(dissenting).
I respectfully dissent.
The majority opinion bases its reversal on two issues, namely: 1. The duty of GMC to the plaintiffs; and 2. Proximate cause.
The main holding of the majority opinion regarding GMC’s duty states that the cause of action for crashworthiness shall be based on negligence principles both for design as well as manufacturing defects.
I totally disagree with this holding. I conclude at the outset that crashworthiness represents not only an extension of strict products liability, but it is also an integral part of products liability law which our Supreme Court has recognized and we have no authority to depart therefrom. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).
The late Chief Justice Charles Evans Hughes of the United States Supreme Court, during the New Deal era in the 1930’s said, “the American industrial revolution which gave to America the automobile, gave to this country wealth and might,” but “along side those benefits to America it was necessary for the American courts to create the theory of strict products liability in order to protect the American people and the American consumers.” I totally agree with that concept of our American jurisprudence.
FACTS
This action is based on the “second collision” or “crashworthiness” theory. While the defects in the manufacture and design of the van did not initiate the overturn of the vehicle, such defects were nevertheless decided by the jury to be the proximate cause of Lorraine Duran’s injury and damages and the jury so found.
The record states that the van and in particular the roof and its component parts were manufactured by General Motors Corporation and sold through its the agent, Santa Fe Motors, to the West Las Vegas School District. Lorraine Duran was a passenger in the van then being used for a school activity. The van overturned, and because of defects in the manufacture of the roof and design of a component part thereof, the roof collapsed in the course of overturn causing the rear door header to invade the passenger area where Lorraine Duran was seated, striking her head and causing the vertebral bodies of her cervical spine to become dislodged, without fracture, damaging the spinal cord. She suffered, according to the record, permanent paralysis from the chest down.
I. DUTY OF GMC.
This case is premised on the doctrine of strict products liability under section 402A of the Restatement (Second) of Torts (1965) as adopted in Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972). See also Rudisaile v. Hawk Aviation Inc., 92 N.M. 575, 592 P.2d 175 (1979) and Bendorf v. Volkswagenwerk Aktiengeselischaft, 88 N.M. 355, 540 P.2d 835 (Ct.App.1975), cert. denied, 88 N.M. 319, 540 P.2d 249 (1975). Section 402A reads as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
The condition of the product must create an “unreasonable risk of injury.” See NMSA 1978, UJI Civ. 14.6 and UJI Civ. 14.7 (Cum.Supp.1983). The standard is that the product be “unreasonably dangerous”.
Before discussing the evidence relating to the condition of the van as creating an unreasonable risk of injury, the incidental and applicable theory of “second collision” must be considered.
Admittedly, the defects in manufacture and design did not initiate the accident. It was the “second collision” of Lorraine Duran’s head with the intruding rear-door header that caused her injuries. This immediately brings to question whether or not the manufacturer has the duty to manufacture the vehicle in such a manner as to make it reasonably safe in the event of a collision of this kind.
The applicability of this theory is a matter of first impression in New Mexico. The landmark case adopting the “second collision” theory is Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir.1968). In that case, the Plaintiff, while driving a Corvair manufactured by GM, was seriously injured in a head-on collision with another car. The impact caused a severe rearward thrust of the steering mechanism to the Plaintiff’s head. The steering mechanism did not incorporate a design which would protect a driver against rearward displacement during an accident.
Larsen did not contend that the design caused the accident, but rather that because of the design defect he received injuries he would not have otherwise suffered. In the alternative, he contended that his injuries would not have been so severe were it not for the design defect.
In Larsen the District Court rendered summary judgment dismissing the complaint on the basis that there was no duty on the manufacturer to make a vehicle which would protect the user from injury in the event of collision. On appeal, the Eighth Circuit rejected the limited duty argument that had been adopted by the Seventh Circuit in Evans v. General Motors Corporation, 359 F.2d 822 (7th Cir.), cert. denied, 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1966). In reversing the District Court, the Appellate Court ruled:
... Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types. The manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily foresee and when it knows that the probability over the life of its product is high, that it will be involved in some type of injury-producing accident.
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* * * While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producting impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called “second collision ” of the passenger with the interior part of the automobile, all are foreseeable. * * * The sole function of an automobile is not just to provide a means of transportation, it is to provide a means of safe transportation or as safe as is reasonably possible under the present state of the art.
Larsen, 391 F.2d 501-03.
The Supreme Court of New Mexico appears to have impliedly accepted the “second collision” theory based upon Uniform Jury Instruction Civil No. 14.3 and the Committee Comments thereunder which read as follows:
UJI Civ. 14.3. Foreseeable risk of injury; misuse.
