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DTCI: New tool in defending defective products

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By James W. Roehrdanz and C. Marie Alexander
 

roehrdanz-james-mug Roehrdanz
alexander-marie-mug Alexander

The Indiana Supreme Court recently held that a plaintiff’s fault in initially causing an accident may be considered in a crashworthiness case against the car manufacturer. The Southern District certified the following issue of Indiana state law to our Supreme Court: “Whether, in a crashworthiness case alleging enhanced injuries under the Indiana Products Liability Act (IPLA), the finder of fact shall apportion fault to the person suffering physical harm when that alleged fault relates to the cause of the underlying accident.”

In Green v. Ford Motor Co., 942 N.E.2d 791 (Ind. 2011), the court answered in the affirmative allowing manufacturers with a defective product, who would otherwise be held liable for a plaintiff’s enhanced injury, to allege plaintiff’s comparative fault and have a possible damage award reduced or abrogated altogether. Moreover, while a game-changing decision for attorneys in motor vehicle litigation, the decision has broad implications for construction accidents involving failed safety devices, fire litigation, or any other discipline where a product is alleged to have failed to protect, prevent, or mitigate an accident.

No national consensus has emerged on the crashworthiness issue. Some states have held that a manufacturer’s fault in causing enhanced injuries may be reduced by the fault of the plaintiff (or nonparties) in causing the initial collision. See, e.g., Meekins v. Ford Motor Co., 699 A.2d 339 (Del. Super. Ct. 1997); Whitehead v. Toyota Motor Corp., 897 S.W.2d 684 (Tenn. 1995). Other jurisdictions have held that because a manufacturer is solely responsible for its defective products, it should be solely liable for the enhanced injuries caused by those defects. See, e.g., Andrews v. Harley Davidson, Inc., 796 P.2d 1092 (Nev. 1990); D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001).

The question in Green arises from a federal lawsuit brought by Nicholas A. Green against Ford Motor Company under the IPLA, alleging the restraint system of his 1999 Ford Explorer was defectively designed and caused injuries he would not have otherwise suffered with a properly designed restraint system.

Green fell asleep while driving, left the road, struck a guardrail, rolled down an embankment, and came to rest upside down in a ditch. He fractured his neck and spinal cord in the accident, rendering him quadriplegic. Green claimed the severity of his injuries was enhanced because of Ford’s negligent design of the vehicle restraint system of his vehicle. Green sought to exclude any evidence of his alleged contributory negligence, arguing that any evidence as to his fault in causing the car to leave the road was irrelevant to whether Ford’s negligent design caused him to suffer injuries he would not have otherwise suffered. Ford argued that the affirmative ruling effectively entered judgment upon its comparative fault defense.

The crashworthiness doctrine traces its roots to the 1968 8th Circuit decision in Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). The court held that vehicle manufacturers must use reasonable care in designing vehicles and that “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.” The Indiana Supreme Court recognized the crashworthiness doctrine as the basis of a viable cause of action in Miller v. Todd, 551 N.E.2d 1139 (Ind. 1990). Enhanced injury claims based on crashworthiness are viewed as separate and distinct from the initial collision or event, and in this regard are unlike typical product liability claims. In essence, crashworthiness cases involve two collisions and two sets of injuries. The manufacturer’s liability is limited to the enhanced injuries due to the product defect, the “second collision,” and it is not responsible for the injuries caused by the initial collision.

Although the Green court acknowledged the logical appeal to extend the analysis to view any negligence of a plaintiff in causing the initial collision as irrelevant in determining liability for the “second collision,” it refused to do so. The court found the IPLA’s statutory language requiring liability to be determined in accordance with comparative fault principles significant in resolving the question:

(a) In a product liability action, the fault of the person suffering the physical harm, as well as the fault of all others who caused or contributed to cause the harm, shall be compared by the trier of fact in accordance with Ind. Code §34-51-2-7, Ind. Code §34-51-2-8, or Ind. Code §34-51-2-9.

(b) In assessing percentage of fault, the jury shall consider the fault of all persons who contributed to the physical harm, regardless of whether the person was or could have been named as a party, as long as the nonparty was alleged to have caused or contributed to cause the physical harm. Ind. Code § 34-20-8-1.

Fault under the IPLA means “an act or omission that is negligent, willful, wanton, reckless, or intentional. …” Ind. Code § 34-6-2-45. The court concluded that in a crashworthiness case alleging enhanced injuries under the IPLA, the fact-finder is to consider and evaluate the conduct of all relevant actors who allegedly caused or contributed to cause the harm for which a plaintiff seeks damages. Then, from that evidence, the jury must determine whether the conduct satisfies the proximate cause requirement. The fact-finder may allocate as comparative fault only such fault that it finds to have been a proximate cause of the claimed injuries and may consider the relative degree of causation attributable to the responsible actors.

