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March 19, 1979

Turi CAIAZZO and Frank Caiazzo, Plaintiffs,
VOLKSWAGENWERK, A. G., and James Valentine, Defendants

The opinion of the court was delivered by: DOOLING


On January 17, 1972, plaintiffs husband and wife were driving westbound on the Long Island Expressway enroute from East Quogue to Pelham in their 1965 Volkswagen Minibus, and defendant Valentine, overtaking them in his 1963 Oldsmobile, struck the Volkswagen Minibus in the rear; the minibus swerved to the right, rolled over and finally came to rest facing east just off the right side of the expressway. Plaintiffs, in one action, sued Valentine, alleging his negligent operation of his vehicle, and also Volkswagenwerk, A. G. (hereafter VWAG), claiming, Inter alia, that the inner door latch handle and the outside handle of the Volkswagen were defective in design so that in the course of the accident the doors were opened resulting in enhanced injury to plaintiffs over and above the injuries they would have sustained but for the allegedly defective door latch mechanisms. After a jury trial the case was submitted to the jury on twenty-five interrogatories and the jury found that the defendant Valentine was driving negligently, that his negligence caused the accident, that the plaintiffs were not driving negligently at any time, that the design and positioning of the outside and inside door handles were defective, that both plaintiffs had been ejected from the Volkswagen in the course of the accident by reason of the defective design of the inside and outside door handles, that the injuries of both plaintiffs in the accident were definitely aggravated beyond the injuries they would have sustained if there had been no design defect, that (disregarding the seat belt matter) neither plaintiff could by the exercise of reasonable care have averted the aggravation of injury caused by the design defect, that VWAG was negligent in the design of the door handles and their positioning and such negligence resulted in the design defect, that the whole amount of the plaintiff Turi Caiazzo's damages was $ 750,000, the whole amount of Frank Caiazzo's damages was $ 200,000, that reasonably prudent persons in plaintiffs' circumstances would have been using the seat belts at the time of the accident and that if plaintiff Turi Caiazzo had been using her seat belt her damages would have been prevented to the extent of $ 187,500 and that had plaintiff Frank Caiazzo been using his seat belt his damages would have been prevented to the extent of $ 50,000. The jury found that Turi Caiazzo's injuries were aggravated by reason of the design defect in the bus beyond the injuries she would have sustained if there had been no defect to the extent of $ 500,000 and that her husband's injuries were so aggravated by reason of the design defect to the extent of $ 150,000. The jury concluded that plaintiff Turi Caiazzo's injuries due to the design defect would have been prevented by the use of her seat belt to the extent of $ 125,000, and Frank Caiazzo's damages due to the defect would have been prevented by the use of his seat belt to the extent of $ 37,500. The jury concluded finally that use of the seat belt would not in the case of either plaintiff have prevented that plaintiff from sustaining all of the aggravation of injuries sustained by reason of the defect in door design. In sum, the jury concluded that Turi Caiazzo was entitled to recover $ 562,500 against defendant Valentine and $ 375,000 against defendant VWAG (plaintiff being entitled of course only to satisfactions aggregating $ 562,500), and the jury awarded plaintiff Frank Caiazzo $ 150,000 against defendant Valentine and $ 112,500 against defendant VWAG (plaintiff being entitled only to satisfactions aggregating $ 150,000).

Defendant VWAG has moved, or renewed motions appropriately made and reserved during and at the close of the trial, for a directed verdict in its favor, or, alternatively for a new trial on the ground that the verdicts are contrary to and against the weight of the evidence, and, finally, setting the verdicts aside on the ground that they are excessive in amount and were rendered under the influence of passion and prejudice. Defendant Valentine has moved for a directed verdict on the ground that negligence on his part and freedom from contributory negligence on plaintiffs' part was not shown, and, in the alternative, for a finding that defendant Valentine should recover over against VWAG for so much of the verdict against Valentine as equals the amount found against VWAG as aggravation of the injuries beyond those which would have been sustained had the VW not been found defective. Defendant Valentine has moved further for a new trial on the ground that the verdict is contrary to law, contrary to the weight of the evidence, and grossly excessive and unreasonable in amount, and on the further ground that the reduction in the aggregate verdict based on the failure of the plaintiffs to wear seat belts was grossly inadequate and was contrary to the Court's instructions. Defendant Valentine moves also on the ground that plaintiff's counsel misstated the nature of the plea of guilty that the defendant Valentine entered to the traffic charge made against him in consequence of the accident.

