The appellant herein and plaintiff below, Linda J. Tracy (hereinafter “Tracy”), Admin-istratrix of the Estate of
I.
FACTUAL AND PROCEDURAL HISTORY
On January 22, 1993, around 7:30 in the morning, sixteen-year-old Douglas B. Tracy was a passenger in a 1988 Chevrolet Celebrity automobile driven by sixteen-year-old Jennifer Shuler (hereinafter “Ms. Shuler”). Driving on rain-slickened Route 16 North in Clay County, West Virginia, Ms. Shuler veered off of the main road and onto the berm. On this stretch of road, which is heavily traveled by coal trucks, the berm is approximately three to ten inches lower than the main road. Apparently, Ms. Shuler attempted to steer her car back onto Route 16 when she over-corrected the steering wheel and lost control of the vehicle. The Celebrity vehicle then slid into the oncoming traffic of State Route 16 South where a Chevrolet Chevette, driven by Athelene Cottrell 1 (hereinafter “Ms. Cottrell”), struck the passenger side of the Shuler vehicle. After impact, the Celebrity continued to slide over an embankment and finally rested upright in a creek bed.
Witnesses and rescue workers at the scene testified that both Douglas and Ms. Cottrell were killed in the accident. 2 Ms. Shuler sustained severe injuries. Immediately after the accident, observers noted that Douglas was wearing both a lap seat belt and a shoulder belt. It was further reported that Douglas’s shoulder belt fit him snugly. During rescue efforts, Douglas’s shoulder belt was cut in order to free Ms. Shuler. Thereafter, Carl Wilson, II, Coroner for Clay County, and Trooper S.R. Butcher, of the West Virginia Department of Public Safety, examined Douglas’s body and noted various bruises on his neck and shoulders where the belts had been located. Following the accident investigations and insurance companies’ claims adjustments, the Shuler vehicle was destroyed.
In January, 1994, Tracy, Douglas’s mother and the Administratrix of his estate, filed a wrongful death action in the Circuit Court of Clay County naming as defendants Ms. Cott-rell and GM. 3 The primary focus of the case was Tracy’s contention that the Celebrity’s restraint system was defective and had been negligently designed and tested. Additionally, Tracy asserted that GM failed to comply with express and implied warranties and further had failed to warn of the known hazards associated with its restraint systems. Prior to trial, the lower court granted GM’s motion to bifurcate the trial as to liability and damages. The liability portion of the trial commenced on October 6, 1997. On October 22, 1997, the jury returned a verdict, comprised of ten special interrogatories, in favor of GM. Tracy moved for a new trial and to set aside the jury verdict. The circuit court denied the requested relief by order entered June 11,1998. From the adverse jury verdict and the circuit court’s order denying post-trial relief, Tracy appeals.
II.
STANDARD OF REVIEW
Due to the multiple and diverse errors assigned for appellate consideration,
In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.
Syl. pt. 3, id. With this standard in mind, we proceed to consider the assigned errors.
III.
DISCUSSION
On appeal to this Court, Tracy complains that the circuit court erred by (1) giving certain jury instructions submitted by GM; (2) incorporating, in the interrogatories submitted to the jury for their consideration, special Interrogatory Number 10; (3) excluding from trial the Mertz memorandum; (4) refusing to designate a particular witness as an expert; and (5) precluding certain proffered rebuttal testimony. We will in turn address each of these assignments.
A. Jury Instructions
Tracy has assigned as error four jury instructions given by the court. This Court held in Syllabus point 1 of
State v. Hinkle,
[t]o challenge jury instructions successfully, a challenger must first demonstrate the charge as a whole created a substantial and ineradicable doubt about whether the jury was properly guided in its deliberations. Second, even if the jury instructions were erroneous, we will not reverse if we determine, based upon the entire record, that the challenged instruction could not have affected the outcome of the case.
A trial court’s instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misle[d] by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, as long as the charge accurately reflects the law. Deference is given to a trial court’s discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.
