Chapter 11 Issues Unique to Automobile and Crashworthiness Litigation

• Jurisdiction: New York

CHAPTER ELEVEN ISSUES UNIQUE TO AUTOMOBILE AND CRASHWORTHINESS LITIGATION Arthur H. Thorn, Esq.
Nancy Bogan, Esq.*
Erin Mead, Esq.
Amanda Kuryluk, Esq.

Since the initial publication of this chapter, the fundamental principles of automobile/crashworthiness litigation have remained the same. However, there has been some expansion and limitation of the legal principles discussed in the first edition. This chapter addresses issues involved in automobile litigation with updated analysis from the initial fact investigation through trial. It covers locating and preserving the vehicles; identifying and interviewing key witnesses; and burdens of proof on various issues including seat belt use, injury causation and crashworthiness. Finally, it deals with identifying and presenting expert witnesses at trial and the admissibility of demonstrative evidence

I. UNDERSTANDING THE COLLISION

A. Gathering Factual Data

Gathering all the factual data from an automobile accident is critical to an accurate understanding of the causes or contributing causes of the accident, the vehicle dynamics and occupant movement during the accident sequence and the mechanism of injury

B. Accident Scene Inspection

Factual data is usually available at the scene of the accident. Information establishing the condition of the scene as it was at the time of the accident is available through the investigating police officers; police reports and photographs; responding medical, rescue and fire squad members; the tow-truck operators; news reporters; news articles, photographs and videos; weather reports; passersby or local residents who may have witnessed either the accident or the post-accident condition of the scene and vehicles; governmental roadway maintenance and repair records; as-built drawings of the roadway and shoulder areas; and Department of Transportation photo logs

C. Scene Photographs, Diagram

In many instances, the scene is photographed or videotaped by the investigating police agency (or others) before it has been disturbed. This documentation should help establish the point of impact and point of rest and, where appropriate, the point of departure from the traveled portion of the road. In addition, the investigating police agency may have prepared a diagram of the scene documenting any pertinent measurements, including location of the vehicles, vehicle debris, vehicle occupants, road condition, road configuration and any roadway obstructions

Since the scene of the accident will inevitably have been disturbed by the time the litigation has commenced, it is imperative that all post-accident scene data is obtained immediately.

D. Accident Vehicle

1. Location and Preservation

The first objective is to locate the accident vehicle or vehicles. Since it is often alleged that a vehicle condition caused the accident, or that a component “failure” or “unfriendliness” caused or enhanced an injury, preservation of the vehicle, both exterior and interior, is critical. The vehicle will disclose critical factual information regarding vehicle dynamics and occupant movement and, if preserved in evidentiary condition, will assist the design expert, accident reconstructionist, biomechanic and injury causation experts.

The damage to the vehicle(s) can help to establish the number of impacts, direction of each impact, estimated speed at impact and the path of each vehicle in the accident sequence. It can also explain occupant movement within the vehicle(s) or ejection from the vehicle(s). The vehicle damage may help to establish whether occupant safety restraint systems were utilized and whether they were functioning properly.

2. Product Modifications

The immediate location and preservation of the vehicle may also assist in establishing the existence of relevant modifications to the product or pre-accident damage to the vehicle. A product manufacturer may not be found liable in strict products liability for design defects where, after the product leaves the possession and control of the manufacturer, there is a subsequent modification that substantially alters the product and is the proximate cause of the plaintiff’s injuries ¹⁹⁸² This principle has been applied to all claims found in strict products liability, i.e., design, manufacture, warnings, negligence and installation. ¹⁹⁸³

In Bouter v. Durand-Wayland Inc., ¹⁹⁸⁴ the court granted summary judgment to a manufacturer whose product had been modified by the plaintiff’s employer. According to the court, the defendant submitted proof that its product was reasonably safe as designed and that material alterations made by the third party created the conditions that caused the plaintiff’s injuries. ¹⁹⁸⁵

