IN THE SUPREME COURT OF IOWA No. 07–1595
Filed October 9, 2009
GLEN D. JAHN, LISA A. JAHN and GLEN D. JAHN and LISA A. JAHN as Guardians and Next Friends of CASSIE L. JAHN,
Plaintiffs,
vs.
HYUNDAI MOTOR COMPANY and HYUNDAI MOTOR AMERICA, Inc., d/b/a/ HYUNDAI MOTOR AMERICA,
Defendants.
Certified questions of law from the United States District Court for
the Southern District of Iowa, Thomas J. Shields, Chief United States
Magistrate Judge.
Federal district court certified two questions concerning a claim for
enhanced injuries arising out of a products liability action. CERTIFIED
QUESTIONS ANSWERED.
James D. Bruhn of Farwell & Bruhn, Clinton, for plaintiffs.
Richard J. Sapp, Debra L. Hulett, John T. Clendenin, and
Matthew R. Eslick of Nyemaster, Goode, West, Hansell & O’Brien, P.C.,
Des Moines, for defendants. 2
APPEL, Justice.
The United States District Court for the Southern District of Iowa
certified two questions to this court arising out of a products liability
action. The two certified questions are: 1. Will the Iowa Supreme Court adopt sections 16 and 17 of the Restatement (Third) of Torts: Products Liability governing liability for enhanced injury, specifically, including rules of joint and several liability and comparative fault of joint tortfeasors under sections 16(d) and 17, and defining burdens of proof under sections 16(b) and 16(c)? 2. Under the Iowa Comparative Fault Act, may the fault of a released party whose negligence was a proximate cause of the underlying accident and of the plaintiff’s injuries be compared by the jury on plaintiff’s enhanced injury claim against the product defendant? For the reasons expressed below, we answer “yes” to all aspects of both
questions and elaborate on our answers to provide guidance to the
federal court.
I. Factual Background and Procedural History.
For purposes of the certified questions presented in this case, there
are no factual disputes. The accident that gave rise to this litigation
occurred when a vehicle driven by Grace Burke blew through a stop sign
at an intersection in Clinton, Iowa and struck an automobile operated by
Glen Jahn. After impact, the front, driver-side airbag in the vehicle
driven by Jahn, a Hyundai Elantra, allegedly failed to deploy. As a result
of the accident, Jahn sustained multiple serious injuries including
fractures of the skull, left hip, knee, right femur, right tibia, right ankle,
and arch of the foot. Jahn also allegedly suffered a closed head injury.
Jahn reached a settlement with Burke and her insurance carrier
prior to filing the present action against Hyundai Motor America (HMA).
In the present action, the Jahns allege that the failure of the airbag in
their Hyundai Elantra to deploy upon impact caused Jahn enhanced 3
injuries that could have been avoided absent the alleged product defect.
The Jahns’ products liability claim is founded on res ipsa loquitur, strict
liability, and breach of warranty.
The issue presented here is whether Burke’s fault may be
compared by the jury when evaluating the Jahns’ products liability claim
against HMA. The Jahns admit that Burke is a “released party” under
the Iowa Comparative Fault Act. Iowa Code §§ 668.2, .7 (2003). Further,
the Jahns admit that Burke’s fault was a proximate cause of the accident
and a proximate cause of Jahn’s injuries. They, nevertheless, assert that
Burke’s fault may not be compared by the jury in the products liability
action against HMA.
HMA filed a motion to certify questions of law to this court seeking
definitive rulings related to whether sections 16 and 17 of the
Restatement (Third) of Torts: Products Liability should apply in this case
and, if they do, how these provisions should apply to the facts and
circumstances presented here. The Jahns joined in the motion. The
district court granted the motion and certified two questions for our
determination.
II. Discussion.
A. Position of the Parties. HMA and the Jahns both agree that
the court should adopt sections 16 and 17 of the Restatement (Third) of
Torts: Products Liability. The parties differ dramatically, however, on
the proper interpretation of these provisions.
