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 that one's conduct may likely injure the person to whom the duty is owed. Horne v. Beason, 285 S.C. 518, 331 S.E.2d 342 (1985).

Unlike a strict liability action where the product itself is at issue, the focus in negligence is on the manufacturer's conduct, and liability is determined according to fault. Bragg, 462 S.E.2d at 326; see also Carter v. Massey-Ferguson, Inc., 716 F.2d 344 (5th Cir. 1983) (the reasonableness of the manufacturer's conduct in view of the foreseeable risk of injury is at issue in a negligence case, but not in a strict liability case where the manufacturer may be held liable even though it exercises the utmost care).

As a result, strict liability is not available to those plaintiffs who are injured when a product is used in a way not intended by the manufacturer. Bragg, 462 S.E.2d at 327 (manufacturer is to be held responsible only for damages attributable to some failure of the product to perform with reasonable safety in its normal environment).

Recovery under the theory of negligence, however, is available

41 to any plaintiff who can establish that she falls into the category of individuals to whom the manufacturer owes a duty-foreseeable, although perhaps unintended users-and that the manufacturer breached that duty by failing to exercise due care. Talkington v. Atria Reclamelucifers Fabrieken BV (Cricket BO, 152 F.3d 254 (4th Cir. 1998) (applying South Carolina law).

ADOPTION OF COMPARATIVE NEGLIGENCE

Until recently, South Carolina courts adhered to the common-law rule that if a plaintiff was contributorily negligent in causing the accident or injury in question, he was barred from recovery. In Nelson v. Concrete Supply Co., the South Carolina Supreme Court expressly rejected this doctrine and joined the majority of states in adopting the more equitable doctrine of comparative negligence in assessing damages in tort actions. 303 S.C. 243, 399 S.E.2d 783 (1991).

Under South Carolina's version of modified comparative negligence, even if the jury concludes that the plaintiff was partly at fault for his or her damages, the plaintiff may still recover. However, the plaintiff's recovery is reduced by the percentage of fault proportioned to the plaintiff, as long as the plaintiff's fault is not greater than that of the defendant. Nelson, 399 S.E.2d at 784.

Accordingly, if a plaintiff is greater than 50 percent at fault, he or she may not recover. If a plaintiff is less than 50 percent responsible for his or her injuries, then the plaintiff may recover but damages are reduced by the proportion his or her fault bears to the defendant's fault.

ADOPTION OF THE CRASHWORTHINESS DOCTRINE

The South Carolina Supreme Court adopted the crashworthiness doctrine in Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969). In Mickle, the Supreme Court approved of the Eighth Circuit's reasoning in the seminal case of Larsen v. General Motors Corp., the first case to fully articulate the doctrine of crashworthiness. 391 F.2d 495 (8th Cir. 1968).

Because South Carolina crash-worthiness law stems primarily from the Larsen case, it is useful to understand the court's various holdings and reasoning as it is likely that South Carolina courts will look to Larsen for guidance as they decide future crashworthiness cases. In Larsen, the plaintiff brought an action against General Motors for injuries he received in a head-on collision when the steering column of the car he was driving was thrust into his head upon impact.

The plaintiff did not contend that the design of the car caused the accident, but rather, that because of the negligent design he received injuries that could otherwise have been avoided. 391 F.2d at 496-97. On appeal, the Eighth Circuit agreed and held that "a manufacturer is under a duty to use reasonable care in the design of its vehicles to avoid subjecting the user to an unreasonable risk of injury in the event of a collision." Id. at 502.

The court held that this duty of reasonable care in design rests on the common law negligence theory that a manufacturer should use reasonable care in the design and manufacture of his product to eliminate any unreasonable risk of foreseeable injury. Larsen, 391 F.2d at 503 (emphasis added). The court then explained that automobile accidents and the resulting "second collisions" are entirely foreseeable in light of the fact that automobiles travel "in close proximity to other vehicles and at speeds that carry the possibility, probability and potential of injury-producing impacts." In fact, the "intended use" of automobiles is to travel on such highways, and a "manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily forsee . . . that [the automobile] will be involved in some injury-producing accident." Id. at 502.

In light of the foreseeability of these "second injuries," the Larsen court found it logically inconsistent to hold a manufacturer liable for negligence in a design that causes an initial accident but refuse to find liability for negligence in design that enhances injuries. The court explained as follows:

While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of the normal automobile use will result in collisions and injury-producing impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called 'second collision' of the passenger with the interior part of the automobile, all are foreseeable.

Larsen, 391 F.2d at 502.

