Cornier v. Spagna

• Decision Date: 19 April 1984
• Citation: 101 A.D.2d 141,475 N.Y.S.2d 7
• Parties: Denise CORNIER, Plaintiff-Respondent, v. James SPAGNA and Mack Davis, Defendants-Appellants, and Carol Pastures, Camrod Corporation, and Outrider Accessories, Inc., Defendants, and Bell Helmet Corp., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 7

475 N.Y.S.2d 7

101 A.D.2d 141

Denise CORNIER, Plaintiff-Respondent, v. James SPAGNA and Mack Davis, Defendants-Appellants and Carol Pastures, Camrod Corporation, and Outrider Accessories, Inc., Defendants and Bell Helmet Corp., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 19, 1984.

Richard E. Rubin, New York City (Howard Davis, New York City, Attorney), for defendant-appellant Spagna.

Andrew B. Lane, New York City, of counsel (George van Setter, New York City, with him on the brief; Martin, Clearwater & Bell, New York City, attorneys), for defendant-appellant Bell Helmet.

Leornard L. Finz, New York City, of counsel (William D. Fireman, New York City, with him on the brief; Julien, Schlesinger & Finz, P.C., New York City, attorneys), for plaintiff-respondent.

Before MURPHY, P.J., and KUPFERMAN, SANDLER, MILONAS and ALEXANDER, JJ.

MURPHY, Presiding Justice:

This action arises from a collision that occurred on August 25, 1977 on Schley Avenue in Bronx County. Traffic was permitted to flow on Schley Avenue in a northerly and southerly direction. Plaintiff Denise Cornier was a passenger on a motorcycle driven by defendant James Spagna in a northerly direction. The motorcycle came into contact with an automobile driven by defendant Mack Davis in a southerly direction. Davis had been double-parked immediately prior to the occurrence. He had driven his vehicle to the left in order to enter a traffic lane on Schley Avenue. As the Davis vehicle was entering the traffic lane, the collision occurred.

Conflicting evidence was presented at trial as to the facts and circumstances surrounding the collision. Of particular importance were questions relating to whether (i) the impact had taken place on Spagna's side of Schley Avenue and (ii) the speed of the motorcycle. As a result of the collision, plaintiff Cornier landed approximately seventy-two feet from the point of impact. A further issue of importance was presented as to whether the plaintiff flew through the air after the impact or whether she rolled to that position after being thrown from the motorcycle. Although plaintiff was wearing a Super Magnum helmet manufactured by defendant Bell Helmet Corp., she sustained brain damage together with other injuries in the occurrence. The helmet cracked during this incident.

Plaintiff prosecuted this case upon four theories, viz: (i) negligence, (ii) strict products liability, (iii) breach of express warranty and (iv) breach of implied warranty. In order to establish her case against defendant Bell, plaintiff introduced proof to show that Bell had violated minimum safety standards promulgated by the Department of Transportation (D.O.T.) (Traffic and Motor Vehicle Safety Act, 15 U.S.C. § 1381 et seq.; F.M.V.S.S. No. 218). The D.O.T. requested the Southwest Research Institute (SWRI) to perform compliance tests on the Super Magnum model during the 1970's. This model passed all tests until October and November of 1976 when four out of six test helmets had "dwell time" readings in excess of the safety standards. Suffice it to say that plaintiff's expert, Dr. Igor Paul, testified as to the correlation between "dwell time" and the chance of brain damage.

Plaintiff's case was also buttressed to a limited extent by the testimony of Bell's Director of Research and Development, George Sundall. The testimony of Sundall suggested at one point that the helmet's liner did not properly respond under the severe impact in this case.

Bell, on the other hand, adduced evidence tending to indicate that the Super Magnum model met the minimum safety standards of D.O.T. It was Bell's contention that testing protocol was not followed in the testing by SWRI of the first four helmets. It was Bell's further contention that SWRI's equipment was not properly calibrated during the testing of the last two helmets. Another of Bell's experts, Dean Leroy Fisher, testified that the Super Magnum model had provided the plaintiff with more protection than any other model then on the market.

The D.O.T. never took any formal action nor did it make any informal determinations with regard to the SWRI test reports of non-compliance. Eventually, during the trial of this action, the D.O.T. terminated its investigation in this matter. The parties did not learn of this termination until after the trial had ended and a verdict rendered for the plaintiff.

