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 owners 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 plaintiffs 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
owners manual. The defendant contended that it could not place all
of the myriad of warnings on the dash board or visor and that the
plaintiffs 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 defendants
in-house engineers indicated during discovery that he had not recognized
the need for crash testing while the seat was reclined and argued
the defendants 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
plaintiffs 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 plaintiffs 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 plaintiffs
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 plaintiffs 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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