Central to the issues on this appeal is the admissibility of proof of a postaccident design change in support of a products liability cause of action submitted to a jury on an alleged manufacturing defect.
The plaintiff, Fausto Caprara, received a verdict on each
On that basis, we note that, according to Caprara, he was driving the vehicle into a familiar downhill curve on Congress Street in the City of Troy at 25 to 30 miles per hour when, as he attempted to turn his steering wheel to navigate the turn, "the wheel seized right up", causing the car to swerve out of control and crash with consequential injuries which include quadreplegia. An experienced driver, whose familiarity with automobiles was heightened by employment in an automobile shop, plaintiff also testified that the steering mechanism had never been altered from the condition it was in when the car was sold by the defendants a year earlier and that, in the intervening time, it had functioned uneventfully.
The parties also produced an avalanche of experts. Of particular pertinence to this appeal is the testimony of plaintiff's witness William G. Burrill, an engineer specializing in automobile failure analysis, who, with the assistance of an auto mechanic, had examined the untempered wreck at the shop to which it had been taken after the crash. Burrill and the mechanic implicated a defective lower front ball joint, which helps carry the weight of the car, as the cause of the accident. They found all other parts which could have contributed to the mechanical failure experienced by the plaintiff in good condition.
Also figuring on this appeal is the testimony of Daniel W. Doran, supervisor of Chrysler's steering and suspension department, whom plaintiff also elected to call. In the course of his examination, it was developed, over Chrysler's objection, that, nearly four years after the plaintiff's accident, the appellants had modified the design of the joint by adding a plastic insert which eliminated the play which could wear down the ball. Doran further admitted that, for about eight years prior to the Caprara accident, he and Chrysler knew that General Motors had already introduced a substantially similar design change.
Yet, in sending the case to the jury, the trial court decided, sua sponte and with the concurrence of Chrysler, to submit the products liability case solely on a theory of defective "manufacture and assembly". As it had on an implied warranty count, it expressly ruled out submission of the design theory as such, apparently in the interest of simplifying the case. Nevertheless, under circumstances hereinafter detailed, the Trial Judge denied defendants' motion to strike Burrill's testimony on the effect that the Chrysler design change would have had on the ball joint's durability. As to the proof supplied through Doran on the subsequent change in ball joint design, at the request of Chrysler and without exception, in its charge the court advised the jury as follows: "I instruct you that this evidence alone and by itself does not establish that the ball joints in the plaintiff's car were defective. The fact that there are one or more different designs or that there is a design change to a given product does not establish that there is any defect in any particular design, and I so charge you as a matter of law."
In addition, the court submitted plaintiff's conceptually unrelated negligence cause of action.
This as background, we now turn to the two contentions on which Chrysler, in the main, posits its quest for a new trial. One is that it was reversible error to admit the evidence of a postoccurrence change in the ball joint design altogether. The second arises from the Trial Judge's failure to instruct the jury to disregard the Burrill testimony on that subject. We believe both are without merit.
Since the Burrill testimony touches on both points, we treat first with the defendants' request that the jury be told
This limitation on his background did not necessarily disqualify the witness from testifying on the mechanics and merits of ball joints. As part of his engineering and automobile accident reconstruction background, Burrill, who had supplemented his undergraduate degree in mechanical engineering by completing graduate studies at Rensselaer Polytechnic Institute, had served as consultant to almost every major American automotive manufacturer.
Indeed, we know the court initially found him so, for it denied the motion to strike. Only when it was renewed as part of a long series of in-chambers requests to charge, made as the case was drawing to a close, did the court indicate that it would grant the motion, and then only to the extent of striking out Burrill's testimony on design. Then, demurring to a demand that it advise the jury of its ruling, the court stated, instead, that it would handle the matter in its charge. In fact, it never did so. For its part, the Appellate Division opined on review that it would have been an abuse of discretion to have granted the motion. As we see it, contextually, the failure to advise the jury to disregard the testimony in question may be construed as an ultimate de facto decision not to do so. On that premise, we conclude that it was not error for the trial court to have rested on the ruling it announced in its original disposition of the motion.
