, 123 Harv. L. Rev. 1919, 1923 (2010) (footnotes omitted) (quoting John D. Graham, Product Liability and Motor Vehicle Safety, in The Liability Maze: The Impact of Liability Law on Safety and Innovation 120 (Peter W. Huber & Robert E. Litan eds. 1991)).

69 Buell-Wilson v. Ford Motor Co., 73 Cal. Rptr. 3d 277, 312 (Cal. App. 4 Dist. 2008).

70 Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 813 (Cal. App. 4 Dist. 1981).

71 John C.P. Goldberg & Benjamin C. Zipursky, The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell, 123 Harv. L. Rev. 1919, 1930-31 (2010).


Theodore J. Leopold, managing partner of Leopold~Kuvin, P.A., has a national practice specializing in consumer justice litigation with a focus on complex products liability, managed care, catastrophic injury, automotive crashworthiness, wrongful death, and class action litigation. Mr. Leopold has been profiled in The Best Lawyers in America for many years.

Leslie M. Kroeger, a partner at Leopold~Kuvin, P.A., is a civil trial attorney who handles a variety of complex litigation matters in the areas of products liability, automotive crashworthiness, catastrophic injury, and wrongful death.

Diana L. Martin is an associate at Leopold~Kuvin, P.A., where she handles civil appeals in state and federal courts and provides litigation support. She is a 2002 high-honors graduate of the University of Florida Levin College of Law. Before entering private practice, she was a law clerk to Judge Martha Warner at the Fourth District Court of Appeal.

[Revised: 02-10-2012]