The Minority Gets It Right: The Florida Supreme Court Reinvigorates the Crashworthiness Doctrine in D’Amario v. Ford
Since its recognition more than 30 years ago, the crashworthiness doctrine has become a central tenet of products liability law. The doctrine applies principally in so-called “second collision” or “enhanced injury” cases involving automobile crashes with two distinct “collisions.”1 The first collision causes the accident itself (vehicle A hits vehicle B ). The second collision causes the plaintiff’s so-called enhanced injuries (during the impact with vehicle B, the driver of vehicle A strikes the interior of his vehicle and is injured or killed). The crashworthiness doctrine simply holds that the manufacturer of the vehicle is liable—in negligence and/or strict liability—for the enhanced injuries sustained from the second collision.
Even though the doctrine itself is relatively straightforward, some aspects of its application are not. Foremost among them is whether a manufacturer can reduce its liability for a victim’s enhanced injuries by apportioning fault among those parties who caused the initial collision.
Two lines of cases have emerged in this hotly contested debate. The majority view holds that a manufacturer’s fault in causing enhanced injuries may be reduced by the fault of those ( i.e., the plaintiff or third parties) who caused the initial collision. The minority position, by contrast, maintains that because a manufacturer is solely responsible for its product’s defects, it should also be solely liable for the enhanced injuries caused by those defects.
This debate is more than academic. Crashworthiness cases frequently involve catastrophic injuries, e.g., death, paralysis, and brain damage, that are quite often the result of a second collision caused by a product defect. Permitting manufacturers to reduce their liability for these injuries by contending that they were actually caused by the parties responsible for the initial collision dramatically impacts the equities, economics, and outcomes of automotive products liability cases.
The majority view has long had numbers on its side.2 And after the Restatement (Third) of Torts lent its formal support in 1998, it seemed to have momentum as well.3 Then, in a turn against the tide, the Florida Supreme Court in November 2001 issued D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001), a well-reasoned opinion that firmly aligned Florida with the minority view and overturned a 1995 Florida appellate court decision that had previously put Florida in the majority camp.
Through its profile, thoroughness, and purposeful rejection of the majority view, D’Amario takes a provocative stand in crashworthiness jurisprudence. Yet the question remains: Is the decision true to—or a departure from—the principles that led to the development of the crashworthiness doctrine 35 years ago?
This article attempts to answer this question by 1) considering the majority and minority positions regarding the application of comparative fault principles in crashworthiness cases; 2) exploring the D’Amario decision in detail; and 3) discussing its implication for dealing with claims of comparative fault in crashworthiness cases.
Birth of the Doctrine
The crashworthiness doctrine formally began in 1968 with the Eighth Circuit Court of Appeals decision in Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). The case centered on severe injuries suffered by the plaintiff when the steering mechanism of his 1963 Chevrolet Corvair thrust backwards and struck him in the head during a head-on collision. The plaintiff claimed that the steering assembly was defective and caused him to suffer enhanced injuries that he would not have suffered had it been properly designed. The defendant-manufacturer, General Motors, argued that it had “no duty whatsoever to design and manufacture a vehicle which is otherwise ‘safe’ or ‘safer’ to occupy during collision impacts.”4 The court pointedly disagreed. It first observed that “[w]hile automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts.”5 After concluding that such collisions and injuries were foreseeable, the court held that manufacturers have a reasonable, but not absolute, duty to minimize them: “[A] manufacturer is under a duty to use reasonable care in the design of its vehicle to minimize the unreasonable risk of injuries in the event of collisions.”6
The court also rejected General Motors’ contention that imposition of this duty singled out automakers for expanded liability. To the contrary, the court considered its ruling well rooted in general negligence principles that required all manufacturers to provide products that were fit for their intended use and free from hidden defects.7 In this regard, the court emphasized that the manufacturer’s duty to produce crashworthy vehicles extended only to the prevention of enhanced injuries. “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.”
Larsen’s importance cannot be overstated. It articulated the three core elements of the crashworthiness doctrine: 1) vehicle collisions are inevitable and reasonably foreseeable; 2) auto manufacturers have a duty to use reasonable care to reduce the unreasonable risk of injury in collisions; and 3) liability for a manufacturers’ failure to do so is limited to those injuries caused by product defect, i.e., injuries in excess of those that would have resulted from the first collision absent the defect.
