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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 like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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