According to HMA, sections 16 and 17 of the Restatement treat
products liability cases, including those involving enhanced injuries, like
any other case involving multiparty defendants whose fault must be
compared under Iowa’s Comparative Fault Act. 4
On the other hand, the Jahns argue that to the extent there are
injuries that would have occurred from the crash alone, the
manufacturer is not liable for these harms. In contrast, if the
manufacturer cannot apportion the injuries, it is liable for all of the
injuries suffered by the plaintiff without application of comparative fault.
B. Theory of Enhanced Injury Liability. 1
1. Background. As late as 1966, courts rejected the notion that a
product manufacturer could be liable for defective products where the
negligence of another party was the cause of the underlying accident.
See generally Evans v. Gen. Motors Corp., 359 F.2d 822 (7th Cir. 1966),
overruled by Huff v. White Motor Corp., 565 F.2d 104, 110 (7th Cir. 1977).
The rationale was generally that manufacturers could be held liable only
for injuries resulting from intended use. Id. at 825. Despite the
forseeability of automobile collisions, they were not considered an
intended use. Id.
In the seminal case of Larsen v. General Motors Corp., 391 F.2d
495 (8th Cir. 1968), the Eighth Circuit broke new ground. The court
noted, “No rational basis exists for limiting recovery to situations where
the defect in design or manufacture was the causative factor of the
accident, as the accident and the resulting injury . . . all are foreseeable.”
Larsen, 391 F.2d at 502. As a result, the Larsen court saw no reason
“why the manufacturer should not be held to a reasonable duty of care in
the design of its vehicle consonant with the state of the art to minimize
the effect of accidents.” Id. at 503.
1The plaintiffs dispute the use of the nomenclature “enhanced injury.” The phrase is simply a convenient label, however, and has no independent significance. It represents that portion of total damages for which a product manufacturer may be liable in a multiparty action involving an initial cause unrelated to a product defect. 5
The Larsen approach was further refined by the Fourth Circuit in
Dreisonstok v. Volkswagenwerk, A. G., 489 F.2d 1066 (4th Cir. 1974). In
Dreisonstok, the court stated that a manufacturer’s duty extended only
to designing a vehicle to avoid “ ‘unreasonable risk of injury in the event
of a collision.’ ” Dreisonstok, 489 F.2d at 1070 n.11 (quoting Larsen, 391
F.2d at 502). See generally Barry Levenstam & Daryl J. Lapp, Plaintiff’s
Burden of Proving Enhanced Injury in Crashworthiness Cases: A Clash
Worthy of Analysis, 38 DePaul L. Rev. 55, 61 (1988) [hereinafter
Levenstam & Lapp].
Under an enhanced injury theory, the product defect is not the
cause of the initial accident. As a result, the manufacturer cannot be
held liable for injuries arising out of the initial collision. The
manufacturer, however, is liable for enhanced injuries over and above
the injuries caused by the initial collision.
2. Burden of proof. A question arises regarding the plaintiff’s
burden of proof to sustain an enhanced injury claim. One line of cases,
often named the Huddell approach after a leading case, holds that the
plaintiff has the burden of showing that the “sole cause” of the enhanced
injury was a product defect. See Huddell v. Levin, 537 F.2d 726 (3d Cir.
1976). According to the court in Huddell, a plaintiff in an enhanced
injury case must prove: (1) the existence of a safer, practicable,
alternative design, (2) the extent of the injuries the plaintiff would have
suffered had the alternative design been used, and (3) “some method of
establishing the extent of enhanced injuries attributable to the defective
design.” Id. at 737–38.
The Huddell approach was elaborated upon in Caiazzo v.