1. Spoliation of Evidence. Tracy first contends that the circuit court erred in granting GM’s Instruction Number 24, regarding an adverse inference which could be attributed to the spoliation of evidence. The following instruction was given:
You have heard .testimony that the 1988 Chevrolet Celebrity at issue in this litigation was destroyed several months after the accident and before GM ever received notice of plaintiffs claim. Consequently, neither the expert witnesses retained by GM, nor any GM representative, had an opportunity to inspect the 1988 Chevrolet Celebrity in connection with this litigation.
Where, as here, plaintiff as the party making a claim fails to preserve evidence which should properly be part of plaintiffs case, you may infer that the evidence, if it had been available, would have been unfavorable to plaintiffs case.
Tracy claims it was error to give the instruction because she had no ownership interest in or control of the Celebrity automobile. Therefore, Tracy had no power or authority to prevent its destruction following the accident. 4 Tracy’s objection to the instruction centers on the criteria utilized by the trial court in its determination to give an adverse instruction on the spoliation of evidence.
It is a fundamental principle of law that a party who reasonably anticipates litigation has an affirmative duty to preserve relevant evidence.
Baliotis v. McNeil,
The seminal ease on adverse inference instructions is
McGlone v. Superior Trucking Co., Inc.,
The unjustified failure of a party in a civil ease to call an available material witness may, if the trier of the facts so finds, give rise to an inference that the testimony of the “missing” witness would, if he or she had been called, have been adverse to the party failing to call such witness. To the extent that Syllabus point 1 of Vandervort v. Fouse,52 W.Va. 214 ,43 S.E. 112 (1902 [1903]), Syllabus point 5 of Garber v. Blatchley,51 W.Va. 147 ,41 S.E. 222 (1902), and Syllabus point 3 of Union Trust Co. v. McClellan,40 W.Va. 405 ,21 S.E. 1025 (1895), are inconsistent with this opinion, they are hereby overruled.
In the instant proceeding, the adverse inference instruction on spoliation was consistent with
McGlone,
insofar as the instruction imposed no negative presumption on the jury. Here, however, the actual question requires a legal determination of whether any grounds existed for giving an adverse inference instruction on spoliation. In examining our prior decisions on adverse inference instructions, our cases suggest that some type of control over evidence or fault must be attributable to a party when a witness or evidence is unavailable. For example, in Syllabus point 5, in part, of
Chambers v. Spruce Lighting Co.,
we said that an adverse inference may be drawn “[w]here upon a party to an action rests the burden of proving a material fact in issue,
h[e] fail[s], without sufficient excuse,
to produce when demanded a document in his possession!.]”
Responding to Tracy’s argument, GM cites to other jurisdictions which allow an adverse consequence or an adverse inference instruction on spoliation of evidence, even where a party does not control, possess or cause the destruction of evidence. However, the cases cited by GM do not fully support GM’s contention. In all of these cited cases, the offending party owned or had control over the destroyed evidence.
See Smith v. American Honda Motor Co., Inc.,
One case cited by GM holds blameworthy a party having no control over destroyed evidence, in addition to holding blameworthy the party who owned the destroyed evidence. The federal district court in
Powe v. Wagner Electric Sales Corp.,
For the following reasons, we decline to adopt the rationale expressed by the
Powe
court.
Powe
is not a well-reasoned opinion and is facially inconsistent. Insofar as
Powe
granted summary judgment against the owner of the vehicle because the owner had control over the master cylinder, its reasoning is sound. However,
Powe
provides no rational explanation as to why the passenger was also penalized for the destruction of the evidence.
Powe
provides no information as to any relationship between the parties; ownership of the vehicle, be it joint or otherwise; or possible collusion in causing the destruction of the evidence. Yet,
Powe
expressly recognized that such a sanction,
ie.,
summary judgment for the defendant, would not be appropriate where the evidence is “rendered unavailable by circumstances beyond the Plaintiffs control.”
Powe,
As a general matter, trial courts do not arbitrarily give adverse inference instructions or impose other sanctions on a party as a result of spoliation of evidence. In fact, trial courts have developed bright-line tests when making such a decision. Two widely used and competing tests have been developed to guide trial courts in deciding whether to give an adverse inference instruction or impose other sanctions for the spoliation of evidence. Under one test,
6
adopted by the Third Circuit Court of Appeals in
Schmid v. Milwaukee Electric Tool Corp.,
Other courts rely upon a five-factor test to determine whether a party should have an adverse inference instruction or other sanction imposed because of the spoliation of evidence. Under this test, courts must determine: (1) prejudice to the defendant, (2) whether the prejudice can be cured, (3) the practical importance of the evidence, (4) whether the plaintiff was acting in good faith or in bad faith, and (5) the potential for abuse in not sanctioning the plaintiff.
