The Florida Supreme Court needs a second look at second collision motor vehicle cases.

• Author: Roth, Larry M.

In the 2001 consolidation of cases D'Amario v. Ford, 806 So. 2d 424 (Fla. 2001), and Nash v. General Motors, (1) the Florida Supreme Court altered the products liability landscape of how motor vehicle crashworthiness, or so-called second collision cases, were to be tried. A crashworthiness case is when the purported claim is not for a defect causing the underlying crash--or first collision--but for one that causes an increased injury to the occupant within the automobile. (2) D'Amario held that the tortfeasor, even drunk drivers who cause the first collisions, including the plaintiff, could not be on the verdict form for apportionment of fault. However, a manufacturer could only be held liable for the enhanced or increased injury due to the defect in not providing reasonable crash protection. The court redefined the comparative fault law that had been decided earlier in Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), a noncrashworthiness case, and exempted crashworthiness cases from F.S. [section] 768.81.

Unfortunately, D'Amario demonstrated a fundamental lack of understanding by the Florida Supreme Court of products liability motor vehicle crash cases, and more specifically how people become injured in car accidents. Operating from that misconception, the court then imposed an evidentiary rule of law that was both impractical and wrong. The Supreme Court should revisit the decision in D'Amario and reevaluate its analysis.

Background to Crashworthiness

A separate cause of action for a motor vehicle manufacturer's failure to reasonably protect an occupant from injury is relatively recent to the common law. Holmes' "stop, look and listen" duty at railroad crossings demonstrated how enigmatic the internal combustion engine was to first order legal principles. (3) Cardozo, in McPherson v. Buick, 111 N.E. 1050 (N.Y. 1916), (4) first enunciated a defect theory for automobile cases as to their construction. Yet, courts initially rejected that a manufacturer had a separate duty to design vehicles so that people would not be injured in crashes. (5)

The common law development of crashworthiness paralleled federal legislation regulating motor vehicle safety in the early 1960s, and the creation of the National Highway Traffic Safety Administration (NHTSA). (6) Regulatory standards were enacted that set guidelines for occupant protection in motor vehicles when they were involved in crashes, among other things. (7)

In 1968, Larsen v. General Motors, 391 F. 2d 495 (8th Cir. 1968), (8) articulated a new common law principle of crashworthiness. Larsen held that a "manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision." (9) Under Larsen, automobile manufacturers must foresee that crashes will occur and correspondingly they are under a duty to provide reasonable occupant protection. Yet, the court held a manufacturer was not an insurer, and did not have to make an injury-proof vehicle. (10) In Ford Motor Co. v. Evancho, 327 So. 2d 201, 204 (Fla. 1976), the Florida Supreme Court adopted this crashworthiness theory. The Evancho decision offered little original analysis, only quoting at length from Larsen. Later, the Florida Supreme Court applied strict liability to a crashworthiness cause of action in Ford Motor Co. v. Hill, 404 So. 2d 1049, 1051-52 (Fla. 1981) (applying strict liability theory to crashworthiness claim). (11)

These pronouncements, however, were only theoretical and esoteric. They did not deal with the reality of how a lawyer was to try such a case, how judges and juries were to figure out a crashworthiness or second collision defect related injury, or what to do about allowing in evidence of the underlying accident and the so-called first injury. (12) In crashworthiness trials the Evancho and Hill decisions were always cited, usually by both sides, but there was a practical evidentiary gap to their application. Plaintiff would argue that the evidentiary and proof analysis should only begin once the crash occurred, and not with the events leading up to it. Thus, what transpired up to that point was irrelevant and prejudicial. (13) On the other hand, defense attorneys argued that the circumstances of the underlying crash and what happened in the so-called first collision were essential to evaluate overall fault for the injury. (14)

Fabre held that all joint tortfeasors, whether or not sued, may be on a verdict form so that everyone's fault could be determined. This decision gave manufacturers a strengthened argument that the events and parties responsible for the underlying crash had to be included in the case and on the verdict form. The Third District in Kidron, Inc. v. Carmona, 665 So. 2d 289 (Fla. 3d DCA 1995), was the only court to address whether the plaintiff's comparative fault in causing the accident could be considered when the asserted defect claim was unrelated to why the first collision occurred. Although decided prior to Fabre, Kidron held that plaintiff driver's own negligence could be used by the jury to apportion overall fault between the plaintiff and the defendant truck manufacturer.

The D'Amario Decision and Its Aftermath

Briefly, the facts: First, D'Amario involved a Ford automobile being driven by a drunk driver with plain tiff as a passenger. The driver lost control and the vehicle hit a tree. After that impact the vehicle caught fire, and the occupant burned to death. There was a dispute as to what caused the post-collision fire, but apparently none over why the plaintiff was killed. (15) Second, in Nash a drunk driver impacted the Nash-driven vehicle. (16) As a result, Nash's head hit the A-pillar--the post between the forward edge of the door and the front windshield. In both these cases plaintiffs' conduct played no role in causing the crashes. Drunk driving was a strong defense for both manufacturers. Verdicts for manufacturers were rendered despite gut-wrenching injuries. The district court in D'Amario ordered a new trial because of prejudicial alcohol evidence and closing arguments by defense counsel. The Nash district court reversed also, but held intoxication was an intentional act, thus excluding Fabre application.

The Florida Supreme Court held that in crashworthiness cases the Fabre principles of comparative apportionment of fault did not apply, and overruled Kidron. In crashworthiness cases it would now be reversible error for juries to consider the fault of a third party tortfeasor who may have caused the underlying accident, even if it was the plaintiff. Accordingly, there was to be no instruction on comparative fault in causing the underlying accident, and no party or nonparty responsible for that event could be on the verdict form to reduce liability of the vehicle manufacturer. The D'Amario court concluded that juror confusion results if the jury must sort out fault between who caused the first collision and liability for a second collision defect.

The Supreme Court in D'Amario analyzed a conflicting group of decisions characterized as the "majority" (17) and "minority" (18) viewpoints. In adopting a policy of excluding circumstances and fault for the underlying accident from jury consideration in crashworthiness cases, the court sided with the "minority" jurisdictions. (19) D'Amario analogized these crashworthiness/second collision cases to a medical malpractice event which falls under the successive liability doctrine. That is, a tortfeasor cannot bring into the case or use as a defense a later medical malpractice which occurred subsequent to the original tort. That tortfeasor must bear all the damage consequences due to his or her original conduct, even if this subsequent malpractice made the injury worse.

To the D'Amario court a second collision or enhanced injury claim was successive, distinctive, and sequentially separated from the underlying crash circumstances. The second injury causation, enhanced or increased, was a...