Mitchell v. Volkswagenwerk, AG

• Decision Date: 08 February 1982
• Docket Number: No. 81-1244,81-1244
• Citation: 669 F.2d 1199
• Parties: John C. MITCHELL and Charles E. Mitchell, Appellants, v. VOLKSWAGENWERK, AG, a West Germany corporation, and Volkswagen of America, Inc., a New Jersey corporation, Appellees, v. Lee MOCKENHAUPT.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1199

669 F.2d 1199

John C. MITCHELL and Charles E. Mitchell, Appellants, v. VOLKSWAGENWERK, AG, a West Germany corporation, and Volkswagen of America, Inc., a New Jersey

corporation, Appellees, v. Lee MOCKENHAUPT.

No. 81-1244.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 15, 1981.

Decided Feb. 8, 1982.

David F. Fitzgerald, argued, Roger R. Roe, Jr., Stephen J. Smith, Minneapolis, Minn., for appellants; Rider, Bennett, Egan & Arundel, Minneapolis, Minn., of counsel.

Gray, Plant, Mooty & Bennett, Richard A. Bowman, argued, Hildy B. Linehan, Minneapolis, Minn., for appellees Volkswagenwerk, AG, and Volkswagen of America, Inc.

Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and HUNTER, ^* Senior District Judge.

LAY, Chief Judge.

This is a diversity case governed by Minnesota law. The legal difficulties arise under a "second collision" case involving an automobile accident which occurred near Moorhead, Minnesota, on October 14, 1967. John and Charles Mitchell appeal from the judgment on the verdict which apportioned damages between the driver of the car and the manufacturer of the vehicle. Plaintiffs assert the apportionment of damages is speculative and inconsistent with the evidence. Plaintiffs also assert that since the paraplegic injury which Mitchell suffered was indivisible, the defendants should share in the total damages on a joint and several basis and that a new trial is warranted; alternatively, the plaintiffs urge that the verdict is inadequate and that a new trial should be awarded.

Facts.

At the time of the accident, John Mitchell was riding as a passenger in a 1965 Karmann Ghia manufactured and sold by Volkswagen and operated by Lee Mockenhaupt. While Mockenhaupt was driving in a southerly direction toward Moorhead, the automobile, for an unknown reason, left the highway, struck an embankment, and rolled over at least one time and possibly more. Lee Mockenhaupt remained in the vehicle and suffered only minor injuries.

John Mitchell was ejected from the vehicle after the accident, and the right front passenger door was found to be in an open position. Mitchell was discovered behind the car with his head and shoulder leaning against a fence post. He was taken to the hospital, where he was diagnosed as having a fractured dislocation of the vertebral column at the level of the second and third thoracic vertebrae and an avulsion of the nerve roots at all levels between the sixth cervical and first thoracic vertebrae. He is a paraplegic and additionally suffers from a 75-80% disability of his upper right extremity caused by the nerve root avulsion.

Although there was a factual dispute as to whether John Mitchell was ejected through the defective door, as claimed by plaintiffs, or through a back window, as urged by defendants, the jury accepted plaintiffs' evidence that John Mitchell was ejected through the door.

Both parties agreed that the upper extremity injury occurred outside the car, but there was considerable dispute as to when and how the paraplegic injury was sustained. Plaintiffs contend that this injury occurred outside the car, while defendants assert that the injury was sustained inside the vehicle during the roll over prior to John Mitchell's ejection.

The jury found that John Mitchell's total damages were $570,000 and apportioned the award as follows: $360,000 against Volkswagen and $210,000 against Mockenhaupt. Judgment was entered on the apportioned verdict, plaintiffs' motion for new trial was overruled, and this appeal followed. On appeal, Mitchell asserts the verdict was both inconsistent with the evidence and speculative because $360,000 was too high for only the arm injury, and too low for both the arm injury and the paraplegia; also, $210,000 would be too low for the paraplegia. The defendants, however, assert that the evidence on damages was contested, and that the jury had an ample basis upon which to apportion the damages Mitchell incurred.

We hold the trial court erred under Minnesota law in failing to rule that the paraplegic injury was indivisible as a matter of law and was therefore not capable of apportionment. Under these circumstances the jury should have been instructed that if it found the defective design was a substantial factor in producing the paraplegia, the manufacturer would be liable as a joint and several tortfeasor with the driver of the car. We find the apportioned verdict inconsistent with the evidence and therefore perverse. We vacate the judgment on the verdict and remand for a new trial.

Testimony at Trial.