See Mayes v. Black & Decker, Inc.,
Based upon our review of decisions from other jurisdictions and decisions by this Court, we adopt the following spoliation of evidence test. We hold that before a trial court may give an adverse inference jury instruction or impose other sanctions against a party for spoliation of evidence, the following factors must be considered: (1) the party’s degree of control, ownership, possession or authority over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party as a result of the missing or destroyed evidence and whether such prejudice was substantial; (3) the reasonableness of anticipating that the evidence would be needed for litigation; and (4) if the party controlled, owned, possessed or had authority over the evidence, the party’s degree of fault in causing the destruction of the evidence. 7 The party requesting the adverse inference jury instruction based upon spoliation of evidence has the burden of proof on each element of the four-factor spoliation test. If, however, the trial court finds that the party charged with spoliation of evidence did not control, own, possess, or have authority over the destroyed evidence, the requisite analysis ends, and no adverse inference instruction may be given or other sanction imposed.
In the instant proceeding, the evidence supports Tracy’s contention that she did not control, own, possess or have authority over the destroyed evidence. Therefore, we conclude that it was an abuse of discretion for the trial court to give an adverse inference instruction.
2.
Use of the Words “Warnings” and “Instructions” in Jury Instructions.
Tracy next argues that the trial court erred by giving GM’s Instruction Numbers 25
8
and 26.
9
Tracy contends that these two instructions erroneously used the words “instruction” and “warning” interchangeably, despite this Court’s earlier ruling that such
In order to recover under a failure to warn theory, plaintiff must prove by a preponderance of the evidence that the lack or inadequacy of warnings in the 1988 Chevrolet Celebrity proximately caused Douglas Tracy's death. GM may only be liable to petitioner for failure to warn where there is evidence that a warning would have made a difference. Therefore, plaintiff must prove that the lack of a warning regarding the seat belts in the 1988 Chevrolet Celebrity proximately caused Douglas Tracy’s death, and that the presence of a warning would have prevented his death. Plaintiff must establish that the warning suggested by plaintiff would have caused Douglas Tracy to act differently or otherwise change his behavior in a manner which would have avoided his death. If you find that a warning by GM would not have prevented Douglas Tracy’s death, then you must find in favor of GM.
Tracy also contends that Instruction Numbers 25 and 26 improperly placed the burden upon her to demonstrate that a warning existed.
10
We do not read the instructions as imposing any such burden. In fact, the instructions are consistent with our decisions in Ilosky,
3.
Apportioning Death under the Crash-worthiness Theory.
Tracy also contends that it was error for the trial court to give GM’s Instruction Number 31.
11
Specifically, Tracy contends that the phrasing of this instruction incorrectly states the applicable law; invites the jury to speculate regarding the injuries which could have killed Douglas; and places upon the jury the burden of apportioning such injuries even though the injury in this case, death, is indivisible.
Citing Mitchell v. Volkswagenwerk, AG,
Before reaching the merits of the parties’ contentions, it is necessary to review
As a general rule, no party may assign as error the giving of an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly as to the instruction the matter to which he objects and the grounds of his objection; and ordinarily only grounds thus assigned in the trial court will be considered on appeal of the case to this Court.
Syl. pt. 6,
State v. Davis,
Once it is apparent that a party challenging an instruction has properly preserved the error for appellate review, we evaluate the trial court’s exercise of its discretion and the language of the instruction, itself.
A trial court ... has broad discretion in formulating its charge to the jury, as long as the charge accurately reflects the law. Deference is given to a trial court’s discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.
Syl. pt. 4, in part,
State v. Guthrie,
At the heart of these alleged errors is the doctrine of crashworthiness and the application of this law to the facts of the instant appeal. Simply stated,
[a] crashworthiness case is a case in which there are two collisions.