Now reaching the broader and more basic question of the role of postaccident change in this case, we start by reiterating the long accepted proposition that, in a negligence suit, proof of a defendant's postaccident repair or improvement ordinarily is not admissible. The reason for applying this rule of evidence to that kind of case is clear. Since at the heart of such an action is either affirmative conduct in creating a dangerous condition or a failure to perceive a foreseeable risk and take reasonable steps to avert its consequences, proof that goes to hindsight rather than foresight most often is entirely irrelevant and, at best, of low probative value. Where such evidence becomes admissible on some other theory or on another issue, such as control, impeachment or feasibility of precautionary measures, almost invariably Trial Judges have thought it best, lest the jury look upon it as an acknowledgment of negligence, to accompany its receipt with appropriate limiting instructions. Although the potential for prejudice would appear to provide ample reason for this cautious approach, some writers have bolstered it by also suggesting that an opposite rule would discourage defendants from repairing dangerous conditions in order to avoid generating evidence against themselves (see,
Be that as it may, it is the rule that Chrysler claims was violated by the introduction of the evidence of post-accident design change. Recognizing that the question is one of first impression in this court, it would have us hold in principle that this exclusionary practice is as applicable to a strict liability claim as it is to one posited on common-law negligence alone.
Meeting this issue, we do not track unknown terrain. When we adopted the theory of strict products liability as the basis for a cognizable cause of action, we hearkened to the fact that a "developing and more analytical sense of justice, as regards both the economics and the operational aspects of production and distribution has imposed a heavier and heavier burden of responsibility on the manufacturer" (Codling v Paglia, 32 N.Y.2d 330, 339). In this response to a growing societal commitment to product safety, we stressed the need to overcome the inordinately difficult problems of proof which face contemporary consumers who suffer at the hands of articles of commerce whose proclivities to injure so often are within the sole ken of those who design and manufacture them (Lambert, Touchstones of Tort Liability, 33 ATL LJ 378, 402-403).
To that end, under the evolved doctrine of strict products liability, the scienter that is so vital to the negligence suit need not be shown. The shift so wrought is from fault to defect. No longer does anything turn on whether the defendant knew or reasonably could have been expected to know of the defect. Stigmatizing the manufacturer as negligent serves no legal purpose. In easing the path to proof, we have even gone so far as to announce that it is not even essential to a prima facie strict products case that the defect be isolated, for, if a plaintiff "has proven that the product has not performed as intended and excluded all causes of the accident not attributed to defendant, the fact finder may * * * infer that the accident could only have occurred due to some defect" (Halloran v Virginia Chems., 41 N.Y.2d 386, 388). So, while a producer is not an insurer and its product need
This contrast between negligence and strict products liability law is dramatic. In the former, that a defendant acted with due care will exonerate it from liability to the most seriously injured plaintiff. But, in strict products liability, it is no longer any answer that the defendant injured the plaintiff carefully.
It follows that the logic behind the exclusionary rule, born in a negligence setting, where, absent negligence, liability could not exist, affords little, if any, support for the slavish application of the rule to cases brought on a legal theory so antithetical to the strictures of negligence law that respected scholars have suggested that "the determination of whether a reasonably prudent manufacturer would put the product on the market must be made with the assumption that the manufacturer knew of the dangerous condition of the product" (Wade, On Product "Design Defects" and Their Actionability, 33 Vanderbilt L Rev 551, 567 ). One need not adopt this statement to recognize that it breathes the spirit of strict products liability.
