The burden of proof conundrum in motor vehicle crashworthiness cases.

• Author: Roth, Larry M.
• Position: Florida

Since its 1976 common law recognition of the crashworthiness doctrine in Evancho v. Ford Motor Co., 327 So. 2d 201, 202 (Fla. 1976), the Florida Supreme Court has never articulated the burden required to prove up an enhanced or increased injury case due to some design or manufacturing defect. (The terms crashworthiness and second collision in the case decisions are interchangeably used.)

A crashworthiness cause of action is one in which the defect claimed did not cause the initial accident. Instead, once the accident occurs, the alleged defect causes injuries to be greater than those the initial accident would have created. In the context of motor vehicles, for example, a low speed impact would not have caused serious injuries, yet because the airbag deployed, it caused more serious injuries. This is the second collision which occurs when the occupant impacts some interior part of the vehicle, or when a safety device designed to protect the occupant from injuries after the initial impact fails. A crashworthiness cause of action is based upon the proposition that automobile manufacturers have a duty to reasonably protect occupants from enhanced injuries since it is foreseeable that vehicles will get into accidents with each other and/or other objects. (1)

In 2001, the Florida Supreme Court handed down a landmark decision in D'Amario v. Ford, 806 So. 2d 424 (Fla. 2001), which held that principles of apportionment of fault for the negligence of the person causing the first collision did not apply to a crashworthiness cause of action. Therefore, the driver or person causing the initial accident could not be included on the verdict form so as to reduce the potential liability of the vehicle manufacturer for an alleged crashworthiness defect. (2) Yet a product manufacturer under D'Amario could not be held liable for any injuries occurring in the first accident or collision. (3) The D'Amario court analogized the distinction between an accident causing first event from an occupant second impact or collision to some component of the motor vehicle with that of medical malpractice occurring subsequently to an initial tort; in essence, crashworthiness fault was a successive tort distinct from the tort of the person who caused the motor vehicle crash in the first place. (4) Accordingly, the D'Amario court said, "[I]t is further presumed that a manufacturer, like a physician, may not be held responsible for injuries caused by the primary collision." (5)

In D'Amario, the court adopted a minority legal position which precludes comparative fault apportionment with the cause of the underlying accident--or first collision--from admission in a second collision automobile crashworthiness case. (6) This preclusion of fault apportionment is generally considered litigation-friendly to a plaintiff. There are, similarly, both minority and majority case decisions on what constitutes adequate proof to establish an enhanced injury from an evidentiary basis. Interestingly, if the Supreme Court were to adopt the minority viewpoint on the burden to prove enhanced injuries in a crashworthiness case, this position is recognized as favoring the defendant. So which position--minority or majority--will the Supreme Court ultimately favor in deciding the burden of proof issue? The remainder of this article attempts to address this issue.

What is the Burden of Proof?

The burden of proof in crashworthiness cases rests on the plaintiff, according to D'Amario. (7) The decision said in dicta:

We are not unmindful of the concerns that a manufacturer not end up improperly being held liable for damages caused by the initial collision. Of course, we must remember that in crashworthiness cases the plaintiff not only has the burden of proving the existence of a defect and its causal relationship to her injuries, but she must also prove the existence of additional or enhanced injuries caused by the defect. (8)

Yet, the court did not specify the evidentiary standard to which a plaintiff must establish these enhanced injuries. It said only that "the crashworthiness doctrine's legal rationale limiting a manufacturer's liability only to those damages caused by the defect" would protect an automobile manufacturer from responsibility for injuries caused by the initial collision. (9) But what did all this mean?

The issue of burden of proof as a black letter law principle is deceptively complex. There is the requirement of initially going forward with a burden of proof that a plaintiff has, and something called burden of persuasion. In the context of these motor vehicle crash cases, what must a plaintiff demonstrate prima facially before the burden shifts to the defendant to prove the injury was not enhanced or aggravated by an alleged crashworthiness defect in the automobile? D'Amario did not address how a plaintiff could meet his or her burden of proof in a crashworthiness case.

There has been an ongoing debate across the country's jurisprudence for almost 30 years about what the burden of proof should be for establishing an enhanced injury claim. (10) A brief review of this debate is necessary in helping to decipher what the Florida Supreme Court might ultimately decide. The opposing camps break down between those referred to as the Huddell-Caiazzo and Fox-Mitchell approaches.

Huddell v. Levin, 537 F.2d 726 (2d Cir. 1976), first established criteria for specifying the burden of proof in enhanced injury cases. This was a diversity case deciding New Jersey law. Huddell stated that crashworthiness or enhanced injury cases "require highly refined and almost invariably difficult presentation of proof." The court then articulated specific elements of proof to meet the burden.

In essence, it was the plaintiff's burden to demonstrate a practical, alternative, safer design which, if used, would not have caused enhanced injuries, and a methodology for attribution of the enhanced injury to the alleged defect. To prove an enhanced injury related to a defective motor vehicle design, a plaintiff under Huddell must prove an alternative design that would not have resulted in the enhanced injury. (11) An underlying rationale for Huddell was that an automobile manufacturer defendant and the first collision tortfeasor were not considered joint or concurring tortfeasors for liability purposes. (12) Thus, the plaintiff must be able to separately apportion and identify the enhanced injury. If the plaintiff was not able to do that, the defendant prevailed.

There was a concurring opinion in Huddell which argued the majority imposed too onerous a burden of proof on the plaintiff. (13) The concurring judge asserted that the person causing the initial accident (first collision), and the car manufacturer allegedly causing the enhanced injury, should be treated as "concurrent tortfeasors." Thus, the plaintiff need only prove a causal link of the injury to the alleged defect. Then the burden (i.e...