Volkswagenwerk A. G., 647 F.2d 241 (2d Cir. 1981). In Caiazzo, the
court stressed that the plaintiff had the burden of showing not only the 6
fact of enhanced injury but the extent of enhanced injuries attributable
to the defective design. Caiazzo, 647 F.2d at 250. According to Caiazzo,
if the plaintiff cannot identify what portion of the injury occurred as a
result of the design defect by a preponderance of evidence, the enhanced
injury claim fails. Id. at 251.
The practical impact of the Huddell rule as applied in Caiazzo is
that the plaintiff has the burden of apportioning the loss and loses his
enhanced injury claim if he fails to offer proof of apportionment. This
approach has been adopted in a number of cases. See, e.g., Barris v.
Bob’s Drag Chutes & Safety Equip., Inc., 685 F.2d 94, 99 (3d Cir. 1982)
(applying Pennsylvania law); Dawson v. Chrysler Corp., 630 F.2d 950,
959–60 (3d Cir. 1980) (applying New Jersey law). The Huddell approach
pulls apart and segregates the injuries and, as a result, principles of joint
and several liability do not apply in an enhanced injury case.
A second line of cases imposes a less stringent proof requirement
on plaintiffs. Under this second line of cases, often referred to as the
Fox-Mitchell approach, the plaintiff must prove only that the product
defect was a “substantial factor” in creating damage greater than that
attributable solely to the underlying accident. See Mitchell v.
Volkswagenwerk, AG, 669 F.2d 1199, 1206 (8th Cir. 1982); Fox v. Ford
Motor Co., 575 F.2d 774, 787 (10th Cir. 1978). If the factfinder is unable
to segregate the harm caused by the initial collision from the harm
caused by the product defect, the manufacturer is liable for the entire
injury. Mitchell, 669 F.2d at 1206.
The rationale of the Fox-Mitchell approach is generally that injuries
are often indivisible and that the Huddell approach imposes an unfair
burden by requiring the plaintiff to “prove the impossible.” Id. at 1203–
04. In addition, the Huddell approach is criticized as inconsistent with 7
orthodox concurrent tortfeasor theory in which apportionment of injuries
is not required to impose joint liability for the entire injury. Fox, 575
F.2d at 787; see also Levenstam & Lapp, 38 DePaul L. Rev. at 70.
As is apparent, the Fox-Mitchell approach, which has been adopted
in a number of cases, see, e.g., Fouche v. Chrysler Motors Corp., 646 P.2d
1020, 1024–25 (Idaho Ct. App. 1982); Lee v. Volkswagen of Am., Inc., 688
P.2d 1283, 1288 (Okla. 1984), produces the opposite result of Huddell in
the event of indivisible injury. Under Huddell, the plaintiff has the
burden of showing apportionment, usually through expert testimony,
and has no enhanced injury claim if the claim is indivisible.
3. Application of comparative fault. Another disputed issue relates
to the relationship between enhanced injury claims and comparative
fault. The majority view is that the principle of concurrent causation
applies to cases involving enhanced injuries and, as a result, the
principles of comparative fault apply. See, e.g., Montag by Montag v.
Honda Motor Co., 75 F.3d 1414, 1419 (10th Cir. 1996); Gen. Motors Corp.
v. Farnsworth, 965 P.2d 1209, 1218 (Alaska 1998); Daly v. Gen. Motors
Corp., 575 P.2d 1162, 1169–70 (Cal. 1978); Estate of Hunter v. Gen.
Motors Corp., 729 So. 2d 1264, 1273–75 (Miss. 1999); Harsh v. Petroll,
887 A.2d 209, 218 (Pa. 2005); Duncan v. Cessna Aircraft Co., 665 S.W.2d
414, 428 (Tex. 1984).
The majority view may be supported in part on the ground that it
imposes upon users the responsibility to safely use products and that it
would be unfair to impose costs of substandard plaintiff conduct on
manufacturers, who would presumably pass on some or all of those costs
to users and consumers, including those who use and consume products
safely and wisely. See William J. McNichols, The Relevance of the
Plaintiff’s Misconduct in Strict Tort Products Liability, the Advent of 8
Comparative Responsibility, and the Proposed Restatement (Third) of
Torts, 47 Okla. L. Rev. 201, 283–84 (1994).
