ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Civil Action No. 77-1413)
Before Adams, Garth and Sloviter, Circuit Judges.
This products liability action stems from a single car "roll-over" accident of a Volkswagen van. The plaintiffs sought to recover on causes of action sounding in strict liability, breach of warranty and failure to design a crashworthy vehicle. The case went forward on strict liability and "crashworthiness" theories. The jury awarded damages to the plaintiffs after finding that the vehicle's "ball cage" was defectively, although not negligently, manufactured and that the van's glass retention system was negligently designed, causing the plaintiffs' injuries to be significantly enhanced. Thus, in the district court the plaintiffs succeeded both on their strict liability and crashworthiness theories. The vehicle's driver was found to be free of negligence.
Although we affirm the jury's verdict, we do so only on the basis of plaintiffs' crashworthiness theory, as we do not read North Carolina law to provide a cause of action grounded on strict liability.*fn1
On July 18, 1975, on a North Carolina highway, a single vehicle accident occurred involving a 1974 Volkswagen Van (Microbus Type II). Passenger Torres was killed. Ramos, who was driving the van, and passengers Seese and Irizarry were severely injured. Passenger Maldonado, the only occupant of the vehicle who was not ejected from the van, was only slightly injured. In the suit that was filed by Seese, Irizarry, Ramos and the representative of Torres, it was alleged that one Thomas J. Weir had forced Ramos off the road onto the shoulder of the highway. When Ramos attempted to steer the van back on to the road, the van overturned. All but one of the occupants of the Volkswagen were ejected from the van through the windows which "popped out." The plaintiffs' diversity action named Volkswagen of America and Volkswagen, A.G. ("VW") in addition to Weir as defendants.*fn2
On appeal, VW argues that the district court erred in allowing the case to proceed on strict liability and crashworthiness theories and that significant trial errors require the granting of a new trial. Of the alleged errors asserted, VW stresses the exclusion of certain evidence by the district court concerning the non-use of seat belts by the plaintiffs and the district court's rulings that the requirements for proof of damages set out in Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976) were met by the plaintiffs. Additional errors claimed by VW include the admissibility of evidence introduced from the Fatal Accident Reporting System (FARS) and the relevance of a Federal Motor Vehicle Safety Standard. Finally, VW argues that the use of alternate jurors after deliberations had begun, gave the defendants a right to a new trial because of the technical violation of Federal Rule of Civil Procedure 47(b), which provides that alternate jurors shall be discharged after the jury retires to consider its verdict.
Section 402A of the Restatement of Torts, Second makes the seller or manufacturer of any product that is in a defective condition which is unreasonably dangerous*fn3 to the user or consumer or to his property, subject to liability for physical harm caused thereby, if the seller is engaged in the business of selling the product and the product reaches the user without substantial change. The rule applies even when the seller has used all possible care in preparing and selling the product and although there is no privity of contract between consumer and seller.
In 1965, the Restatement of Torts, Second was promulgated and from that time until the district court's decision in this case, forty-five states adopted the principle of strict liability in substantially the form described in § 402A of the Restatement. Moreover, during that period, no state Supreme Court ever rejected the strict liability theory.
With that circumstance as a backdrop, the district court ruled that the plaintiffs could assert the doctrine of strict liability in tort because it predicted that the North Carolina Supreme Court would adopt that doctrine when it was presented with that issue. Although North Carolina intermediate courts*fn4 had refused to accept the theory of strict liability in tort, the district court observed that in recent years the North Carolina Supreme Court had not precluded the use of that doctrine.
At the time of the district court's ruling, which predicted the adoption of strict liability by North Carolina, more than fifteen years had elapsed since the North Carolina Supreme Court decided Wilson v. Lowe's Asheboro Hardware, Inc., 259 N.C. 660, 131 S.E.2d 501 (1963). Wilson held that in North Carolina the obligation of a manufacturer to the consumer was governed by the law of negligence, not by any concept of strict liability. Against this background, the district court predicted that if the North Carolina Supreme Court were faced with the questions of whether it should apply a strict liability theory, it would reject its prior Wilson decision, and would follow the lead of the vast majority of states and would adopt § 402A as North Carolina law.
