Wilson v. Volkswagen of America, Inc.

• Decision Date: 03 March 1978
• Docket Number: Civ. A. No. 75-0164-R.
• Citation: 445 F. Supp. 1368
• Parties: John W. WILSON v. VOLKSWAGEN OF AMERICA, INC., etc.
• Court: U.S. District Court — Eastern District of Virginia

445 F. Supp. 1368

John W. WILSON v. VOLKSWAGEN OF AMERICA, INC., etc.

Civ. A. No. 75-0164-R.

United States District Court, E. D. Virginia, Richmond Division.

March 3, 1978.

Stuart W. Settle, Richmond, Va., Henry H. Wallace, Pittsburgh, Pa., for plaintiff.

Richard L. Williams, Richmond, Va., for defendants.

ORDER

WARRINER, District Judge.

This matter is before the Court on defendants' motion of 30 December 1977 to permit introduction of evidence relating to plaintiff's alleged non-use of an available seat belt. As plaintiff has filed his responsive brief and defendants have filed their rebuttal brief, the matter is ripe for disposition.

The relevant facts of the case are simple and not in dispute. On 1 April 1973 a 1972 Volkswagen Type I sedan, owned by Dayla Rae Wobbeking and driven by the plaintiff, was involved in a single-car accident on Interstate 95 near Fredericksburg, Virginia. Although the Volkswagen was equipped with seat belts, defendant intends to prove that plaintiff was not wearing a belt at the time of the accident. The plaintiff suffered multiple injuries rendering him a paraplegic.

In his complaint, plaintiff alleges defects and negligence in the design, manufacture, and assembly of the Volkswagen. It appears that plaintiff is now proceeding upon two distinct theories. The first theory, related to the cause of the accident itself, asserts that two bolts and lock nuts connecting the flexible coupling assembly of the steering mechanism failed, fell out, or were never present. The second theory, dealing with the strength of the Volkswagen roof, does not concern the cause of the accident itself, but relates to the purported cause of plaintiff's specific injury. It is asserted that when the Volkswagen rolled over during the accident the roof collapsed on his upper body causing a compression fracture of his spine.

Defendants argue that they are entitled to show that with proper use of seat belts there is no unreasonable danger. The Court should give cognizance to the full design of the automobile, defendants point out, including safety devices such as seat belts. Defendants argue that the automobile, when viewed as a whole, including the availability of seat belts, was not defective in design. Defendants say they must be permitted to show that seat belts were available in order to defend the "whole automobile."

I

Plaintiff asserts that during the course of the first trial of this action defendants moved this Court to permit the introduction of certain testimony relating to the seat belts and the question presented has already been decided by the Court. Hence, plaintiff argues, the doctrine of law of the case precludes defendants from raising this motion again.

In addressing this doctrine, the Court in Petersen v. Federated Development Co., 416 F.Supp. 466, 473 (S.D.N.Y.1976) held that the doctrine provides "that where a court has enunciated a rule of law to be applied in a case at bar, it establishes the law which will normally apply to the same issues in subsequent proceedings in that case."

The Fifth Circuit Court of Appeals in Wm. G. Roe & Co. v. Armour & Co., 414 F.2d 862 (5th Cir. 1969) held, as did the Court in Petersen, supra, at 473, that the law of the case doctrine "is not an inexorable command." 414 F.2d at 867. In examining the doctrine, the Court stated the following:

Where, as here, a party to the action raises serious objections to the soundness of the first decision, the Court, in all but special circumstances . . . should re-examine the first decision as a prerequisite to its implementation as the law of the case. 414 F.2d at 868.

In the instant case, the prior treatment of the issue now before the Court occurred when the issue of liability had been foreclosed. Its admissibility was considered only in relation to damages. Consequently, it is the decision of the Court that even if the doctrine is applicable, the Court will nevertheless re-examine the issue in light of both liability and damages.

II

This is a diversity case and in deciding the motion at bar the Court must apply the law of the forum. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1937). However, where the Commonwealth has not yet addressed itself to the issue in question, as in the case at bar, the Court's assigned role is to predict and not to form State law. Hence, the Court should "utilize those guide posts which are available." Keystone Aeronautics Corp. v. R. J. Enstrom Corp., 499 F.2d 146, 147 (3rd Cir. 1974). The Court is aware of two such guideposts in the instant case.