Two Sides Emerge: The Comparative Fault Debate
Larsen quickly gained acceptance. Three federal appeals courts applied it as the presumptive state law of choice in three significant decisions,8 and by 1991 every jurisdiction in the country had adopted it.9 In many respects, the doctrine’s ascent was not surprising. It was, as the Larsen court explained, simply the application of basic products liability negligence principles to automobiles.
But it was also much more. Unlike typical product liability claims, crashworthiness cases by definition include two discrete injury-causing events (“collisions”) and two discrete sets of injuries. Moreover, the doctrine holds that a manufacturer can only be held liable for the enhanced injuries due to a product defect, but not for those caused by the initial collision. This reasoning was never controversial. For example, a manufacturer’s negligence in producing a defective, nondeploying airbag does not cause the vehicle to hit a tree, and so the manufacturer should not be liable for the injuries arising from the tree collision.
Controversy did arise, however, with whether the party who caused the first collision (tree impact) should be held liable for the enhanced injuries caused by second collision (airbag’s failure to deploy). Courts and commentators on both sides vociferously claimed that logic, law, equity, and public policy all supported their position. As outlined below, both the majority and minority positions offered compelling arguments.
• The Majority View
The majority view divides roughly into two strains of thought. The first holds that the crashworthiness doctrine must be viewed through the prism of traditional tort principles—such as proximate cause and the doctrine of subsequent tortfeasors—and that these principles mandate the application of comparative fault. The court in Meekins v. Ford Motor Co., 699 A.2d 339 (Del. Super. Ct. 1997), for example, concluded in that crashworthiness cases the cause of the first collision is necessarily a proximate cause of the second collision and the resulting enhanced injuries. In Meekins the plaintiff’s vehicle was struck by another when he allegedly ran a stop sign. As a result of this collision, the plaintiff’s airbag deployed and crushed his fingers. The plaintiff sought damages from Ford solely for his crushed digits, but Ford argued that his recovery should be reduced by his comparative fault in running the stop sign and causing the first collision.
The court agreed with Ford. Applying what it claimed were general tort principles and noting that there can be more than one proximate cause of an event, the court concluded that “it is obvious that the negligence of a plaintiff who causes the initial collision is one of the proximate causes of the injuries he sustained, whether limited to those the original collision would have produced or including those enhanced by a defective product in the second collision.”10
Other courts have reached the same conclusion. In Hinkamp v. American Motors Corp., 735 F. Supp. 176 (E.D.N.C. 1989), the plaintiff’s car veered off an icy road and rolled over, leaving him with serious and permanent brain injuries. Evidence revealed that the plaintiff/driver was intoxicated. Noting that accidents can have more than one proximate cause, the court refused, despite the crashworthiness doctrine, to retreat from the “longstanding rule that a plaintiff’s negligence is a complete bar to recovery if it contributes to his injuries.”11
In a similar vein, some courts have reasoned that in “two collision” cases, the initial tortfeasor (the party who causes the first collision) may be held liable for the subsequent negligence of the second tortfeasor (manufacturer of the defective product) because the enhanced injuries from the second collision are foreseeable consequences of the first.