“In the first phase of the accident, the plaintiffs automobile collides with another automobile or with a stationary object. Most of the property damage results from the first, collision, but the occupants of the vehicle usually sustain little or no injury at this stage. Personal injuries occur most frequently in the second collision, in which the occupants are thrown against or collide with some part of their automobile. Courts will hold the manufacturer liable for the plaintiffs loss in the second collision only if defective design of the automobile caused or exacerbated the plaintiffs injury.”
Johnson,
[a]ny design defect not causing the accident would not subject the manufacturer to liability for the entire damage, but the manufacturer should be 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.
In the practical application of the doctrine of crashworthiness to particular factual scenarios, courts have developed two standards for determining which party, the injured plaintiff or the defendant manufacturer, bears the burden of proving the existence of a defective design and to which collision the plaintiffs injuries are attributable. The first of these approaches, derived from
Huddell v. Levin,
“First, in establishing that the design in question was defective, the plaintiff must offer proof of an alternative, safer design, practicable under the circumstances.... Second, the plaintiff must offer proof of what injuries, if any, would have resulted had the alternative safer design been used_ Third, as a corollary to the second aspect of proof, the plaintiff must offer some method of establishing the extent of enhanced injuries attributable to the defective design. ...”[ 12 ]
Blankenship v. General Motors Corp.,
Contrariwise, the second approach, adopted by the courts in
Fox v. Ford Motor Co.,
The more liberal rule announced in Fox (and cases that follow Fox) is that the plaintiff need show only a defect that was a factor in causing some aspect of the plaintiffs harm. Once the plaintiff has made this prima facie showing, the manufacturer can then limit its liability if it can show that the plaintiffs injuries are capable of apportionment between the first and second collisions. Therefore, under this more liberal standard, the burden is upon the manufacturer to make the allocation.
Blankenship,
Weighing these competing theories, this Court, in
Blankenship v. General Motors Corp.,
In West Virginia, to recover on a theory of crashworthiness against the manufacturer of a motor vehicle, it is necessary only to show that a defect in the vehicle’s design was a factor in causing some aspect of the plaintiffs harm. Once the plaintiff has made this prima facie showing, the manufacturer can then limit its liability if it can show that the plaintiffs injuries are capable of apportionment between the first and second collisions; therefore, the burden is upon the manufacturer to make the allocation.
Syl. pt. 2,
Having reviewed the law of crash-worthiness and the standard previously adopted by this Court, we turn now to assess the merits of the parties’ arguments in the present controversy. We note at the outset that counsel for Tracy specifically objected to the trial court’s decision to instruct the jury in accordance with GM’s Instruction Number 31, and that he challenged the use of the article “the” in the phrase “the plaintiff must establish that an alleged defect was
the
proximate cause of Douglas Tracy’s death.” (Emphasis added).
15
Comparing this language with the law of crashworthiness announced in Syllabus point 2 of
Blankenship,
we are left with the firm conviction that the trial court’s instruction misstates the applicable law. In
Blankenship
we emphasized that “it is necessary only to show that a defect in the vehicle’s design was
a
factor in causing some aspect of the plaintiffs harm.” Syl. pt. 2, in part,
Employment of the definite article “the” in the jury instruction creates the distinct impression that Tracy has to establish that the alleged defect was the one particular, only, or sole proximate cause of Douglas’s death.
See, e.g., United States v. Hudson,
On the other hand, this Court’s use of the indefinite article “a” in the
Blankenship
crashworthiness standard permits a plaintiff to recover so long as he or she demonstrates that the defective design was but
“a
factor in causing ... the plaintiffs harm,” Syl. pt. 2, in part,
Because there exists in the subject instruction “a reasonable potential” that the jury was misled “as to the correct legal principle” to be applied during their deliberations, due to the substitution of the word “the” where the term “a” was required, we find that reversal on this ground is warranted.
See State v. Miller,
In addition to challenging the specific wording of GM’s Instruction Number 31, Tracy also asserts that the instruction incorrectly directs the jury to apportion the indivisible injury at issue in this case,
i.e.,
death. We previously considered the issue of indivisible injuries and the jury’s apportionment thereof in
Johnson
stating, in dicta, that “a crashworthiness case is a unique case. Because of its uniqueness,
absent special circumstances,
the jury should be the one to determine whether or not the damages can be apportioned.”
