By James W. Roehrdanz and C. Marie 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.