A minority of cases, however, do not apply comparative fault
principles or at least limit their application in the enhanced injury
context. See, e.g., Binakonsky v. Ford Motor Co., 133 F.3d 281, 288 (4th
Cir. 1998); D’Amario v. Ford Motor Co., 806 So. 2d 424, 426 (Fla. 2001);
Andrews v. Harley Davidson, Inc., 796 P.2d 1092, 1095 (Nev. 1990);
Green v. Gen. Motors Corp., 709 A.2d 205, 209 (N.J. Super. Ct. App. Div.
1998); Alami v. Volkswagen of Am., Inc., 766 N.E.2d 574, 575 (N.Y.
2002). Some of these cases, however, arise in jurisdictions applying
contributory negligence and may have been motivated by a desire to
prevent the harsh result of completely denying a plaintiff recovery where
the plaintiff’s negligence was modest. See, e.g., Binakonsky, 133 F.3d at
284; Andrews, 796 P.2d at 1095; Restatement (Second) of Torts § 402A
cmt. n, at 356 (1965). The minority viewpoint has its adherents in the
academic literature. See generally Robert C. Reichert, Limitations on
Manufacturer Liability in Second Collision Actions, 43 Mont. L. Rev. 109
(1982).
The reasoning behind the minority line of cases is often that a
manufacturer has a duty to minimize the injurious effect of a crash no
matter how the crash is caused and has a duty to anticipate foreseeable
negligence of users and third parties. As noted by the New Jersey
Supreme Court, “ ‘[o]nce it is established that the defendant has a duty
to protect persons from the consequences of their own foreseeable faulty
conduct, it makes no sense to deny recovery because of the nature of the
plaintiff’s conduct.’ ” Green v. Sterling Extruder Corp., 471 A.2d 15, 20
(N.J. 1984) (quoting Patricia Marschall, An Obvious Wrong Does Not Make
a Right: Manufacturer’s Liability for Patently Dangerous Products, 48 9
N.Y.U. L. Rev. 1065, 1088 (1973)). This viewpoint was reiterated in
Jimenez, where the court observed that “the concept of ‘enhanced injury’
effectively apportions fault and damages on a comparative basis;
defendant is liable only for the increased injury caused by its own
conduct, not for the injury resulting from the crash itself.” Jimenez v.
Chrysler Corp., 74 F. Supp. 2d 548, 566 (D.S.C. 1999), rev’d in part and
vacated in part by Jimenez v. DaimlerChrysler Corp., 269 F.3d 439 (4th
Cir. 2001). In addition, some cases support the minority rule on the
ground that product manufacturers should be encouraged to design
products that protect the user in the event of an accident. Andrews, 796
P.2d at 1095.
C. Restatement (Third) of Torts. Against the above clash of
court cases and academic antlers, the American Law Institute in the
Restatement (Third) of Torts: Products Liability considered the proper
approach to enhanced injury claims in sections 16 and 17.
Section 16 of the Restatement (Third): Products Liability provides: (a) When a product is defective at the time of commercial sale or other distribution and the defect is a substantial factor in increasing the plaintiff’s harm beyond that which would have resulted from other causes, the product seller is subject to liability for the increased harm. (b) If proof supports a determination of the harm that would have resulted from other causes in the absence of the product defect, the product seller’s liability is limited to the increased harm attributable solely to the product defect. (c) If proof does not support a determination under Subsection (b) of the harm that would have resulted in the absence of the product defect, the product seller is liable for all of the plaintiff’s harm attributable to the defect and other causes. (d) A seller of a defective product that is held liable for part of the harm suffered by the plaintiff under Subsection (b), or all of the harm suffered by plaintiff under Subsection (c), is jointly and severally liable or severally liable with other parties who bear legal responsibility for causing the harm, 10 determined by the applicable rules of joint and several liability. Restatement (Third) of Torts: Products Liability § 16, at 235–36 (1998). Section 17 provides: (a) A plaintiff’s recovery of damages for harm caused by a product defect may be reduced if the conduct of the plaintiff combines with the product defect to cause the harm and the plaintiff’s conduct fails to conform to generally applicable rules establishing appropriate standards of care. (b) The manner and extent of the reduction under Subsection (a) and the apportionment of plaintiff’s recovery among multiple defendants are governed by generally applicable rules apportioning responsibility. Id. § 17, at 256.