Johnson,
Unlike the serious, though ultimately nonfatal, injuries sustained by the plaintiffs in
Johnson,
16
the injury at issue in this
“Concurrent, as distinguished from joint [sic] negligence, [sic] arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. That the negligence of another person than the defendant contributes, concurs or co-operates to produce the injury is of no consequence. Both are ordinarily liable. And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage. The degree of culpability is immaterial.”
Mitchell,
When applied specifically to the law of crashworthiness, concurrent negligence concepts place “ ‘the burden of establishing that the injuries in a multiple-accident situation are capable of apportionment ... upon the defendants.’ ”
Mitchell,
Lastly, and with specific appreciation of the complexity of liability issues attending indivisible fatal injuries in crashworthiness cases, we recognize that “ ‘[w]hether or not the harm to the plaintiff is capable of apportionment among two or more causes is a question of law.’.”
Mitchell,
Accordingly, we hold that in a wrongful death crashworthiness cause of action, the jury is charged with determining whether the vehicle’s design was defective. The ultimate issue of whether the resultant death can be apportioned among the multiple collisions is a question of law to be decided by the trial judge. If the trial judge concludes that the fatal injury can be apportioned, the jury then may determine the apportionment of the defendants’ liability and the consequent damages for which they are responsible. 20
Having found that the circuit court erroneously instructed the jury regarding the law of crashworthiness, we reverse this case and remand it to the circuit court for further proceedings consistent with this opinion. 21
B. Exclusion of the Mertz Memorandum
Tracy’s next assignment of error relates to the “Mertz memorandum” and the trial court’s denial of Tracy’s request to introduce this document into evidence. In Syllabus point 9 of
Tudor v. Charleston Area
The West Virginia Rules of Evidence ... allocate significant discretion to the trial court in making evidentiary ... rulings. Thus, rulings on the admission of evidence ... are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary ... rulings of the circuit court under an abuse of discretion standard.
In the instant proceeding, the trial court held that the Mertz memorandum could not be introduced without its author being present at trial. 22 The record indicates that the Mertz memorandum is a document prepared by a former employee of GM during the course of and in the scope of the employee’s employment with GM. The document was provided to Tracy by GM pursuant to a discovery request. The Mertz memorandum discusses how the design of certain GM automobiles permitted inadvertent slack in the shoulder restraint system.
Tracy cites to a number of evidentiary rules that she contends permitted the Mertz memorandum to be introduced without its author being present. We need not consider the numerous rules cited by Tracy. This issue is controlled by our recent decision in
Lacy v. CSX Transportation, Inc.,
Before evidence may be admitted under W. Va. R. Evid. 803(6), the proponent must demonstrate that such evidence is (1) a memorandum, report, record, or data compilation, in any form; (2) concerning acts, events, conditions, opinions or diagnoses; (3) made at or near the time of the matters set forth; (4) by, or from information transmitted by, a person with knowledge of those matters; (5) that the record was kept in the course of a regularly conducted activity; and (6) that it was made by the regularly conducted activity as a regular practice.
Id. Finally, in Syllabus point 12 of Lacy, we said that “[a] record of a regularly conducted activity that otherwise meets the foundational requirements of W. Va. R. Evid. 803(6) is presumptively trustworthy, and the burden to prove that the proffered evidence was generated under untrustworthy circumstances rests upon the party opposing its admission.” Id.
The evidence establishes that the Mertz memorandum falls squarely under Rule
C. Refusal to Permit a Witness to Testify
Tracy further contends that the circuit court erred in refusing to allow Carl Wilson, II, Coroner for Clay County, to testify as an expert in causation of death.
24
We held in Syllabus point 6 of
Helmick v. Potomac Edison Co.,
In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert’s area of expertise covers the particular opinion as to which the expert seeks to testify.
Gentry
also noted that “[njeither a degree nor a title is essential, and a person with knowledge or skill borne of practical experience may qualify as an expert, although the circuit court may exclude testimony if the experience is too far removed from the subject of the proposed testimony.”
Gentry,
The record is unclear as to whether the trial court precluded Mr. Wilson’s testimony, in part, because he was not a medical doctor. To the extent that such a professional title formed part of the trial court’s basis for excluding this testimony, it was erroneous under
Gentry.
