Gardner By and Through Gardner v. Chrysler Corp., 95-3255

• Decision Date: 17 July 1996
• Docket Number: No. 95-3255,95-3255
• Citation: 89 F.3d 729
• Parties: , 45 Fed. R. Evid. Serv. 332, Prod.Liab.Rep. (CCH) P 14,681 Cindy S. GARDNER, By and Through her guardian, Michael S. GARDNER, Plaintiff-Appellant, v. CHRYSLER CORPORATION, a Delaware corporation, Defendant-Appellee, and Keiper Recaro, Inc., also known as Atwood Automotive, Inc., a Michigan corporation; Bertrand Faure, Inc.; and Bertrand Faure, Ltd., a Canadian corporation, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 729

89 F.3d 729

35 Fed.R.Serv.3d 1037, 45 Fed. R. Evid. Serv. 332,

Prod.Liab.Rep. (CCH) P 14,681

Cindy S. GARDNER, By and Through her guardian, Michael S.

GARDNER, Plaintiff-Appellant, v. CHRYSLER CORPORATION, a Delaware corporation, Defendant-Appellee, and Keiper Recaro, Inc., also known as Atwood Automotive, Inc.,

a Michigan corporation; Bertrand Faure, Inc.;

and Bertrand Faure, Ltd., a Canadian

corporation, Defendants.

No. 95-3255.

United States Court of Appeals, Tenth Circuit.

July 17, 1996.

Chan P. Townsley (Christopher P. Christian with him on the briefs), Hutton & Hutton, Wichita, KS, for Plaintiff-Appellant.

Thomas O. Baker (Patricia A. Rosa, Baker Sterchi Cowden & Rice, L.L.C., Kansas City, MO; James R. Jarrow, Baker Sterchi Cowden & Rice, L.L.C., Overland Park, KS; and Larry A. Withers, Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, KS, with him on the brief), Baker Sterchi Cowden & Rice, L.L.C., Kansas City, MO, for Defendant-Appellee.

Before SEYMOUR, Chief Judge, and PORFILIO and ANDERSON, Circuit Judges.

JOHN C. PORFILIO, Circuit Judge.

Cindy Gardner suffered an acute frontotemporal intracranial hemorrhage resulting in permanent brain damage which has confined her to a wheelchair after an automobile accident. In this action, she contends defendant Chrysler Corporation defectively designed the pedestal-mounted, high-backed front seat upon which she was seated because it failed to provide essential protection for her in a modest rear-end collision. In fact, Ms. Gardner was trajectiled into the third rear passenger seat. It is controversial whether this occurred at the moment of the collision or when the vehicle swerved into a ditch and flipped over before righting itself. Nonetheless, her seat back broke, and there was no seat belt fastened over her to counter the trajectory. Despite her effort to establish the seat back failed when the intermediate plate rivet, the mechanism limiting its forward and backward movement, sheared under the load forces, a jury determined Chrysler was not liable under either a theory of strict liability or negligence. Ms. Gardner now attacks that verdict claiming it is the product of the trial court's creation of a judicial exception to Kansas law prohibiting the introduction of the nonuse of seat belt evidence to establish fault and abnegation of its gatekeeper role in the trial process. Having reviewed the record and Kansas law, however, we find no support for these contentions. We therefore affirm.

On December 3, 1989, Ms. Gardner was a front seat passenger in a 1988 Dodge Caravan (the Minivan); her sister, Terri Garrison, at the wheel; and Terri's five-year-old daughter, Kimberly, in Ms. Gardner's lap. Two other children were seated on the rear seats. At the time of the collision, no one in the Minivan was wearing a seat belt. As Ms. Garrison turned onto a county road, a 1988 Toyota Celica rear-ended the Minivan, causing it to yaw or rotate around before skidding sideways into a ditch and tripping or turning over, hitting the side of the ditch, and righting itself. Ms. Gardner was found seriously injured in the third rear seat, while the others, scattered between the seats and one partway out a rear window, sustained only minor injuries.

At trial, Ms. Gardner's accident reconstruction focused on the initial impact in which, she maintained, the recliner mechanism attaching the seat back to the seat's lower cushion failed, causing the seat back to collapse rearward and projectile her into the Minivan's third rear seat. At some point in that trajectory, Ms. Gardner hit her head, causing a subdural hematoma, a localized bleed into her brain which has permanently incapacitated her. Ms. Gardner alleged the rivet attaching the recliner mechanism to the seat back was too small to resist a moving force in the foreseeable event of a rear-end collision in which the seat back is designed as the passenger's primary protection. Although this seat back complied with Federal Motor Vehicle Safety Standard 207 (FMVSS 207), the applicable performance standard issued by the National Highway Transportation Safety Administration (NHTSA), she contended the standard represented only a minimum requirement for the loads seat backs must withstand and consequently did not relieve Chrysler of its liability for the defective seat design. In the ensuing battle of the experts, Ms. Gardner's witness, Dr. Kenneth Salczalski, a consulting engineer, described his effort beginning in 1989 to change the federal seat back standard, increasing substantially the amount of weight a seat back would have to resist. In effect, his theory was predicated on producing a seat back that was almost rigid in order to provide what he opined was the appropriate protection to its occupant. Under this theory, Dr. Salczalski testified that in rear collisions, data suggested seat belts reduced harm by only about ten percent.

