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May 11, 1973

Dorothy A. YETTER, Administratrix ad prosequendum and general administratrix of the goods and chattels, rights and credits of Howard E. Yetter, Deceased,
Cathryn H. RAJESKI, et al.

Barlow, District Judge.

The opinion of the court was delivered by: BARLOW

This is a wrongful death action brought pursuant to the provisions of N.J.S.A. 2A:31-1, et seq., in which the plaintiff seeks a money judgment against the defendants for fatal injuries suffered by the plaintiff's decedent in an automobile accident. The plaintiff, Dorothy A. Yetter, is the administratrix ad prosequendum for Howard E. Yetter, her deceased husband. The defendant Volkswagenwerk Aktiengesellschaft is the manufacturer of the Volkswagen automobile, and the defendant Volkswagen of America, Inc., is the importer of those vehicles. The defendants Cathryn H. Rajeski and William J. Rajeski are the operator and owner, respectively, of the other vehicle involved in the accident. Jurisdiction is conferred by reason of diversity of citizenship, 28 U.S.C.A. § 1332.

 Mr. Yetter was taken to St. Francis Hospital in Trenton, where, following treatment, his condition appeared to have stabilized; however, on November 12th, 1966, his condition suddenly worsened, and he died. An autopsy revealed that Mr. Yetter had thirteen fractured ribs and disclosed other conditions secondary thereto, including a hemothorax, which caused his death. None of Mr. Yetter's vital organs, including his heart and lungs, however, had been damaged.

 Following the institution of this suit, the plaintiff's claim against the Rajeskis was settled for $76,500.00.

 This case, as to the remaining defendants, was tried before a jury. At the conclusion of the plaintiff's case, the defendants -- in effect -- renewed an earlier motion they had made for summary judgment, Fed.R.Civ.P. 56, and moved, further, for a directed verdict, Fed.R.Civ.P. 50. The following represents my resolution of those motions.

 The plaintiff's thesis here rests on what has come to be known as the "crashworthiness" doctrine, or the "second accident" theory, premised essentially on the holding in Larsen v. General Motors, 391 F.2d 495 (8th Cir. 1968). The Larsen court held that the car manufacturer's duty under general negligence principles to design a product which is safe for "normal" use extends to the situation where the vehicle is involved in a collision. Thus, even though no defect in manufacture or design causes the initial accident, the manufacturer can be held liable for "enhanced" injuries -- those which would not have occurred absent an "unreasonably dangerous" design. The question of whether a particular design is "unreasonably dangerous" is, said the court, a question for the jury. The defendants deny that the Larsen case is controlling in New Jersey and insist that Evans v. General Motors, 359 F.2d 822 (7th Cir. 1966), represents New Jersey law.

 Evans also arose out of an automobile collision in which the plaintiff sued the defendant in negligence, breach of implied warranty, and strict tort liability, seeking to recover money damages for enhanced injuries resulting from a design defect. Evans held that "the intended purpose of an automobile does not include its participating in collisions with other objects" even though such collisions were foreseeable, and affirmed the District Court's dismissal of the plaintiff's case.

 In Biasvachi v. Frost, L-37, 763-67 (N.J.Super., Bergen County, June 5th, 1970); Mickendrow v. United States Homes and Development Corp., L-35, 295-67 (N.J.Super., Ocean County, May 21st, 1970), and Burnet v. General Motors Corp., Civil No. 833-66, D.N.J., June 3rd, 1969), two New Jersey trial court judges and one Federal District Court judge rejected Larsen. However, the Supreme Court of New Jersey has not had occasion to deal with a Larsen - type claim. Accordingly, we must determine what result the Supreme Court of New Jersey would have reached, given the circumstances of this case. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1966); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2nd Cir. 1967).

 In New Jersey, the test for establishing the existence of a duty is set forth in Goldberg v. Housing Auth. of Newark, supra, at p. 583, 186 A.2d at p. 293, as follows:

"The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." 38 N.J., at 583, 186 A.2d, at 293.

 In the State of New Jersey, then, the scope of duty is not coextensive with foreseeability. Other considerations are involved.

 Plaintiff insists that the duty required of the defendants here was to design, manufacture and install in its 1965 Volkswagens a collapsible or non-rigid steering assembly which would have been capable of absorbing sufficient impact energy to have avoided the injuries to Mr. Yetter's chest which caused his death. This is so even though the plaintiff's witnesses conceded ...

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