Vol. 11, No. 1, Pg. 38. Comparing First Collision Fault with Second Collision Defect.

• Author: By Robert H. Brunson

South Carolina Lawyer

1999.

Vol. 11, No. 1, Pg. 38.

Comparing First Collision Fault with Second Collision Defect

38Comparing First Collision "Fault' with Second Collision "Defect"By Robert H. BrunsonThe adoption of comparative negligence in South Carolina triggered abundant questions about how this doctrine will fit into the overall scheme of South Carolina tort law. One still unresolved but very significant issue is how comparative negligence principles will apply to products liability crashworthiness cases.

South Carolina is not alone in confronting this issue and can learn much from the experiences of other jurisdictions. Further, an examination of the theoretical underpinnings of the two doctrines sheds some light on the most consistent, logical approach to joining these two concepts. One can also help predict the most likely outcome of this issue by looking at how the South Carolina Supreme Court has reconciled other conflicts between established tort concepts and their new tort law neighbor.

Accordingly, this article will attempt to establish a helpful analysis of this issue by examining it from each of these angles.

It will also suggest that the best and most likely outcome is to incorporate comparative fault concepts into the strict liability crashworthiness analysis in South Carolina.

AN INTRODUCTION TO THE CRASHWORTHINESS DOCTRINE

The "crashworthiness doctrine," which is also referred to as the "second collision doctrine" or the "enhanced injury doctrine," is a relatively recent development in the area of product liability law. The crashworthiness doctrine is a judicially created principle of tort law that recognizes that personal injuries sustained in an accident may not solely be caused by the initial impact of the vehicle. Rather, the doctrine recognizes that injuries sustained by an individual in the crash may be enhanced by a subsequent impact with the vehicle itself. The doctrine imposes liability if an individual's injuries were enhanced as a result of an unreasonably dangerous design defect in the vehicle.

In the 30 years since its acceptance, crashworthiness liability has been imposed on manufacturers of automobiles, motorcycles, airplanes, snowmobiles, helicopters and even recreational motor boats. Kraut, Crashworthiness, Strict Liability: On a Collision Course, 57 Def. Couns. J. 150 (1990). However, this article will only focus on the crashworthiness liability of the automobile manufacturer in the context of automotive products liability litigation.

Crashworthiness in this context has been defined as "the protection that a passenger vehicle affords its passengers against personal injury or death as a result of a motor vehicle accident." Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1901(14)(1982). Accordingly, the crashworthiness of an automobile is measured by the degree to which it protects its occupants from injury in the "second collision."

In the most common crash-worthiness scenario, the plaintiff's automobile collides with another automobile or with a stationary

40object in the first phase of the accident. Most of the property damage results from the first collision, but the occupants of the vehicle sustain little or no injury. Personal injuries generally occur in the second collision, in which the occupants are thrown against or collide with some part of the automobile in which they are traveling. 21 Am Jur Proof of Facts 3d 109 (1993)(citing Sumnicht v. Toyota Motor Sales, Inc., 360 N.W.2d 2 (Wis. 1984).

The crashworthiness case, as a class of product liability cases, can be brought under several theories, including strict liability, negligence, express or implied warranty. To understand the issues raised by introducing comparative negligence in a crashworthiness case, it is important first to look broadly at how crashworthiness fits into the doctrinal framework of the most popular theories of negligence and statutory strict liability.

STRICT LIABILITY

The evolution of the doctrine of strict liability began with MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) where common law privity of contract as a prerequisite to manufacturers' or sellers' tort liability for a defective product was abandoned. Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). Strict products liability in tort was created judicially because of the economic and social need for the protection of consumers and is premised on the concept that the cost of injuries resulting from defective products should be borne by the manufacturer or seller who puts such products on the market. Id. at 327.

Early South Carolina cases moved in the direction of adopting strict liability, and the Legislature officially enacted Section 402A of the Restatement (Second) of Torts. S.C. Code Ann. § 15-73-10 (Law. Co-op 1976); Bragg, 462 S.E.2d at 328. In order to recover under a strict liability theory, the plaintiff must establish that the defendant's product was in a defective condition unreasonably dangerous for its intended use; the defect existed when the product left the defendant's control; and the defect was the proximate cause of the injury sustained.

Two tests have evolved to determine whether a product is in a defective condition unreasonably dangerous for its intended use. The first test is whether the product is unreasonably dangerous to the ordinary consumer given the conditions and circumstances that foreseeably attend the use of the product. Under the second test, a product is unreasonably dangerous and defective if the danger associated with the use of the product outweighs the utility of the product. Bragg, 462 S.E.2d at 328.

However, strict liability is not equivalent either to absolute liability or to insurance of the safety of the product's user. See Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 391 S.E.2d 868 (Ct. App. 1990). Likewise, a plaintiff may not rely on the mere fact of an accident to prove that a product is defective. Id. at 870. Rather, courts apply a balancing test to weigh the utility of the risk inherent in the design of the product with the magnitude of the risk to determine the reasonableness of the manufacturer's actions in designing the product. Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982).

NEGLIGENCE

To recover under a products liability negligence theory, the plaintiff must establish the three elements of a strict liability claim and must also demonstrate that the "defectiveness" of the product is attributable to the defendant's failure to exercise due care. See Reed v. Tiffin Motor Homes, Inc., 647 F.2d 1192 (4th Cir. 1982); Reamer Industries, Inc. v. McQuay, Inc., 344 F. Supp. 540 (D.S.C. 1971), affd., 462 F.2d 1372 (4th Cir. 1971) (applying South Carolina law).

Thus, the plaintiff must prove that the manufacturer owed a duty of care to the plaintiff; the manufacturer breached that duty by a negligent act or omission; and damage proximately resulted from the breach of that duty. Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 468 S.E.2d 292 (1996). A breach of duty exists when it is foreseeable...