Huddell v. Levin

Nos. 75-1851, 75-1852, 75-1853, 75-1854

537 F.2d 726 (1976) | Cited 137 times | Third Circuit | February 9, 1976

ALDISERT, Circuit Judge.

Defendants have appealed from adverse judgments in a diversity case governed by New Jersey substantive law and arising out of a collision of two automobiles which resulted in the death of plaintiff's decedent, Dr. Benjamin R. Huddell. Although numerous issues command our attention, the central questions presented involve the nature and extent of an automobile manufacturer's liability in the context of "crashworthiness" or "second collision" litigation, and the proof required to establish that liability. The jury returned a verdict of $2,024,700 in favor of plaintiff against defendant General Motors, the manufacturer of Dr. Huddell's car, but found no liability on the part of defendant Levin, the driver of the other car, or defendant S. Klein Department Stores, Levin's employer. The district court entered judgment notwithstanding the verdict against Levin and S. Klein. We vacate the judgments against all three defendants, and remand for a new trial.

Treating first the central products liability questions raised by the judgment against G.M., we must determine whether the district court erred in submitting the question of G.M.'s liability to the jury and, if it did not, whether it erred either with respect to evidentiary requirements or in the framing of instructions for the jury on that question. We must also consider the correctness of the judgments entered against defendants Levin and S. Klein. And, finally, we must address several issues presented concerning the calculation of damages: whether income tax effects are to be considered; whether prejudgment interest is to be awarded; and whether inflation may be taken into account.

The pertinent facts have been summarized by the district court:

On the early morning of March 24, 1970, a clear, dry day, Dr. Benjamin R. Huddell, a psychiatrist, was en route from his home in Cherry Hill, New Jersey, to the Delaware State Hospital, where he was engaged in psychiatric research. Dr. Huddell was operating a 1970 Chevrolet Nova, manufactured by General Motors and purchased from its dealer approximately four months prior to the accident. Installed as part of its original equipment were head restraints for driver and front-seat passenger, each at a retail cost of $30.00, whose sole purpose was to prevent rearward rotation of the head and neck in the event of a rear-end collision. Evidence was presented that these head restraints were designed in such a manner as to expose the rear of the head to a relatively sharp, unyielding metal edge, covered by two inches of soft, foam-like material.

Dr. Huddell's car ran out of gas on the Delaware Memorial Bridge, connecting the States of New Jersey and Delaware. His car was brought to a full stop in the left-most, southbound lane of traffic; he was seat-belted in the driver's seat; and the blinker lights on his vehicle were in operation. At approximately 8:30 A.M., the defendant, George Gerson Levin, in the course of his employment for the defendant, S. Klein Department Stores, Inc., and en route to S. Klein's branch store in Greenbelt, Maryland, drove his Chrysler sedan at a considerable rate of speed directly into the rear of Dr. Huddell's Nova. Levin's speed was estimated at fifty miles per hour (Levin) and sixty miles per hour (plaintiff's expert). Because of the energy-absorbing characteristics of the vehicles and friction with the roadway, the impact resulted in an acceleration of the Huddell automobile to a maximum speed of 31.7 miles per hour. The rear of Dr. Huddell's head struck the head restraint at a speed of ten miles per hour.

Levin sustained only superficial injuries for which he was examined, treated and discharged from the hospital within an hour after the accident. With the exception of his head, Dr. Huddell also sustained superficial injuries; the autopsy performed by the Chief Medical Examiner of the State of Delaware, within two and a half hours after Huddell's death, revealed that his neck, skeletal system and internal organs sustained no injury whatsoever. The blow of his head against the head restraint, however, resulted in "extensive fracture" to the occipital region of the skull. Because of a medical phenomenon known as "contrecoup," by which the brain of a moving head striking a stationary object sustains injury opposite the point of impact, the frontal portions of Dr. Huddell's brain were extensively damaged, as a result of which he died one day after the accident.

Dr. Huddell had just completed a residency at the Jefferson Medical College in psychiatry and had opened a private office for the practice of his specialty. At the time of his death he was thirty-nine years of age; his wife Josephine was thirty-four; the range of age of his five children was from three to thirteen years.

