Green v. General Motors Corp.

• Decision Date: 18 March 1998
• Citation: 310 N.J.Super. 507,709 A.2d 205
• Parties: , Prod.Liab.Rep. (CCH) P 15,201 Michael GREEN, Plaintiff-Respondent-Cross-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellant-Cross-Respondent, and Delores Parmentier, Breza Bus Service, Inc., and Goodyear Tire & Rubber Company, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 507

310 N.J.Super. 507

709 A.2d 205, Prod.Liab.Rep. (CCH) P 15,201

Michael GREEN, Plaintiff-Respondent-Cross-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellant-Cross-Respondent and Delores Parmentier, Breza Bus Service, Inc., and Goodyear Tire & Rubber Company, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Jan. 27, 1998.

Decided March 18, 1998.

Brett M. Kavanaugh (Kirkland & Ellis) of the District of Columbia Bar, Washington, DC, admitted pro hac vice, for defendant-appellant-cross-respondent (Tansey, Fanning, Haggerty, Kelly, Convery & Tracy attorneys; Thomas F. Tansey, Woodbridge, and James N. Tracy, on the brief).

Maurice J. Donovan, West Orange, for plaintiff-respondent-cross-appellant (Benjamin M. Del Vento, Newark, attorney; Benjamin M. Del Vento, of counsel, Mr. Donovan, on the brief).

Before Judges DREIER, PAUL G. LEVY and WECKER.

The opinion of the court was delivered by

DREIER, P.J.A.D.

Defendant, General Motors Corporation (GM), appeals from a final judgment based upon a jury award in favor of plaintiff, who was driving a GM vehicle when involved in an accident that rendered him a quadriplegic. The jury awarded $13,000,000 for future medical expenses, $149,315 for loss of past income, $305,860.35 for loss of future income, and $4,000,000 for pain and suffering. Plaintiff's past medical expenses of $312,000 have been stipulated. The total damage award was therefore $17,767,175.35, which with prejudgment interest and costs, and a credit for a settlement with other defendants, totaled $25,110,484.90. GM also appeals from the denial of its motions for a judgment n.o.v., a new trial, or a remittitur. Plaintiff cross-appeals from a portion of the judgment granting defendant a $799,000 credit for amounts received from other defendants who settled after an initial trial had ended in a hung jury. The court deducted this amount from the final judgment after computation of the prejudgment interest noted earlier. Considering that the jury returned a verdict for plaintiff, we will examine the facts in a light favorable to plaintiff, except where any alternative facts may bear upon one of the many issues raised by GM.

On the day of the accident, June 9, 1986, plaintiff, then twenty-four years old and five feet, nine inches tall, was employed as a "car jockey" by Sullivan Chevrolet, an automobile dealership in Roselle Park. He was driving one of his employer's automobiles a brand new 1986 Chevrolet Camaro IROC (International Race of Champions) Z28 sports coupe, a two-door vehicle designed and manufactured by defendant.

The Camaro was equipped with a "T-roof," a "luxury option" ¹ provided by GM. In 1986, the Camaro was constructed with both an "A-pillar" and a "B-pillar." The A-pillar consisted actually of two pillars and a header which held the front windshield and supported the door hinges. The B-pillar similarly supported the rear window. In the T-roof Camaro there was a steel "center T-bar" welded into the center of the front windshield header and the rear window header. The roof design is called a "T-roof" or "T-top" because the T-bar is the only connection between the A and B pillars. Removable glass panels were supported by the front and rear headers and the T-bar, and provided a convertible-like feeling and driving experience when they were removed. When installed, they provided greater protection from the weather and more security than a canvas-top convertible.

As plaintiff drove the Camaro north on Chandler Avenue with both glass panels inserted and the side windows rolled up, he was accompanied by a friend, Marc Alexander, seated in the front passenger seat. Both plaintiff and Alexander were wearing their seat belts. The legal speed on Chandler Avenue was twenty-five miles per hour; however, plaintiff was apparently greatly exceeding the speed limit. As he came over a slight rise on Chandler Avenue, plaintiff saw a school van proceeding south on Chandler Avenue. According to the driver of the van, her speed was approximately twenty-five miles per hour when she first saw plaintiff's car. The only indication of how much this speed may have actually decreased by the time of the collision, is the van driver's estimate that her speed at contact was five miles per hour.