For example, in General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1217-18 (Alaska 1998), the court permitted General Motors to argue that its liability for producing an allegedly defective seatbelt system should be reduced by virtue of the plaintiff’s head on collision caused by a third party tortfeasor. Relying on the so-called subsequent tortfeasor doctrine, the court explained that “an original tortfeasor is considered a proximate cause, as a matter of law, of injuries caused by subsequent negligen[ce]” of the manufacturer of the defective product.12
The second strain of thought comprising the majority view holds that general fairness and public policy considerations require that the fault of the original tortfeasor be considered in apportioning liability for enhanced injuries. Although Larsen rejected the notion that the crashworthiness doctrine singled out automakers for expanded liability, a number of courts have concluded that the refusal to let manufacturers apportion fault with the initial tortfeasor would result in exactly this sort of discriminatory treatment. As the court in Whitehead v. Toyota Motor Corp., 897 S.W.2d 684, 695 (Tenn. 1995), observed: “[I]t is illogical to hold the comparative fault applies to products liability actions generally, but does not apply to ‘enhanced injury’ claims. The questions are, in reality, the same.” Or, as two commentators put it: “[R]efusing to allow comparison of a plaintiff’s negligent conduct foists extraordinary hardships on enhanced injury defendants who are singled out among tortfeasors for discriminatory application of proximate cause and comparative fault principles.”13
As for public policy concerns, courts and commentators have opined that the application of comparative fault in crashworthiness cases furthers the public’s interest in deterring negligent driving. As a Louisiana appellate court explained in Moore v. Chrysler Corp., 596 So. 2d 225, 238 (La. Ct. App. 1992), “This affirms the manufacturer’s duty to make the automobile reasonably safe while not diluting the driver’s duty to exercise ordinary caution.”14
• The Minority View
The minority view results from a stricter construction of the crashworthiness doctrine that treats each collision as a separate event with independent legal causes and injuries. A federal district court articulated the issue this way:
Because a collision is presumed [in crashworthiness cases], and enhanced injury is foreseeable as a result of the design defect, the triggering facts of the accident is [are] simply irrelevant. . . . Further, the alleged negligence causing the collision is legally remote from, and thus not the legal cause of, the enhanced injury caused by a defective part that was supposed to be designed to protect in case of a collision.15
Crucial to this reasoning is the notion (taken directly from Larsen) that because auto accidents are foreseeable, auto manufacturers have “a duty to minimize the injurious effects of a crash, no matter how the crash is caused.”16 In other words, in crashworthiness cases, “[t]he dangerous condition for which Plaintiff seeks recovery is the alleged uncrashworthiness of the [vehicle]—not the risk of an accident generally.”17 At bottom, the minority view maintains that the cause of the first collision cannot—as a matter of law—be a proximate cause of enhanced injuries.
Although rigid, courts applying this rationale do not think it unfair or draconian. To the contrary, they have argued that the segregation of legal cause and damages in crashworthiness cases is the most equitable division of liability because “the concept of ‘enhanced injury’ effectively apportions fault and damages on a comparative basis; defendant is liable only for the increased injury resulting from the crash itself.”18
Nonetheless, courts that follow the minority view have done so even with the most extenuating circumstances. Several cases have refused to consider the cause of the initial collision even when evidence revealed it to be a plaintiff’s or third party’s intoxication.19 The discipline to follow upholds the rationale in such cases undoubtedly stems from a public policy belief that allowing manufacturers to reduce their liability though the application of comparative fault will reduce their incentive to produce safe products. As one court explained: “A major policy behind holding manufacturers strictly liable for failing to produce crashworthy vehicles is to encourage them to do all they reasonably can do to design a vehicle which will protect a driver in an accident.”20
Along Comes D’Amario
• The Decision
D’Amario was a textbook crashworthiness case. The first collision occurred when the vehicle in which the plaintiff was a passenger struck a tree. The second collision occurred when the car burst into flames due to an allegedly defective relay switch that failed to shut off power to the fuel pump. This second collision resulted in severe burns to the passenger’s body and his loss of three limbs. Evidence showed that the driver of the car was intoxicated.
Ford, not surprisingly, argued that the plaintiff’s injuries were proximately caused by the fault of the intoxicated driver (who also happened to be speeding), and that its liability for the plaintiff’s injuries should be reduced or eliminated in accordance with Florida’s comparative fault statute. The trial court agreed and the jury returned a defense verdict. After a new trial and appeal, the case finally reached the Supreme Court.
The court considered the majority and minority positions, as well as the only Florida appellate decision on point, Kidron v. Carmona,665 So. 2d 289 (Fla. 3d DCA 1995), which had embraced the majority view by holding that “the fault of the defendant [manufacturer] and of the plaintiff should be compared with each other with respect to all damages and injuries for which the conduct of each party is a cause in fact and proximate cause.”