With respect to the issue of indivisible harm in an enhanced injury
case, the language of section 16(c) supports the Fox-Mitchell approach.
This interpretation is confirmed by the Reporter’s Note to section 16,
which expressly states that the Fox-Mitchell approach is the majority
viewpoint and is embraced in the Restatement (Third). Id. § 16 reporter’s
note to cmt. d, at 244. The Reporter’s Note emphasizes, however, that
section 16(c) does not formally shift any burden of proof to the
defendant. Id. Instead, according to the Reporter’s Note, if the plaintiff has established that the product defect increased the harm over and above that which the plaintiff would have suffered had the product been nondefective, and if, at the close of the case, proof does not support a determination of the harm that would have resulted in the absence of the product defect, then the defendant is liable for all the harm suffered by the plaintiff. Id.
On the issue of application of comparative fault, the Restatement
(Third) section 17(b) indicates that generally applicable comparative fault
principles should apply among multiple defendants. The official
comments to section 17, however, address only the issue of
apportionment of plaintiffs’ fault. The Reporter’s Note emphasizes that a 11
majority of courts utilize comparative fault to reduce the recoveries of
product liability plaintiffs, but does not discuss the issue of applying
comparative fault principles among defendants. Id. § 17 reporter’s note
to cmt. a, at 259–60.
D. Iowa Case Law on Enhanced Injury. We begin discussion of
Iowa law with a review of our prior approach to “indivisible injuries”—
where two or more separate negligent acts or omissions result in an
indivisible injury. In Meek v. Long, 258 Iowa 1309, 1314, 142 N.W.2d
385, 388–89 (1966), the court held that where the injuries to a plaintiff
resulting from two separate accidents were indivisible, the defendant
should not be permitted to benefit from the inability to attribute all
damages to one incident or the other.
The holding of Meek was extended to situations involving separate
defendants in Treanor v. B.P.E. Leasing, Inc., 158 N.W.2d 4 (Iowa 1968).
In Treanor, the plaintiff sought to recover for personal injuries allegedly
suffered in two separate automobile accidents. Treanor, 158 N.W.2d at
5. We held that to the extent there were indivisible damages, both
defendants would be jointly and severally liable for injuries which could
not with reasonable certainty be attributed solely to the other. Id. at 7.
There are two Iowa Supreme Court cases subsequent to Meek and
Treanor that deal with the question of enhanced injuries arising out of a
single accident. In Hillrichs v. Avoc Corp., 478 N.W.2d 70, 71–72 (Iowa
1991), a farmer brought an action against a manufacturer and an
implement dealer after his hand was crushed in the husking bed of a
corn picker. While being used to pick corn, the implement became
plugged with corn husks. Hillrichs, 478 N.W.2d at 71. Unable to unplug
the husking bed, the plaintiff reached into the equipment with a gloved
hand. Id. at 72. The glove on his right hand entangled in the rollers, 12
trapping the plaintiff’s hand for approximately one-half hour and
resulting in significant injuries. Id. The plaintiff claimed that the corn
picker was unreasonably dangerous because: (1) “it lacked an
interlocking shield over the rollers that would disengage the power
source when the shield was removed” and (2) “it lacked an emergency
shut-off device” that would be triggered when a foreign body became
entangled in the machine. Id.
