Florida Legislature Leaves Intact Much of the Crashworthiness (D’Amario) Doctrine

burning van.jpgI have blogged here in the past that the 2011 Republican-controlled Florida Legislature seemed bound and determined to gut one of the state’s most important laws at holding vehicle manufacturers accountable for producing defective products. Although some within the legislature may have had this outcome as a goal, reasonable minds prevailed in the 2011 legislative session to the extent that the legislative body’s modifications did not eviscerate the law as many within the civil justice community had feared.

The principle of law under discussion is the crashworthiness doctrine. It stands for the proposition that vehicle manufacturers can be liable for harm caused by unsafe vehicles, even if the vehicle was put to the test by another negligent party. Kidron v. Carmona, 665 So. 2d 289 (Fla. 3rd DCA 1995) (following Larson v. General Motors, 391 F. 2d 495 (8th Cir. 1968)).

The principle was later bolstered by the holding in D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001), which limited the use of comparative fault in crashworthiness cases.

In D’Amario a minor was the passenger in a vehicle that struck a tree. A fire began that ended in an explosion, causing the minor to lose three limbs and suffering burns to much of his body. The fire resulted from a defective relay switch manufactured by Ford.

The minor and his mother sued Ford for the damages resulting from the defective switch. They did not seek to recover compensation from Ford for injuries from striking the tree.

At trial, Ford sought to introduce evidence as to the cause of the initial accident, which was that another minor was intoxicated and negligently drove the vehicle into the tree. The plaintiffs (mother and son) argued that this evidence was irrelevant to the claim for damages caused by the defective switch. The trial court admitted the evidence, meaning that it allowed the jury to hear the evidence. The jury returned a verdict for Ford.

The case was appealed and made its way to the Florida Supreme Court. The court considered cases from other states and concluded that the majority view in the nation was that such impact evidence was relevant. Nevertheless, the Florida Supreme Court adopted the minority view, ruling in favor of the catastrophically injured minor and his mother.

Before D’Amario, in crashworthiness cases jurors were allowed to hear evidence of the driver’s fault and apportion damages against the driver. This tended to direct the focus of responsibility onto the negligent driver and take it off the manufacturer whose defective product caused the enhanced injury. D’Amario eliminated the chance of such evidence distracting, confusing, or angering juries.

Not surprisingly, automobile manufacturers have been trying for ten years to reverse D’Amario. Many thought their goal would be accomplished in the 2011 legislative session. Although a measure was proposed that would have satisfied the manufacturers, amendments filed on the Senate Floor by Senator David Simmons (R) and passed by both chambers of the Legislature prevented the crashworthiness doctrine from being eliminated altogether in Florida. The bill that passed, which does modify D’Amario, revised Florida Statute 768.81.

The revised 768.81(3)(b) provides as follows:

In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions.

Senator Simmons’s amendments are the last two sentences. They are important for three reasons. #1: Reminding the courts that the Rules of Evidence apply in crashworthiness cases. #2: Directing that juries be instructed as to apportionment of fault in defective products cases involving enhanced injuries. #3: Maintaining the viability of cases decided before D’Amario.

Rules of Evidence:

Evidence Rule 90.403 allows the court to prevent the introduction of evidence that is substantially unfair. An example of this type of evidence is the evidence in D’Amario of the minor’s intoxication.

F.S. 90.401. For evidence to be admissible, it must be relevant to a material fact. In essence, D’Amario was decided on this proposition. The Supreme Court held that evidence of the driver’s intoxication was not relevant to whether or not the switch was defective and the injuries caused by the fire. With the requirement that “the trier of fact shall consider the fault of all persons who contributed to the accident”, the modified 768.81(3)(b) may be indicating that evidence of the type that would have been kept out under D’Amario is now relevant and must be admitted. If so, getting a trial judge to disallow such evidence will be inviting error.

Jury Instructions

Jury instructions are the set of legal rules that jurors should follow when the jury is deciding a civil or criminal case. They are given before the jury begins its deliberations. The new 768.81(3)(b) provides that “[T]he jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product.” Jurors must understand that the original tortfeasor does not share fault for the injuries caused by the vehicle defect, just as the manufacturer is blameless for the injuries caused by the original tortfeasor.

An appropriate instruction could be fashioned after an amendment proposed by Representative Gaetz on May 3, 2011. The proposal stated that “the trier of fact shall consider only the fault of the persons responsible for the defective product in regard to the injuries directly caused by the defective product, unless the trier of fact cannot distinguish the injuries directly caused by the defective product, in which case the trier of fact shall consider the fault of all persons who contributed to the accident and the injuries and shall apportion fault between them.” The Senate took no action on Representative Gaetz’s proposed amendment. The instruction would be consistent with F.S. 768.81(5)(2), which requires that fault be apportioned against all “responsible persons.”

The Supreme Court will devise jury instructions for 768.81. The Plaintiffs’ bar must stay involved in the process to insure that appropriate instructions are created.

Now that the smoke has cleared, it looks as if not much has changed in the way crashworthiness cases will be handled by the courts. This is a good thing and a sign that reasonable minds may actually have room to operate within the present makeup of the Florida Legislature.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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