Despite this precedent, and the weight of authority on the majority side, the Supreme Court firmly embraced the minority position. Critical to the court’s holding was the line of Florida cases that addressed the comparative negligence of successive tortfeasors in medical malpractice actions. Like crashworthiness cases these decisions involve two discrete injury-causing events and two discrete sets of injuries: 1) the initial injuries caused by a party’s negligence that necessitates professional medical care; and 2) the additional or enhanced injuries caused by the negligent provision of that medical care. In such cases, Florida law is well settled that a medical professional can not reduce his fault for a patient’s enhanced or aggravated injuries by comparing his medical negligence with the cause of the injuries that required medical attention in the first place.21
The Supreme Court found this reasoning compelling in the crashworthiness context as well because “under the crashworthiness doctrine, as in medical malpractice cases, the initial collision and its separate cause is always presumed, and the cause of the initial collision is simply not at issue in the determination of the cause of the second collision.” Put another way, the “accident or event giving rise to the initial injuries merely creates the occasion for the second impact or action to occur.”22
In light of this logic, the court concluded that allowing a manufacturer to apportion fault in a claim where only its fault was at issue would effectively allow it “to avoid liability for designing and manufacturing a defective product, and would thus undermine the essential purpose for which the crashworthiness doctrine was established.”23 In other words, the court found that only the minority position was true to Larsen’s core principles.
• Restating the Minority’s Case
D’Amario is notable not just for its thorough examination of the comparative fault debate but also for its persuasive re-articulation of the minority position. The decision confronts—and justifies—the consequences of the minority view more directly than any before it.
For example, the court’s opinion makes a compelling argument that the minority approach is in fact the fairest way to apportion fault between those who cause, or contribute to cause, the two collisions in a crashworthiness case. In this regard, the court stressed two points that many others often gloss over. First, that the plaintiff bears the burden of apportioning his primary and enhanced injuries between the first and second collisions. And second, that when a plaintiff is unable to do so, the tortfeasor who caused the first collision is liable for all the plaintiff’s injuries.24 Moreover, in those cases when apportionment is possible and the plaintiff sues only for enhanced injuries—as happened in D’Amario—the court advised that the manufacturer is entitled to a jury instruction that the plaintiff is making no claim for injuries arising out of the first collision, which should ensure that the manufacturer is not held liable for damages it did not cause. The court was satisfied that this liability scheme would assuage the majority’s position’s primary concern that manufacturers “only be held liable for the damages they cause, and not for damages caused by the initial tortfeasor.”25
As further insurance against saddling manufacturers with unwarranted liability, the court pointed out an aspect of the minority view that rarely gets the attention it merits—that although the fault of the parties causing the first and second collisions should not be compared, the fault of those parties who cause enhanced injuries must be. The principle mechanism for this is a “misuse” defense, which has long been sanctioned in products liability cases.26 Failure to wear a seatbelt is the classic example of misuse by the plaintiff that would warrant reduction of his recovery, whereas modification of a vehicle component by a third party so that it malfunctions in a collision would merit apportioning fault to that party for its role in causing any enhanced injuries.
After taking pains to debunk the notion that the minority view unfairly penalizes manufacturers, the Supreme Court emphasized that it was equally important not to apply comparative fault principles to unduly prejudice plaintiffs or first collision tortfeasors. The court claimed that the majority view did precisely this, however, because “to inject the issue of the driver’s fault in causing the initial accident into 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.”27 The court noted that facts of D’Amario itself reinforced this conclusion because the jury’s understandable intolerance of the driver’s intoxication likely made it difficult for it to fairly apportion liability between the cause of the accident and the cause of the plaintiff’s enhanced injuries.28
Looking Forward: Gauging D’Amario’s Impact
Florida courts are of course bound by D’Amario,29 so their application of it reveals little about the decision’s larger influence. The critical question is what effect the Supreme Court’s opinion will have beyond the state’s borders. The answer so far seems to be “very little.” No court outside Florida has adopted this rationale. Commentators have paid it scant attention. The case currently appears to be not much more than a bump on the fast-moving crashworthiness highway.
But it should be much more. The Supreme Court’s opinion is the clearest, most thoughtful articulation of the minority view. It also stands as more than a simple dissent to the majority’s rationale. It faces the majority’s arguments, addresses its concerns, and in the end persuasively dispels them. In the end, D’Amario is the only true reflection of the principles that warranted the development of the crashworthiness doctrine as stated in Larsen. As courts, commentators, and practitioners face the future of the doctrine in complicated cases of comparative fault, D’Amario should be a guiding light. q
1 Despite its most common application to automobile cases, the doctrine has been expanded to cover numerous product areas, including motorcycles, airplanes, and farm equipment.
