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ARTICLE ID 32376

$________ - PRODUCTS LIABILITY - FAILURE TO WARN - AUTOMOBILE DEFECT - OCCUPANT PROTECTION DEFECT - TEENAGE PLAINTIFF PASSENGER RIDING WITH SEAT RECLINED SUFFERS CERVICAL FRACTURES CAUSED BY SHOULDER BELT CATCHING ON NECK - INCOMPLETE QUADRIPLEGIA - PLAINTIFF REGAINS ABILITY TO WALK WITH DIFFICULTIES AND SOME USE OF ARMS AND HANDS.

Gloucester County

This was a products liability failure to warn case in which the plaintiff contended that the defendant failed to warn that riding with the seat reclined would pose dangers associated with the shoulder harness which automatically retracted into place when the car started because of a significant distance between the belt and the occupant riding in this position. The plaintiff alternatively contended that the car should have been equipped with an interlocking device which would have prevented the seat from reclining while the car was in motion and/or should have been designed with different anchoring points which would have kept the shoulder belt closer to an occupant when reclined.

The plaintiff contended that when the host driver struck a utility pole, her neck impacted with the shoulder belt, resulting in a fracture dislocation to the neck, the severance of the trachea, a tearing of the vocal cords and a three inch wide gash on the neck. The plaintiff, who was initially rendered an incomplete quadriplegic, contended that through extensive therapy and hard work, she regained the ability to walk with a cane and regained some of use the arms and hands, with the right side having more function than the left, but maintained that she will permanently suffer extensive deficits ultimately require household assistance, speak in a hoarse voice and suffer significant cosmetic deficits.

The evidence disclosed that the accident occurred at approximately 7:00 A.M. when the plaintiff and the driver were returning from an overnight party that followed their high school prom. The driver fell asleep at the wheel and struck a telephone pole at 30-35 mph. The evidence reflected that alcohol was not a factor in the accident.

The host driver deposited his $________ policy shortly after the action was filed.

The plaintiff contended that the defendant automobile manufacturer was aware that riding while the seat was in the reclining position was dangerous because there would be approximately 6-8 inches between the belt and a passenger when the seat was reclined to 40 degrees as the evidence revealed was the case in this accident. The plaintiff pointed to a notice placed in the owner’s manual which advised that in order to obtain maximum restraint from the seat belt, a user should keep the seat back upright wheel the car was in motion.

The plaintiff’s automotive engineer contended that the defendant should have placed warnings on the visor and/or dash board advising of the hazards, especially since passengers would not be likely to read the owner’s manual. The defendant contended that it could not place all of the myriad of warnings on the dash board or visor and that the plaintiff’s position should not be accepted. The plaintiff contended that in lieu of warnings, the defendant could have placed a small light and audible alarm which would be activated if the car was moving with the seat reclined or, alternatively, should have incorporated an interlocking device which would have prevented the seat from reclining when the car was in operation. The expert maintained that such an interlocking device was available. The expert further maintained that the defendant could have reduced the distance between the belt and a passenger and render the advice safer by relocating the anchor points of the seat. The defendant contended that they have very little leeway under government regulations as to the area the anchors could be placed and that any change that complied with such regulations would not have a significant affect.

The defendant also contended that there were very few reported cases of injuries occurring when the passenger was riding in a reclining position. The plaintiff countered that police and ambulance reports do not have entries for such an occurrence and that the national fatality reporting system does not track such events, arguing that the absence of documentation did not reflect an absence of similarly caused injuries.

The plaintiff also contended that in view of the advisements in the owners manual to avoid riding in this manner, the defendant was clearly aware of potential hazards.

The defendant maintained that the danger was open and obvious and that the warnings advanced by the plaintiff were not necessary. The plaintiff also contended that the defendant failed to conduct any crash testing with dummies situated in the seat in a reclined position.

The plaintiff argued that since the seat will recline to 51 degrees, it should have conducted testing that took into account such use.

The plaintiff also pointed to evidence that one of the defendant’s in-house engineers indicated during discovery that he had not recognized the need for crash testing while the seat was reclined and argued the defendant’s position that the danger was open and obvious should be rejected.

