Enhanced Injuries and the Restatement of Torts Third


I. THE ENHANCED INJURY DOCTRINE

Prior to the seminal case of Larsen v. General Motors, 391 F.2d 495 (8th Cir. 1968)1, it was an open question as to whether or not a product defect must have caused the accident in order for the victim to sue under a product liability theory. See, e.g., Evans v. General Motors, 359 F.2d 822 (7th Cir. 1966). Larsen held that collisions are foreseeable to vehicle manufacturers and therefore cars must be reasonably crashworthy. Hence, injuries caused by the lack of crashworthiness are separate and apart from the accident-caused injuries inasmuch as the manufacturer has a duty to design for foreseeable crashes, which occur "with or without the fault of the victim." Id. at 502. Coincidentally, the United States Congress took the same view in passing the Federal Motor Vehicle Safety Act of 1966, 49 U.S.C. sec. 30101, et seq., establishing minimal crashworthy standards for motor vehicles.2

The Washington Supreme Court in Baumgardner v. American Motors, 83 Wn.2d 751, 522 P.2d 829 (1974)3, adopted with approval the holding in Larsen, stating:

Neither sound policy nor reason can be found to justify a distinction between the liability of the manufacturer whose defective item causes the initial accident and that of the manufacturer whose defective product aggravates or enhances the injuries after an intervening impact.

Id. at 756.

Larsen and Baumgardner were "true" enhanced injury cases.4 In Larsen, the steering column of the Corvair caused head trauma above and beyond that which would have been sustained in the crash alone. In Baumgardner, a defective seat belt was a cause of enhanced injuries beyond that which would have been suffered absent the defective design. Inherent in these "pure" enhanced injury situations is a medical proof problem in establishing, if possible, the extent of the enhanced injury above that which would have been suffered in the same crash in a crashworthy vehicle.

The Restatement of Torts Third sec. 16 specifically adopts the so-called enhanced injury doctrine:

Increased Harm Due to Product Defects

(a) When a product is defective at the time of commercial sale or other distribution and the defect is a substantial factor in increasing the plaintiff's harm beyond that which would have resulted from other causes, the product seller is subject to liability for the increased harm.

(b) If proof supports a determination of the harm that would have resulted from other causes in the absence of the product defect, the product seller's liability is limited to the increased harm attributable solely to the product defect.

(c) If proof does not support a determination under Subsection (b) of the harm that would have resulted in the absence of the product defect, the product seller is liable for all of the plaintiff's harm attributable to the defect and other causes.

(d) A seller of a defective product that is held liable for part of the harm suffered by the plaintiff under Subsection 9(b), or all of the harm suffered by the plaintiff under Subsection (c), is jointly and severally liable or severally liable with other parties who bear legal responsibility for causing the harm, determined by applicable rules of joint and several liability.

I. COMPARATIVE FAULT AND ENHANCED INJURIES

In Washington, a plaintiff's fault is only a defense if it was a cause of the claimed damages.

In an action based on fault seeking to recover damages for injury or ... death to person ... any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault.

RCW 4.22.005 (emphasis added). Fault may only be allocated to entities which "... caused the claimant's damages." RCW 4.22.070.

The question is, can accident causation be isolated from injury causation to defeat a comparative fault defense? According to Tom Harris, a Seattle defense lawyer and legal commentator, the answer is yes.

In enhanced injury cases, unlike ordinary products liability cases, a claimant's fault in causing the accident is not a basis for reducing his recovery. Undoubtedly, many accidents are the result of the injured party's negligence. Nevertheless, a manufacturer's duty is that of minimizing the injurious effects of contact however caused. The inevitability of both operator negligence and injury-producing contact was a primary reason for the judicial recognition of the duty to protect against enhanced injuries. The cause of the contact has no bearing on the issue of whether an object's response to the contact was a reasonable one. The trier of fact's analysis must be limited to the nature and severity of the contact and the object's response. A negligent operator is entitled to the same protection against unnecessary injury as the careful user of the same product is entitled.

Thomas Harris, Enhanced Injury Theory: An Analytical Framework, 62 N.C.L. Rev. 643, 673-674 (1984) (footnotes omitted).

Inherent in enhanced injury theory is the concept that products should provide reasonable impact protection. A product should be designed to provide reasonable protection to both careful and careless users. For that reason, negligence in causing an accident does not reduce a claimant's enhanced injury award.

Thomas Harris, Washington's Unique Approach to Partial Tort Settlement, 28 Gonz. L. Rev. 69, 138 (1985).

In Kibler v. General Motors Corp., C94-1494R5, Judge Rothstein, applying the enhanced injury analysis, ruled in a post-collision fire case that defendant, General Motors, could not assert contributory fault as a defense to liability.

Other jurisdictions hold that accident-producing fault cannot be considered in a plaintiff's claim for enhanced injuries. For example, Reed v. Chrysler Corp., 494 N.W.2d 224 (Iowa 1992), held that a plaintiff's negligence, which may be a proximate cause of the initial collision, is not, as a matter of law, a proximate cause of enhanced injuries caused by an unsafe design:

The [enhanced injury theory], which presupposes the occurrence of accidents precipitated for myriad reasons, focuses alone on the enhancement of resulting injuries. The rule does not pretend that the design defect had anything to do with causing the accident. It is enough if the design defect increased the damages. So any participation by the plaintiff in bringing the accident about is quite beside the point.

. . . .

[W]e think a plaintiff's comparative fault should not be so assessed in a crashworthiness case unless it is shown to be a proximate cause of the enhanced injury.

