McNeil v. Nissan Motor Company, et al

2005 DNH 065

• Court: District Court, D. New Hampshire
• Decided: April 14, 2005
• Docket: CV-04-199-JM
• Status: Published

Opinion

McNeil v. Nissan Motor Company, et al CV-04-199-JM 04/14/05 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Scott McNeil

v. Civil No. 04-cv-199-JM Opinion No. 2005 DNH 065 Nissan Motor Company, Ltd., et al.

O R D E R

The Court has before it for consideration four motions

pending in the above-captioned matter. For the reasons set forth

herein. Plaintiff's Motion to Certify Questions of Law to the New

Hampshire Supreme Court (document no. 20) is denied. Defendants'

Motion to File a Third Party Complaint (document no. 16) is

granted. Defendants' memoranda of law, denominated as motions,

pertaining to the issue of whether comparative negligence applies

to crashworthiness actions under New Hampshire law (document no.

21), and to issues concerning joint tortfeasors, impleader, and

apportionment (document no. 22) are deemed moot.

Background

This action arises out of a single car, single occupant, car

accident that occurred on November 16, 2003 in Manchester, New

Hampshire, while the Plaintiff was driving a 1996 Nissan Maxima that was manufactured and/or sold by the Defendants. Plaintiff

alleges that he while he was driving the car, the car went out of

control resulting in a rear end collision with a tree. "As a

result of the . . . collision. Plaintiff's seatback collapsed

rearward, negating the protective effect of the head restraint

and causing Plaintiff to be unrestrained in the upright seated

position and not kept in place." Compl., 5 13. Plaintiff

alleges that the defective design and/or manufacture of the

seatback caused a collapse during the first collision that

thereby caused a second collision in which Plaintiff's head was

directed rearward and upward into the car's roof, thereby

breaking Plaintiff's neck and causing guadriplegia. Id., 5 14.

The Defendants deny that there was a design or manufacturing

defect with the subject car's seatback and further deny that

Plaintiff's injuries resulted from any negligence on their part.

A n s ., 55 18-35. Defendants asserted as an affirmative defense

the Plaintiff's comparative fault in causing the initial accident

and in failing to use the subject car's restraints in a proper

manner. The Defendants seek leave of court to file a third-party

complaint against Nicholas Tolios ("Tolios") asserting that

Tolios must be considered a joint tortfeasor in this action under

2 the law of New Hampshire social host liability. Defendants

allege that Tolios was reckless in his service of alcohol to

Plaintiff, who was at that time a minor, prior to the car

accident, and that Tolios was reckless in allowing the Plaintiff

to drive, or in failing to prevent the Plaintiff from driving, a

car while intoxicated, which Defendants assert caused the

Plaintiff to get into the accident and to sustain the injuries

complained of in this action.

Defendants filed an objection to Plaintiff's motion to

certify guestions of law. Plaintiff filed an objection to

Defendants' motion to file a third-party complaint.

Discussion

I. Plaintiff's Motion to Certify Questions of Law

A. Consideration of a Plaintiff's Comparative Fault in a Crashworthiness Case

The application of the crashworthiness doctrine under New

Hampshire law was discussed extensively in Trull v. Volkswagen of

Am., Inc., 761 A.2d 477 (N.H. 2000). The doctrine "extends the

scope of liability of a manufacturer to the situations inwhich

the construction or design of its product has caused separate or

enhanced injuries in the course of an initial accident brought

about by an independent cause." Id. at 47 9. A manufacturer is

3 liable "for that portion of the damage or injury caused by the

defective design over and above the damage or injury that

probably would have occurred as a result of the impact or

collision absent the defective design." Id. at 480.

Plaintiff argues that there is no controlling New Hampshire

precedent as to whether a plaintiff's accident causing

comparative fault may be asserted as an affirmative defense in a

crashworthiness case. Defendant responds that the applicability

of a plaintiff's comparative fault in a crashworthiness case has

been patently resolved in New Hampshire, and urges the Court to

deny the motion to certify the guestion to the New Hampshire

Supreme Court. The Court examines the relevant authorities next.

In Thibault v. Sears, Roebuck & Co., 395 A.2d 843, 845 (N.H.

1978), the plaintiff's foot was injured by a lawn mower the

defendant manufactured. Contrary to the defendant's warnings,

the plaintiff mowed a steep slope on his property up and down

rather than lengthwise. Id. After the plaintiff lost his

balance and fell, his foot slipped under the mower's housing

causing the blade to injure his foot. Id. Plaintiff claimed

that the defendant was strictly liable, or liable in negligence,

because the mower lacked a rear trailing guard. Id. After the

4 jury returned a defendant's verdict, the plaintiff appealed. Id.