First, although the Virginia case law is silent in regard to the extent a car manufacturer owes a duty to design and market a "crashworthy" vehicle,¹ the Fourth Circuit Court of Appeals held in Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1069 (4th Cir. 1974) that, for purposes of that decision, it may be assumed that the trend of Virginia decisions is that Virginia joins those jurisdictions which impose liability upon the manufacturer for negligent design in failing to take reasonable precautions against unreasonable risks of harm to passengers by reason of a collision. No Virginia decision since casts doubt on the Fourth Circuit's assumption.

The second guidepost is set forth in Va. Code § 46.1-309.1(b) (1974 Repl.Vol.) which states that "failure to use such safety lap belts or a combination of lap belts and shoulder straps or harnesses after installation shall not be deemed to be negligence."

III

As hereinbefore stated, plaintiff argues that when the Volkswagen rolled over during the accident the roof collapsed on plaintiff's upper body causing a compression fracture of his spine. It is plaintiff's contention that the roof was defective and, hence, the manufacturer should be held liable. It is defendants' position that the jury should give cognizance to the full design of the automobile, including safety factors, when deciding whether the automobile was in fact defective. Defendants point out that it is not sufficient merely to prove a defect in the roof. The whole automobile must be shown to be defective.

The Court will admit evidence that the Volkswagen was equipped with seat belts for purposes of determining whether the automobile was defectively designed. The jury will be instructed that they must consider whether the auto as a whole was defective and unreasonably dangerous. See Melia v. Ford Motor Co., 534 F.2d 795, 800 (8th Cir. 1976).

The comment that the Eighth Circuit Court of Appeals made in Melia, supra, at 805, seems particularly appropriate here:

No doubt the manufacturers of automobiles could design and build an automobile with the strength and crash-damage resistance features of an M-2 army tank. I believe the average and reasonable automobile user desires only a reasonably safe, economical form of motor transportation. No greater burden of design-performance ought to be imposed upon automobile manufacturers by either judge or jury.

Similarly, in Dreisonstok, supra, at 1072, the Fourth Circuit stated the following:

It is a commonplace that utility of design and attractiveness of the style of the car are elements which car manufacturers seek after and by which buyers are influenced in their selections. In every case, the utility and purpose of the particular type of vehicle will govern in varying degree the standards of safety to be observed in its design. This was recognized in the Traffic and Motor Vehicle Safety Act, which undertakes "to establish motor vehicle safety standards for motor vehicles." In prescribing such standards, the Secretary is directed to "consider whether any such proposed standard is reasonable, practicable and appropriate for the particular type of motor vehicle . . .." Stated somewhat differently, the safety of every type of vehicle is to be evaluated under this Act in connection with what is "reasonable, practicable and appropriate" for its special type. And this is the same rule that has been judicially applied, even in Larsen type cases. Thus, in Dyson v. General Motors Corp. Pa., 298 F.Supp. 1064, 1073 . . . the Court emphasized that design safety must take account of "differentiation between various models of automobile" and involves "a recognition of the inherent characteristics of each." It pointed out that a convertible could not be made "as safe in roll-over accidents as a standard four-door sedan with center posts and full-door frames." The convertible was only required to be as reasonably safe as its intended use would allow and "not appreciably less safe than other convertibles." Price is, also, a factor to be considered, for, if a change in design would appreciably add to cost, add little to safety, and take an article out of the price range of the market to which it was intended to appeal, it may be "unreasonable" as well as "impractical" for the Courts to require the manufacturer to adopt such change. Of course, if an article can be made safer and the hazzard of harm may be mitigated "by an alternate design or device at no substantial increase in price", then the manufacturer has a duty to adopt such a design but a Cadillac may be expected to include more in the way of both conveniences and "crashworthiness" than the economy car. (Citations omitted). (Emphasis added).

In a footnote to the opinion in Dreisonstok, supra, at n. 18, the Fourth Circuit stated that "safety may not be sacrificed unreasonably and any vehicle should be made as safe as it reasonably can, considering its special purpose and `intended use'; but standards of safety themselves must take into account the utility of the vehicle."

IV

If the jury finds that the Volkswagen was defective even though equipped with seat belts, the question remains as to whether the Court should allow evidence of plaintiff's alleged non-use of his seat belt to be introduced. The Court is cognizant of the flux of the law pertaining to this issue as evidenced by a split of opinion among...