The court then addressed the issue of causation and limited the manufacturer's liability for "second injury" damages to those damages that were proximately caused by the defect: Any design defect not causing the accident would not subject the manufacturer

42to liability for the entire damage, but the manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design. Larsen, 391 F.2d at 503.

Adopting the reasoning of Larsen, the South Carolina Supreme Court in Mickle v. Blackmon recognized the duty of an automobile manufacturer to use reasonable care to prevent unreasonable risk of injury to collision victims. 166 S.E.2d at 185. In Mickle, the plaintiff sustained serious injuries when she was impaled on the gearshift lever of her automobile upon impact with another car. Id. at 179. She sued the car manufacturer in negligence arguing that the manufacturer had a duty to use reasonable care in the design of its product to prevent passenger injury in the event of a collision. Id. at 184.

The court agreed and noted that this duty stems from the foreseeability of enhanced injury resulting from the second impact in automobile accidents. "An automobile manufacturer knows with certainty that many users of his product will be involved in collisions, and that the incidence and extent of injury to them will frequently be determined by the placement, design and construction of such interior components as shafts, levels, knobs, handles and others." Id. at 185.

This known risk of harm raises a duty of commensurate care that is governed by ordinary negligence standards. Mickle, 166 S.E.2d at 185. An assessment of reasonableness in this context should be determined by general negligence principles, which involve a balancing of the likelihood of harm, and the gravity of harm if it should happen, against the burden of the precautions that would be effective to avoid the harm. Stonehocker v. General Motors Corp., 587 F.2d 151 (4th Cir. 1978)(applying South Carolina law). In applying this test, a wide variety of factors come into play. The intended use of the vehicle, styling, cost to change design, the obviousness of the defect and the circumstances of the accident itself are all relevant. Id. at 154.

APPLICATION OF COMPARATIVE NEGLIGENCE

As stated earlier, crashworthiness product liability cases are most often brought under the theories of strict liability and negligence. Few would question that South Carolina would readily apply comparative negligence principles to a crashworthiness case predicated solely on the theory of negligence. See Wallace v. Owens-Illinois, Inc. 300 S.C. 518, 389 S.E.2d 155 (Ct. App. 1989)(in South Carolina, contributory negligence is an affirmative defense to an action for negligence). However, few plaintiffs would choose to sue only in negligence, especially if the circumstances surrounding the accident indicate that the plaintiff may be partially at fault for his own injuries.

Rather, it is likely that the plaintiff will assert strict liability, negligence and breach of warranty as alternative theories of recovery. Thus, the court will have to determine whether or not comparative negligence principles can be applied to a strict liability cause of action in a products liability crash-worthiness case.

When South Carolina adopted comparative negligence principles, it evidenced an intent to weigh the relative fault of the parties and apportion liability accordingly. Comparative negligence seeks to hold responsible any party contributing to an injury for his proportionate fault. See Laws v. Webb, 658 A.2d 1000 (Del. 1995) (a doctrine that assigns sole liability to one party regardless of the amount of fault simply cannot survive under a system of comparative negligence) (cited with approval in Spahn v. Town of Port Royal, 330 S.C. 168, 499 S.E.2d 205 (1998)).

Thus, where the negligence of a plaintiff and a defendant combine to cause an injury to plaintiff, each party's liability must be determined in proportion to his relative fault. Any other result would be "clearly at variance with the legislative intent that, where negligence is reflected in the conduct of both parties, liability, and subsequent recovery, be determined proportionately. Laws, 658 A.2d at 1006.

Under comparative negligence, the plaintiff should be held responsible for his fault in causing the initial accident because his subsequent second impact injuries are a direct and foreseeable consequence of his negligence. Accordingly, plaintiff's initial negligent conduct is a cause in fact and a proximate cause of his subsequent injuries. "Comparative fault should be applied to such an enhanced injury case . . . [because] the fault of the defendant and of the plaintiff should be compared with each other with respect to all damages and injuries for which the conduct of each party is a cause in fact and a proximate cause." Whitehead v. Toyota Motor Corp., 897 S.W.2d 684 (Tenn. 1995)(reviewing cases that have addressed the issue and finding that a majority of jurisdictions apply comparative negligence to enhanced injury cases); see also Daly v. General Motors Corp, 575 P.2d 1162 (Cal. 1978) (to allow

43another party to bear the damage that results from plaintiff's conduct would directly contravene the principle that loss should be assessed accordingly to fault); Trust Corp. of Montana v. Piper Aircraft Corp., 506 F. Supp. 1093 (D. Mont. 1981)(the obligation of a manufacturer to incorporate an appropriate amount of crashworthiness in the design of its product cannot excuse the user from responsible operation); Hildy Bowbeer & Bard D. Borkon, Recent Developments in Crashworthiness Litigation, 450 PLI/Lit 9, 39 (1992).