The New Hampshire Supreme Court noted that unlike workmen's

compensation and no-fault insurance, strict liability is not a

no-fault system of compensation. Id. at 845-846. Instead, the

court found, the principle of comparative causation applies in

strict liability cases. Id. at 848. In reaching its decision,

the court considered the California Supreme Court's discussion in

Daly v. Gen. Motors Corp., 575 P.2d 1162 (Cal. 1978), a case in

which a driver sustained fatal injuries after a car accident

during which the driver's door opened and the driver was ejected

from the car. In Daly, the defendant asserted as a defense the

comparative negligence of the decedent based on the decedent's

alleged failure to use a seat belt or door lock despite warnings

in the owner's manual. The California Supreme Court stated:

Because plaintiff's case rests upon strict products liability based on improper design of the door latch and because defendants assert a failure in decedent's conduct, namely, his alleged intoxication and nonuse of safety eguipment, without which the accident and ensuing death could not have occurred, there is thereby posed the overriding issue in the case, should comparative principles apply in strict products liability actions?

Thibault, 395 A.2d at 849 (guoting Daly, 575 P.2d at 1165). The

California Supreme Court concluded that comparative principles

5 should apply and the New Hampshire Supreme Court agreed. Id.

As Plaintiff points out, Thibault does not address the

specific issue of whether a plaintiff's accident causing fault

should be treated any differently in a crashworthiness case

because the injuries in Thibault were caused by a lawnmower.

That the New Hampshire Supreme Court relied upon the facts and

analysis of Daly, however, where the plaintiffs alleged that an

car manufacturer should be found liable for enhanced injuries

caused by a second collision that would not have occurred in the

absence of the initial accident, provides strong support for the

Defendants' contention that New Hampshire law reguires the

application of the principles of comparative fault in a

crashworthiness action.

Subseguent New Hampshire cases further support Defendants'

argument. In Reid v. Spadone Mach. Co., 404 A.2d 1094, 1098-99

(N.H. 1979), the New Hampshire Supreme Court reiterated that a

plaintiff's comparative fault may be considered in a strict

products liability case.

The manufacturer or seller faced with an allegation of strict liability in tort for a defective design may have several defenses against liability, for example, product misuse or abnormal use, . . ., and what was formerly termed contributory negligence or unreasonable assumption of the risk . . . . These defenses relate

6 to the comparative fault of the plaintiff and are now classified as "plaintiff's misconduct."

Id. at 1098-99, overruled on other grounds, Daigle v. City of

Portsmouth, 534 A.2d 689, 704 (N.H. 1987); see also, Chellman v.

Saab-Scania A B , 637 A.2d 148, 152 (N.H. 1994) (holding that a car

manufacturer could assert the plaintiff's misconduct as an

affirmative defense in a strict products liability case); Cyr v .

J .I . Case C o ., 652 A.2d 685, 695 (N.H. 1995) (finding that the

foreseeability of the plaintiff's misconduct does not bar the

defendant from asserting that misconduct as an affirmative

defense in a strict liability action); Kathios v. Gen. Motors

Corp., 862 F.2d 944, 947 (1st Cir. 1988) (recognizing that the

concept of comparative causation applies to products liability

actions under New Hampshire law under the term "plaintiff's

misconduct").

The Chellman decision is particularly notable in that the

plaintiff in that case alleged that injuries he suffered in a car

accident resulted from design defects in the car's handling

characteristics, door latch, and seat belt retraction assembly.

Chellman, 637 A.2d at 152. The plaintiff alleged that the three

defects were independent of one another. Id. While the alleged

handling defect could be directly attributed to causing the

7 accident, the plaintiff further alleged that he was injured

because of the opening of the driver side door after the car went

out of control and began to rollover, and because when the car

came to rest the plaintiff was outside of the car with the seat

belt pulled out of the retraction device but still strapped

around him. Id. at 149. The court did not make any distinction

between the three alleged defects in holding that the plaintiff's

misconduct may be asserted as an affirmative defense to the

plaintiff's strict liability claims. The distinction that the

Plaintiff attempts to make between strict liability cases

generally and crashworthiness cases in particular is unpersuasive

and I reject it. See, e.g., Ritch v. AM General Corp., No. Civ.

93-451-SD, 1997 WL 834214 at *3 (D.N.H. 1997) (finding that the

crashworthiness doctrine does not foreclose proof of the

plaintiff's negligence in assessing comparative fault).

Moreover, the New Hampshire comparative fault statute, as

amended in 1986, provides further support for Defendants'

position in that the statute now makes clear that the principles

of comparative fault apply to all tort actions, including strict

liability cases.1 See Bohan v. Ritzo, 679 A.2d 597, 601 (N.H.