 The argument on the motions has ranged over a very wide field and, in line with the objections and arguments made during the trial, brings up the practical applications of many points often discussed in the lore of strict liability and of the "second collision." To deal adequately with the points made by the motions it is necessary to state in some detail that evidence which the jury might have drawn upon in arriving at its verdict, that is, to state the evidence that tends to the support of the verdict.

 (Detailed discussion of evidence omitted.)

 Proximate cause. That all the damage the plaintiffs sustained (other than the damage that could have been averted by wearing seat belts) was a proximate consequence of Valentine's negligent driving is self-evident. The substantial questions relate to determining whether the evidence supports the jury's conclusion that two thirds of Turi Caiazzo's injury and damage and three quarters of Frank Caiazzo's injury and damage were proximate consequences of the defect in door handle design and positioning except to the extent that they could have been averted by wearing seat belts.

 Some injury to each plaintiff was implicit in their both being thrown from the van; that immediate inference the jury could not avoid. Plaintiffs' medical witness made no attempt to say how much of each plaintiff's physical injury was due to being thrown from the van as distinguished from being injured inside the van, but he did express the opinion that a substantial rear end impact on the van could result in injuries to plaintiff Turi Caiazzo's feet from entanglement in the floor pedals. Defendant's expert testified in substance that even belted riders in a van could sustain crushed skulls in rollover collision; neither he nor any other witness distinctly testified that such belting either would or would not have prevented distinctly identifiable injuries due to the opening of the doors. No expert testimony sought to quantify by fractions or percentages the distribution of injury and damage over possible causes and possible preventives.

 An allocation of the kind which the jury made in the present case does not reveal its logic, and cannot be pinned to specific items of evidence. It is in the nature of the jury as an institution that its verdicts must remain inscrutable in cases of the present sort.

 Taking first the seat belt factor as it affected the defendant Valentine: the finding that use of the seat belts would have averted one-quarter of the injury and damage to each plaintiff was appropriate. The jury had to determine the issue, on which Valentine had the burden of proof, as well as it could from the evidence. It had to decide whether the injuries of the plaintiffs would have been the same or more or less if they had worn their seat belts, and then the jury had to quantify it. It is not possible to say that no view of the evidence which the jury could reasonably take would support its conclusion that use of the seat belts would have prevented a quarter of the damage sustained by each plaintiff. Where the evidence could not be specific and was not, the jury used a reasonable estimate.

 The necessary terms of VWAG's contentions do not separate the matter of the damages due to the door latch defect from the effect of the failure to wear seat belts. Indeed, the argument against the jury's allocation of the greater part of the total damage to plaintiffs' being thrown from the van extends to criticism of the jury's refusal to treat the seat belt availability as neutralizing the door defect. The jury reasonably found that the greater part of plaintiffs' injuries were sustained because they were thrown from the van, and that using the seat belts would have prevented each plaintiff from sustaining one-quarter of the injuries sustained by reason of the design defect in the doors. The jury could infer from the evidence that in a rollover in which the doors opened the plaintiffs' heads could have been dashed against the ground in the course of the rollover, or that other injuries could have been sustained through the wrenching and twisting of their upper bodies in the course of the rollover under the constraint of the seat belts but without the protection of the closed doors to limit the motion of and the injury to their upper bodies. Quantifying the reduction in injury and damages that might have been effected by wearing seat belts presented the jury a problem without any assured or definite solution, and VWAG, on whom (it is concluded) rested the burden of proof, could not produce physical evidence that could determine the issue. What might have happened is rarely susceptible of proof, and since the jury could find that the belts would not have averted all injury, the jury's duty and problem was to arrive at a reasonable estimate.

 The expert testimony, which did a good deal and could easily have done a great deal more to elucidate the mechanics of the accident, to indicate the different reconstructions of the sequence that might be inferred, and to describe the physical injuries sustained by each plaintiff and the damaging forces that could be inferred from those injuries, could add nothing decisive. The experts' opinions on causation offered argument from fact, not specialized expertness, to answer the final questions about connecting the accident events and physical objects to specific injuries to the persons of the two plaintiffs. Mainly, the expert testimony was descriptive; it opened the way for the jury to draw direct logical inferences from the evidence of the facts. The ultimate answers to the decisive questions were as accessible to the disinterested corporate judgment of the jurors, given the experts' descriptions of the factors in the total equation, as they were to the interested opinions of the experts. In any case it was the burden of VWAG and Valentine to prove to the jury the extent of the damage that might have been averted by wearing the seat belts, and to establish what portion of the injury and damage was due to the door defects. Some damage from being thrown from the van was incontestable, and the expert testimony did no more than point to alternative paths of causation that evinced no special ranking of probabilities and presented no standard of quantification. The jury had the duty and power to deal directly with the evidence, illuminated by the experts' explanations, and their estimate represents an allocation that the evidence supports.