In alleviating the problems of proof consumers formerly
Consonant with the inapplicability of the blanket exclusionary rule to strict products liability cases, a restriction to which we today give our approval, in the present case the evidence of design change was supportive of the "manufacturing and assembly" defect theory on which the trial court sent the strict liability case to the jury. The juxtaposition, both by verbal description and physical examination, of a joint assembled with a plastic insert and one without, by offering a graphic explanation of the slack eventually taken up by the insert, was bound to help the jury understand the defect on which the plaintiff relied. It tended, too, to indicate that the appellants themselves eventually formed the opinion that the ball joints in Caprara's car had a potential for movement when installed. And, it added to the probability that it was this defect rather than other causes that produced the accident. Thus, reasonable persons in the exercise of their independent judgment could have found the evidence
We thus conclude that the challenged evidence was properly received, most certainly on the strict products liability theory. Furthermore, in light of the fact that Chrysler, as indicated, did not request a charge limiting the purposes for which the evidence could be used, we need not and do not reach the issue of whether in the circumstances here the jury should have been instructed that the evidence should not be considered in determining whether Chrysler was negligent (see Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke LJ 837, 851-852). This again emphasizes that it is not necessary to decide whether such evidence would have been admissible on a theory of design defect, for the case was not submitted to the jury on that theory.
Finally, as regards the dissenters' damages discussion, the simple fact is that the defendants preseved for appeal no question other than that contained in their request for a charge on the reduction of plaintiff's future earnings loss to present value. Nor, on this singular reviewable item, did the defendants offer expert or other proof, or ask the court to take judicial notice of any facts that could have entered into such a calculation, which of course would have to include the impact of the more than offsetting inflation which appears to have become a chronic affliction.
Nor, can we say as a matter of law that the very large reduction effected by the Appellate Division in the size of the general award of damages made for the catastrophic quadreplegic injuries to this 21-year-old plaintiff did not more than subsume any correction that reasonably could be urged. It goes without saying that that court, lacking clairvoyance, in evaluating a verdict intended to compensate for a projected long lifetime of pain, suffering, helplessness and all the other tangible and intangible losses that were sure to
For all these reasons, the order of the Appellate Division should be affirmed.
JASEN, JONES and MEYER, JJ. (dissenting).
Reversal and new trial is required because (1) the matter having been submitted to the jury only on manufacturing defect and not on design defect, evidence of subsequent design change was irrelevant, (2) evidence of subsequent design change is so prejudicial that it should be admitted, even if admissible in strict liability cases, only when, because other proof is not available, its probative value outweighs its prejudicial effect; in the instant case other evidence was available, and (3) the Trial Judge erred in denying defendant's request to charge that future lost earnings should be discounted to present value.
The theory upon which the action was submitted to the jury, as the majority concedes (at p 120), was of a defect in manufacture and assembly. Straining to sustain the admission of evidence of subsequent design change in a case not submitted to the jury on a design defect theory, the majority fails to recognize the essential difference between the two, a distinction re-emphasized only last year in Robinson v Reed-Prentice Div. of Package Mach. Co. (49 N.Y.2d 471),
Strict products liability permits recovery by the plaintiff upon a showing that the product which caused the injury was defective when it was put on the market (Codling v Paglia, 32 N.Y.2d 330, 342). As the law of products liability has developed in this State, a defect in a product may arise in one of three ways: a defect in construction, through mistake in manufacturing or assembly (Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395; Codling v Paglia, 32 N.Y.2d 330, supra), a defect in design (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, supra; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376; Bolm v Triumph Corp., 33 N.Y.2d 151), or failure to give adequate warning or instruction in the use of the product (Wolfgruber v Upjohn Co., 72 A.D.2d 59, affd 52 N.Y.2d 768; Torrogrossa v Towmotor Co., 44 N.Y.2d 709). Though this appeal properly involves only the first, the majority's confusion of the first two requires that we differentiate defective manufacture from improper design.