The supplier has the duty to consider foreseeable risks of injury. This duty is limited to use of the product for a purpose or in a manner which could reasonably be foreseen.
Where an injury is caused by a [risk] [or] [misuse of the product] which was not reasonably foreseeable to the supplier, he is not liable.
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COMMITTEE COMMENT
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Thus, these instructions reject the contention that a manufacturer of an automobile has no duty to consider risks of injury associated with vehicle collision simply because the intended purpose of an automobile does not include its participation in collisions. In the “crashworthiness” cases, as in any other case, the manufacturer’s liability is circumscribed by foreseeable use. Since involvement in accidents is reasonably foreseeable, a duty exists to consider this risk in design of the vehicle. Compare Larsen v. GMC, 391 F.2d 495, 502 (8th Cir.1968), with Evans v. GMC, 359 F.2d 822, 825 (7th Cir.), cert. denied, 385 U.S. 836, 17 L.Ed.2d 70, 87 S.Ct. 83 (1966), overruled, Huff v. White Motor Corp., 565 F.2d 104 (7th Cir.1977).
NMSA 1978, UJI Civ. 14.3 (Repl.Pamp. 1980). The commentary itself recognizes the validity of the Larsen case in this jurisdiction.
Additionally, in Frericks v. General Motors Corporation, 274 Md. 288, 336 A.2d 118 (1975), where a passenger was injured in a rollover accident, the Court stated:
* * * The fact that a negligent driver may be the initial cause of an accident does not abrogate the manufacturer’s duty to use reasonable care in designing an automobile to reduce the risk of “Secondary impact” injuries * * *
Id. at 304, 336 A.2d at 127.
Recovery under the “second collision” theory is allowed for both the injury caused solely by the defect, as in this case, as well as the injury which is enhanced by the defect.
The majority in the instant case devotes much space to explaining why “design defect” cases in the crashworthiness context should be adjudicated under negligence principles. When it comes time to address the manufacturing flaws question, which the jury found to exist in the failing sport welds, the majority briefly suggests that convenience to plaintiffs also warrants a negligence approach in deciding these cases. While I believe that a negligence approach is inappropriate in the design defect area, this approach is even more objectionable in the manufacturing defect context. The majority does not relieve plaintiffs of any burdens, as it asserts; it today saddles plaintiffs with additional and heavy burdens. I would have applied a strict liability analysis and held that since the manufacturing defects compromised the integrity and strength of the roof, they constituted a self-evident risk of injury or at least a risk which a reasonably prudent person having full knowledge of the risk would not accept. The fact question was properly one for the jury.
Uniform Jury Instruction Civil No. 14.7, which was given the jury, defines “unreasonable risk of injury” insofar as pertinent, as follows:
An unreasonable risk of injury is a risk which a reasonably prudent person having full knowledge of the risk would find unacceptable. * * *
The design of a product need not necessarily adopt features which represent the ultimate in safety. You should consider the ability to eliminate the risk without seriously impairing the usefulness of the product or making it unduly expensive. You are to look at the product itself and consider only the risks of harm from its condition or from the manner of its use at the time of the injury. * *
In Rudisaile v. Hawk Aviation Inc., where an airplane was leased without oil, the Court stated:
* * * under Section 402A the plaintiff need only show that the product was dangerous beyond the expectations of the ordinary consumer...
In so concluding, the New Mexico Supreme Court quoted with approval from Seattle-First Nat’l Bank v. Tabert, 86 Wash.2d 145, 542 P.2d 774 (1975), as follows:
* * * If a product is unreasonably dangerous, it is necessarily defective. The plaintiff may, but should not be required to prove defectiveness as a separate matter.
[Liability is imposed under Section 402A if a product is not reasonably safe.
Rudisaile, 92 N.M. at 577, 592 P.2d at 177 (quoting Seattle-First Nat’l Bank, 86 Wash, at 154, 542 P.2d at 779).
Substantial evidence in this case shows that the rear door header intruded to the extent necessary to lacerate Lorraine Duran’s head, and cause the vertebral dislodgment, injure the spinal cord and cause paralysis because of manufacturing flaws or defect in spot welding and failure to incorporate available retainer rods.