Suit was instituted in this court, based upon diversity of citizenship, by Mrs. Huddell in her representative capacity, against George Gerson Levin, driver of the rear-ending vehicle, alleging negligence, against Levin's employer, S. Klein Department Stores, on a respondeat superior theory, and against General Motors Corporation, charging that the head restraint installed in Dr. Huddell's vehicle was defectively designed, unreasonably dangerous and failed to give him proper protection against a rear-end collision such as heretofore described.

[In response to a series of interrogatories the jury found] in substance, that Levin was negligent and was acting within the scope of his employment for S. Klein, but that his negligence was not a substantial contributing factor or proximate cause of Dr. Huddell's death; that Dr. Huddell was not contributorily negligent; that Dr. Huddell's head did strike the head restraint; that the head restraint was defective and unreasonably dangerous and was a substantial contributing factor of Dr. Huddell's death; that General Motors breached its warranty of fitness which breach was a substantial contributing factor of Dr. Huddell's death; and that the damages sustained were $2,024,700.00.

395 F. Supp. 64, 68-70 (D. N.J. 1975).

I.

This troublesome case, implicating nascent concepts of state tort liability, demonstrates again the impracticality of the federal diversity forum in the twentieth century and underscores the necessity for Congressional action so eloquently sounded by the Chief Justice in his Annual Report on the State of the Judiciary.1 We are to apply New Jersey law, yet we are without the specific guidance of viable New Jersey precedents.2 This appeal requires us to predict how the New Jersey Supreme Court would react when presented with novel and difficult questions of tort law. Specifically we are to predict how that court would view the liability of an automobile manufacturer for the design of a head restraint in a case in which it is alleged that fatal injuries were caused by impact against the head restraint received when the decedent's stopped car was struck from behind by another car travelling at least 50 m.p.h.

Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 384, 161 A.2d 69, 84 (1960), the seminal New Jersey case, stated the basic premise: "Under modern marketing conditions, when a manufacturer puts a new automobile in the stream of trade and promotes its purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser." Since 1960 the terminology of liability has changed from "implied warranty" to "strict liability"3 but the jural foundation of liability has remained unchanged. New Jersey has recognized that, as between an implied warranty theory and a strict liability theory, "the governing principles are identic", Jackson v. Muhlenberg Hospital, 96 N.J. Super. 314, 324, 232 A.2d 879, 884 (1967); and New Jersey has approved the more contemporary terminology of strict liability. Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 90, 207 A.2d 314, 325 (1965); Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 66, 207 A.2d 305, 312 (1965). Accordingly, and in conformity with the essence of the litigation thus far, we treat this appeal under the rubric of strict liability in tort.

Scanlon v. General Motors Corp., 65 N.J. 582, 590-91, 326 A.2d 673, 677-78 (1974), summarized the New Jersey law of strict liability:

The doctrine of strict liability in tort is firmly established in the law of this state. See, e.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965); Rosenau v. City of New Brunswick and Worthington Gamon Meter Co., 51 N.J. 130, 238 A.2d 169 (1968); Realmuto v. Straub Motors, Inc., 65 N.J. 336, 322 A.2d 440 (1974). Under this doctrine manufacturers and retailers are liable for damages if the product left their hands in a defective condition proximately causing the mishap. Thus, a plaintiff in a strict liability case must establish that the product was defective, that the defect arose while in the control of the defendant, and that the plaintiff suffered injury thereby. See Jakubowski v. Minnesota Mining & Manufacturing, 42 N.J. 177, 199 A.2d 826 (1964); Newmark v. Gimbel's Incorporated, 54 N.J. 585, 258 A.2d 697 (1969); Corbin v. Camden Coca-Cola Bottling Co., 60 N.J. 425, 290 A.2d 441 (1972): Prosser, Law of Torts (4th ed. 1971) § 103.