 Defendants' contentions. Defendant Valentine does not advance any particular arguments, except to argue that the jury did not allow enough abatement because of the failure to wear seat belts, and an argument that plaintiffs' summation mis-stated the nature of Valentine's plea to a traffic offense. The first argument is sufficiently answered by what has already been said. The second argument touches on a matter that was not of any real moment and which was sufficiently dealt with when it occurred.

 Defendant Valentine owed both plaintiffs the duty to drive carefully as he overtook them, and his breach of that duty made him answerable to them for the damages "proximately" caused to plaintiffs, or, in the language of § 430 of the Restatement (Second) of Torts, for the harm to them of which his negligence was a "legal" cause. Defendant Valentine's liability would extend to injuries sustained through the cooperating negligent design of the doors on the Volkswagen van and would include the injury that flowed from the failure to wear seat belts unless defendant Valentine proved the extent of the damage that could have been prevented by using the seat belts. See Restatement (Second) of Torts, §§ 435, 442B; Section 433A, comment c; Spier v. Barker, 1974, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164.

 Defendant VWAG owed a different duty to plaintiffs, but a duty addressed to the same interest of the plaintiffs, that is, their interest in freedom from physical injury.

 VWAG contends that there was no evidence warranting the submission of the case to the jury as against it because plaintiffs' evidence furnished the jury with no basis for finding that any identifiable aggravation of injury was due to the opening of the doors in the course of the collision. In addition VWAG contends that under the evidence the jury had to find that the plaintiffs would not have been thrown out of the van if they had been wearing their seat belts, and contends that there is no basis in the evidence for a finding that, had they been wearing their seat belts, they would have sustained any identifiable aggravation of injury because of the defect in the door latches. VWAG does not at this time argue that the instructions on the law given to the jury failed to present the issues on the necessity for proving "aggravation" of injury to the jury, but it does contend that the answers of the jury to the interrogatories were without evidentiary support by the standards imposed by the instructions on the law.

 The heart of VWAG's contention is that notwithstanding that the very gist of plaintiffs' claims against it was that the defect in door design inflicted injuries on plaintiffs over and above those that they would have sustained had the doors been correctly designed (Bolm v. Triumph Corp., 1973, 33 N.Y.2d 151, 159, 350 N.Y.S.2d 644, 305 N.E.2d 769), not only does the evidence fail to show any distinct amount of such enhanced or aggravated damages leaving that a matter of speculation but, on the contrary, it shows that plaintiffs' failure to wear their seat belts accounted for their ejection from the vehicle and thus precluded any finding by the jury that the design defect in the door was a factor in producing whatever aggravated damages there may have been (Cf. Spier v. Barker, 1974, 35 N.Y.2d 444, 451, 363 N.Y.S.2d 916, 323 N.E.2d 164 and footnote 3).

 VWAG's argument in considerable part rests on the premise that plaintiff had and failed to sustain the burden of isolating the particular injury and consequent damage specifically attributable to the defective door design, and it places much reliance in its argument on Huddell v. Levin, 3rd Cir. 1976, 537 F.2d 726, 737-738, holding that in "second collision" cases plaintiff must, in addition to showing that there was an available safe design, show, First, the extent of the injuries that would have been suffered if the safe design had been in use, and, Second, must offer some method of establishing the extent of enhanced injuries attributable to the defective design. The Court said that the one clear thing in crashworthiness cases was (537 F.2d at 738)

" . . . the automobile manufacturer is liable only for the enhanced injuries attributable to the defective product. This being the essence of the liability, we cannot agree that the burden of proof on that issue can properly be placed on the defendant manufacturer.
"Without proof to establish what injuries would have resulted from a non-defective head restraint, the plaintiff could not and did not establish what injuries resulted from the alleged defect in the head restraint. Without such proof, the jury could not have properly assessed responsibility against (the defendant manufacturer) . . . ."

 The Court rejected a concurrent tort liability analysis on the question-begging ground that the two successive torts in the "second collision" cases "do not implicate "clearly established double fault' for the Same occurrence" (emphasis in original). The Court, that is, rejected the rule in § 433B of the Restatement (Second) of Torts § 433B(1) and (2):

"(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to ...

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