MacCuish v. Volkswagenwerk A.G.

• Decision Date: 20 June 1986
• Citation: 494 N.E.2d 390,22 Mass.App.Ct. 380
• Parties: , Prod.Liab.Rep. (CCH) P 11,327 Donald MacCUISH, administrator, v. VOLKSWAGENWERK A.G. et al. 1
• Court: Appeals Court of Massachusetts

Page 390

494 N.E.2d 390

22 Mass.App.Ct. 380, Prod.Liab.Rep. (CCH) P 11,327

Donald MacCUISH, administrator, v. VOLKSWAGENWERK A.G. et al. ¹

Appeals Court of Massachusetts,

Middlesex.

Argued Jan. 17, 1986.

Decided June 20, 1986.

Jerome M. Leonard (Lane McGovern, James L. Sigel and Elizabeth Paine, Boston, with him), for defendants.

Michael J. Flynn (Thomas Hoffman, Boston, with him), for plaintiff.

Before GREANEY, C.J., and KAPLAN and DREBEN, JJ.

DREBEN, Justice.

On March 17, 1980, fifteen year old Karen MacCuish, a passenger in a Volkswagen van, died of a fractured skull. Her father, as administrator of her estate, brought a wrongful death action (G.L. c. 229, § 2) against the defendant Volkswagen companies. A jury awarded the plaintiff $3,000,000 on theories of negligence and breach of warranty. In answer to special questions, the jury did not find gross negligence or willful or reckless conduct on the part of the defendants and, accordingly, denied the plaintiff punitive damages under G.L. c. 229, § 2. The defendants raise numerous questions in this appeal. Except for the rate governing prejudgment interest and the method of reducing the verdict because of a prior settlement, we affirm the judgment.

The van (a 1975 "microbus"), after a collision with a 1975 Toyota Celica, ended up on a sidewalk on its left side. Karen was found lying on her back with her head partially outside the van's middle side window.

The experts offered different explanations as to how the van reached its ultimate landing place. The defendants' experts claimed a violent "slamdown"; the plaintiff's, that the van took a lazy roll after tipping when its rear wheel climbed a lawn berm. A crucial and bitterly contested question was whether the middle window of the van remained in place and only shattered when the side of the van hit the ground, or whether the window had fallen out earlier. It was undisputed that the fatality rate in automobile accidents is far higher when a person is ejected from a vehicle ² and, for this reason, both sides laid great stress on whether Karen's head came out of the window prior to impact.

The plaintiff presented two main design defects leading to Karen's injuries--the van's window retention system and its seat mounting system. As to each, the defendants argue that the plaintiff's theory was speculative and lacked a reasonable factual basis, see Nass v. Duxbury, 327 Mass. 396, 402, 99 N.E.2d 54 (1951), and that their motions for a directed verdict and for judgment notwithstanding the verdict should have been allowed. Applying the proper standard, that is, construing the evidence most favorably to the plaintiff but recognizing that the inferences must be based on probabilities not possibilities, Ferragamo v. Massachusetts Bay Trans. Authy., 395 Mass. 581, 591, 481 N.E.2d 477 (1985), we think the evidence was sufficient to present a jury question. There were here enough facts on which the experts could base their opinions. See Carey v. General Motors Corp., 377 Mass. 736, 742, 387 N.E.2d 583 (1979). We summarize what the jury could have found.

1. Evidence as to window retention system. The plaintiff claimed that because of a defective design the side window dropped out before the van reached the ground, and, as a result, Karen's head fell through the opening and was pinned by the roof rail of the vehicle.

There was a factual basis for the theory of gentle roll-over and dropped window. Several of the van's occupants testified that the van had stopped before entering the intersection where the accident occurred and that its speed was no more than five to fifteen miles an hour at the time of the collision. The damage to the two vehicles was not extensive and was consistent with a collision of moderate force. Two of the rear passengers found themselves after the roll-over standing, unhurt and holding onto straps. They were able to walk away. The left front tire and hub cap on which the van had pivoted showed no damage or denting. The location and angles of two pools of glass squares found beneath the van indicated that the side windows had dropped out before the van hit the ground. There was no glass lying under Karen's head or body, and no fragments were found in the laceration on her head. No dicing ³ marks were found on her face.

The inadequacy of the window retention system was evident to the plaintiff's experts. The rubber weatherstripping (grommet) circling the window was minimal in size and termed "grossly" substandard when compared to that of domestic cars. The width of the metal flange which held the grommet in place was narrower, and the amount of glass that penetrated into, and was held by, the grommet was less than in domestic vehicles. There were other design features of the window said to be defective, for example, bridging. ⁴ Tests showed that the Volkswagen windows came out more easily than those of domestic companies.