At trial, the plaintiff sought jury instructions and verdict forms
requiring the jury to apportion damages arising from the initial
entanglement in the machine from damages caused by the failure of the
machine to shut off power upon becoming entangled. Id. The trial court
declined to give the plaintiff’s requested instructions on apportionment.
Id.
At first, the jury returned a verdict finding the plaintiff seventy
percent at fault, the manufacturer twenty-five percent at fault, and the
dealer five percent at fault. Id. The jury also found, however, that the
defendants’ fault was not a proximate cause of the plaintiff’s injuries. Id.
The trial court rejected the verdicts as inconsistent and directed the jury
to reconsider the issues consistent with the instructions. Id. The jury
then returned a verdict finding the plaintiff one hundred percent at fault.
On appeal, this court held that the plaintiffs’ claim for “enhanced
injuries” against the manufacturer should have been submitted to the
jury. Id. at 75. The court, however, disagreed with plaintiffs’
apportionment theory. We stated: Although plaintiff suggests that any percentage of fault that might be assigned to him with respect to the initial entanglement in the machinery may not be assessed to him on the trial of his enhanced injury claim, we disagree with that contention. The fault of the plaintiff, if any, in becoming 13 entangled in the machinery would be a proximate cause of the enhanced injury as well as the initial injury. Id. at 76. Although Hillrichs involved an enhanced injury case where the defendant alleged comparative fault of the plaintiff, the rationale of the
case would seem to apply to cases where a defendant sought to compare
its fault with that of a codefendant or released party.
Thirteen months later, this court decided Reed v. Chrysler Corp.,
494 N.W.2d 224 (Iowa 1992). In Reed, an injured passenger brought a
products liability action against an automobile manufacturer for injuries
arising from a one-vehicle accident. Reed, 494 N.W.2d at 225. An
intoxicated driver lost control of his vehicle, which ultimately slammed
into a concrete bridge abutment, rolled, and traveled three hundred feet
on the road upside down on its roll bar. Id. at 225–26. The plaintiff, a
backseat passenger, suffered severe injuries in the mishap. Id. at 226.
Like the driver, he was also intoxicated. Id.
The plaintiff in Reed claimed that the vehicle had a defective
windshield and removable hardtop. Id. at 227. The district court
granted the defendant a directed verdict on the ground that the plaintiff
failed to present evidence of an alternative design, practicable under all
the circumstances. Id.
We reversed the district court’s grant of a directed verdict. Id. As
a threshold matter, we held that the plaintiff had generated a jury
question on whether there was an alternative design that was practicable
under all the circumstances. Id. at 227–28. We then went on to
consider other elements of a crashworthiness claim. Specifically, we
considered whether Reed presented sufficient evidence to show what
injuries would have resulted if the safer design method had been used.
Id. at 228. We held that Reed offered sufficient evidence to show that the 14
injury to his arm would not have occurred if the vehicle had a more
safely-designed metal top. Id.
We also addressed the question of the admissibility of the driver’s
and Reed’s intoxication. Id. at 229–30. We held that the evidence was
inadmissible. Id. at 230. We recognized that in Hillrichs we held that a
plaintiff’s comparative fault could be used against him in a claim for
enhanced injuries. Id. We, nevertheless, reconsidered Hillrichs and held
that a plaintiff’s comparative fault should not be so assessed in a
crashworthiness case unless it is shown to be a proximate cause of the
enhanced injury. Id. (abrogating Hillrichs). Because there was no
evidence that the driver’s or Reed’s intoxication had any bearing on how
Reed’s injuries were enhanced, the evidence of intoxication was
inadmissible. Id.
The core rationale of the result in Reed was expressed as follows: The theory [of an enhanced injury claim], which presupposes the occurrence of accidents precipitated for myriad reasons, focuses alone on the enhancement of resulting injuries. The rule does not pretend that the design defect had anything to do with causing the accident. It is enough if the design defect increased the damages. So any participation by the plaintiff in bringing the accident about is quite beside the point. Id. This rationale is consistent with the minority view that comparative
fault principles do not apply to claims of enhanced injury.
