537 F.2d 726 (3rd Cir. 1976), 75--1851, Huddell v. Levin

Docket Nº:Appeal of S. KLEIN DEPARTMENT STORES, INC., in No. 75--1851.
Citation:537 F.2d 726
Party Name:Josephine B. HUDDELL, Administratrix ad prosequendum and General Administratrix of the Estate of Benjamin R. Huddell, Deceased, and Josephine B. Huddell, Individually v. George Gerson LEVIN, Appellant in No. 75--1852, et al.
Case Date:May 05, 1976
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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537 F.2d 726 (3rd Cir. 1976)

Josephine B. HUDDELL, Administratrix ad prosequendum and

General Administratrix of the Estate of Benjamin

R. Huddell, Deceased, and Josephine B.

Huddell, Individually

v.

George Gerson LEVIN, Appellant in No. 75--1852, et al.

Appeal of S. KLEIN DEPARTMENT STORES, INC., in No. 75--1851.

Appeal of GENERAL MOTORS CORPORATION, in Nos. 75--1853 and 75--1854.

Nos. 75--1851 to 75--1854.

United States Court of Appeals, Third Circuit

May 5, 1976

Argued Feb. 9, 1976.

As Amended June 23, 1976.

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James E. Beasley, Jeffrey M. Stopford, Philadelphia, Pa., for appellee; Beasley, Hewson, Casey, Kraft & Colleran, Philadelphia, Pa., of counsel.

Francis E. Marshall, Charles W. Craven, Marshall, Dennehey & Warner, P.A., Philadelphia, Pa., G. Paul Crawshaw, Martin, Crawshaw & Mayfield, Haddonfield, N.J., for appellant, S. Klein Department Stores, Inc.

Kisselman, Deighan, Montano & Summers, Camden, N.J., for appellant, George Gerson Levin; Arthur Montano, Camden, N.J., Alan P. Bruce, Cape May, N.J., of counsel and on the brief.

Frazer F. Hilder, Francis H. Dunne, Thomas W. Watkins, General Motors Corp., Detroit, Mich., Carpenter, Bennett & Morrissey, Newark, N.J., for appellant, General Motors Corp.; John C. Heavey, Jr., Laurence Reich, Newark N.J., of counsel and on the brief.

Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.

OPINION

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 the 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

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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

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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: '(U)nder 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, '(t)he 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,...

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