In Whitehead, the court concluded that the majority of states that have considered this issue have found that an application of comparative negligence principles to strict products liability cases produces the only logical and equitable outcome for both the plaintiff and the manufacturer. Whitehead, 897 S.W.2d at 690. The court explained as follows:

The defendant is strictly liable due to the existence of a defective condition in the product. On the other hand, the plaintiff's liability attaches as a result of his conduct in using the product. It is appropriate, therefore, that the parties' contribution to the injury be apportioned. The defendant is strictly liable for the harm caused from his defective product, except that the award of damages shall be reduced in proportion to the plaintiff's contribution to his injury . . . Further it would be anomalous in a products liability case to have damages mitigated if the plaintiff sues in negligence, but allow him to recover full damages if he sues in strict liability, particularly where the complaint alleges alternate counts of negligence, strict liability, and/ or breach of warranty.

Id. at 690 (quoting Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42 (Alaska 1976)).

In other words, allowing comparative negligence to be applied to negligence but not strict liability actions would produce an illogical result as plaintiff's fault would be taken into account when a defendant has been negligent and objectively at fault, but not taken into account under strict liability where the defendant may not have been at fault at all. Victor E. Schwartz, Comparative Negligence § 11-1 (3rd ed. 1994). The following example demonstrates the problems with an inconsistent application of comparative negligence principles:

The plaintiff, while driving a Toyota car, negligently hits the defendant and sustains $100,000 in damages. A jury determines that the plaintiff is 75% at fault and precluded from recovery under a comparative negligence scheme because his negligence is greater than that of the defendant. Then assume that the plaintiff brings a suit against Toyota asserting strict liability for a design defect in the gear assembly that he alleges enhanced his injuries. If the plaintiff can establish the elements of strict liability, he will be able to recover from Toyota despite his greater negligence in causing the accident.

This result directly contravenes the comparative negligence policy that seeks to apportion liability according to the relative fault of the parties. In fact, by allowing the plaintiff complete recovery against Toyota in the above example, it completely ignores his fault in bringing about the accident that led to his injuries. Such an outcome is illogical and inconsistent with comparative negligence.

Furthermore, an analysis of the language used by South Carolina courts in crashworthiness cases indicates South Carolina considers fault a relevant consideration in apportioning liability for second injury damages. In Mickle, the Court applied "ordinary negligence standards" to the duty of a manufacturer to minimize the risk of injury in the event of an accident. 166 S.E.2d at 186. Instead of focusing on the product itself as one would in a strict liability action, the Mickle Court looked at the reasonableness of the manufacturer's actions in designing the product. Id. The Court's focus on "reasonableness" of the manufacturer's conduct bespeaks its willingness to determine liability according to fault. No language in the opinion indicates that the Court would treat evidence of a plaintiff's fault differently. Rather, the Court would likely look to the "reasonableness" of the plaintiff's conduct and apply the principles of comparative negligence to apportion damages according to the respective fault of both the plaintiff and the manufacturer. See generally William C. Powers, The Persistence of Fault in Products Liability, 61 Tex. L. Rev. 777 (1983) (in spite of some "judicial opinion" language to the contrary, fault has remained the essence of the test in product liability cases based on failure to design a product properly); Restatement (Third) of Torts: Products Liability (Tentative Draft No. 1, 1994) (applying comparative fault principles in products liability cases); Schwartz, supra at § 11-1.

If fault principles apply in crashworthiness cases, then comparative negligence should also apply. In fact, it is the only

44way to further the strict liability goal of compensating the victim, without compromising the policy underlying comparative negligence, which is to fairly allocate the risk of product injuries. See Elizabeth K. Brannen, Comment, Daly v. General Motors Corp.: Comparative Negligence as a Defense to Strict Liability, 17 Am. J. Trial Advoc. 555 (1993); Schwartz, supra at § 11-5(a)(in the interests of fairness, courts should have the power to reduce a plaintiff's award for his share of fault in causing injuries when that fault consists of negligent driving).

Furthermore, the application of comparative negligence principles to strict liability does not weaken the policy justifications underlying strict liability. The goal of encouraging greater care in the manufacture of products is maintained because manufacturers remain liable for defective products, even though such liability may be reduced in proportion to the plaintiff's fault. Likewise, the objective of relieving consumers from the burden of proving negligence remains intact, as the plaintiff still need only show that the manufacturer distributed a defective or unreasonably dangerous product. Whitehead, 897 S.W.2d at 693.