The district court, in reaching its conclusion, relied on National Surety Corp. v. Midland Bank, 551 F.2d 21 (3d Cir. 1977) which held that a federal district court, while it may not ignore the decision of an intermediate (state) appellate court, is free to reach a contrary result if by analyzing "other persuasive data; (it) predict(s) that the (North Carolina Supreme Court) would hold otherwise." Id. at 30. It did so without recognizing that here, the Supreme Court of North Carolina had already spoken to this issue (in Wilson), whereas in National Surety Corp. there had been no New Jersey Supreme Court decision which had dealt with the question that was in controversy there.
It was only after the district court's decision in this case, but during the pendency of this appeal, that the North Carolina Supreme Court in Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504 (1980), refused to adopt the principle of strict liability in tort. In Smith, a personal injury action had been brought against the manufacturer of a machine which was responsible for injuring an employee who was working in a textile mill. The issue deemed dispositive by the Supreme Court of North Carolina was "whether there was sufficient evidence to carry the case to the jury on the question of contributory negligence." Id. at 507. In concluding that contributory negligence was properly submitted to the jury, the Court specifically addressed the issue of strict liability in product liability actions. Because the North Carolina Supreme Court's statement in this respect answers the arguments urged upon us by Seese, we quote this portion of Smith in full:
Finally, plaintiff and amicus curiae urge this Court to adopt the doctrine of strict liability in product liability actions. In response to this request, we note that recent comprehensive legislation in this area by the General Assembly does not adopt strict liability in product liability cases. See G.S. 99B-1, et seq. (the 1979 Products Liability Act). Significantly, the Products Liability Act specifically reaffirms the applicability of contributory negligence as a defense in product liability actions. G.S. 99B-4(3). Suffice it to say, that given the recent legislative activity in this area, we are not presently inclined to consider adoption of the rule of strict liability in product liability cases.
Seese, on appeal, attempts to distinguish the clear impact of Smith. He argues that in Smith the Court was only asked to consider the preclusion of a defense of contributory negligence and was not asked to consider whether a rule of strict liability should be established. He also argues that the Smith court eschewed adoption of strict liability because the North Carolina legislation which was enacted, and to which the Court referred, utilized an implied warranty theory which can be equated with strict liability in some respects.*fn5
However, as the opinion of the North Carolina Supreme Court which we quote above clearly indicates, that court did consider whether or not to adopt the rule of strict liability, and it refused to do so. Significantly, the Court also refused to preclude a contributory negligence defense, a defense which is normally unavailable to a defendant in a strict liability action.*fn6
We also conclude that Seese's second argument, which seeks to equate strict liability with implied warranty in interpreting North Carolina's Products Liability Act, is without merit. Under West v. American Telephone and Telegraph Co., 311 U.S. 223, 236-37, 61 S. Ct. 179, 183, 85 L. Ed. 139 (1940), a federal court must bow to the interpretation of the highest court of a state as "the final arbitor of what is state law." Here, the North Carolina Supreme Court has interpreted its own state statute in rejecting the theory of strict liability.
Moreover, even if the statute could be construed as adopting, rather than rejecting, the doctrine of strict liability, it would not have affected this case, because the statute explicitly provides: "This Act shall not affect pending litigation." N.C. Laws 1979, c. 654, § 7. In Wilson v. Ford Motor Co., Docket No. ST-C-80-2 (W.D.N.C. July 7, 1980), the court faced with this question held that " Section 99-B has no application to a claim for breach of implied warranties where the death of plaintiff's intestate occurred prior to October 1, 1979, the date Chapter 99-B became effective." Here, Seese's complaint was filed some 27 months before the Products Liability Act became effective. Because Seese's action was "pending litigation" which the Act could not affect, we need not reach the question of whether the implied warranty, as used in the Act, and strict liability of § 402A are but different names for the same theory under North Carolina law. We observe, however, that most jurisdictions do not treat these doctrines as identical concepts. Dawson v. Chrysler Corp., 630 F.2d 950 at 955, n. 5 (3d Cir. 1980).
Thus, even though the decision in Smith had not been announced when the district court in this case ruled that Seese could pursue a strict liability claim under North Carolina law, we are obliged to " apply state law in accordance with the controlling decision of the state's highest court," at the time of our decision. Baker v. Outboard Marine Corp., 595 F.2d 176, 182 (3d Cir. 1979) quoting Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 543, 61 S. Ct. 347, 350, 85 L. Ed. 327 (1941).
