Preview:

ATTORNEYS FOR PLAINTIFF David V. Scott New Albany, Indiana James Orville McDonald Terre Haute, Indiana Gail Gaus-Renshaw Lakinchapman LLC Wood River, Illinois

ATTORNEYS FOR DEFENDANT Nelson D. Alexander Kevin C. Schiferl Maggie L. Smith Frost Brown Todd LLC Indianapolis, Indiana John M. Thomas Bryan Cave LLP St. Louis, Missouri

ATTORNEYS FOR AMICI CURIAE Indiana Legal Foundation, Inc. Peter J. Rusthoven Paul L. Jefferson Barnes & Thornburg LLP Indianapolis, Indiana Product Liability Advisory Council, Inc. L. Alan Whaley Brian J. Paul Ice Miller LLP Indianapolis, Indiana Defense Trial Counsel of Indiana Ross E. Rudolph James B. Godbold Rudolph Fine Porter & Johnson, LLP Evansville, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 94S00-1007-CQ-348 NICHOLAS A. GREEN, v.

FILED
Feb 08 2011, 2:39 pm
of the supreme court, court of appeals and tax court

CLERK

Plaintiff,

FORD MOTOR COMPANY, Defendant. _________________________________ Certified Question from the United States District Court For The Southern District of Indiana No. 1:08-cv-0163-LJM-TAB The Honorable Larry J. McKinney, Judge
_________________________________

February 8, 2011 Dickson, Justice.

The United States District Court for the Southern District of Indiana has certified for our resolution the following issue of Indiana state law:

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 relates to the cause of the underlying accident. We accepted this question pursuant to Indiana Appellate Rule 64. As explained more fully below, subject to certain qualifications that require modification of the question, our answer is in the affirmative.

The underlying federal lawsuit is a damage action by Nicholas A. Green against Ford Motor Company under the Indiana Product Liability Act, asserting that Green's 1999 Ford Explorer vehicle was defective and unreasonably dangerous and that Ford was negligent in its design of the vehicle's restraint system. On January 24, 2006, while Green was driving the vehicle, it left the road, struck a guardrail, rolled down an embankment, and came to rest upside down in a ditch. Green sustained severe injuries and was rendered a quadriplegic. He claims that his injuries were substantially enhanced because of the alleged defects in the vehicle's restraint system. In the federal litigation, Green moved in limine to exclude any evidence of his alleged contributory negligence on grounds that any conduct by him in causing the vehicle to leave the road and strike the guardrail is not relevant to whether Ford's negligent design of the restraint system caused him to suffer injuries he would not have otherwise suffered. In his "crashworthiness" claim for the "enhanced injuries" suffered, Green seeks to exclude evidence at trial regarding his own alleged initial negligence resulting in the vehicle leaving the road and striking the guardrail. Ford asserts that Green's product liability lawsuit is subject to Indiana's statutory comparative fault principles, which require the jury to consider the fault of Green in causing or contributing to the physical harm he suffered. The District Court concluded that the question was not clearly answered by either legislation or case decision and that other jurisdictions have reached differing results. On Green's request, the District Court formulated and certified the issue for our consideration.

The "Crashworthiness Doctrine" was enunciated by the Eighth Circuit Court of Appeals in Larsen v. General Motors Corp., 391 F.2d 495, 502 (8th Cir. 1968). Larsen recognized that, in light of the statistical inevitability of collisions, a vehicle manufacturer must use reasonable care in designing a vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision. The court explained that "the manufacturer should be liable for that portion of the

2

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." Id. at 503. "The normal risk of driving must be accepted by the user but there is no need to further penalize the user by subjecting him to an unreasonable risk of injury due to negligence in design." Id. at 505.

In Miller v. Todd, 551 N.E.2d 1139 (Ind. 1990), this Court expressly recognized the theory of crashworthiness presented in Larsen, noting, "[T]he doctrine of crashworthiness merely expands the proximate cause requirement to include enhanced injuries." Id. at 1142. We reasoned that, because it is foreseeable that a vehicle may be involved in collisions, for purposes of product liability law, such occurrences are included in the concept of expected use of a vehicle. Id. Several decisions of the Indiana Court of Appeals have also agreed with the reasoning of Larsen. See, e.g., Barnard v. Saturn Corp., a Div. of General Motors Corp., 790 N.E.2d 1023, 1032 (Ind. Ct. App. 2003), trans. denied (explaining that the doctrine "is merely a variation of the strict liability theory, extending a manufacturer's liability to situations in which the defect did not cause the accident or initial impact, but rather increased the severity of the injury"); Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1154 (Ind. Ct. App. 1990), trans. denied (noting that a vehicle manufacturer may be strictly liable for injuries "when a design defect, though not the cause of the accident, causes or enhances injuries"); Jackson v. Warrum, 535 N.E.2d 1207, 1216 (Ind. Ct. App. 1989), trans. not sought (noting that enhanced injury claims are also referred to as second collision or crashworthiness claims, and recognizing as viable an enhanced injury product liability claim); Masterman v. Veldman's Equip., Inc., 530 N.E.2d 312, 315 (Ind. Ct. App. 1988), trans. denied (permitting product liability action "for their injuries specifically and additionally caused by the product even though that product did not contribute to causing the collision to occur").

As expressed in prior Indiana appellate decisions, claims for enhanced injuries based on alleged uncrashworthiness have been viewed as separate and distinct from the circumstances relating to the initial collision or event. The issue was the "second collision" involving a manufacturer's failure to exercise reasonable care in the design of a product to protect its users in light of the likelihood that the product could be involved in an accident. Thus, a claimant could

3

recover only for the enhanced injuries caused by the lack of reasonable care in designing a crashworthy product. Jackson, 535 N.E.2d at 1219

Download Nicholas Green v. Ford Motor Company.pdf

Indiana Law