Fault should be apportioned to the injured person only if the fault is a proximate cause of (not merely “relates to”) the injuries for which damages are sought (not merely the “underlying accident”). The court noted that without this qualifying language, any alleged fault of plaintiff is not fault under the IPLA or the Comparative Fault Act, and therefore, should not be apportioned. Accordingly, the court revised the certified question as: “Whether, in a crashworthiness case alleging enhanced injuries under the Indiana Products Liability Act, the finder of fact shall apportion fault to the person suffering physical harm when that alleged fault is a proximate cause of the harm for which damages are being sought.” The court answered this question in the affirmative.

The ruling effectively works to deter both driver misconduct and negligent manufacturing. After Green, the alleged negligence in causing the underlying accident can become outcome determinative, as a plaintiff may not recover if he is determined to be greater than 50 percent at fault. Cases for enhanced injuries often involve catastrophic injuries, such as death or brain damage, giving manufacturers a high exposure to liability. Green gives manufacturers a way to limit this exposure after an accident occurs if the manufacturer is able to allocate fault based on plaintiff’s comparative negligence in causing the injury. The ruling also allows manufacturers alleged to have designed a defective product to apportion liability to negligent third parties. Under Ind. Code § 34-20-8-1(a), the fault of the injured plaintiff, as well as all others who caused the harm, may be apportioned.

Although the issue was decided in the context of the “crashworthiness doctrine,” Green has implications for other products liability actions as well. Typically, an enhancement of injury claim involves vehicle collisions. However, the doctrine is merely a variation of the strict liability theory, and it extends a manufacturer’s liability to situations in which the defect did not cause the initial accident but rather increased the injury’s severity. In effect, the doctrine of enhanced injury merely expands the proximate cause requirement to include enhanced injuries. See Barnard v. Saturn Corp., a Div. of General Motors Corp., 790 N.E.2d 1023 (Ind. Ct. App. 2003). Green opens the door for the defense to argue plaintiff’s comparative fault in any litigation where a product is alleged to have enhanced an injury by failing to protect the plaintiff or prevent an accident, and ultimately gives manufacturer’s another way to limit liability exposure.

Imagine a construction worker on the roof of a building, who is required to use a safety harness when involved in that type of work. His company uses a safety harness manufactured by XYZ, designed to break a worker’s fall and prevent him from hitting the ground or any obstacles below. Before he begins his work, he puts on the safety harness but forgets to lock the clip hooking the harness to the safety line. He subsequently falls from the roof, and the clip breaks free from the safety line. Rather than falling to a point where the safety harness locks in and catches him, he falls to the ground and is severely injured. He files a lawsuit against XYZ, alleging that the design feature of the safety harness involving the clip and lock is defective and enhanced his injuries. He argues he would have sustained only minor injuries but for the defectively designed safety harness, which did not hold him when he fell.

XYZ alleges plaintiff misused the safety harness, which is a defense to a products liability action where a plaintiff’s physical harm is caused by a misuse of a product not reasonably expected by the manufacturer. If the court determines the construction worker misused the harness and is more than 50 percent at fault, the plaintiff cannot establish that the safety harness enhanced or proximately caused his injuries. However, assume the court finds plaintiff’s misuse of the product was foreseeable and that XYZ is not relieved from liability under the defense of misuse. At this point, if the plaintiff met his burden of proof for an enhanced injury claim (i.e., he successfully proved that XYZ placed a defectively designed and unreasonably dangerous product into the stream of commerce, that a feasible safer alternative product design existed, and that after the original impact the defectively designed product proximately caused the resulting injuries), he could recover from XYZ for his enhanced injuries.

After Green, the defense can argue that the reasoning in Green applies and the construction worker’s comparative negligence in falling while on the roof is a defense to the enhanced injury claim. But for the construction worker’s negligent conduct that caused him to fall off the roof, the accident and subsequent enhanced injury would not have occurred. If the court finds the worker’s claimed injury was proximately caused by his negligent conduct, and the jury allocates greater than 50 percent of the fault for the accident to plaintiff, the defense wins even if the product was in fact defectively designed. Even if the jury allocates a percentage of fault to plaintiff of 50 percent or less, the manufacturer has succeeded in reducing the award.

As another example, imagine you are defending the manufacturer of a fire suppression system installed at ABC. An employee is smoking around marked, flammable chemicals, and a fire starts. The fire suppression system malfunctions, and the entire facility burns to the ground. Green permits an argument that the employee’s negligence in starting the fire precludes ABC’s or its insurer’s liability for loss of the building.

When defending a manufacturer in a claim for an enhanced injury caused by a defective product, litigants are often dealing with catastrophic injuries and large exposure. Green may provide the vehicle to reduce or eliminate this damage exposure to the product manufacturer. When the plaintiff’s negligence (or that of a codefendant or nonparty) causes the underlying accident, such negligence “caused or contributed to cause to the alleged harm” for purposes of comparative fault under the IPLA. This is true even when that negligence joins together with an alleged design defect to create an enhanced injury. Green has broad implications for a variety of manufacturers besides those involved in motor vehicle litigation and adds to the toolbox of counsel defending products liability claims.•

James Roehrdanz is a partner and Marie Alexander is an associate in the Indianapolis office of Kightlinger & Gray. Both are members of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the authors.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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