Volkswagen knew of these weaknesses at the time of the accident. It had then lost and was appealing a lawsuit brought by other plaintiffs involving the window retention system. The company, itself, had developed several patents with feasible alternative designs.

The simple device of gluing would have improved retention. In the opinion of Dr. Robert Brenner, who was one of the plaintiff's experts and had served formerly as chief scientist of the National Highway Traffic Safety Administration, gluing would have remedied the defect, and Karen, the only person ejected from the van, "would have had the same outcome as the other occupants of the vehicle."

Since there were readily available design modifications known to the defendants which would have reduced the risk of window "popout" without "undue cost or interference with the performance of the [van]," there was a case for the jury both in negligence and breach of warranty. Uloth v. City Tank Corp., 376 Mass. 874, 881, 384 N.E.2d 1188 (1978). Fahey v. Rockwell Graphic Syss., Inc., 20 Mass.App.Ct. 642, 649, 651, 482 N.E.2d 519 (1985). The plaintiff has met his burden of showing that "there was greater likelihood or probability that the harm complained of was due to causes for which the defendant[§ were] responsible than from any other cause." Carey v. General Motors Corp., 377 Mass. at 740, 387 N.E.2d 583. Compare Swartz v. General Motors Corp., 375 Mass. 628, 633, 378 N.E.2d 61 (1978). As in Carey, supra at 742, 387 N.E. 583, the "analytical arguments of [Volkswagen] emphasizing what it views as omissions and inconsistencies in the facts relied on by the expert witness[es], go to the weight of the evidence, some of it conflicting. Thus they more appropriately should be [and were] addressed to the jury."

2. Evidence as to the seat mounting system. Taking the evidence most favorable to the plaintiff, the jury could also have found that the design of the seat mounting system was defective, permitting the middle bench seat to break loose. Had the seat remained in place, Karen, like the other rear passengers, would have had something to hold onto, i.e., the armrest, and would not have had as much space within which to move. According to the plaintiff's experts, both factors increased the probability of ejection.

The seat on which Karen was sitting was removable so that the van could carry cargo. The mounting system consisted of six open clamps which held three u-shaped cylindrical rails functioning as the legs of the seat. The clamps were fastened with removable bolts which fitted into keyhole-shaped slots in plates welded to the floor. The plaintiff's experts pointed out that the simple device of a closed (horse-shoe) clamp encircling the rail would have provided far more protection. ⁵ See Uloth v. City Tank Corp., 376 Mass. at 881, 384 N.E.2d 1188. The jury, even without expert testimony, could have determined by examining the clamp that the design exposed the passengers to an unreasonable risk of injury.

3. Intermediate handlers. The defendants point out that the van was a multipurpose vehicle and that the middle bench seat was designed to be removed. Given the long period and extensive use of the van after it left the defendants' hands, they claim the plaintiff must show that the defect in the seat was not caused by intermediate handlers. See Corsetti v. Stone Co., 396 Mass. 1, 24, 483 N.E.2d 793 (1985). The complaint here, however, is that the design of the mounting system was improper. Even if we accept the view that the open clamps, if properly placed, would have been reasonably effective, Volkswagen, as designer of the system, is required to "anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product's use in that setting." Back v. Wickes Corp., 375 Mass. 633, 640-641, 378 N.E.2d 964 (1978). Bernier v. Boston Edison Co., 380 Mass. 372, 378, 403 N.E.2d 391 (1980). It was foreseeable that the seats would be removed and that the open clamps, because of their design, would be improperly replaced. See Fahey v. Rockwell Graphic Syss. Inc., 20 Mass.App.Ct. at 648, 482 N.E.2d 519. "No negating of the possibility of mishandling by intermediates is [in such circumstances] necessary." Smith v. Ariens Co., 375 Mass. 620, 626, 377 N.E.2d 954 (1978). See Richard v. American Manuf. Co., 21 Mass.App. 967, 489 N.E.2d 214 (1986). See also Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 381-382 (Mo.1986).

4. Seat belt defense. The judge instructed the jury that Karen's failure, if any, to wear a seat belt was not an issue in the case. There was no error. Karen's negligence would not be a defense to a breach of warranty. Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 355, 446 N.E.2d 1033 (1983). Failure to wear a seat belt is not misuse of the product (a defense to breach of warranty) unless Karen unreasonably proceeded to use a product "which [she knew] to be defective and dangerous." Id. at 355, 446 N.E.2d 1033. ...