Adhering to that instruction and applying Smith, it is evident that the district court erred in permitting the jury to consider this case on a strict liability theory.
Our conclusion that the district court erred in permitting the jury to consider the plaintiffs' strict liability claims is, however, not dispositive of this litigation. As we have noted previously, the plaintiffs pleaded a "crashworthiness" theory as well as a strict liability theory.*fn7 A recovery under the theory of crashworthiness would not be precluded by the district court's erroneous strict liability ruling. Under a crashworthiness theory, a manufacturer is liable for the additional injuries resulting from a product's negligent design, even if the defect which caused the injuries to be enhanced is not the same defect that caused the accident. Relating that concept to this case, damages for injuries which flowed solely from the overturn of the van (caused by the defective ball cage design) would be barred because Seese proved no negligence in the design of the unit and strict liability is not available in North Carolina, as we have discussed. However, damages resulting from the ejection of Seese and the other plaintiffs from the van, (which were the result of a negligently designed window retention system), could be recovered even though this latter defect was not the initial cause of the accident.*fn8
Here, unlike the issue of strict liability which had been the subject of a North Carolina Supreme Court decision, albeit some 15 years prior to the instant action (Wilson v. Lowe's Asheboro Hardware, Inc.), the Supreme Court of North Carolina had at no time addressed or decided the issue of crashworthiness which confronted the district court in this case. We therefore approach this analysis as the district court did, by examining the decisions rendered by the only courts in North Carolina which have considered this issue and those cases upon which they relied.
For a short period, the Seventh Circuit case of Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966) generated a line of authority which held that a manufacturer is not liable for injuries that are merely enhanced but not caused by a defect in an automobile. Three federal district court cases in North Carolina, Simpson v. Hurst Performance, Inc., 437 F. Supp. 445 (M.D.N.C.1977), Alexander v. Seaboard Airline Railroad Co., 346 F. Supp. 320 (W.D.N.C.1971), and Bulliner v. General Motors Corp., 54 F.R.D. 479 (E.D.N.C.1971) followed the Evans holding. But as the district court noted, Evans itself was overruled in 1977 by Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977). Another district court in North Carolina in Isaacson v. Toyota Motor Sales, 438 F. Supp. 1 (E.D.N.C.1976), however, did not follow the Evans case, but rather had been persuaded by the rationale of an Eighth Circuit case, Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). Larsen held that an automobile manufacturer is responsible for damages resulting from a negligent design defect, even if the defect did not cause the accident.
The Isaacson decision was filed in June, 1976 more than a year earlier than Simpson. Simpson, however, made no mention of Isaacson.*fn9 Thus, neither of the leading district court cases in North Carolina which confronted the crashworthiness doctrine issue ever analyzed the reasoning or logic of the other. Faced with the circumstance that North Carolina had no governing decision in this field, and had only conflicting district court decisions, the district court here found the reasoning of Isaacson to be the more persuasive. In Isaacson, Chief Judge Larkins of the Eastern District of North Carolina predicted that the North Carolina Supreme Court would find the arguments made in Larsen compelling, if it were to consider them. Thus, the plaintiff there was permitted to plead a crashworthiness theory and the defendant's motion to thus limit the scope of the plaintiffs' action, was denied.
The Larsen rule, which Isaacson predicted would become the law of North Carolina, and the cases which have followed Larsen, find no rational basis for distinguishing between injuries caused by automobile accidents wherein the defect caused the accident, as contrasted with injuries resulting from an accident where the defect enhanced the damages but did not cause the accident. Isaacson stated:
It is clear that a manufacturer owes a duty to the purchasers of its automobiles to design and construct an automobile that is reasonably safe to be driven on the highways and is devoid of defects which would cause accidents and subsequent injuries. The duty should also extend to designing and constructing an automobile which does not expose the occupants to an unreasonable risk of harm in the event that the automobile is involved in a collision.