A product is defective if it is not fit for the ordinary purposes for which such articles are sold and used. Santor v. A & M Karagheusian, Inc., supra, 44 N.J. at 66-67, 207 A.2d 305; see Collins v. Uniroyal, Inc., 64 N.J. 260, 271-272, 315 A.2d 16 n.6 (1974) (dissenting opinion). Establishing this element requires only proof, in a general sense and as understood by a layman, that "something was wrong" with the product. As a rule the mere occurrence of an accident is not sufficient to establish that the product was not fit for ordinary purposes. However, additional circumstantial evidence, such as proof of proper use, handling or operation of the product and the nature of the malfunction, may be enough to satisfy the requirement that something was wrong with it. See, e.g., Henningsen v. Bloomfield Motors, Inc., supra, 32 N.J. at 409, 161 A.2d 69 (steering malfunction); Cintrone v. Hertz Truck Leasing & Rental Service, supra, 45 N.J. at 452, 212 A.2d 769 (brake failure); Sabloff v. Yamaha Motor Co., Ltd., 113 N.J. Super. 279, 286-287, 273 A.2d 606 (App. Div.), aff'd 59 N.J. 365, 283 A.2d 321 (1971) (wheel locked). Further, a defective condition can also be proven by the testimony of an expert who has examined the product or who offers an opinion on the product's design.

1. The Congress has not yet acted on the matter of federal court jurisdiction in diversity of citizenship cases although numerous responsible studies, including that of the American Law Institute, which has now been available for seven years, called for change in this outmoded procedure. I have an obligation to repeat what I have said before, that with a few exceptions which can be dealt with as such, diversity cases have no more place in the federal courts in the second half of the 20th century, and surely not in the final quarter of this century, than overtime parking tickets or speeding on the highways simply because the street or highway is federally financed. Annual Report on the State of the Judiciary, presented to the American Bar Association, Philadelphia, Pa., February 16, 1976 (summarized at 44 U.S.L.W. 2389) (footnote omitted).

2. The major cases involving the second collision theory of liability have arisen in federal courts, often in the context of negligence; these cases furnish, at best, unauthoritative and diverse prognostications as to how several state high courts would rule under the circumstances. Wooten v. White Trucks, 514 F.2d 634 (5th Cir. 1975) (Kentucky); Dreisonstok v. Volkswagenwerk, 489 F.2d 1066 (4th Cir. 1974) (Virginia); Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968) (Michigan); Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966) (Indiana); Hardy v. Volkswagen of America, 65 F.R.D. 359 (W.D. Pa. 1975) (Pennsylvania); Yetter v. Rajeski, 364 F. Supp. 105 (D. N.J. 1973) (New Jersey); Dyson v. General Motors Corp., 298 F. Supp. 1064 (E.D. Pa. 1969) (Pennsylvania).

3. The strict liability doctrine imposes in effect a warranty obligation upon the manufacturer, but is intended to remove contractual impediments, e.g., privity, that have become associated with warranty actions. "There is nothing in [Section 402A] which would prevent any court from treating the rule stated as a matter of 'warranty' to the user or consumer. But if this is done, it should be recognized and understood that the 'warranty' is a very different kind of warranty from those usually found in the sale of goods, and that it is not subject to the various contract rules which have grown up to surround such sales." Restatement (Second) of Torts § 402A, comment m (1965).

4. Opinion evidence has long been skeptically regarded as a dubious kind of proof. "It is mere opinion, which is not evidence." Carter v. Boehm, 3 Burr 1905, 1918 (1766) (Mansfield, J.). Courts today may be less dogmatic, but the skepticism remains. See generally McCORMICK ON EVIDENCE §§ 11, 12 (1972). "Of all forms of evidence, opinion evidence is the weakest and least reliable. Even though uncontradicted it need not be accepted." Blue Mountain Tel. & Tel. Co. v. Pennsylvania Public Utility Comm'n, 165 P. Super. 320, 327, 67 A.2d 441, 444 (1949). Also see Minnesota Mining and Manufacturing Co. v. Berwick Industries, Inc., 532 F.2d 330 (3d Cir., 1976).

5. The problem is that the facts are forever gone and no scientific method of inquiry can ever be devised to produce facsimiles that bring the past to life. The judicial process deals with probabilities, not facts, and we must therefore be on guard against making fact skepticism our main preoccupation. However skillfully, however sensitively we arrange a reproduction of the past, the arrangement is still that of the theater. We acknowledge as much when we speak of re-enacting the crime or the accident or perhaps some everyday event; we know better than to speak of reliving it. The most we can hope for is that witnesses will be honest and reasonably accurate in their perception and recollection, that triers of fact will be honest and intelligent in their reasoning, and that appellate courts will frame opinions with enough perspective to guide others in comparable fact situations and preclude their disputes from festering into litigation. Roger J. Traynor, Fact Skepticism and the Judicial Process, 106 U.PA. L. REV. 635, 636 (1958).