The defendant contended that the federal government only required testing at 25 degrees, which is close to upright. The plaintiff countered that the regulations only constituted the minimum requirements and that the defendant should have conducted additional testing to determine safety at all foreseeable positions of the seat.

The defendant contended that in view of the evidence that the host driver struck the pole at 30-35 mph, it was likely that the plaintiff would have suffered similar and severe injuries notwithstanding the positioning of the seat. The plaintiff countered that the driver only suffered an ankle fracture and relatively minor facial injuries and that she also would have suffered relatively minor injuries as well if she had not been riding while the seat was reclined.

The plaintiff maintained that she suffered a severe fracture dislocation to the neck, a severed trachea, a severe injury to the vocal cords and a three inch wide gash on the neck. The plaintiff required an emergency tracheotomy at the scene and an ambulance attendant would have testified that the plaintiff mouthed the words "Am I going to die?" The plaintiff was taken to the hospital by helicopter and four days later, a halo collar was surgically applied. The physicians had determined that the plaintiff had suffered severe damage to cervical cord which rendered her an incomplete quadriplegic. The evidence disclosed that it was contemplated that the plaintiff would never be able to walk and would have very little use of the arms and hands.

The plaintiff was transferred to a rehabilitation facility six weeks after the accident and remained at this facility for approximately 4 1/2 months. The plaintiff maintained that during this period, she was determined to work as hard at possible at rehabilitation and that since a portion of the nerves controlling right side were capable of regeneration, she was able, through such hard work to regain the ability to walk. The other side of the cord was not totally severed, but more seriously injured and although there was some improvement on the left side, it was less than the improvement on the right side.

The plaintiff contended, however, that the right sided symptoms are very extensive and that the right leg is totally numb in front except for the foot and ankle which continually experience a pins and needles sensation.

The plaintiff also would have related that she has a great deal of difficulties with the left knee and requires a knee brace. The plaintiff contended that her knee gives way frequently despite the brace. The plaintiff would have introduced evidence that a newer brace which would help further is now available, but that she cannot afford it.

The plaintiff contended that she has extensive difficulties climbing stairs and that if she has to walk more than a block on even surfaces, she uses a wheelchair. The plaintiff also maintained that she has lost a great deal of sensation in both arms and that the left arm is atrophying. The plaintiff also lost fine motor skills in the left hand, but the right functions relatively well. The plaintiff maintained that she cannot bend the fingers on the left and the plaintiff contended that although she has more use of the right hand, it is weak and that she cannot fully extend the fingers. The plaintiff related that the right hand goes into a claw-like posture when her muscles become two tight. The plaintiff maintained that both hands are slowly atrophying.

The plaintiff related that she can slowly type with her right index finger and hit the space bar with her left thumb.

The plaintiff maintained that the injuries will not improve further and that she will become weaker during the normal aging process. The plaintiff’s life care planning expert contended that within the next 20 years, the plaintiff will require help eight hours per day which will increase to 16 hour per day over the following 20 years and that commencing in 40 years, it is likely that she will need 24 hour a day help. The expert would have also discussed the need for medical appliances as motorized wheelchairs and canes. The expert would have discussed costs which would have totaled approximately $5.5 million over the plaintiff’s approximate 60 year life expectancy before reduction to present value.

The plaintiff also contended that she suffered a very significant injury to the vocal cords and that she will permanently suffer significant hoarseness. The plaintiff also maintained that she suffered very significant scarring in the neck. The plaintiff contended that she has become self-conscious about her looks and that because of the scarring and disability, "feels like a freak." The plaintiff contended that she has suffered a very significant psychological depression which is long term in nature and is undergoing psychotherapy. The plaintiff’s psychologist would have given a guarded prognosis. The plaintiff was an aspiring model. The plaintiff had not commanded earnings in this field and no economic claims relating to modeling were made. The plaintiff contended, however, that this ambition underscored the importance of looks to her. The plaintiff’s vocational expert would offered evidence reflecting $________ in wage losses, based on the average earnings of high school graduate. The plaintiff also maintained that the loss of enjoyment of life is clearly extensive and that she can never dance or laugh loudly with friends. The plaintiff also contended that she fears future dependency and being alone and that she realizes that she will probably never be able to get married.

The case settled prior to trial for $________.

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