Although sometimes difficult to delineate (see Barker v Lull Eng. Co., 20 Cal.3d 413; Wade, On the Nature of Strict Tort Liability for Products, 44 Miss LJ 825; see, also, Prosser, Law of Torts [4th ed], § 99), a real distinction exists, both in law and in fact, between manufacturing defects and design defects. Manufacturing defects, by definition, are "imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. A [defectively manufactured] product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design." (Henderson, Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Col L Rev 1531, 1543.) Stated differently, a defectively manufactured product is flawed because it is misconstructed without regard to whether the intended design of the manufacturer was safe or not. Such
In contrast, a design defect is one which "presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to [the] detailed plans and specifications" of the manufacturer (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479, supra.) Thus, unlike manufacturing defects, design defects involve products which are made in precise conformity with the manufacturer's design but nevertheless result in injury to the user because the design itself was improper. Moreover, unlike manufacturing defect cases where the decisive issue is the existence of the defect without regard to the care exercised by the manufacturer, a defendant in a design defect case can avoid liability by demonstrating that he used that "degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended" (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 385, supra.) Indeed, it has been said that "the standards for imposing liability for such unreasonably dangerous design defects are * * * general negligence principles". (Bolm v Triumph Corp., 33 N.Y.2d 151, 157-158, supra.) Instances of design defects are the motorcycle luggage rack situated such that it aggravates injuries to the driver when involved in a collision (Bolm v Triumph Corp., 33 N.Y.2d 151, supra), or the printing press without hand guards to protect its user (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, supra).
In this case, though plaintiff's complaint alleged, inter alia, that the ball joint was improperly "manufactured and assembled" and "defectively designed", the evidence initially introduced advanced only the theory of defective
Even if we accept the majority's view that the evidence had some probative effect, it should have been excluded because it was cumulative and its probative value did not substantially outweigh its prejudical effect.
Both briefs state that the Trial Judge admitted the postaccident design evidence on the basis of the holding in Barry v Manglass (55 A.D.2d 1, 7) that "the rule excluding evidence of postoccurrence repairs in negligence cases should not be applied to products liability cases." The ruling was, thus, made on the law and not in the exercise of discretion. Accepting for purposes of argument that there may be cases in which such evidence should be admitted, not only under the usual exceptions to show feasibility, ownership or control if controverted, or to impeach, but also to establish defect in design, we conclude that it was reversible error to permit introduction of the evidence in the present case.
Barry v Manglass (supra) is distinguishable because it involved a recall letter sent under a statute (US Code, tit 15, § 1402, subd [a]) requiring a manufacturer to notify a purchaser of "any defect * * * which [the manufacturer] determines, in good faith, relates to motor vehicle safety" and which thus constituted a clear admission, albeit under force of the statute, of defect, while postoccurrence design change to the extent that it constitutes an admission at all is much less probative of defect. Moreover, both Barry and Ault v International Harvester Co. (13 Cal.3d 113), on which Barry heavily relies, proceed from the premise that the rationale for the exclusionary rule is deterrence of the manufacturer from effecting repairs. Since the manufacturer subject to strict products liability has other incentives for marketing a nondefective product, it is reasoned, it is not necessary to exclude evidence of subsequent repair or design change as an encouragement for him to make such repair or change.
While the deterrence rationale is one of the reasons usually given for exclusion, it is neither the sole nor should it be the primary reason. To reason as do Ault and Barry is to accord deterrence undue weight and to grossly underplay
The early cases emphasized lack of probativeness and the prejudice resulting from admission as the primary reasons for exclusion, and referred to deterrence only incidentally if at all. Thus, in Morse v Minneapolis & St. Louis Ry. Co. (30 Minn. 465, 468-469), decided in 1883, the basis for the exclusion was stated as follows: "[S]uch acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence."