6. N.J.S.A. 2A:31-1. Plaintiff's complaint alleged in several parts that Dr. Huddell "was made to suffer great physical pain before his death", apparently as a predicate to recovery in Dr. Huddell's own right under the New Jersey Survival statute, N.J.S.A. 2A:15-3. However, the importance of the survival aspect of the case was disclaimed by plaintiff's counsel at oral argument and it is apparent that the significant damages in contention on this appeal are the wrongful death damages, damages measured by "the pecuniary injuries resulting from such death to the persons entitled to any intestate personal property of the decedent." N.J.S.A. 2A:31-5.

7. With minor variations, the consensus of testimony was that the speed of the Levin Chrysler at impact was 50 to 68 m.p.h., that Dr. Huddell's Nova accelerated almost instantly from 0 to 32 m.p.h., that the collision generated 1100 to 1500 pounds of force on the occipital area of the skull, and that Dr. Huddell's Nova was compacted by 4 feet 10 inches as a result of the collision. Under these circumstances it is simply offensive to the rational faculty to say that Levin's negligence - assuming he was negligent - was not a proximate cause of Dr. Huddell's death. Cf. Pappas v. Santiago, 66 N.J. 140, 143, 329 A.2d 337, 339 (1974). Common sense is not out of place in the law. Davis v. Washington, 168 U.S. App. D.C. 42, 512 F.2d 956, 966 (Robb, J., dissenting), cert. granted, 423 U.S. 820, 96 S. Ct. 33, 46 L. Ed. 2d 37 (1975).

8. We do not disturb the jury's findings that Dr. Huddell was not contributorily negligent and that Levin was acting within the scope of his employment for S. Klein (at 732, supra). Upon retrial those two findings will not be open to relitigation.

1. E.g., Moore v. Strong, 360 F.2d 71 (10th Cir. 1966) (applying Oklahoma law); Washewich v. LeFave, 248 So.2d 670 (Fla. App. 1971); Fugere v. Pierce, 5 Wash. App. 592, 490 P.2d 132, 135 (1971); Delfino v. Torosian, 354 Mass. 395, 237 N.E.2d 694 (1968); Holtz v. Holder, 101 Ariz. 247, 418 P.2d 584, 587-88 (1966); Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422, 425-26 (1964); Brantley v. Couch, 383 S.W.2d 307, 310 (Mo. App. 1964); Apodaca v. Haworth, 206 Cal. App. 2d 209, 23 Cal. Rptr. 461, 464 (1962); Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33 (1961); Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321 (1961); Murphy v. Taxicabs of Louisville, Inc., 330 S.W.2d 395, 397 (Ky. 1959); Reed v. Mai, 171 Kan. 169, 231 P.2d 227, 231 (1951).

2. Section 433B(2) provides: Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

3. See also Betenbaugh v. Princeton Hospital, 50 N.J. 390, 235 A.2d 889 (1967); Martin v. Bengue, Inc., 25 N.J. 359, 136 A.2d 626 (1957); Jenkins v. Pennsylvania R. Co., 67 N.J.L. 331, 51 A. 704 (1902), which shifted the burden of apportionment to the defendants in contexts other than automobile collisions.

4. Larsen was interpreted to have resolved the problem of apportionment in favor of the plaintiff in Note, Automobile Design Liability: Larsen v. General Motors and Its Aftermath, 118 U. Pa. L. Rev. 299, 303-304 (1969). The author there observed: "The difficulty of apportionment, in this instance, is an unpersuasive reason for taking cases from the jury. To do so abandons the injured plaintiff without a critical evaluation of the manufacturer's conduct." Id. at 304.

5. As is manifest in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972), and in Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 286 N.E.2d 241, 334 N.Y.S.2d 851 (1972), apportionment rests upon defendants. Dole, as the majority opinion recognizes, did not alter a plaintiff's right to be compensated in full for the loss suffered. See Ausubel, The Impact of New York's Judicially Created Loss Apportionment Amongst Tortfeasors, 38 Albany L. Rev. 155, 162-63 (1974).