In Patino v. Lockformer Co., ¹⁹⁸⁶ the plaintiff was injured when his hand was caught in a roll-forming machine. At the time the machine was sold, it came with a safety guard that would have prevented the plaintiff’s hand from entering the machine. Sometime after purchase, the safety guard was removed. The plaintiff argued that the exception to the subsequent modification rule should apply because the product was purposely designed to permit use without a safety guard. ¹⁹⁸⁷ The Second Department found this argument unpersuasive because the plaintiff failed to establish that the manufacturer purposely manufactured the product for use without the safeguard for added versatility or function and dismissed the plaintiff’s design defect claims on subsequent modification grounds. ¹⁹⁸⁸

In Amatulli v. Dehli Construction Corp., ¹⁹⁸⁹ the Court of Appeals held that the manufacture of an above-ground pool could not be held liable when a pool was improperly installed contrary to the manufacturer’s instructions. The court found the fact that no specific warnings against installing the pool in ground were provided was of no significance since instructions to install it above ground were provided. ¹⁹⁹⁰

In Stalker v. Goodyear Tire & Rubber Co., ¹⁹⁹¹ the court granted the defendant’s motion for summary judgment. In Stalker, plaintiff’s decedent was killed by a tire rupture at the time he was inflating his truck tire. The plaintiff alleged that the tire was defectively designed and that the manufacturer failed to warn of the potential of tire rupture. The court rejected the plaintiff’s argument and reasoned that the plaintiff’s design defect theory was based on a conclusory expert affidavit. The court also noted that there could be no triable issue of fact when there was sufficient evidence to establish that the decedent had over 20 years of experience repairing tires. ¹⁹⁹²

In Reis v. Volvo Cars of North America, Inc., ¹⁹⁹³ the plaintiff was injured when a car lurched forward and crushed the plaintiff’s leg. The car started when an individual reached into the driver’s side open window and turned the ignition key. The court dismissed the plaintiff’s failure to warn claim because there was no evidence that such failure was the proximate cause of the plaintiff’s injury. According to the court, there was no proof that the individual who started the vehicle would have read and heeded the warning about the risk of the car’s lurching forward if it was started while in gear and without depressing the clutch pedal. Furthermore, the individual testified that while he was aware the owner’s manual came with the vehicle, that he never read the manual because he claimed he understood how cars operated. In light of the individual’s testimony, the court reasoned that any purported absence of warning in the owner’s manual was not a substantial factor in bringing about injury and it was immaterial how prominent or conspicuous any warning in the owner’s manual might have been. Overall, the individual’s admission that he did not read the manual severed the causal connection between the alleged failure to warn and the accident. ¹⁹⁹⁴

However, there is some limitation to the subsequent modification rule. When the modification merely makes a defective product more dangerous, liability on the part of the manufacturer may not necessarily be precluded.

In Sage v. Fairchild-Swearingen Corp., ¹⁹⁹⁵ the Court of Appeals found that although the injury-causing product was a replacement and not the original, the manufacturer was liable for the plaintiff’s injuries because the manufacturer knew or should have known that the product might break and be replaced by a look-alike substitute. The Court felt that because the defect was in the design, the manufacturer was the logical party to discover and correct the defect.

In Liriano v. Hobart Corp., ¹⁹⁹⁶ the plaintiff’s design defect claim was dismissed on the grounds of subsequent modification, but not the failure to warn claim. The disparity between what is required of a manufacturer to simply warn of the dangers created by a foreseeable modification, versus what is required of it to design a product completely incapable of post-sale modification, provided the basis for the Court’s holding. ¹⁹⁹⁷ However, the Court was careful to note that a plaintiff’s awareness of the danger posed by his act, either through general knowledge, observation or common sense, could under certain circumstances absolve a defendant from failure to warn liability. Such an awareness on the part of the plaintiff would make a warning provided by the manufacturer superfluous. The plaintiff would already know everything that a warning would convey. ¹⁹⁹⁸

However, in Casey v. Northway Pool Service, Inc., ¹⁹⁹⁹ the court found merit to the plaintiff’s design defect claim. In Casey, the plaintiff commenced an action to recover damages for injuries allegedly sustained due to a design defect in a hot tub manufactured by the defendant. The plaintiff alleged that the hot tub was improperly designed because it was manufactured without a fail-safe or interlock system that would have prevented the use of the hot tub after the

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