Critics of the application of comparative negligence to strict liability argue that South Carolina's strict liability statute prohibits such an approach. As discussed earlier, South Carolina adopted strict liability when it codified Section 402A of the Restatement (Second) of Torts. The legislature also made clear that the courts should look to the Official Comments of Section 402A for guidance in its application. S.C. Code Ann. § 15-73-30 (Law. Co-op. 1976). Comment m provides that the conduct giving rise to strict products liability is not based on negligence, and the defendant may be liable without proof of lack of care. Restatement (Second) of Torts § 402A ant. m (1977)(emphasis added). When the Court of Appeals had the opportunity to rule on the scope of the contributory negligence defense, it held that "contributory negligence has no application to an action based on . . . liability for a defective product." Wallace v. Owens-Illinois, Inc. 300 S.C. 518, 389 S.E.2d 155 (Ct. App. 1989).

In light of the statutory strict liability scheme, several commentators have predicted that South Carolina courts will likely be hesitant to alter the existing law by imposing a new and judicially-developed approach to defenses within this scheme. See F. Patrick Hubbard & Robert L. Felix, Comparative Negligence in South Carolina: Implementing Nelson v. Concrete Supply Co., 43 S.C.L.R. 273 (1992). Professors Hubbard and Felix, however, do not seem opposed to incorporating comparative negligence principles into strict liability doctrine; but rather, they caution that if such a judicial change is to be made, that it should be applied uniformly to both assumption of the risk and to contributory negligence.

The Supreme Court recently took a step towards achieving a uniform application of comparative negligence principles when it abolished the absolute defense of assumption of the risk in Davenport v. Cotton Hope Plantation Horizontal Property Regime, 333 S.C. 71, 508 S.E.2d 565 (1998). In Davenport, the Court held that assumption of the risk as a complete bar to the plaintiff's recovery was inconsistent with South Carolina's comparative negligence scheme. 508 S.E.2d at 573.

Before its abolition, the defense of assumption of the risk required proof that: the plaintiff knew of the facts constituting a dangerous condition; the plaintiff knew the condition was dangerous; the plaintiff appreciated the nature and extent of the danger; and the plaintiff voluntarily exposed himself to the danger. Senn v. Sun Printing Co., 295 S.C. 169, 367 S.E.2d 456 (Ct. App. 1988). The court observed that: If assumption of the risk is retained in its current common law form, a plaintiff would be completely barred from recovery even if his conduct is reasonable or only slightly unreasonable. In our comparative fault system, it would be incongruous to absolve the defendant of all liability based only on whether the plaintiff assumed the risk. Comparative negligence by definition seeks to assess and compare the negligence of both the plaintiff and the defendant.

Davenport, 508 S.E.2d at 573 (emphasis added). Therefore, in accord with the principles of comparative negligence, the court concluded that a plaintiff would only be barred from recovery if his negligence is greater than that of the defendant. Id. at 573-74.

Similarly, in Spahn v. Town of Port Royal, the Court held that the

45doctrine of last clear chance has been subsumed by the adoption of comparative negligence. 330 S.C. 168, 499 S.E.2d 205 (1998). The doctrine of last clear chance provided recovery for a plaintiff who negligently subjected himself to a risk of harm if he could show that the defendant discovered or, through the exercise of due diligence, should have discovered, the plaintiff's peril and failed to used reasonable care to avoid injuring the plaintiff. Rothrock v. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991). Thus, the effect of the last clear chance doctrine was to provide an exception to the harshness of contributory negligence by permitting a plaintiff to recover despite his negligence in causing his injuries. Spahn, 499 S.E.2d at 206.

However, with the adoption of comparative negligence, courts no longer needed the last clear chance doctrine to provide this exception. Accordingly, the doctrine of "last clear chance" was merged with comparative fault and became another factor for the jury's consideration in comparing the parties' fault. Id. at 208.

These recent decisions demonstrate the Supreme Court's intention to abolish harsh rules of law that absolve one party of its share of responsibility for an injury even if that conduct would be considered a proximate cause of the injury. As such, disallowing a consideration of the plaintiff's fault in a crashworthiness case would now be inconsistent with the current state of the law on the scope and application of comparative negligence principles.

CONCLUSION

South Carolina courts should apply comparative negligence principles to crashworthiness cases and assign liability according to fault. This outcome is entirely consistent with South Carolina crashworthiness and comparative negligence law and represents the only means of furthering both the goals of strict liability and comparative negligence to achieve an equitable result for the plaintiff and the manufacturer.

Robert H. Brunson is a lawyer with Nelson, Mullins, Riley & Scarborough, LLP in Columbia.