Chrysler points to no way, and the record suggests none, in which the driver's or Reed's intoxication could bear on how Reed's injuries were enhanced by the construction of the Jeep's roof. Any negligence by Reed's driver, or even by Reed himself, in connection with the original crash cannot be used by the manufacturer in defending against Reed's enhancement claim.

Id. at 230.

In another enhanced injury case, Andrews v. Harley Davidson, Inc., 796 P.2d 1092 (Nev. 1990), the court similarly held:

Andrews' intoxication may have been the proximate cause of the accident. However, Harley Davidson's design, if it was defective as Andrews contends, was the proximate cause of his injuries.

. . . .

Evidence that a plaintiff's intoxication may have caused an accident is not relevant to the issue of whether there was a design defect or whether a design defect in his vehicle caused his injuries.

Id. at 1095-1096.6

No Washington case addresses the issue. In Couch v. Mine Safety Appliance Company, 107 Wn.2d 232, 728 P.2d 585 (1986), the court declined to rule on a challenge to accident versus injury causation because the jury found that the decedent's contributory fault was not a cause of his harm.

In the most clear-cut cases, such as a low impact air bag death or a post-collision fire case where only burns are claimed, the answer seems obvious. The plaintiff's fault may have caused the accident but not the injuries. However, three things have occurred since Baumgardner, which may affect the analysis. First, the complete bar of contributory negligence was removed in product cases in 1981. RCW 4.22.005. Second, the legislature in 1986 expressed an unmistakable intent to compare fault of all parties including immune parties. RCW 4.27.070.7 Third, the Restatement of Torts Third was adopted by the American Law Institute in 1997, according to which accident causing fault on the part of the victim results in verdict reduction. Restatement of Torts Third sec. 16 comment (f):

Plaintiff's fault in cases of increased harm. Section 17 sets forth the general rules governing plaintiff's fault in products liability litigation. It provides that plaintiff's fault is relevant in apportioning liability between the plaintiff and the product seller. The seriousness of the plaintiff's fault and the nature of the product defect are relevant in apportioning the appropriate percentages of responsibility between the plaintiff and the product seller. See sec. 17, Comment d. Accordingly, the contributory fault of the plaintiff in causing an accident that results in defect-related increased harm is relevant in apportioning responsibility between or among the parties, according to applicable apportionment law. In apportioning responsibility in such cases, it may be important that requiring a product to be designed reasonably to prevent increased harm aims to protect persons in circumstances in which they are unable to protect themselves.

The Reporter's Notes (Restatement Torts Third: Product Liability sec. 16 at pp. 254-256) acknowledge the split of authority on this issue, but a claim is made that "[a] majority of courts, however, allows the introduction of plaintiff's conduct in a crashworthiness context." Id. at 255.

How the Washington Supreme Court will rule is in doubt. However, there are at least two strong policy reasons for favoring the segregation of accident causation from injury causation. First is the analogy to safety device cases where it is held that when there is a duty to provide a safety feature to protect users from foreseeable risks, it is inconsistent to reduce the user's recovery merely because he bought and used the product as marketed. Bell v. Jet Wheel Blast, 462 So.2d 166, 172 (La. 1985). See also Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 891 (Alaska 1979). Or, as stated in Bexya v. Havir Mfg. Corp., 290 !.2d 281, 286 (N.J. 1972), "[I]t would be anomalous to hold that the defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against." The second approach is to treat the post-collision defect causing injury as a separate and distinct superseding cause of the injury. See, e.g., WPI 3d sec. 12.05. However, that argument could backfire in the situation where plaintiff might rather pursue an at fault third party who operated the striking vehicle, where in more traditional terms it might be said that it caused the accident which caused the defect to cause the enhanced injuries.

Conclusion

Logic, reason and sound public policy considerations call for segregating plaintiff's fault contribution to accident causation from the post-impact consequences of defect-induced injury causation. However, the impact of the 1986 legislation (RCW 4.22.050 and .070) and the Restatement of Torts Third sec. 16 renders the outcome uncertain.



1 Appendix A.

2 Federal Motor Vehicle Standards are an adjunct to state-based tort law and compliance is not a defense. See 49 U.S.C. sec. 30103(3); Larsen, supra at 506.

3 Appendix B.

4 In post-collision fire cases where the only injuries are burns, and in some air bag cases, the only injury is the "enhanced injury."

5 Appendix C. In a subsequent order, Judge Rothstein ruled that her order was confined to the cause of the accident and that the jury could consider plaintiff's fault in failing to extricate himself due to intoxication after the fire had started.

6 Other cases include Fredenburg v. Superior Bus Co., 631 F. Supp. 66, 780 (1986) (Plaintiff seeks damages only for enhanced injuries the decedent would not have sustained but for the defective condition of the bus. While Belcher's negligence may have contributed significantly to the initial collision, it is difficult to see its relevance to the enhancement of the decedent injuries ... Interjecting the issue of Belcher's negligence would only confuse the jury and would materially depart from the nature and intent of plaintiff's original claim."); cf., Pree v. Brunswick Corp., 983 F.2d 863, 866 n.3 (1993) ("[W]e conclude that evidence of intoxication is irrelevant in a strict tort liability action for enhancement of injury.").

7 The statute was amended in 1987 to remove immune employer and fellow employee fault from the mix. RCW 4.22.070(1), as amended in 1993. See Edgar v. Tacoma, 129 Wn.2d 621, 919 P.2d 1236 (1996).