The jury returned a verdict in plaintiff's favor on all theories except breach of express warranty. Plaintiff was awarded (i) $450,000 for pain, suffering and disability, (ii) $1,750,000 for future medical costs, (iii) $450,000 for custodial care, and (iv) $350,000 for diminution of total earnings. The apportionment was 15% to Spagna, 10% to Davis, and 75% to Bell. Spagna and Bell now appeal.

Bell raises many issues in its brief. Many of these issues do not receive separate point headings. In discussing these issues, we have joined and rearranged the issues where appropriate.

As a first point, Bell states that plaintiff did not prove (i) a specific defect in the helmet, or (ii) that the specific defect caused plaintiff's injuries. To the extent relevant, the charge reads:

"... Plaintiff is not required to establish a specific defect in the helmet which caused her injuries...

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... If on all of the evidence you find that the particular helmet worn by the plaintiff violates Standard 218 and if such violation was a proximate cause of the injury to the plaintiff, then you must find that the Defendant Bell was negligent...."

Bell did not except to these portions of the charge. Thus, the above excerpts constitute the law of the case. Bell was and is bound by the charge on this point as a result of its failure to except. (Bichler v. Lilly & Co., 55 N.Y.2d 571, 584, 450 N.Y.S.2d 776, 436 N.E.2d 182).

For purposes of the retrial hereinafter ordered, we make the following comments. If the jury accepts the validity of the SWRI report, then the report may be considered as some evidence that Bell violated a minimum safety standard. The report plus all other evidence in the record should be considered by the jury in determining whether there was an actual violation of the minimum safety standards set forth in F.M.V.S.S. No. 218. At the retrial, the jury must also consider the fact that the D.O.T. has dropped the investigation in this matter. An actual violation of the minimum safety standards must necessarily translate into a specific defect in the Super Magnum model. The jury must find, of course, that the specific defect was the proximate cause of plaintiff's injuries. The foregoing comments are not intended to be restrictive. Plaintiff, if so advised, may introduce such other evidence as may show a defect and the consequences of that defect.

Second, it should be stressed that Bell did not object to the submission of the case upon the four theories mentioned above. Therefore, Bell has not reserved its right to contend upon appeal that the case should have only been submitted on the theory of strict products liability.

Third, Bell did take a specific exception to other portions of the charge which read as follows:

"... The dangerous and unusual performance of a product when put to its intended use may warrant an inference that it was defective if other likely explanations of the injuries are ruled out by a preponderance of the evidence....

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... If the circumstances surrounding the happening of her injuries were of such a nature that in the ordinary course of events they would not have occurred if the helmet were not defective, then the law permits, but does not require you to infer from the happening of the injuries that the plaintiff's helmet was defective...."

The present action is a "second collision" case as against Bell (Bolm v. Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644, 305 N.E.2d 769; Rainbow v. Elia Bldg. Co., 79 A.D.2d 287, 436 N.Y.S.2d 480, aff'd 56 N.Y.2d 550, 449 N.Y.S.2d 967, 434 N.E.2d 1345; Caiazzo v. Volkswagenverk A.G., 2nd Cir., 647 F.2d 241). Under the "crashworthiness" or "second collision" doctrine, plaintiff was required to prove that her injuries were more severe than they would have been had the helmet been properly designed. The jury should not have been permitted to infer that the helmet was defective from the circumstances surrounding the occurrence. As a consequence of the collision, plaintiff would have necessarily sustained some injuries. Hence, the jury could not infer that the helmet was defective from the mere fact that plaintiff was injured. Plaintiff was required to show by independent proof that a defect in the helmet caused enhanced injuries. The error in these portions of the charge require a new trial.

While Bell did except to these portions of the charge, it failed to pursue the "second collision" doctrine in other phases of the charge. For example, Bell never requested that its damages be limited to any enhancement caused by the defect in the helmet if such defect were found. Again, by failing to except at the trial level, Bell may not raise this error on appeal.

As a fourth point, Bell maintains that the trial court abused its discretion in limiting the direct examination of Bell's expert, Dr. Gamache. This expert was a neurological surgeon who had treated over one thousand trauma injuries to the brain. Bell attempted to examine Dr. Gamache with regard to the protection afforded to the plaintiff by the helmet. The trial court sustained an objection by plaintiff. Under the "second collision" doctrine, Gamache's testimony on this issue was very relevant. Bell should have been permitted to show that the helmet reduced the injuries and did not cause any enhanced injuries.

Fifth, error is alleged with reference to the admission of the police report (plaintiff's exhibit 5). This report was inexplicably admitted during the testimony of defendant Davis. The police report indicates that a police...