2 Courts construing the following states’ laws have applied the majority position: Alaska, Arkansas, California, Colorado, Delaware, Montana, North Carolina, North Dakota, Oregon, Tennessee, Washington, Wisconsin, Wyoming.
3 Restatement (Third) of Torts §16(d) (1998) provided that manufacturers are “jointly and severally liable or severally liable with other parties who bear legal responsibility for causing the harm, as determined by applicable rules of joint and several liability.”
4 Larsen, 391 F.2d at 497.
5 Id. at 502.
6 Id.
7 The court also noted that its holding was limited to negligence claims, but recognized that the same rationale would likely apply to strict liability claims. See id. at 503 & n.5.
8 See Hudell v. Levin, 537 F.2d 726 (3d Cir. 1976) (applying New Jersey law); Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241 (2d Cir. 1981) (applying New York law); Mitchell v. Volkswagenwerk, 669 F.2d 1199 (8th Cir. 1982) (applying Minnesota law).
9 See Blankenship v. General Motors, 406 S.E.2d 781 (W.Va. 1991) (West Virginia Supreme Court adopts the doctrine and recognizes that it is the last state to do so).
10 Meekins, 699 A.2dat 346.
11 Hinkamp, 735 F. Supp.at 178.
12 Cf. Restatement (Second) of Torts §457 (1965) (“If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.”).
13 Vickles & Oldham, Enhanced Injury Should Not Equal Enhanced Liability, 36 S. Tex. L. R. 417, 439.
14 See also Vickles, supra note 13, at 440 (“Driver misconduct, such as driving while intoxicated or under the influence of drugs, must be deterred through the application of comparative fault rules.”).
15 Jimenez v. Chrysler Corp., 74 F. Supp.2d 548, 566 (D.S.C. 1999), reversed in part and vacated, 269 F.3d 439 (4th Cir. 2001); see also Reed v. Chrysler, 494 N.W.2d 224, 230 (Iowa 1992) (“The theory, which presupposes the occurrence of accidents precipitated for myriad reasons, focuses alone on the enhancement of resulting injuries. The rule does not pretend that the design defect had anything to do with causing the accident. It is enough that the design defect increased the damages.”).
16 Reed, 494 N.W.2d at 230.
17 Mercurio v. Nissan Motor Corp., 81 F. Supp.2d 859 (W.D. Ohio 2000).
18 Jimenez, 74 F. Supp.2d at 566.
19 See, e.g., Black v. M&W Gear Co., 269 F.3d 1220, 1235 (10th Cir. 2001) (finding that evidence of plaintiff’s alcohol consumption, as well as his “inattention and conduct of driving,” was irrelevant, immaterial, and inadmissible in a crashworthiness case).
20 Andrews v. Harley Davidson, Inc., 796 P.2d 1092, 1095 (Nev. 1990).
21 See D’Amario, 806 So. 2d at 435 (“[T]he cause of the underlying condition that brought the patient to the professional, whether a disease or an accident, is not to be compared to the cause of the independent enhanced injury allegedly resulting from medical neglect.”) (citing Frank M. Stuart, M.D., P.A. v. Hertz Corp., 351 So. 2d 703 (Fla. 1977)).
22 D’Amario, 806 So. 2d at 437.
23 Id. at 434.
24 See Gross v. Lyons, 763 So. 2d 276, 279 (Fla. 2000) (“[W]e conclude that where the plaintiff sues the first of two successive tortfeasors and establishes liability, but the jury cannot apportion the injury between the two after both parties have had the opportunity to present evidence on the issue, the first tortfeasor will be liable for the entire injury.”).
25 D’Amario, 806 So. 2d at 439.
26 See Restatement (Third) of Torts §402a (1998).
27 D’Amario, 806 So. 2d at 440.
28 See id.
29 See Griffin v. Kia Motors, 2003 WL 1913940 (Fla. 1st D.C.A. Apr. 23, 2003); G.M.C. v. McGee, 2001 WL 31828305. *25 (Fla. 4th D.C.A. Dec. 18, 2002).
Edward M. Ricci,Theodore J. Leopold, and Benjamin Salzillo practice in West Palm Beach.