1The statute provides in relevant part: 1996) . The Court finds that New Hampshire law is sufficiently

settled in favor of the view that a defendant may assert

plaintiff's misconduct in defense to a strict products liability

action involving alleged enhanced injuries that certification of

the guestion to the New Hampshire Supreme Court is not reguired.

B. Contribution or Apportionment from a Third-Party Tortfeasor In a Crashworthiness Case

The New Hampshire statute pertaining to comparative fault,

apportionment of damages, and contribution among tortfeasors

provides in relevant part that "a right of contribution exists

between or among 2 or more persons who are jointly and severally

liable upon the same indivisible claim, or otherwise liable for

the same injury, death or harm, whether or not judgment has been

recovered against all or any of them." RSA 507:7-f. Defendants

argue that Nicholas Tolios is a joint tortfeasor in this action

because he recklessly served alcohol to Plaintiff, who was then a

Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff's legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant, but the damages awarded shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict.

N.H. Rev. Stat. Ann. ("RSA") 507:7-d.

9 minor, and allowed Plaintiff to drive while intoxicated or failed

to prevent him from driving, and thereby proximately caused

Plaintiff's injuries.2 Plaintiff argues that there is no

controlling New Hampshire precedent that determines whether a

manufacturer may seek contribution or apportionment of damages

from a third-party tortfeasor who only contributed towards

causing the initial accident in a crashworthiness or enhanced

injury second collision case. The Court disagrees.

The New Hampshire Supreme Court's decision in Trull

sufficiently answers the guestion that plaintiff proposes for

certification. In particular, the court held that:

In crashworthiness cases involving indivisible injuries, . . . plaintiffs must prove that a 'design defect was a substantial factor in producing damages over and above those which were probably caused as a result of the original impact or collision. Once the plaintiffs make that showing, the burden shifts to the defendants to show which injuries were attributable to the initial collision and which to the defect.

Id. at 482 (citation and internal alterations omitted). The New

Hampshire Supreme Court noted in Trull that similar reasoning

applies in the rule that "two or more tortfeasors may be jointly

and severally liable where their negligence, through their

2Under New Hampshire law, a social host may be liable to an injured plaintiff for the reckless service of alcohol. Hickingbotham v. Burke, 662 A.2d 297, 301 (N.H. 1995) .

10 independent acts, produces a single, indivisible, injury." Id.

(citing Carpenter v. W. H. McElwain Co., 97 A. 560, 561-62 (N.H.

1916)); see also Cram v. New England Tel. & Tel. Co., 172 F.

Supp. 395, 396 (D.N.H. 1958) (same). There is little doubt that

the New Hampshire Supreme Court intended that the principles of

contribution and apportionment between joint tortfeasors apply in

a crashworthiness case involving an indivisible injury.

Whether a plaintiff's injuries are indivisible is a guestion of

law for the trial judge. Trull, 761 A.2d at 483. The injuries

that Plaintiff suffered as a result of the car accident in this

case, guadriplegia, must be considered to be indivisible and

subject to the law of contribution and apportionment among joint

tortfeasors discussed above. See id. (citing Mitchell v.

Volkswagenwerk, A G , 669 F.2d 1199, 1206 (8th Cir. 1982)) .

Plaintiff's focus on the factors that caused the initial

accident is misplaced. In a crashworthiness case under New

Hampshire law involving indivisible injuries, once the plaintiff

makes a prima facie showing that the defendants' conduct

contributed as a proximate cause to the plaintiff's injuries, the

defendants bear the burden of apportioning their respective

liability. See Trull, 761 A.2d at 482-483; see also, Kathios,

11 862 F.2d at 950 (rejecting plaintiff's argument that the

percentage of plaintiff's negligence or misconduct is only to be

calculated in relation to the particular defendant that plaintiff

elects to sue in a case involving multiple alleged tortfeasors).

The Court finds that certification of the Plaintiff's second

guestion to the New Hampshire Supreme Court is not reguired.

C. Remaining Issues

Plaintiff proposes to certify a third guestion to the New

Hampshire Supreme Court regarding whether "a third-party

tortfeasor, not joined by the Plaintiff as an original defendant

nor agreed to by the Plaintiff as a third-party defendant

pursuant to RSA 507:7g, constitute a 'party' under RSA 507:7-e

Apportionment of Damages." For the reasons discussed below, the

Court finds that Defendants should be granted leave to file a

third-party complaint against Nicholas Tolios under Fed. R. Civ.

P. 14(a). Once Tolios is joined as a party in the instant case,

there will be no basis for not also considering Tolios to

constitute a party under RSA 507:7-e. Therefore, the Court finds

that Plaintiff's third proposed guestion does not reguire

certification to the New Hampshire Supreme Court.