The Reed decision drew a sharp dissent. Id. (Carter, J., concurring
in part and dissenting in part). The dissent argued that under Iowa’s
comparative fault framework, fault “resulting” in injuries was to be
compared with a strict liability defendant in an enhanced injury case. Id.
at 231. Unlike the majority, the dissent argued that the plaintiff’s
negligence was a proximate cause of the enhanced injury and that the
conduct of the manufacturer was not an intervening cause in the case. 15
Id. The dissent asserted that the ordinary rules of proximate cause
should apply in enhanced injury cases and that, in the comparative fault
setting, any fault of the plaintiff or other person should be compared
against the fault of the manufacturer. Id. The dissent is a clear
articulation of the majority view which has prevailed in a number of
jurisdictions and which has been embraced in the Restatement (Third) of
Torts section 17(b).
Neither Reed nor Hillrichs directly considered whether to follow the
approach of Hubbell or Fox-Mitchell on the question of indivisible injury.
The Reporter’s Note to the Restatement (Third) observed that the court in
Hillrichs stated, “ ‘Damages may be awarded . . . when the only dispute is
the amount of damages and the evidence affords a reasonable basis for
estimating the loss.’ ” Restatement (Third) § 16 reporter’s note to cmt. d,
at 251 (quoting Hillrichs, 478 N.W.2d at 75). But this limited statement
is true regardless of whether Hubbell or Fox-Mitchell is applicable. This
issue thus presents a question of first impression under Iowa law.
In Iowa, however, the issue may have limited impact. In Reed, we
discussed how a party may prove apportionment. First, a plaintiff must
offer substantial evidence to prove, ordinarily through expert testimony,
that the alleged defect in fact caused an enhanced injury. Once
substantial evidence on the fact of enhanced injury has been established,
the plaintiff is not required to prove the amount of injury with exactitude.
Reed, 494 N.W.2d at 228. Because of the relatively liberal approach to
establishing apportionment, the allocation of the burden of proof may not
be as problematic as it once seemed.
E. Adoption of Fox-Mitchell Approach to Causation and
Rejection of Divisible Injury Requirement. As stated in the Reporter’s
Note, the Restatement (Third) section 16(c) expressly adopts the Fox- 16
Mitchell approach to indivisible harm. Although Hubbell has a few
adherents, on this issue of first impression, we adopt the Fox-Mitchell
approach. We believe the Fox-Mitchell approach to causation and the
rejection of a requirement that plaintiff show a divisible harm is the
soundest approach because it is the most consistent with our
established law regarding indivisible injuries of successive tortfeasors in
Meek and Treanor.
Specifically, we hold that in an enhanced injury case, the plaintiff
has the burden of showing the fact of enhanced injury. This burden can
be met by offering evidence that the design defect was a substantial
cause of injury above and beyond that which would have occurred
without the design defect. There is no requirement that a plaintiff prove
a divisible injury. We regard the above statement of law as consistent
with Restatement (Third) of Torts: Products Liability section 16(b) and (c).
F. Application of Comparative Fault and Joint and Several
Liability in Iowa Code Chapter 668. Reed plainly stands for the
proposition that comparative fault concepts of Iowa Code chapter 668 do
not apply in enhanced injury cases. Because Reed involved the potential
fault of the driver of the vehicle as well as the plaintiff, the holding in
Reed applies to apportionment among defendants as well to
apportionment between the plaintiff and the product manufacturer. The
question is thus whether Reed should be abandoned in favor of the
approach of the Restatement (Third).
A central issue lurking behind this question is whether the
enhanced injury, or injury occurring because of the product defect in an
automobile, was proximately caused by the conduct of the initial
tortfeasor. In Hillrichs, we declared that the fault of the plaintiff, if any,
would be a proximate cause of the enhanced injury. Hillrichs, 478 17
N.W.2d at 76. By contrast, in Reed, we stated that the intoxication of the
driver or of Reed did not bear on the issue of how Reed’s injuries were
enhanced by the construction of the Jeep’s roof. Reed, 494 N.W.2d at
230.
