I agree that the judgment entered in favor of the plaintiff should be reversed and a new trial ordered essentially for the reasons set forth in the court’s opinion.
In particular, this result seems to me required by two erroneous rulings that cannot reasonably be dismissed as harmless. The first was the refusal of the trial court to permit Dr. Francis Gamache, the examining physician for Bell Helmet Corp. (Bell), to offer his opinion regarding the degree of protection from head injury received by plaintiff as a result of her wearing the motorcycle helmet. The second was the introduction into evidence of the police accident report without the appropriate foundation clearly required by the circumstances of this case.
I disagree, however, with the observations in the court’s opinion that plaintiff was required to establish that a specific underlying defect in the helmet was the proximate cause of plaintiff’s injury, and that “the jury should not have been permitted to infer the helmet was defective from the circumstances surrounding the occurrence.” It seems to me, at best, unwise for this court to instruct the Trial Judge in advance of the retrial with regard to an issue that may be affected by the development of evidence at the trial. Moreover, on the facts presented in this trial, I do not believe that the law imposes upon the plaintiff the burden of establishing a specific underlying defect in the helmet.
In Halloran v Virginia Chems. (41 NY2d 386, 388), the Court of Appeals set forth the controlling rule of law: “The *151principal issue argued by defendant Virginia Chemicals is that plaintiff failed to make out a prima facie case because no particular defect in the packaged refrigerant was ever discovered or established. That issue merits little discussion. In a products liability case it is now established that, if plaintiff has proven that the product has not performed as intended and excluded all causes of the accident not attributable to defendant, the fact finder may, even if the particular defect has not been proven, infer that the accident could only have occurred due to some defect in the product or its packaging (see Codling v Paglia, 32 NY2d 330, 337-338; Fogal v Genesee Hosp., 41 AD2d 468, 478; see, generally, 47 NY Jur, Products Liability, §§ 14, 18).” This principle has been restated and applied with uniform consistency in a variety of different factual circumstances. (See, e.g., Caprara v Chrysler Corp., 52 NY2d 114, 123; McDermott v City of New York, 50 NY2d 211, 220-221; Titlebaum v Loblaws, Inc., 64 AD2d 822.)
In Halloran (supra) the rule was formulated in terms of the situation there presented, which is the usual one, in which the plaintiff claimed that the accident itself would not have occurred if the product had performed as intended, and that the circumstances justified the conclusion that the product was defective at the time of manufacture. In this case, which falls within the so-called “second collision” category of cases (Bolm v Triumph Corp., 33 NY2d 151), it is plaintiff’s claim that she sustained more severe injuries than would otherwise have occurred if the helmet had performed as intended; that the helmet was labeled “D.O.T.”, a clear representation by the manufacturer to any purchaser or user that the helmet would meet or exceed the safety standards promulgated by the Department of Transportation; and that the helmet did not in fact perform in accordance with those standards.
Upon analysis, the rule set forth in Halloran (supra) is simply an application to product liability cases of the familiar principle that a legally significant fact may be established by circumstantial evidence. The fact that an accident occurred for reasons independent of the allegedly defective product is an additional element, and one that may have legal significance in certain situations. But I see *152no basis for the court’s implicit conclusion that the principle is automatically inapplicable to “second collision” cases.
The test should be whether the evidence is sufficient to establish circumstances from which a jury could reasonably infer that the plaintiff sustained more severe injuries than would have occurred if the product performed as intended, that the product was therefore defective, and that the defect existed at the time of the manufacture and sale.
The evidence adduced by the plaintiff in this case was sufficient to present a factual question for the jury, wholly without regard to proof of a specific defect. Any doubt as to the legal sufficiency of plaintiff’s case was surely dispelled by the significant testimony elicited on cross-examination from Bell’s expert. He testified that the helmet liner, intended to be a “second line of defense”, was designed to perform that function by collapsing on a significant impact; that the helmet in this case disclosed minimal signs of collapse; and that the limited character of the liner collapse indicated either that the liner did not perform its intended function or that the impact “was not severe enough”.
Under either alternative a case legally sufficient to submit the issue of liability to the jury was made out. If the impact was an extremely severe one, which was Bell’s basic thesis at the trial, the failure of the liner to collapse would establish that the product did not perform as it was intended to perform in a respect directly relevant to the injuries sustained by the plaintiff. If the impact was not severe enough to collapse the liner, the question is immediately presented as to how the plaintiff could have sustained the brain injuries that she sustained if the helmet had performed as it was designed to perform.
A remaining question is presented by the application to the facts here of the part of the rule that requires the evidence to exclude all causes of the accident not attributable to the defendant. As applied in the decisions, it appears that this aspect of the rule was addressed to the situation in which the product may have been subject to such misuse after it was sold that its failure to perform as *153intended could not fairly be attributed to a defect at the time of its manufacture. (See, e.g., Shelden v Hample Equip. Co., 89 AD2d 766, affd 59 NY2d 618; Fox v Corning Glass Works, 81 AD2d 826.)
In this case no direct evidence was presented by the plaintiff to exclude that possibility, plaintiff’s brain injury having severely impaired her memory. However, Bell’s experts had an opportunity to examine the helmet and it seems reasonable to infer from the absence of any evidence adduced by Bell on the point that they detected no indications of misuse prior to the accident that would account for the manner in which it then performed. Under the circumstances, considering the nature of the product and plaintiff’s loss of memory as a result of the accident, the evidence presented at the trial seems to me to have been sufficient to permit a jury to have concluded that the performance of the helmet at the time of the accident could not reasonably be attributed to some misuse of it between the day of the sale and the accident.
Kupferman and Alexander, JJ., concur with Murphy, P. J.; Sandler and Milonas, JJ., concur in a separate opinion by Sandler, J.
Judgment, Supreme Court, Bronx County, entered on October 27, 1982, reversed, on the law, the judgment vacated and the matter remanded for a new trial with $75 costs and disbursements of this appeal to abide the event.