The United States Supreme Court in Columbia R. R. Co. v Hawthorne (144 U.S. 202, 207), after quoting the Morse statement, phrased the rule in the following language: "[T]he evidence is incompetent, because the taking of such precautions against the future is not be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant" and in Smyth v Upjohn Co. (529 F.2d 803, 804), the Second Circuit Court of Appeals, concluding that New York State courts did not accept the Ault rule, stated that: "The rationale behind the doctrine is that the evidence of remedial action, being based on hindsight, does not tend to show that the defendant had failed to act with reasonable care at an earlier period of time. The evidence, on the other hand, could be highly prejudicial and might discourage a person from making repairs to remedy a potentially dangerous situation." Without unduly expanding this opinion by quoting from other
Secondary authorities likewise fail to accord to deterrence an overriding role. Wigmore (Evidence [Chadbourn rev, 1979], vol 2, § 283, subd ) states the ground for exclusion as "that the supposed inference [of negligence or fault] from the act is not the plain and most probable one," then notes that such theoretical relevance as the evidence has is overcome on policy grounds that the evidence "would be liable to overemphasis by the jury, and that it would discourage all owners, even those who had genuinely been careful, from improving the place or thing that had caused the injury" (at p 175). Except as part of the quotation from the Morse case, neither Richardson ([10th ed — Prince], §§ 168, 221) nor Fisch (New York Evidence, § 798) mentions deterrence. McCormick ([2d ed], at pp 666-669) notes that in most cases courts have not felt called upon to state the basis of the rule (at p 666, n 9). Though he writes that, with those that do, the predominant reason is the policy against discouraging the taking of safety measures rather than the lack of probative significance, he, nevertheless, concludes (at pp 668-669) that before admitting evidence of subsequent change for any purpose "the court should be satisfied that the issue on which it is offered is of substantial importance and is actually, and not merely formally in dispute, that the plaintiff cannot establish the
It is, of course, true that even the traditional exceptions to the subsequent repair rule in negligence cases involve the danger that the evidence will be misused by the jury, and that the law has in such cases relied upon jury instructions limiting the use to which the evidence can be put by the jury as a sufficient protection against misuse. That reliance has, however, been born of necessity by reason of the inability to prove an element of the cause of action, such as control, controverted by defendant, without the subsequent repair evidence. It recognizes the unfairness of permitting defendant to both deny such an element and object to evidence which strongly tends to prove that element, and leaves to defendant the choice between admitting the element (e.g., control) and thus excluding the evidence, or denying the element and thus opening the door to admission of subsequent repair or design. Such instructions have, moreover, been relied upon in areas of fault with which jurors, who in final analysis establish for each case what reasonable care means, are much more likely to be conversant than are they with respect to the technically sophisticated question of design or manufacturing defect (cf. Henderson, Manufacturer's Liability For Defective Product Design, 56 NC L Rev 625, 626). Accepting the somewhat dubious concept that such instructions can be understood and will be applied in such cases,
To admit evidence of subsequent change on a less limited basis in strict liability cases generally is to make every manufacturer the insurer of the safety of his product. By the conclusion they reach, the majority, while verbalizing the concept that a manufacturer is not an insurer, in effect makes him just that. As recently as Robinson v Reed-Prentice Div of Package Mach. Co. (49 N.Y.2d 471, 481 supra), we have refused to expand the scope of the manufacturer's duty so far as to "be tantamount to imposing absolute liability on manufacturers for all product-related injuries," yet the majority broadly declares (at p 124) that "Those who market products must stand behind them." Such reasoning is not far from that of the Pennsylvania Supreme Court which in Azzarello v Black Bros. Co. (480 Pa. 547, 553), while denying that it was imposing liability as an insurer, cast the supplier "in the role of a guarantor of his product's safety". Yet as Professor Wade correctly notes:
Were the balancing rule applied to the present case reversal would be required, for the evidence of change was "cumulative at best" (Knight v Otis Elevator Co., 596 F.2d 84, 91). There was other evidence available to plaintiff to prove the defect for there was evidence that Chrysler knew that more than eight years prior to the sale to plaintiff of the car in which he was injured, its leading competitor had changed its ball joint design to include a plastic insert. Nor does the cautionary instruction given obviate the error, for there being other evidence available there was no reason to subject Chrysler to the possibility of prejudice which admission of the evidence necessarily involved.
With respect to damages, Chrysler's attorney requested an instruction "as contained in PJI 2:290 commencing at
The charge referred to by Chrysler's attorney relates to future earnings only, and the request was preceded by counsel's statement that he assumed the court would "charge PJI 2:290 regarding loss of earnings." Chrysler now argues that not only future lost earnings, but future medical expenses and future pain and suffering should have been discounted. As to the latter two issues, the error
It would serve little purpose in a dissent to expound at length on each of those points. Suffice it to say that it was reversible error for the Trial Judge not to have charged as requested and that even if there had been no error in the admission of evidence, the matter should be remanded for retrial on the question of damages.
Order affirmed, with costs.