The opinion of the court was delivered by: COHEN
COHEN, Senior District Judge:
Numerous post-trial motions are here presented, in this negligence and product liability action, following the return of a jury verdict of $2,024,710 in favor of the plaintiff and against the defendant, General Motors. A resume of the testimony adduced throughout the four-week trial is appropriate.
On the early morning of March 24, 1970, a clear, dry day, Dr. Benjamin R. Huddell, a psychiatrist, was en route from his home in Cherry Hill, New Jersey, to the Delaware State Hospital, where he was engaged in psychiatric research. Dr. Huddell was operating a 1970 Chevrolet Nova, manufactured by General Motors and purchased from its dealer approximately four months prior to the accident. Installed as part of its original equipment were head restraints for driver and front-seat passenger, each at a retail cost of $30.00, whose sole purpose was to prevent rearward rotation of the head and neck in the event of a rear-end collision. Evidence was presented that these head restraints were designed in such a manner as to expose the rear of the head to a relatively sharp, unyielding metal edge, covered by two inches of soft, foam-like material.
Dr. Huddell's car ran out of gas on the Delaware Memorial Bridge, connecting the States of New Jersey and Delaware. His car was brought to a full stop in the left-most, southbound lane of traffic; he was seat-belted in the driver's seat; and the blinker lights on his vehicle were in operation. At approximately 8:30 A.M., the defendant, George Gerson Levin, in the course of his employment for the defendant, S. Klein Department Stores, Inc., and en route to S. Klein's branch store in Greenbelt, Maryland, drove his Chrysler sedan at a considerable rate of speed directly into the rear of Dr. Huddell's Nova. Levin's speed was estimated at fifty miles per hour (Levin) and sixty miles per hour (plaintiff's expert). Because of the energy-absorbing characteristics of the vehicles and friction with the roadway, the impact resulted in an acceleration of the Huddell automobile to a maximum speed of 31.7 miles per hour. The rear of Dr. Huddell's head struck the head restraint at a speed of ten miles per hour.
Levin sustained only superficial injuries for which he was examined, treated and discharged from the hospital within an hour after the accident. With the exception of his head, Dr. Huddell also sustained superficial injuries; the autopsy performed by the Chief Medical Examiner of the State of Delaware, within two and a half hours after Huddell's death, revealed that his neck, skeletal system and internal organs sustained no injury whatsoever. The blow of his head against the head restraint, however, resulted in "extensive fracture" to the occipital region of the skull. Because of a medical phenomenon known as "contrecoup," by which the brain of a moving head striking a stationary object sustains injury opposite the point of impact, the frontal portions of Dr. Huddell's brain were extensively damaged, as a result of which he died one day after the accident.
Dr. Huddell had just completed a residency at the Jefferson Medical College in psychiatry and had opened a private office for the practice of his specialty. At the time of his death he was thirty-nine years of age; his wife Josephine was thirty-four; the range of age of his five children was from three to thirteen years.
Suit was instituted in this court, based upon diversity of citizenship, by Mrs. Huddell in her representative capacity, against George Gerson Levin, driver of the rear-ending vehicle, alleging negligence, against Levin's employer, S. Klein Department Stores, on a respondeat superior theory, and against General Motors Corporation, charging that the head restraint installed in Dr. Huddell's vehicle was defectively designed, unreasonably dangerous and failed to give him proper protection against a rear-end collision such as heretofore described.
Upon conclusion of the trial, after considerable discussion with counsel in chambers, accord was reached that the following special interrogatories be submitted to the jury:
1. Was the defendant, George Gerson Levin, negligent in the operation of his automobile?
2. If you have answered "Yes," was the negligence of George Gerson Levin a substantial contributing factor or proximate cause of the death of Dr. Huddell?
3. Was George Gerson Levin in the scope of his employment with the defendant S. Klein Department Stores, Inc. at the time of the accident?
4. Was Dr. Huddell contributorily negligent in the operation of his automobile?
5. If your answer to Interrogatory No. 4 is "Yes," was Dr. Huddell's contributory negligence a substantial contributing factor or proximate cause of the accident?
6. Did Dr. Huddell's head strike the head restraint?
7. Was the head restraint in the 1970 Chevrolet Nova of Dr. Huddell defective and unreasonably dangerous?
8. If your answer to Interrogatory No. 7 is "Yes," was the head restraint a substantial contributing factor or proximate cause of the death of Dr. Huddell?
9. Did General Motors breach its warranty for fitness for the particular purpose for which the headrest was designed, at the time of the accident of March 24, 1970?
10. If your answer to Interrogatory No. 9 is "Yes," was such breach of warranty a substantial contributing factor or proximate cause of Dr. Huddell's death?
11. If you find that the plaintiff, Mrs. Huddell, is entitled to recover against any or all defendants, what is the amount of your verdict?