ALDISERT, Circuit Judge.

Defendants have appealed from adverse judgments in a diversity case governed by New Jersey substantive law and arising out of a collision of two automobiles which resulted in the death of plaintiff's decedent, Dr. Benjamin R. Huddell. Although numerous issues command our attention, the central questions presented involve the nature and extent of an automobile manufacturer's liability in the context of "crashworthiness" or "second collision" litigation, and the proof required to establish that liability. The jury returned a verdict of $2,024,700 in favor of plaintiff against defendant General Motors, the manufacturer of Dr. Huddell's car, but found no liability on the part of defendant Levin, the driver of the other car, or defendant S. Klein Department Stores, Levin's employer. The district court entered judgment notwithstanding the verdict against Levin and S. Klein. We vacate the judgments against all three defendants, and remand for a new trial.

Treating first the central products liability questions raised by the judgment against G.M., we must determine whether the district court erred in submitting the question of G.M.'s liability to the jury and, if it did not, whether it erred either with respect to evidentiary requirements or in the framing of instructions for the jury on that question. We must also consider the correctness of the judgments entered against defendants Levin and S. Klein. And, finally, we must address several issues presented concerning the calculation of damages: whether income tax effects are to be considered; whether prejudgment interest is to be awarded; and whether inflation may be taken into account.

The pertinent facts have been summarized by the district court:

On the early morning of March 24, 1970, a clear, dry day, Dr. Benjamin R. Huddell, a psychiatrist, was en route from his home in Cherry Hill, New Jersey, to the Delaware State Hospital, where he was engaged in psychiatric research. Dr. Huddell was operating a 1970 Chevrolet Nova, manufactured by General Motors and purchased from its dealer approximately four months prior to the accident. Installed as part of its original equipment were head restraints for driver and front-seat passenger, each at a retail cost of $30.00, whose sole purpose was to prevent rearward rotation of the head and neck in the event of a rear-end collision. Evidence was presented that these head restraints were designed in such a manner as to expose the rear of the head to a relatively sharp, unyielding metal edge, covered by two inches of soft, foam-like material.

Dr. Huddell's car ran out of gas on the Delaware Memorial Bridge, connecting the States of New Jersey and Delaware. His car was brought to a full stop in the left-most, southbound lane of traffic; he was seat-belted in the driver's seat; and the blinker lights on his vehicle were in operation. At approximately 8:30 A.M., the defendant, George Gerson Levin, in the course of his employment for the defendant, S. Klein Department Stores, Inc., and en route to S. Klein's branch store in Greenbelt, Maryland, drove his Chrysler sedan at a considerable rate of speed directly into the rear of Dr. Huddell's Nova. Levin's speed was estimated at fifty miles per hour (Levin) and sixty miles per hour (plaintiff's expert). Because of the energy-absorbing characteristics of the vehicles and friction with the roadway, the impact resulted in an acceleration of the Huddell automobile to a maximum speed of 31.7 miles per hour. The rear of Dr. Huddell's head struck the head restraint at a speed of ten miles per hour.

Levin sustained only superficial injuries for which he was examined, treated and discharged from the hospital within an hour after the accident. With the exception of his head, Dr. Huddell also sustained superficial injuries; the autopsy performed by the Chief Medical Examiner of the State of Delaware, within two and a half hours after Huddell's death, revealed that his neck, skeletal system and internal organs sustained no injury whatsoever. The blow of his head against the head restraint, however, resulted in "extensive fracture" to the occipital region of the skull. Because of a medical phenomenon known as "contrecoup," by which the brain of a moving head striking a stationary object sustains injury opposite the point of impact, the frontal portions of Dr. Huddell's brain were extensively damaged, as a result of which he died one day after the accident.

Dr. Huddell had just completed a residency at the Jefferson Medical College in psychiatry and had opened a private office for the practice of his specialty. At the time of his death he was thirty-nine years of age; his wife Josephine was thirty-four; the range of age of his five children was from three to thirteen years.