Under Iowa law, tortfeasors are responsible for the natural and
foreseeable consequences of their acts. Virden v. Betts & Beer Constr.
Co., 656 N.W.2d 805, 808 (Iowa 2003). We have repeatedly held that the
tortious conduct of others can be natural and foreseeable in the context
of medical negligence which results after a plaintiff is injured. See Casey
v. Koos, 323 N.W.2d 193, 197 (Iowa 1982); Smith v. Conn, 163 N.W.2d
407, 410 (Iowa 1968). It is hard to see how a different approach should
apply to a case involving a product defect in an automobile. As noted by
the Alaska Supreme Court, “it is just as foreseeable to an original
tortfeasor that equipment in a car may malfunction as it is that a doctor
may act negligently in treating the plaintiff’s injuries.” Farnsworth, 965
P.2d at 1218; see also Harsh, 887 A.2d at 218 (“insulating a negligent
tortfeasor from liability for enhanced injuries based on his status as the
sole cause of some other distinct harm would engender substantial
incongruities in Pennsylvania law”).
In addition, the question of whether fault should be apportioned in
enhanced injury cases is no longer solely a question of common law
development. Instead, we must consider the provisions of Iowa Code
chapter 668, which codify comparative fault principles. Unlike many
comparative fault statutes which apply comparative fault concepts only
in cases involving negligence, see, e.g., Melia v. Ford Motor Co., 534 F.2d
795, 802 (8th Cir. 1976) (applying Nebraska law); Kirkland v. Gen. Motors
Corp., 521 P.2d 1353, 1367 (Okla. 1974), Iowa’s comparative fault
statute expressly states that the fault of other parties is to be compared 18
in cases of negligence, recklessness, and strict liability. Coker v. Abell-
Howe Co., 491 N.W.2d 143, 147 (Iowa 1992) (citing Iowa Code § 668.1
(1991)). While an exception to the application of comparative fault
principles for enhanced injury cases might be supported on policy
grounds, the legislature has not provided for such an exception. See
Montag, 75 F.3d at 1419 (noting broadly worded comparative fault act
applies to enhanced injury claims).
Further, the legislature in Iowa Code section 668.3(3) has
expressly stated that “[i]n determining the percentages of fault, the trier
of fact shall consider both the nature of the conduct of each party and
the extent of the casual relation between the conduct and the damages
claimed.” In this language, we conclude that in enhanced injury cases,
the legislature has directed that the casual relation between the conduct
of a product manufacturer and the resulting damages is one of the two
elements to be considered in assigning a percentage of liability, but is not
solely determinative as to the allocation of fault.
We recognize, however, that in cases where the factfinder has
found a divisible injury, the liability of the product manufacturer, though
subject to comparative fault analysis, is limited to the amount of the
divisible injury. Restatement (Third) § 16(b), at 236. Having found that
the comparative fault provisions of Iowa Code chapter 668 apply to
enhanced injury cases, it follows that the joint and several liability
provisions of Iowa Code section 668.4 apply to parties liable for divisible
or indivisible injuries.
In light of the Restatement (Third), the evolving case law from other
jurisdictions, and our duty to interpret Iowa Code chapter 668 in
accordance with the legislative intent revealed by its language, we 19
overrule Reed and align our law with the Restatement (Third) and the
majority of jurisdictions.
III. Conclusion.
We adopt the Fox-Mitchell approach to the required causation in
enhanced injury cases. We further hold that the principles of
comparative fault and joint and several liability found in Iowa Code
chapter 668 apply in enhanced injury cases. As a result, the answer to
both certified questions is “Yes.”
CERTIFIED QUESTIONS ANSWERED.