As a nonmedical coroner for Clay County, Mr. Wilson’s employment required that he make an official determination regarding the cause of death. To the extent that the trial court excluded Mr. Wilson’s testimony because an autopsy was not performed on Douglas’s body, this too was error. Mr. Wilson also is an undertaker and operates a mortuary. This Court held long ago that “[t]he testimony of an undertaker, who prepared the body of deceased for burial, describing the condition of his body, caused by its violent contact with the bridge, is admissible to prove the cause of death.” Syl. pt. 11,
State v. Weisengoff,
In the final analysis, precluding Mr. Wilson’s testimony as an expert regarding
Tracy’s last assignment of error involves the trial court’s refusal to allow Mr. Wilson to testify on rebuttal that Douglas’s internal injuries were not severe enough to cause death. This Court indicated in Syllabus point 4, in part, of
Adams v. Sparacio,
IV.
CONCLUSION
In view of the foregoing, this case is reversed, and a new trial is awarded to Tracy.
Reversed and Remanded.
Notes
. Also named as a defendant in this case was Athelene Cottrell, by her Administrator, Gabriel Cottrell. The record is unclear as to how Ms. Cottrell was removed from the case.
. Evidence presented at trial indicated that the impact pushed the passenger side door of the Shuler Celebrity into the center of the car’s dashboard.
.Other theories of liability asserted against the defendants included strict liability, negligence, breach of express and implied warranties, failure to warn and crashworthiness.
. GM argues that Tracy has waived any assignment of error on this issue by failing to present legal authority to the trial court in support of her opposition to the instruction. We have held that "a litigant may not silently acquiesce to an alleged error or actively contribute to such error, and then raise that error as a reason for reversal on appeal.”
Page v. Columbia Natural Resources, Inc.,
. We previously have declined to determine whether spoliation of evidence is a valid cause of action in this State.
See Harrison v. Davis,
. This test is commonly referred to as the Schmid test.
. By degree of fault we mean a determination of whether the destruction of the evidence was intentional or negligent.
. GM’s Instruction Number 25 read as follows:
"Failure to warn” refers to the allegation that a product is defective because it does not contain adequate warnings or instructions. In order to determine whether the 1988 Chevrolet Celebrity was defective due to a lack of adequate instructions, or warning, you must determine whether a reasonably prudent manufacturer would have utilized instructions or warnings in the 1988 Chevrolet Celebrity regarding the occupant restraint system different from the warning or instruction used by GM.
In order to find GM liable under plaintiff's failure to warn theory, plaintiff must prove by a preponderance of the evidence that:
(1) in 1988, GM knew or should have known that by reason of the alleged defect (excessive slack) in the occupant restraint system, the Celebrity was not reasonably safe absent the warning suggested by plaintiff;
(2) the warning in the manner suggested by plaintiff and the method suggested by plaintiff was feasible at the time of manufacture; and
(3) the lack of an adequate warning caused Douglas Tracy's death.
Before you may find GM liable for failure to warn, plaintiff must prove that the lack of an adequate warning both rendered the 1988 Chevrolet Celebrity unsafe and was the proximate cause of Douglas Tracy's death. If you find that the plaintiff has failed to show that a different warning or instruction was needed to make the 1988 Chevrolet Celebrity safe, or that the lack of an adequate warning or instruction was the proximate cause of Douglas Tracy’s death, you must find in favor of GM.
.Instruction Number 26 proffered by GM directed:
. The instructions reflected evidence presented by Tracy suggesting types of warnings that could have been used.
. GM’s Instruction Number 31 provides:
With reference to a crashworthiness case, you are to bear in mind that the injuries resulting from the initial crash need be distinguished from those which are alleged to have occurred or to have followed due to any alleged defect rendering the vehicle uncrashworthy. In this case, the initial crash occurred when the 1988 Celebrity in which Douglas Tracy was a passenger went out of control, crossed the center line and collided with the 1981 Chevette. GM is not responsible for injuries resulting from the initial crash. Instead, the plaintiff must establish that an alleged defect was the proximate cause of Douglas Tracy’s death. If an alleged defect was not the proximate cause, plaintiff may not recover from GM. Even if the alleged defect is proven by plaintiff by a preponderance of the evidence to have been the proximate cause of Douglas Tracy’s death, GM is only liable for that portion of damages that are over and above that which would probably have occurred absent the alleged defect. Therefore, if you concluded that Douglas Tracy would have died in this crash even if the defect alleged by plaintiff had not been present at the time of the crash, your verdict still must be in favor of GM.