Suit was instituted in this court, based upon diversity of citizenship, by Mrs. Huddell in her representative capacity, against George Gerson Levin, driver of the rear-ending vehicle, alleging negligence, against Levin's employer, S. Klein Department Stores, on a respondeat superior theory, and against General Motors Corporation, charging that the head restraint installed in Dr. Huddell's vehicle was defectively designed, unreasonably dangerous and failed to give him proper protection against a rear-end collision such as heretofore described.

[In response to a series of interrogatories the jury found] in substance, that Levin was negligent and was acting within the scope of his employment for S. Klein, but that his negligence was not a substantial contributing factor or proximate cause of Dr. Huddell's death; that Dr. Huddell was not contributorily negligent; that Dr. Huddell's head did strike the head restraint; that the head restraint was defective and unreasonably dangerous and was a substantial contributing factor of Dr. Huddell's death; that General Motors breached its warranty of fitness which breach was a substantial contributing factor of Dr. Huddell's death; and that the damages sustained were $2,024,700.00.

395 F. Supp. 64, 68-70 (D. N.J. 1975).

I.

This troublesome case, implicating nascent concepts of state tort liability, demonstrates again the impracticality of the federal diversity forum in the twentieth century and underscores the necessity for Congressional action so eloquently sounded by the Chief Justice in his Annual Report on the State of the Judiciary.1 We are to apply New Jersey law, yet we are without the specific guidance of viable New Jersey precedents.2 This appeal requires us to predict how the New Jersey Supreme Court would react when presented with novel and difficult questions of tort law. Specifically we are to predict how that court would view the liability of an automobile manufacturer for the design of a head restraint in a case in which it is alleged that fatal injuries were caused by impact against the head restraint received when the decedent's stopped car was struck from behind by another car travelling at least 50 m.p.h.

Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 384, 161 A.2d 69, 84 (1960), the seminal New Jersey case, stated the basic premise: "Under modern marketing conditions, when a manufacturer puts a new automobile in the stream of trade and promotes its purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser." Since 1960 the terminology of liability has changed from "implied warranty" to "strict liability"3 but the jural foundation of liability has remained unchanged. New Jersey has recognized that, as between an implied warranty theory and a strict liability theory, "the governing principles are identic", Jackson v. Muhlenberg Hospital, 96 N.J. Super. 314, 324, 232 A.2d 879, 884 (1967); and New Jersey has approved the more contemporary terminology of strict liability. Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 90, 207 A.2d 314, 325 (1965); Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 66, 207 A.2d 305, 312 (1965). Accordingly, and in conformity with the essence of the litigation thus far, we treat this appeal under the rubric of strict liability in tort.

Scanlon v. General Motors Corp., 65 N.J. 582, 590-91, 326 A.2d 673, 677-78 (1974), summarized the New Jersey law of strict liability:

The doctrine of strict liability in tort is firmly established in the law of this state. See, e.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965); Rosenau v. City of New Brunswick and Worthington Gamon Meter Co., 51 N.J. 130, 238 A.2d 169 (1968); Realmuto v. Straub Motors, Inc., 65 N.J. 336, 322 A.2d 440 (1974). Under this doctrine manufacturers and retailers are liable for damages if the product left their hands in a defective condition proximately causing the mishap. Thus, a plaintiff in a strict liability case must establish that the product was defective, that the defect arose while in the control of the defendant, and that the plaintiff suffered injury thereby. See Jakubowski v. Minnesota Mining & Manufacturing, 42 N.J. 177, 199 A.2d 826 (1964); Newmark v. Gimbel's Incorporated, 54 N.J. 585, 258 A.2d 697 (1969); Corbin v. Camden Coca-Cola Bottling Co., 60 N.J. 425, 290 A.2d 441 (1972): Prosser, Law of Torts (4th ed. 1971) § 103.