The history of automobile products liability law has been one which has taken into account the urgent need to provide incentives to manufacturers to take those steps necessary to minimize potential harm-causing defects. As the Seventh Circuit noted in overruling Evans, "The discernible trend in products liability law has been to increase the duty owed by manufacturers for injuries caused by their products." Huff v. White Motor Corp., supra at 109.
While it is hazardous, as we saw with respect to strict liability, to predict what the North Carolina Supreme Court might hold by simply totalling the number of states that have adopted a particular rule of law, we observe that in Huff v. White Motor Corp., supra at 110-111, the Seventh Circuit did compile a list of those cases following Larsen and those which followed Evans. Thirty jurisdictions were shown favoring the former, while only three followed the latter. The court in Van Tine v. Nissan Motor Co., Ltd., 463 F. Supp. 1274 (W.D.Pa.1979) at 1277 n.3 also took note of this tally. That court also questioned whether the Evans rule was still the law in West Virginia, one of the two states which still followed Evans despite its rejection by Huff. If West Virginia were to follow Huff, Mississippi would then be the sole remaining state clinging to the rule announced in Evans.*fn10 As the court noted in Bowman v. General Motors Corp., 427 F. Supp. 234 (E.D.Pa.1977) at 243 n.16, " the rejection of the principles of Evans v. General Motors (citation omitted) now seems well established." See also Comment, Automobile Crashworthiness: Evans Takes a Backseat, 21 Vill.L.Rev. 73 (1975-76). Most recently, in Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir. 1978) the Tenth Circuit said that it seems likely that yet another state, Wyoming, would adopt Larsen, adding, at page 781, "To follow the repudiated rule of Evans merely because it involves a second impact brought about by an original collision should not free the manufacturer. The effect of this would be to exempt the manufacturer from liability even if he were negligent."
In the absence of any expression by North Carolina and a split of authority by federal courts in that state, a prediction as to the law North Carolina would adopt can only be based on the greater persuasiveness of one of the conflicting theories, with an eye to the nationwide trend in judicial and legislative law-making. Having had the benefit of what we regard as unimpeachable logic in our own circuit's recent case of Huddell v. Levin, supra, which stated: "We take it as beyond peradventure that an automobile manufacturer today has some legal obligation to design and produce a reasonably crashworthy vehicle." 537 F.2d at 735, we are not disposed to base our prediction of North Carolina law on an outdated and repudiated doctrine. Like the district court here, we too are convinced that North Carolina is more likely to follow the enlightened rule of Larsen rather than the rule of Evans. Thus, we find no error in the district court's ruling that the plaintiffs could proceed on a crashworthiness theory.
VW argues that the district court erred in not permitting VW to introduce evidence that the plaintiffs were not wearing seat belts at the time of the accident. VW contends that this evidence would show (1) that the non-use of seat belts meant that the plaintiffs were contributorily negligent; and (2) that the design of the vehicle with respect to "crashworthiness" was predicated on the availability and use of seat belts by the passengers.
Under North Carolina law, a failure of a plaintiff in an automobile torts action to wear seat belts may not be used as evidence to show contributory negligence. Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968). Miller, recognizing that there is no common law duty for a motorist to routinely use seat belts, held that since failure to use a belt is not negligence per se, "it could be contributory negligence only when a plaintiff's omission to use the belt amounted to a failure to exercise the ordinary care which a reasonably prudent person would have used under the circumstances preceding that particular accident." Id. at 70.
The Miller court suggested that contributory negligence could only arise when a "plaintiff, with prior knowledge of a specific hazard one not generally associated with highway travel and one from which a seat belt would have protected him had failed or refused to fasten his seat belt."*fn11 Id. Thus, Miller, as it pertains to this case, leaves no room for a contributory negligence defense based on the plaintiffs' failure to wear seat belts.
However, VW seeks to distinguish the present case from a Miller situation because it claims that here it is the crashworthiness of the vehicle in a "second-collision" which is at issue. VW argues that, in such a case, seat belt evidence may be introduced, not to show that the plaintiffs were contributorily negligent with respect to the initial accident, but rather to show that seat belts were provided in the vehicle as a part of the vehicle's total retention system and, if used, would have prevented the "second collision" passenger ejectment and the damages that resulted therefrom. VW therefore contends that its seat belt evidence is not inconsistent with Miller and charges that the district court erred in failing to ...