Chrysler's theory of defense discounted the first impact when the Toyota collided with the Minivan at a "closing velocity" calculated at about 20-25 mph, which it considered insufficient to overload the seat back. Instead, its experts opined in the second and third impacts, as the Minivan pirouetted, hitting the ditch initially and turning on its side in a clockwise rotation, Ms. Gardner was thrown forward perhaps hitting the windshield or headliner ¹ before the seat back failed, jettisoning her into the rear seat. In that third impact, Chrysler claimed the 190-pound force of Ms. Gardner's and Kimberly's hitting the seat back without any other counter restraint caused the seat back to yield or fail.

Key to this theory was Chrysler's contention the seat back was designed to yield or absorb energy when impacted. Chrysler maintained that design contemplated utilization of the seat belt which, it asserted, was integral to the seat design. Thus, Chrysler insisted the seat back design not only exceeded the FMVSS 207 requirement but also best protected its occupant when used in conjunction with the seat belt to yield and absorb the passenger's load force.

Ms. Gardner now complains when Chrysler injected the seat belt issue into evidence, it tainted her trial, permitting the jury to equate her nonuse with fault and to divest Chrysler of responsibility for the defective seat back. She alleges her effort to immunize the trial from this infection, a motion in limine prohibiting Chrysler from any reference to seat belts during the presentation of evidence, was denied in contravention of Kan. Stat. Ann. § 8-2504(c). That error, she insists, was not cured by the court's limiting Instruction No. 16 and now requires a new trial.

I. Kan. Stat. Ann. § 8-2504(c)

Under this Kansas statute:

Evidence of failure of any person to use a safety belt shall not be admissible in any action for the purpose of determining any aspect of comparative negligence or mitigation of damages.

To date, the only Kansas case addressing Kan. Stat. Ann. § 8-2504(c) is Watkins v. Hartsock, 245 Kan. 756, 783 P.2d 1293 (1989), in which the Kansas Supreme Court traced the development of the laws requiring the use of seat belts and child safety restraining systems in Kansas. Although the Kansas legislature enacted a statutory requirement that manufacturers equip passenger cars with seat belts as early as 1965, the use of seat belts was not mandatory, especially because older cars would not be so equipped. With no statutory duty to use a seat belt, Kansas courts refused to shift fault to the non-wearer for fear that an insurer might try to evade coverage under a policy or to prevent actual wrongdoers from avoiding liability. See, e.g., Hampton v. State Highway Comm'n, 209 Kan. 565, 498 P.2d 236 (1972) (no duty to use a seat belt under the common law standard of due care or to mitigate damages). Nevertheless, as the Kansas courts infiltrated this principle with more complex analyses of duty under the common law, "the legislature modified the seat belt law to clarify its intent." Watkins, 783 P.2d at 1298; see also Rollins v. Kansas Dept. of Transp., 238 Kan. 453, 711 P.2d 1330 (1985). The result was Kan. Stat. Ann. § 8-2504(c), prohibiting evidence of nonuse of safety belts "in any action for the purpose of determining any aspect of comparative negligence or mitigation of damages." (emphasis added). The Child Passenger Safety Act was similarly amended in 1989 to prohibit evidence of the failure to secure a child in a child safety seat "for the purpose of determining any aspect of comparative negligence or mitigation of damages." Kan. Stat. Ann. § 8-1345(a). The Watkins court concluded the legislature thus evidenced an intent to modify the common law in this amendment rejecting defendant's effort to introduce "general principles of tort law" into the analysis. For purposes of establishing fault or mitigating damages, then, evidence of nonuse of seat belts is inadmissible "in any action" in Kansas.

Ms. Gardner propounds "in any action" includes a products liability action in which a manufacturer may be found strictly liable by virtue of placing a defective product into the marketplace. Indeed, her counsel crafted the lawsuit as a crashworthiness case, alleging the vehicle's design failed to protect its occupants from "enhanced" injuries during a second collision when the occupant continues to move inside or is ejected from the vehicle. Given Kansas law imposing a strict duty on manufacturers to design reasonably safe products for ordinary or anticipated use, Prince v. Leesona Corp., Inc., 720 F.2d 1166, 1171 n. 9 (10th Cir.1983); Lindquist v. Ayerst Lab., Inc., 227 Kan. 308, 607 P.2d 1339, 1349 (1980), Ms. Gardner contends it is irrelevant whether the Minivan was even equipped with a seat belt. The only issue for the jury is whether the product, the seat back, is defective. Permitting the jury to consider whether she wore her seat belt, she contends, amounted to asking it to judge whether she was at fault and contributorily...