A product is defective if it is not fit for the ordinary purposes for which such articles are sold and used. Santor v. A & M Karagheusian, Inc., supra, 44 N.J. at 66-67, 207 A.2d 305; see Collins v. Uniroyal, Inc., 64 N.J. 260, 271-272, 315 A.2d 16 n.6 (1974) (dissenting opinion). Establishing this element requires only proof, in a general sense and as understood by a layman, that "something was wrong" with the product. As a rule the mere occurrence of an accident is not sufficient to establish that the product was not fit for ordinary purposes. However, additional circumstantial evidence, such as proof of proper use, handling or operation of the product and the nature of the malfunction, may be enough to satisfy the requirement that something was wrong with it. See, e.g., Henningsen v. Bloomfield Motors, Inc., supra, 32 N.J. at 409, 161 A.2d 69 (steering malfunction); Cintrone v. Hertz Truck Leasing & Rental Service, supra, 45 N.J. at 452, 212 A.2d 769 (brake failure); Sabloff v. Yamaha Motor Co., Ltd., 113 N.J. Super. 279, 286-287, 273 A.2d 606 (App. Div.), aff'd 59 N.J. 365, 283 A.2d 321 (1971) (wheel locked). Further, a defective condition can also be proven by the testimony of an expert who has examined the product or who offers an opinion on the product's design.

1. The Congress has not yet acted on the matter of federal court jurisdiction in diversity of citizenship cases although numerous responsible studies, including that of the American Law Institute, which has now been available for seven years, called for change in this outmoded procedure. I have an obligation to repeat what I have said before, that with a few exceptions which can be dealt with as such, diversity cases have no more place in the federal courts in the second half of the 20th century, and surely not in the final quarter of this century, than overtime parking tickets or speeding on the highways simply because the street or highway is federally financed. Annual Report on the State of the Judiciary, presented to the American Bar Association, Philadelphia, Pa., February 16, 1976 (summarized at 44 U.S.L.W. 2389) (footnote omitted).

2. The major cases involving the second collision theory of liability have arisen in federal courts, often in the context of negligence; these cases furnish, at best, unauthoritative and diverse prognostications as to how several state high courts would rule under the circumstances. Wooten v. White Trucks, 514 F.2d 634 (5th Cir. 1975) (Kentucky); Dreisonstok v. Volkswagenwerk, 489 F.2d 1066 (4th Cir. 1974) (Virginia); Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968) (Michigan); Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966) (Indiana); Hardy v. Volkswagen of America, 65 F.R.D. 359 (W.D. Pa. 1975) (Pennsylvania); Yetter v. Rajeski, 364 F. Supp. 105 (D. N.J. 1973) (New Jersey); Dyson v. General Motors Corp., 298 F. Supp. 1064 (E.D. Pa. 1969) (Pennsylvania).

3. The strict liability doctrine imposes in effect a warranty obligation upon the manufacturer, but is intended to remove contractual impediments, e.g., privity, that have become associated with warranty actions. "There is nothing in [Section 402A] which would prevent any court from treating the rule stated as a matter of 'warranty' to the user or consumer. But if this is done, it should be recognized and understood that the 'warranty' is a very different kind of warranty from those usually found in the sale of goods, and that it is not subject to the various contract rules which have grown up to surround such sales." Restatement (Second) of Torts § 402A, comment m (1965).

4. Opinion evidence has long been skeptically regarded as a dubious kind of proof. "It is mere opinion, which is not evidence." Carter v. Boehm, 3 Burr 1905, 1918 (1766) (Mansfield, J.). Courts today may be less dogmatic, but the skepticism remains. See generally McCORMICK ON EVIDENCE §§ 11, 12 (1972). "Of all forms of evidence, opinion evidence is the weakest and least reliable. Even though uncontradicted it need not be accepted." Blue Mountain Tel. & Tel. Co. v. Pennsylvania Public Utility Comm'n, 165 P. Super. 320, 327, 67 A.2d 441, 444 (1949). Also see Minnesota Mining and Manufacturing Co. v. Berwick Industries, Inc., 532 F.2d 330 (3d Cir., 1976).

5. The problem is that the facts are forever gone and no scientific method of inquiry can ever be devised to produce facsimiles that bring the past to life. The judicial process deals with probabilities, not facts, and we must therefore be on guard against making fact skepticism our main preoccupation. However skillfully, however sensitively we arrange a reproduction of the past, the arrangement is still that of the theater. We acknowledge as much when we speak of re-enacting the crime or the accident or perhaps some everyday event; we know better than to speak of reliving it. The most we can hope for is that witnesses will be honest and reasonably accurate in their perception and recollection, that triers of fact will be honest and intelligent in their reasoning, and that appellate courts will frame opinions with enough perspective to guide others in comparable fact situations and preclude their disputes from festering into litigation. Roger J. Traynor, Fact Skepticism and the Judicial Process, 106 U.PA. L. REV. 635, 636 (1958).

