The Fight Over The Crashworthiness Test in Florida

We here at Abnormal Use have blogged about a few cases involving the Crashworthiness Doctrine, otherwise known as enhanced injury cases.  As we have discussed before, the theory is that although a plaintiff might have suffered a finite number of injuries and damages because of an initial accident or occurrence, his injuries are exacerbated, or he suffers additional injuries, because of some product defect.  More recently, we discussed the concept of comparative fault as it pertains to these cases in the context of a Montana Supreme Court decision.  Read our prior post here.

This week, we were alerted by fellow blawg The Product Liability Monitor to a fight that has been occurring in Florida over this doctrine, which started when the Florida Supreme Court issued its decision in D’Amario v. Ford Motor Co., 806. So. 2d 424 (Fla. 2001) [PDF].  Like the Montana case, the dispute centers on this idea of comparative fault.  A prior post by The Product Liability Monitor summarized the facts and procedural posture of D’Amario as follows:

In D’Amario, the plaintiff was riding in a 1998 Ford Escort when it crashed into a tree.  After hitting the tree, the car burst into flames.  While the driver – who was intoxicated at the time – was killed, the plaintiff survived but suffered serious injuries.  Subsequent to the crash, the passenger’s mother sued on behalf of her son, alleging that the car’s relay switch failed to disengage the fuel pump on impact.  This, she alleged, caused the post-collision fire and the injuries to her son.  At trial, the jury was permitted to consider evidence of the driver’s negligence and thus, the issue of comparative fault.  In doing so, it found for the defendant car manufacturer.  Id. at 428.  On appeal, the Florida Supreme Court reversed.  That court held that while the principles of comparative fault may apply to the causes of the first collision, they do not apply in crashworthiness cases where the sole focus is on the secondary injury. Id. at 441-42.

Well, the Florida legislature didn’t find that to be a wise holding.  In fact, the Florida Senate introduced a bill that would entitle “judges and juries . . . to hear and consider evidence of fault relating to the cause of the initial accident when apportioning fault for injuries caused by a subsequent or secondary accident.”

Well, as reported by The Product Liability Monitor, D’Amario will now be given a neat little red flag in your next Westlaw search, because the Florida legislature has passed that bill.  The real kick in the teeth to plaintiffs?  The law applies retroactively to pending cases.

Recent $2.375 Million Award in South Carolina Crashworthiness Case

A Florence, South Carolina jury recently awarded $2.375 million in actual damages to a girl, now 11, who suffered burns to 15% to 20% of her body when the fuel tank of her family’s Nissan Xterra caught fire following a collision. The highest pre-trial settlement offer reportedly was $450,000. Courtney v. Nissan Motor Co., Ltd., Civil Action No. 2007-CP-21-1449, in the Florence County, South Carolina Court of Common Pleas.

According to South Carolina Lawyers Weekly (see coverage here), the girl, 9 years old at the time of injury, was riding with her family as a passenger in the vehicle outside of their church near Lake City, South Carolina, when they were involved in a collision with a pickup truck. Church members and emergency personnel were able to help remove the family from the vehicle reportedly within seconds of impact, but the child suffered the burns, including facial burns, from her position in the seat just above the fuel tank.

The plaintiff set forth causes of action for strict liability and breach of warranty, arguing that Nissan failed to ensure the crashworthiness of the vehicle because a small metal bracket was likely to puncture the fuel tank in the event of a side collision. The plaintiff reportedly utilized experts from Texas, Utah, California and Japan, among others, to testify to such issues as the alleged foreseeability of the bracket’s puncturing of the fuel tank. Nissan, in turn, argued that the tank rupture was due to the severe and unique circumstances of the collision, which had placed extreme, concentrated energy at the location of the bracket.

The jury apparently was able to overlook two important challenges to the plaintiff’s case: (1) the SUV had complied with all federal standards; and (2) it was the driver of the Nissan Xterra who admittedly was at fault in causing the accident. The plaintiff’s position, according to her attorney, was that if the vehicle had been built according to European standards rather than U.S. standards, whereby the bracket would have been placed no closer than 100 millimeters from the fuel tank, then the fire would not have occurred.

In any event, the jury ultimately sided with the plaintiff, finding the case warranted actual damages without the imposition of a punitive award.

Courtney v. Nissan Motor Co., Ltd: Case Update

In 2010, we blogged about the then-recent decision in Courtney v. Nissan Motor Co., Ltd., in which a Florence County, South Carolina jury awarded $2.375 million to a young girl burned when the Nissan SUV in which she was riding wrecked; the minor’s seat happened to be situated on top of the gas tank.  Our commentary included the following analysis:

The plaintiff set forth causes of action for strict liability and breach of warranty, arguing that Nissan failed to ensure the crashworthiness of the vehicle because a small metal bracket was likely to puncture the fuel tank in the event of a side collision. The plaintiff reportedly utilized experts from Texas, Utah, California and Japan, among others, to testify to such issues as the alleged foreseeability of the bracket’s puncturing of the fuel tank. Nissan, in turn, argued that the tank rupture was due to the severe and unique circumstances of the collision, which had placed extreme, concentrated energy at the location of the bracket.

The jury apparently was able to overlook two important challenges to the plaintiff’s case: (1) the SUV had complied with all federal standards; and (2) it was the driver of the Nissan Xterra who admittedly was at fault in causing the accident. The plaintiff’s position, according to her attorney, was that if the vehicle had been built according to European standards rather than U.S. standards, whereby the bracket would have been placed no closer than 100 millimeters from the fuel tank, then the fire would not have occurred.

Not surprisingly perhaps, Nissan appealed.  Recently, the South Carolina Court of Appeals took up the case and issued this opinion affirming the jury’s award.  One of the issues on appeal included whether the circuit court erred in denying Nissan’s post-trial motion for JNOV based on the plaintiff’s failure to provide a feasible alternative design as required by Branham v. Ford Motor Company, 390 S.C. 203, 701 S.E.2d 5 (2010).  (See Abnormal Use’s coverage of that case here).

Importantly, the Court of Appeals was tasked in Courtney to determine if Branham applied retroactively, or prospectively only, since Branham came out after the jury’s award in Courtney.  The Court held that Branham did, in fact, apply retroactively, based on principles long-held in South Carolina jurisprudence:

Turning to the instant case, we recognize that in South Carolina, “[t]he general rule regarding retroactive application of judicial decisions is that decisions creating new substantive rights have prospective effect only, whereas decisions creating new remedies to vindicate existing rights are applied retrospectively.”

The Court of Appeals decided that the Courtney case fell into the latter category, since the risk-utility test had been employed in the products liability context for a long time, if not exclusively.  Thus, having decided that Branham applied in this case, the Court then took up the question whether the plaintiff’s alleged failure to provide an alternative design entitled Nissan to JNOV.  The jury determined that the plaintiff failed to prove a feasible alternative design in a post-verdict interrogatory that, according to the Court of Appeals, should never have been put before the jury in the first place, since “[o]ur supreme court has previously held that ‘[i]t is improper in a law case to submit factual issues to a jury in the form of non-binding ‘advisory interrogatories.’” (internal citations and quotations omitted).  Since the interrogatory was not dispositive of liability, it didn’t really matter what the jury found, one way or the other, in the Court’s estimation.  We see this as the Court saying, in essence, “no harm, no foul.” Finding that the jury’s answer to the interrogatory was dispositive of, well, nothing, the Court affirmed the denial of Nissan’s motion for JNOV.