Lead Opinion
This case comes to us as a certified question from the United States Court of Appeals for the Eleventh Circuit. The facts are fully set out in the Eleventh Circuit’s opinion, and those pertinent to our consideration are as follows: After receiving numerous severe injuries in a cоllision between her car and another, Polston sued the driver of the other car, several automobile dealers, and General Motors Corporation (GMC), which manufactured her car. The manufacturer’s asserted liability was based on alleged design defects which Polston contended enhanced the injuries she received in the collision. At trial, the U. S. District Court for the Northern District of Georgia ruled that Polston had the burden of showing both the existence and the extent of enhanced injuries, and granted GMC a directed verdict, finding that Polston had failed to present sufficient evidence of either existence or extent so as to present a jury question. The Eleventh Circuit disagreed in part with the District Court’s holding, finding that Polston had produced sufficient evidence of the existence of enhanced injury, agreed with the District Court that Polstоn had not proved the extent of the enhanced injuries, and disagreed with the District Court’s assignment of the burden of proof regarding damages. Noting that there is a split of authority on this issue and that Georgia case law does not address it, the Eleventh Circuit certified to this court the following question:
Under Georgia law, in a crashworthiness or enhanced injury case, does the plaintiff bear the burden of specifically apportioning damages between the striking driver and the manu*617 facturer or does the burden of apportionment fall on the defendants? In other words, what is the burden of proof on each party in a crashworthiness or enhanced injury case under Georgia law?
The split of authority to which the Eleventh Circuit referred consists of two lines of cases, one headed by Mitchell v. Volkswagenwerk, A.G., 669 F2d 1199 (8th Cir. 1982), and Huddell v. Levin, 537 F2d 726 (3rd Cir. 1976). Under Mitchell, a shifting-of-burden approach is taken wherein the plaintiff has the burden of proving that the defective design of the car was a substantial factor in causing the enhanced injury. Once that burden is borne by the plaintiff, the burden of proof then shifts to the tortfeasors to apportion the damages between them if they wish to do so. Undеr Huddell, the plaintiff retains the burden of proving not only the existence of enhanced injury, but the extent of the injury caused by the manufacturer’s negligence. For the reasons which follow, we find the approach taken in Mitchell to be more consistent with Georgia tort law and to comport more closely with the public policies of this state.
We note first in that regard that Mitchell cites Georgia authority for the principle that wrongdoers who each play a substantial role in creating an indivisible harm are treated as joint and several tortfeasors. Id. at 1207, fn. 9. In Mitchell v. Gilson,
Another factor leading us to adopt the rule stated in Mitchell v. Volkswagenwerk, A.G. is its consistency with the Restatement Second of Torts, § 433A of which was quoted in Gilson to establish the joint liability of tortfeasors who produce indivisible injuries. Even more pertinent to the present case is § 433B (2), which directly addresses the subject of the Eleventh Circuit’s question:
Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such ac*618 tor.
In addition to the fact that the position taken in Mitchell is consistent with the development of Georgia tort law and with the principles of traditional tort law embodied in the Restatement Second of Tоrts, we note that a considerable number of other jurisdictions throughout the Southeast and throughout the country have, when called upon to decide this question, adopted positions consistent with Mitchell rather than Huddell.
Also to be considered is the question of public policy. Adoption of the Huddell рosition takes away the incentive of automobile manufacturers to design their products in a responsible fashion. As the Supreme Court of Oklahoma noted, “application of the Huddell standard might impair the promotion of ‘safer products’ design ... by weakening the deterrеnt value of products action.” Lee v. Volkswagen of America,
In summary, in deciding who should bear the burden of proving which facts in an enhanced injury or crashworthiness case, we find the approach in Mitchell v. Volkswagenwerk, A.G., supra, to be the better approach in terms of honoring this state’s own precedent, in terms of resрect for traditional principles of tort law, in terms of sound legal reasoning, and in terms of public policy. Accordingly, we answer the question certified to us by the Eleventh Circuit as follows: In an en
Question answered.
Notes
Cases consistent with the Mitchell rule:
Czarnecki v. Volkswagen of America,
Cases consistent with the Huddell rule:
Armstrong v. Lorino, 580 S2d 528 (La. Ct. App. 1991); Crispin v. Volkswagenwerk, A.G.,
Dissenting Opinion
dissenting.
I respectfully dissent because the majority’s opinion is unsupportable. To the extent the majority purports to base its opinion on legal grounds, its analysis is illogical. To the extent it purports to base its decision on public policy, its analysis is equally flawed.