. The
Huddell
formulation requires a plaintiff to separate those injuries sustained as a result of the defect from those injuries which he or she would have sustained in the occurrence absent the defect. "[U]nder this rule, [the plaintiff] would be required to establish what injuries he might have received even though he did not receive them. In other words, [the] plaintiff would have to prove a negative based on a hypothetical set of facts.”
Oakes v. General Motors Corp.,
. In
Johnson by Johnson v. General Motors Corp.,
.
The Johnson
court,
. The objectionable "the” language also appears in the next sentences following the above-quoted phrase:
If an alleged defect was not the proximate cause, plaintiff may not recover from GM. Even if the alleged defect is proven by plaintiff by a preponderance of the evidence to have been the proximate cause of Douglas Tracy’s death, GM is only liable for that portion of damages that are over and above that which would probably have occurred absent the alleged defect.
(Emphasis added).
. In
Johnson,
plaintiff Andrew Johnson suffered "broken teeth, [a] broken nose, and [a] blow-out
fracture of his left eye,” while plaintiff Gregory Johnson sustained serious injuries to his large and small intestines, "severed ... stomach muscles,” and a spine fracture, which injuries left him "confined to a wheelchair for the most part” and necessitated a colostomy.
. "An indivisible injury results when two or more causes combine to produce a single injury incapable of division on any reasonable basis and each is a substantial factor in bringing about the harm.”
Sanders v. Wallace,
. While this Court has not previously had occasion to examine a crashworthiness case involving the apportionment of liability for the indivisible injury of death, we have, on more than one occasion, recognized the theory of concurrent negligence in tort cases involving inseparable injuries.
See
Syl. pts. 1 and 5,
Long v. City of Weirton,
. Due to the factual and legal distinctions between the instant appeal and our prior decision of
Johnson,
we expressly limit today’s holding to crashworthiness cases involving fatal injuries.
See supra
note 16 (describing nonfatal injuries sustained by plaintiffs in Johnson).
See also
Syl. pt. 2,
Johnson,
. See supra note 18.
. Because of our resolution of the assignment of error regarding Instruction Number 31, and the necessity of a new trial, we need not separately address Tracy’s assignment of error regarding Interrogatory Number 10. That special verdict interrogatory read: "Do you find from a preponderance of the evidence that the death of Douglas Tracy was a result of the severity of the crash regardless of the restraint system and the nature of warnings and instructions given?” We state only that, pursuant to our holding today, the trial judge, and not the jury, must decide whether the indivisible injury of death may be apportioned in a wrongful death crashworthiness cause of action.
. At this juncture, we wish to acknowledge that GM is correct in stating that the trial court placed upon Tracy the burden of demonstrating the substantial similarity between the restraint system discussed in the Mertz memorandum and the restraint system installed in the accident vehicle. Nevertheless, we disagree with GM's contention that Tracy's failure to meet this burden was the sole obstacle to the introduction of this document. Rather, the trial court repeatedly voiced concern that Mr. Mertz was the proper person through whom to introduce the subject memorandum and, when finally requested to determine the admissibility issue during trial, ruled:
If Mertz is not going to be here to testify, you can’t come in and talk about Mertz.
I’m not going to permit Mr. King [counsel for Tracy] to put Mertz’ memorandum in[to evidence], because you were talking about what Mertz' opinion was, and if Mertz had an opinion, he could come down here and tell us what it is.
Because it is apparent from the record that the trial court ultimately based its exclusion of the Mertz memorandum on Mr. Mertz's failure to testify, we accordingly limit our determination of this assignment to this ruling.
. Rule 803(6) of the West Virginia Rules of Evidence provides in full:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
. The circuit court permitted Mr. Wilson to testify regarding other matters, refusing to let him testify only regarding the cause of Douglas’s death.