When plaintiff first observed the school van, it was only one or two car lengths away and was "right in the middle of the road" and "on the center line." We assume, however, that since the driver of the van was more elevated than plaintiff, she may have seen the Camaro slightly before plaintiff could see her. To avoid a head-on collision, plaintiff applied the Camaro's brakes and attempted to steer to the right, however, the left rear side of the Camaro, just behind the driver's-side door, struck the left front corner of the van at a thirty to forty-five degree angle.

The question of the speeds of the van and Camaro were disputed, and the record shows various estimates. Both plaintiff and the passenger estimated the Camaro's speed as between forty and fifty miles per hour. Plaintiff's expert, Donald Phillips, testified that there was insufficient physical evidence to perform a reliable reconstruction of speeds at impact. The van driver estimated plaintiff's speed at seventy-five miles per hour (and testified that plaintiff was on the wrong side of the road and did not decrease his speed). An employee of the Department of Public Works, who was travelling south on Chandler Avenue, 200 feet behind the school van in a dump truck, estimated plaintiff to be proceeding between sixty and seventy miles an hour. Defendant's expert estimated the Camaro's speed at between sixty-seven to seventy-six miles per hour. Therefore, if we accept the van driver's estimate that her vehicle was proceeding at five miles per hour at the time of the impact, and plaintiff's minimum estimate of his speed at forty miles per hour, the lowest closing speed between the two vehicles would have been forty-five miles per hour. If we accept the van driver's estimate of her speed and the maximum speed she and the independent witnesses placed upon the Camaro, the closing speed could have been as high as eighty-one miles per hour.

Plaintiff's medical expert explained that plaintiff had suffered a compression fracture of his spinal cord. Such an injury does not cause instantaneous paralysis, and therefore it "would take a longer time to show all the symptoms of spinal cord injury as opposed to a sudden disruption of the cord completely through." There was other eyewitness testimony that plaintiff could move his arms and legs immediately after the accident. But, unfortunately, this spinal cord injury quickly and permanently rendered plaintiff a quadriplegic.

Plaintiff's engineering expert's theory of the cause of plaintiff's injury focused on the collapse of the T-bar and "B" frame. When the Camaro hit the school bus to the rear of the driver's door and behind the center of gravity of the car, it spun, causing plaintiff's seat belt to force him back into his seat so that his head was just under the rear portion of the T-bar and B frame which deformed downward onto the back of plaintiff's head. The collapse of the T-bar compressed his spine and caused the compression fracture to his C5, C6, and C7 vertebrae. It was undisputed and is apparent from the photographs that the rear roof of the T-top caved downward in the accident.

Neither plaintiff nor Alexander had any post-accident memory of the accident beyond the instant of impact. Immediately after the accident, however, plaintiff was found outside of the Camaro lying facedown on the ground. ² A neighbor who heard the crash ran to the site, and as she arrived she saw the driver's side door of the Camaro swing out, following which plaintiff "stepped out of the car." She testified that a "dazed" plaintiff took a "couple of steps," and "fell straight on his face." Defendant, through extensive expert testimony, contended that plaintiff was thrown from the car and suffered his injuries when he landed on his head. Plaintiff's expert testified that the lack of injuries that would have been commensurate with plaintiff so landing made such a scenario a virtual impossibility. This conclusion, coupled with the independent witness who saw plaintiff open the door and walk away from the vehicle, certainly provides a sufficient basis for the jury's implicit factual finding that plaintiff was not ejected from the car.

The verdict was taken by special interrogatories. The jury found specifically that the "collapse of the rear roof of the T-Top Camaro caused it to strike the plaintiff on his head." It also found that the "roof collapse" was caused by a "design defect of the T-Roof Camaro." Finally, it determined that the roof collapse was a proximate cause of plaintiff's injuries, and that 100% of his injuries were "solely attributable to the design defect of the T-Roof Camaro." Presumably because of the earlier settlement, the jury was given no interrogatories relating to the responsibility of the driver of the van or her employer, and we have not been informed by the record on appeal whether GM had ever made a cross-claim for contribution against these former defendants, and if so, whether this claim was withdrawn when these defendants were released by plaintiff.

The additional facts concerning the trial, including those relating to the testing of the Camaro, the judge's charge and testimony relating to damages will be discussed when these issues are explored.

Defendant has raised five points on this appeal, some with subparts. We have departed somewhat from defendant's organization of the arguments and will address each point accordingly.

I. The Judge's Instruction on Speed

GM first contends that the trial judge mistakenly instructed the jury that it could not consider evidence of accident severity and speed in determining whether the Camaro's T-roof design was defective. Before ...