First, Georgia tort law, which is consistent with basic tort law, mandates a result opposite from that reached by the majority. The fundamental defect in the majority’s reasoning is its treatment of this case as one involving joint tortfeasors. This is, clearly and simply, not a joint tortfeasor case. All parties agree that the initial tortfeasor, the drunk driver, is liable for all damages flowing from the initial collision,
Both Gilson v. Mitchell,
If [two defendants] merely inflict separate wounds, and [plaintiff] survives, a basis for division exists, no matter how difficult the proof may be, and the torts are several.
Id. at 325.
Likewise, the Restatement 2d of Torts, § 433 B, also relied on by the majority, has no applicability here. That section pertains to a debate among multiple tortfeasors to apportion the total harm among themselves. It has no bearing on the plaintiff’s burden of proving enhanced injuries. Here there is no apportionment. The drunk driver is responsible for all Polston’s injuries, and GMC is liable only for any enhanced injuries.
Tort law generally, and that of our state, require the plaintiff to prove not only the existence and amount of his or her damages, but also a legally attributable causal connection between any act or omission by the defendant and the resulting injury. See Anneewakee, Inc. v. Hall,
The precise rule applicable in a case such as this was stated in Gay v. Piggly Wiggly,
“ ‘It is true that [the original wrongdoer] could be held liable for the aggravation of the injury caused by the other defendants’ negligence, but that liability is not the result of any concept of joint wrongs but is rather the product of the familiar rule that a wrongdoer is responsible for the reasonably foreseeable consequences of his tortious act, including the negligent conduct of others. Conversely, it would defy reаson to hold the other defendants liable for injuries caused by the original wrongdoer which were not the consequences of their own carelessness. . . . ’”
Similarly, the correct and guiding principle to decide this case was stated in Knight v. Lowrey,
[I]t would defy reason to hold the [actor] liable for injuries caused by the original wrongdoer which were not the consequence of his own carelessness.
Second, the majority’s public policy argument, and others proposed in support of the conclusion reached by the majority, prove to be, on аny logical analysis, a house of cards. The majority states that its holding promotes auto manufacturers’ incentive to design their products in a responsible fashion. However, there are, doubtless, proper claims by plaintiffs — i.e., those where plaintiffs can prove thеir claims against GMC, and similar auto manufacturers, under Georgia and traditional tort law — which serve, in today’s litigious society, as more than adequate incentive for responsible design.
In my view, the only rational public policy argument in support of the majority’s conclusion would be one based on the concept of insurance since, in effect, the majority’s decision, and those of jurisdictions consistent with the majority opinion, makes GMC an insurer of the plaintiff’s damages. This was the approach takeiji by the West Virginia Supreme Court of Appeаls in Blankenship v. General Motors Corp.,
the Huddell standard makes a great deal of sense and, perhaps, it should be the national standard in all crashworthiness cases. But it isn’t. Therefore we reject the Huddell standard because West Virginians are not going to pay product liаbility insurance premiums so that all the residents of [other jurisdictions] . . . can collect the benefits.
This holding is based on the assumption that the manufacturer has insured itself against risk by the collection of premiums through cost increases in its product, and the burden of proving the extent of a рlaintiff’s enhanced injuries is a near impossible one. Id. at 784. However, from the record before us, we can make no such assumptions, either as to the economic analysis, or the availability of relevant expert testimony.
There is no justification in this case, on legal, or public policy grounds, for requiring the manufacturer to prove an essential element of the plaintiff’s case.
I am authorized to state that Presiding Justice Bell and Justice Fletcher join in this dissent.
Courts and commentators sometimes have used the term “second collision” in аddition to “crashworthiness,” in discussing this type of case. See generally Levenstan & Lapp, Plaintiff’s Burden Of Proving Enhanced Injury In Crashworthiness Cases: A Clash Worthy of Analysis, 38 DePaul Law Rev. 55 (1989). In general, “crashworthiness” means the protection that a passenger motor vehicle provides its pаssengers against injury or death as a result of a motor vehicle accident. “Second collision” has been used to refer to the collision between a passenger and the interior part of a vehicle after an initial impact, and to ejection casеs in which the second collision is between the passenger and the ground. Id. at 56.
Interestingly, the federal district court judge in this case, Judge Hall, who rejected Polston’s argument that Gilson applies here, is the very same judge who authored the Gilson opinion in the Georgia Court of Appeals.
One commentator has aptly termed the issue presented in this case as one of the “false burden оf proof.” Hoenig, Resolution of "Crashworthiness" Design Claims, 55 St. John’s Law Rev., 633, 699 (1981). Hoenig points out that apportionment in this type of case is “a basic conceptual error,” Id., in the plaintiff’s argument because there is no apportionment between the tortfeasors’ responsibilities for her injuries. The correct basis of determining liability is enhancement, and apportionment or divisibility have no bearing here.