The evidence regarding apportionment of the damage is, at best, of a highly speculative nature. ¹ There exists conflicting opinion evidence as to whether the paraplegic injury was incurred when the car rolled over or when Mitchell was ejected from the vehicle. Generally, the testimony focused on conclusory opinions as to whether the injury occurred inside or outside the vehicle.

Dr. Olafson testified that there is an increased potential of injury with ejectment, and that the paraplegia was caused by the ejectment. Dr. Uzgiris, a consulting mechanical engineer, testified that Mitchell was thrown out because of the defective door latch at the early stages of the accident, and had he remained in the car, he would have received lesser injuries. Dr. Uzgiris also testified that there had been an increase in spinal injuries to occupants retained in the vehicle; he additionally testified, on cross-examination, regarding the frequency of ejection for Volkswagens that did and did not comply with door latch standards.

Dr. Halliday testified that based on the assumed facts of the case, Mitchell's paraplegia was due to his being ejected from the car and hitting a solid object, presumably the fence post. Based on his opinion, he testified that it is not possible to have the type of fracture sustained by Mitchell from the rolling over of the car. He did concede, however, that an unrestrained, nonejected occupant could suffer a brain stem contusion, a fracture of the thoracic spine, or a cervical spine injury leading to quadriplegia.

Dr. McElhaney, a professor of biomedical engineering at Duke University, testified that in his opinion the injury occurred outside the vehicle. He further testified that an impact with the 4 X 4 post, of the type presented here, would cause this particular injury.

Dr. McPherson, an orthopedic surgeon, and Dr. Mendelsohn, a neurosurgeon, testified that it took a relatively flat, unyielding surface to produce the broadly distributed blow to John Mitchell's shoulders and neck. In this case, in their opinion, his brachial plexus injury occurred outside the car and showed a different attitude than would have been required to produce the spinal injury. Also, Dr. McPherson testified that according to one study, injuries to occupants retained inside the car were often less severe than when those occupants were ejected.

Dr. Severy testified that there is a higher risk of injury to an occupant in a roll over accident who is unrestrained. He also testified that Lee Mockenhaupt's injuries would be less severe than Mitchell's, since Mockenhaupt would have been held in by the steering wheel, a passive restraint. Therefore, he concluded, the right front passenger is generally injured more severely than the driver.

The Verdict: The Apportionment of Indivisible Harm.

On the basis of the evidence, the jury could reject either the defendants' or plaintiffs' experts' testimony and find that the severe paraplegic injury was sustained either before ejectment (thus absolving the manufacturer from damages for the paraplegia) or upon ejectment (thus absolving the driver from damages for the paraplegia). The verdict reflects that the jury did neither.

If the roll over was the cause of the paraplegic injury, then it is clear that the amount of the verdict was inadequate against the driver and excessive against the manufacturer. On the other hand, if the jury reasoned that the paraplegic injury was caused by the ejectment, then it is clear that the amount of the award was excessive against the driver and inadequate against the manufacturer. It is also urged that the jury could have found that both defendants causally contributed to the whole of the injury, and the jury on that basis attempted to apportion the damages, assessing a certain proportion to the manufacturer and a certain proportion to the driver.

Plaintiffs assert that the paraplegic injury is an indivisible one, and although fault might be apportioned, as under a comparative negligence statute dealing with joint tortfeasors, under Minnesota law damages should not be divided severally where the injury is indivisible. ² It is now established under Minnesota law, that:

(W)here two or more persons acting independently are guilty of consecutive acts of negligence closely related in point of time, and cause damage to another under circumstances where the damage is indivisible, i.e., it is not reasonably possible to make a division of the damage caused by the separate acts of negligence, the negligent actors are jointly and severally liable.

Mathews v. Mills, 288 Minn. 16, 178 N.W.2d 841, 844 (1970) (quoting Ruud v. Grimm, 252 Iowa 1266, 1272, 110 N.W.2d 321, 324 (1961)).

See also Restatement (Second) of Torts § 433A, Comment i (1965). It is argued that paraplegia, like death, is incapable of division with regard to how much of the injury each defendant caused. Where the injury is indivisible, plaintiffs argue if the jury verdict reflects an attempted apportionment to the injury between the defendants, the jury would be performing an impossible and speculative task.

Relying on the recent application of the rule by the Third Circuit in Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976), defendants contend that the Minnesota rule on apportionment of an indivisible injury is not germane to enhanced injury cases under Larsen v. General Motors Corp., 391 F.2d 495 (...