Finally, Plaintiff proposes as a fourth guestion for

12 certification whether in a crashworthiness case under New

Hampshire law the trial court should instruct the jury to

consider evidence, if sufficient, that the plaintiff was not

wearing his seatbelt, or was improperly wearing his seatbelt, on

the issue of proximate cause. Defendants object to this proposed

guestion in that the discovery conducted to date indicates that

the Plaintiff was wearing his seat belt at the time of the

accident. The Defendants do not have any evidence at this stage

of the case that Plaintiff either was not wearing his seat belt

or that he was wearing his seat belt improperly. Accordingly,

the Court finds that there is no need at this point to certify

the Plaintiff's fourth proposed guestion.

In sum, the Court finds that with regard to the four

guestions that the Plaintiff proposes be certified to the New

Hampshire Supreme Court, the guestions are either sufficiently

answered under New Hampshire law, or do not reguire certification

at this time. Therefore, the Plaintiff's motion to certify

guestions of law is denied.

II. Defendants' Motion to File a Third-Party Complaint

Defendants move for entry of an order permitting them leave

to file a third-party complaint against Nicholas Tolios under

13 Fed. R. Civ. P. 14(a).3 Plaintiff objects asserting that its

consent is required before the Defendants may implead a third-

party defendant under RSA 507:7-g, IV (c) , which provides that a

defendant seeking contribution may bring an action in

contribution prior to the resolution of the plaintiff's principal

action that shall be consolidated with the principal action "if

and only if the plaintiff in the principal action agrees."

This Court has subject matter jurisdiction over this action

by virtue the parties' diversity of citizenship. See 28 U.S.C. §

1332. In a diversity action, federal courts must apply state law

on substantive issues. Erie R.R. v. Tompkins, 304 U.S. 64, 78

(1938). However, on procedural issues, when a federal rule of

civil procedure is directly on point, and conflicts with state

3Rule 14(a) provides in pertinent part:

At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action.

Fed. R. Civ. P. 1 4 (a).

14 practice, the federal rule governs. Hanna v. Plumer, 380 U.S.

460, 471 (1965).

Plaintiff argues that the consent reguirement of RSA 507:7-g

is a substantive right afforded to plaintiffs under New Hampshire

law that ought not be infringed by application of Fed. R. Civ. P.

1 4 (a). This argument has been raised by other plaintiffs and

repeatedly rejected. See Chapman v. Therriault, No. Civ. 97-372-

SD, 1998 WL 1110691 at *2-3 (D.N.H. Apr. 13, 1998) (holding that

the plaintiff's right to withhold consent, and thereby defeat a

defendant's attempt to implead a joint tortfeasor, is a

procedural rather than a substantive rule); Gilbert v. CPM

Constructors, No. C-96-481-B, slip op., (D.N.H. Feb. 21, 1998)

(same); Z.B. v. Ammonoousuc Cmty. Health Servs., Inc., 225 F.R.D.

60 (D. Me. 2004) (applying New Hampshire law and agreeing with

the decisions in Chapman and Gilbert) .

There is one case that has been decided in Plaintiff's favor

on this issue. See Connors v. Suburban Propane Co., 916 F. Supp.

73, 80 (D.N.H. 1996). That decision, however, has been called

into guestion by the cases previously cited and by a leading

federal practice treatise. See 3 James Wm. Moore et al., Moore's

Federal Practice § 14.07 (3d ed. 2004) ("According to the

15 [Connors 1 court, permitting impleader would eviscerate a

substantive right bestowed upon the plaintiff by state law.

While the opinion is carefully and thoughtfully crafted, the

conclusion seems debatable."). The Court respectfully declines

to follow the decision in Connors here.

The Court finds that Fed. R. Civ. P. 14(a) is in direct

conflict with the consent reguirement of RSA 507:7-g, but that

the issue is procedural and does not warrant displacement of the

federal rule with state law. Finding additionally that no undue

delay or cognizable prejudice to the Plaintiff will result if the

Defendants are permitted to file a third-party complaint, the

Court shall grant the Defendants leave to file the proposed

third-party complaint.

III. Defendants' Motions Addressing Issues of Law

In light of the Court's rulings on the motion to certify

guestions of law and the motion to file a third-party complaint,

the Court need not address Defendants' memoranda of law,

denominated as motions, as they are moot.

Conclusion

For the reasons set forth above, the Plaintiff's Motion to

Certify Questions of Law to the New Hampshire Supreme Court

16 (document no. 20) is denied. Defendants' Motion to File a Third

Party Complaint (document no. 16) is granted. Defendants shall

file and serve their third-party complaint on Nicholas Tolios

within 10 days. Defendants' motions addressing issues of law

(document nos. 21 and 22) are denied as moot.

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: April 14, 2005

cc: Stephen R. Fine, Esg. Mary M. McGoldrick, Esg. Richard P. Campbell, Esg.