6. N.J.S.A. 2A:31-1. Plaintiff's complaint alleged in several parts that Dr. Huddell "was made to suffer great physical pain before his death", apparently as a predicate to recovery in Dr. Huddell's own right under the New Jersey Survival statute, N.J.S.A. 2A:15-3. However, the importance of the survival aspect of the case was disclaimed by plaintiff's counsel at oral argument and it is apparent that the significant damages in contention on this appeal are the wrongful death damages, damages measured by "the pecuniary injuries resulting from such death to the persons entitled to any intestate personal property of the decedent." N.J.S.A. 2A:31-5.

7. With minor variations, the consensus of testimony was that the speed of the Levin Chrysler at impact was 50 to 68 m.p.h., that Dr. Huddell's Nova accelerated almost instantly from 0 to 32 m.p.h., that the collision generated 1100 to 1500 pounds of force on the occipital area of the skull, and that Dr. Huddell's Nova was compacted by 4 feet 10 inches as a result of the collision. Under these circumstances it is simply offensive to the rational faculty to say that Levin's negligence - assuming he was negligent - was not a proximate cause of Dr. Huddell's death. Cf. Pappas v. Santiago, 66 N.J. 140, 143, 329 A.2d 337, 339 (1974). Common sense is not out of place in the law. Davis v. Washington, 168 U.S. App. D.C. 42, 512 F.2d 956, 966 (Robb, J., dissenting), cert. granted, 423 U.S. 820, 96 S. Ct. 33, 46 L. Ed. 2d 37 (1975).

8. We do not disturb the jury's findings that Dr. Huddell was not contributorily negligent and that Levin was acting within the scope of his employment for S. Klein (at 732, supra). Upon retrial those two findings will not be open to relitigation.

1. E.g., Moore v. Strong, 360 F.2d 71 (10th Cir. 1966) (applying Oklahoma law); Washewich v. LeFave, 248 So.2d 670 (Fla. App. 1971); Fugere v. Pierce, 5 Wash. App. 592, 490 P.2d 132, 135 (1971); Delfino v. Torosian, 354 Mass. 395, 237 N.E.2d 694 (1968); Holtz v. Holder, 101 Ariz. 247, 418 P.2d 584, 587-88 (1966); Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422, 425-26 (1964); Brantley v. Couch, 383 S.W.2d 307, 310 (Mo. App. 1964); Apodaca v. Haworth, 206 Cal. App. 2d 209, 23 Cal. Rptr. 461, 464 (1962); Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33 (1961); Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321 (1961); Murphy v. Taxicabs of Louisville, Inc., 330 S.W.2d 395, 397 (Ky. 1959); Reed v. Mai, 171 Kan. 169, 231 P.2d 227, 231 (1951).

2. Section 433B(2) provides: Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

3. See also Betenbaugh v. Princeton Hospital, 50 N.J. 390, 235 A.2d 889 (1967); Martin v. Bengue, Inc., 25 N.J. 359, 136 A.2d 626 (1957); Jenkins v. Pennsylvania R. Co., 67 N.J.L. 331, 51 A. 704 (1902), which shifted the burden of apportionment to the defendants in contexts other than automobile collisions.

4. Larsen was interpreted to have resolved the problem of apportionment in favor of the plaintiff in Note, Automobile Design Liability: Larsen v. General Motors and Its Aftermath, 118 U. Pa. L. Rev. 299, 303-304 (1969). The author there observed: "The difficulty of apportionment, in this instance, is an unpersuasive reason for taking cases from the jury. To do so abandons the injured plaintiff without a critical evaluation of the manufacturer's conduct." Id. at 304.

5. As is manifest in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972), and in Kelly v. Long Island Lighting Co., 31 N.Y.2d 25, 286 N.E.2d 241, 334 N.Y.S.2d 851 (1972), apportionment rests upon defendants. Dole, as the majority opinion recognizes, did not alter a plaintiff's right to be compensated in full for the loss suffered. See Ausubel, The Impact of New York's Judicially Created Loss Apportionment Amongst Tortfeasors, 38 Albany L. Rev. 155, 162-63 (1974).

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