In May v. Portland Jeep, Inc., 265 Or. 307, 509 P.2d 24 (1973), an analogous case, a jeep being driven down a steep dike and sandy incline, buried its front end, flipped forward, landing upside down, and injuring the driver. Insofar as pertinent, the opinion reads as follows:
Defendant first contends the trial court erred in failing to grant its motion for a directed verdict because there was insufficient proof that the vehicle was in a defective condition and unreasonably dangerous. An engineer called by plaintiff testified that the roll bar should have been capable of withstanding the load caused by the vehicle’s rolling over in the manner recounted by the plaintiff. The engineer also testified that the support for the roll bar could have been increased by making continuous welds where the wheel wells joined the body or by bolting the angle irons, which supported the bases of the roll bar, to the sides of the vehicles as well as to the wheel wells. Bolt holes, although unused, had been provided in the angle irons for that purpose. This evidence, together with evidence of the purpose of a roll bar, was sufficient for the jury to find that the vehicle was in a defective condition and was unreasonably dangerous. * * *
Id. at 310, 509 P.2d at 26.
The manifest existence of a jury question where the defect or flaw is in the manufacture of the product is very aptly articulated in the Committee Comment to UJI Civ. 14.7 as follows:
* * * Design, formulation, warning, safety device and unavoidably unsafe product cases present greater latitude for argument than does the production flaw which the reasonably prudent person would generally be expected to find unacceptable when known. * * *
NMSA 1978, UJI Civ. 14.7 (Cum.Supp. 1983).
Based on the facts of this case and the legal authorities that I have cited I conclude that the trial court did not err in denying the defendant’s motion for directed verdict as alleged by GMC on the issue of duty under Point I. I would affirm the judgment of the trial court on the issue of duty under this point.
II. PROXIMATE CAUSE.
The majority opinion bases its position of this issue on its holding that the jury could have no basis other than conjecture, surmise or speculation upon which to consider whether Lorraine Duran’s injury occurred as a result of the added intrusion at the rear header as opposed to that which she would have suffered without the added intrusion. I interpret this holding to mean that the majority opinion holds that the plaintiffs failed to prove, as a matter of law, proximate cause and that that issue should not have gone to the jury.
I therefore summarize pertinent evidence which I think constitutes substantial evidence of proximate cause.
1. The left portion of the rear door header caused the laceration to the occipital region of Lorraine Duran’s head.
2. Lorraine Duran's head was in a flexed position when the impact with the header caused the dislodgment of the vertebral bodies. The impact damaged the spinal cord, causing paralysis, but did not fracture the vertebrae.
3. The particular force and the direction of the force that caused the laceration also caused the dislodgment, the spinal cord damage, and the paralysis.
4. The force necessary to cause the dislodgment without fracture was relatively small and much less than the force applied when fractures occur.
5. Henrietta Martinez, who was seated to the right of Lorraine Duran, struck the sheet metal of the roof panel while Lorraine Duran collided with the header.
6. Henrietta Martinez suffered a neck sprain because the impact to her head was not localized, but spread over a large area.
7. The rear door header, in its deformed state, intruded into the passenger area a total of 13 inches.
8. If the allegedly defective welding had held, the intrusion of the header would have been reduced by 1.3 inches, without regard to the absence of retainer rods.
9. The roof of the van upon impact, in the absence of retainer rods, deformed in an accordion-like manner.
I have reviewed Dr. Kosiki’s expert testimony, which was properly admitted over the objections of GMC, and I believe that his testimony supports the conclusion that substantial evidence in the record sustains the jury verdict. GMC objected to portions of Dr. Kosiki’s testimony but I believe the trial court was correct in allowing the testimony to go to the jury. See Roberts v. Sparks, 99 N.M. 152, 655 P.2d 539 (1982). See also Alford v. Drum, 68 N.M. 298, 361 P.2d 451 (1961); Harrison v. ICX, Illinois-California Express, 98 N.M. 247, 647 P.2d 880 (Ct.App.1982).
It is my opinion that the trial court properly denied GMC’s motion for directed verdict on proximate cause. I further conclude that there is substantial evidence in the record of proximate cause and that the issue was properly submitted to the jury. See Archuleta v. Pina, 86 N.M. 94, 519 P.2d 1175 (1974); Mabrey v. Mobil Oil Corp., 84 N.M. 522, 505 P.2d 865 (Ct.App. 1972).
CONCLUSION
In conclusion, the majority applies a pernicious interpretation of product liability law to the facts of this case. The decision and the tort principles upon which the majority rely may have been proper 100 years ago, in the days of the horse and buggy, but such theories are neither appropriate nor equitable in these days of mass produced and fast moving vehicles.
In conclusion I would affirm the judgment of the trial court on the issues upon which the majority opinion has based its reversal.