The enhanced injury doctrine: how the theory of liability is addressed in a comparative fault world.

• Author: Reynolds, Charles E.

IN CERTAIN motor vehicle accidents, there may be several potentially negligent actors, as well as several contributing causes to the injury of the plaintiff. The plaintiff himself may have been negligent, and this negligence could have contributed to causing some aspect of the injury. In addition, there are accidents in which an individual and discrete defect in the vehicle may have caused or enhanced the injury. One problem that courts have encountered in such cases is whether to isolate the action against the motor vehicle manufacturer for this individual defect and the injury alleged to be caused by the defect, or to allow a jury to hear all of the evidence regarding how the accident happened in the first place.

This article discusses the application of the doctrine of comparative fault to the well-established enhanced injury doctrine. It analyzes and compares the fundamental principles and reasoning behind both the enhanced injury and comparative fault doctrines. This article also reviews case law from jurisdictions that have addressed this issue, finding that the vast majority of courts have held that comparative fault applies in enhanced injury cases. The article concludes that the enhanced injury theory of liability continues to be viable, even when incorporated within the comparative fault doctrine.

1. Theory of Enhanced Injury

   Under the "enhanced injury," doctrine, also sometimes called the "crashworthiness" or "second collision" doctrine, a manufacturer or seller of a product may be liable under strict liability, negligence, or breach of warranty principles for injuries sustained in an accident where a defect in the product either aggravated or caused additional injury to the plaintiff, even though the defective product did not cause the initial harm. Under the theory, the manufacturer is not held liable for injuries arising out of the initial collision, but is instead liable for enhanced injuries over and above the injuries caused by the initial collision--in other words, those injuries that probably would not have occurred due to the initial collision in the absence of a defective design.

   While the terms "enhanced injury," "crashworthiness," and "second collision" are often used interchangeably, the term "enhanced injury" perhaps best captures the theory of liability. "Crashworthiness" relates to the protection that a vehicle provides to its occupants against injuries arising from accident. The term "second collision" refers to, for example, the impact between the occupant and the interior of the vehicle, or the ejection of the occupant from the vehicle, while the first or initial collision is the vehicle's impact with another object. The majority of "enhanced injury" cases involve motor vehicle accidents.

   The "enhanced injury" doctrine was first established by the decision of the Eighth Circuit Court of Appeals in Larsen v. General Motors. (1) Prior to this seminal decision, courts rejected the notion that a product manufacturer could be held liable for a defective product where another's negligence was the cause of the underlying accident. (2) The rationale was that manufacturers could only be held liable for the intended use of the product, and collisions were not an intended use.

   The Larsen court reasoned that automobile collisions are clearly foreseeable and statistically inevitable, and therefore car manufacturers have the duty to design vehicles to avoid subjecting the user to an unreasonable risk of injury in the event of a collision. (3) Therefore, the Larsen court established liability on the automobile manufacturer when an injury was caused or enhanced by a design or manufacturing defect and was reasonably foreseeable and reasonably could have been avoided. (4) Larsen was subsequently widely approved and adopted.

2. Comparative Fault

   The enhanced injury doctrine was established and developed largely under the then-existing tort systems of joint and several liability and contributory negligence. However, many jurisdictions have since developed a comparative fault system applicable to negligence and products liability cases, either completely abolishing joint and several liability or specifically limiting it to particular situations. Under a system of comparative fault, each party, including the plaintiff, is apportioned that percentage of plaintiff's damages which were proximately caused by that party's negligence.

   The courts have since been confronted with the question of how best to apply the principles of comparative fault to enhanced injury cases. The principal question presented is whether evidence of the comparative fault of the plaintiff and other negligent parties in causing the "initial collision" may be presented to the jury to apportion plaintiff's damages with respect to both the "initial collision" and "second collision" due to design defect. The key to answering this question lies in proximate cause analysis, which plays an extremely significant role in both comparative fault and the enhanced injury doctrine.

3. The Shaky and Shrinking Minority

   Stated generally, the minority view holds that it is impermissible in enhanced injury cases to allow the fact finder to compare the fault or negligence of the plaintiff and other potentially liable parties and nonparties in causing the accident with the fault or negligence of the manufacturer in designing or manufacturing a motor vehicle. The cause of the initial impact and injury is treated as entirely separate and distinct from the cause of the second impact and injury (the "enhanced injury"). This results in the conclusion that the causative factors are not joint tortfeasors. (5)

   Under this view, the comparative negligence of the plaintiff and other third party tortfeasors in causing the accident is deemed irrelevant and inadmissible. The plaintiff only must show that there existed a product defect and that the defect caused an enhanced injury. This allows plaintiffs to prevent juries from hearing evidence concerning the cause of the initial crash, such as the intoxication or negligence of the plaintiff or a third party tortfeasor. The rationale is that, since the crashworthiness doctrine proceeds from the belief that a vehicle manufacturer has a duty to minimize the injurious effect of a crash no matter how the crash is caused, any participation by persons in bringing about the accident is irrelevant.

   In D'Amario v. Ford Motor Company, (6) a minor under the influence of alcohol drove his car into a tree and the vehicle subsequently caught fire, resulting in the plaintiff passenger burning to death. (7) The plaintiff claimed enhanced injuries due to the fire being caused by a defective fuel system in the vehicle. (8) The Florida Supreme Court held that comparative negligence would not ordinarily apply in enhanced injury cases, ruling that the tortfeasor who caused the crash was not a joint tortfeasor with the manufacturer and could not be on the verdict form. (9) The court distinguished between fault in causing the accident and fault in causing the enhanced injuries as a result of the product defect, reasoning that the manufacturer was only being held liable for injuries sustained from the fire, or "second collision," and not for injuries sustained as a result of the impact with the tree, or "first collision." (10)

   The court was aware of the potential for successive tortfeasors being held liable for damages caused by the initial tortfeasor, but was of the opinion that this issue was sufficiently addressed by the crashworthiness doctrine's legal rationale limiting a manufacturer's liability only to those damages caused...