In accordance with the jury's special findings of fact, judgment was entered in favor of the plaintiff against General Motors in the amount of the jury's verdict, together with prejudgment interest under New Jersey law. Judgments of no cause for action were entered in favor of Levin and S. Klein.
The post-trial motions may, in the main, be stated as follows:
General Motors asks for Judgment Notwithstanding the Verdict, pursuant to Rule 50(b), Fed.R.Civ.P., or, in the alternative, for a new trial on the issues of its liability, pursuant to Rule 59(b), Fed.R.Civ.P.; plaintiff and General Motors seek judgment n.o.v. against Levin and S. Klein, urging that Levin's negligence was, as a matter of law, a proximate cause of plaintiff's damage; General Motors moves for a new trial alleging trial error in the admission of testimony concerning the potential growth of Dr. Huddell's earnings, and in foreclosing the jury's consideration of income tax consequences, thereby resulting in an excessive verdict, in which motion Levin and S. Klein join should the court find them liable as a matter of law; General Motors maintains that no prejudgment interest on plaintiff's claim may be added to the jury's verdict; and General Motors raises objections to the plaintiff's bill of costs. Additionally, General Motors urges that if it is responsible at all, it is so only for enhanced injuries of which an unreasonable design defect was a direct proximate cause.
Because the accident, the decedent's survivors and the trial were all in New Jersey, all parties agree that New Jersey law must govern these and all other issues raised post-trial.
Inasmuch as Levin and S. Klein do not here challenge the jury's findings concerning negligence and respondeat superior, the relevant factual disputes revolve around the alleged defect of Dr. Huddell's vehicle and the cause of his death. Of course, all testimony and inferences therefrom on these issues must be viewed in a light most favorable to the respective jury-verdict winners.
The foregoing motions will be considered seriatim :
I. GENERAL MOTORS' MOTION FOR JUDGMENT N.O.V. IN ITS FAVOR
General Motors does not challenge the basis for the findings of fact set forth above. Rather, in support of the captioned motion, it urges that "second collision" liability is not the law of New Jersey; that it compliance with applicable federal standards forecloses the assessment of common law liability; and that, in any event, it had no legal duty to foresee that its head restraint would be used in the manner that it was.
Furthermore, General Motors now suggests that plaintiff's proofs were insufficient to permit a jury finding that Dr. Huddell's death was a result of the defectively designed headrest, as opposed to other possible causes set in motion by the rear-end impact. To the contrary, the evidence convincingly supported the jury's finding. In any event, because this ground was not raised in its motion for a directed verdict, General Motors is now precluded from asserting it as a basis for the entry of judgment n.o.v., Budge Mfg. Co. v. United States, 280 F.2d 414 (3rd Cir. 1960).
General Motors' broad attack is based upon the split of authority over whether automobile manufacturers can be held liable for defects in their cars which, although playing no part in the initial collision, cause increased injuries to occupants. Illustrative of this conflict are Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966) and Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968).
In Evans, plaintiff alleged that if the frame of his car had been designed differently he would have sustained lesser injuries following a broad-side collision. The majority opinion, for a divided court, reasoned from the truism that a "manufacturer is not under a duty to make his automobile accident-proof or fool-proof," 359 F.2d at 824; that the manufacturer therefore had no duty to make his automobile "crashworthy." The decision turned solely on the majority's determination of "intended use":
"The intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer's ability to foresee the possibility that such collisions may occur. As defendant argues, the defendant also knows that its automobiles may be driven into bodies of water, but it is not suggested that defendant has a duty to equip them with pontoons." Id.
The reasoning of Evans is not without its adherents.
The rationale of Evans, however, has been rejected by the majority of jurisdictions and has met with uniform criticism by commentators.
The genesis of much of this current thought was Larsen v. General Motors Corp., supra. There, plaintiff alleged that death, following a head-on collision, was caused by the failure of the steering column to collapse. Rejecting the notion that accidents are not readily foreseeable,
the court held that a manufacturer could not close his eyes to this eventuality:
"We think the 'intended use' construction urged by General Motors is much too narrow and unrealistic. . . . While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. 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, usually caused by the so-called 'second collision' of the passenger with the interior part of the automobile, all are foreseeable. . . . The sole function of an automobile is not just to provide a means of transportation, it is to provide a means of safe transportation or as safe as is reasonably possible under the present state of the art." 391 F.2d at 502.
A majority of jurisdictions, considering the "intended use" issue presented by enhanced injury cases, has followed the Larsen analysis.
Our inquiry must begin with a decision that catapulted New Jersey into the forefront of jurisdictions providing consumer protection through strict liability, Henningsen v. Bloomfield Motors Inc., 32 N.J. 358, 161 A.2d 69 (1960), where the court extended warranty protection to innocent third-parties. Noting that automotive speeds of 60 miles per hour are permissible, the court held:
"In a society such as ours, where the automobile is a common and necessary adjunct of daily life, and where its use is so fraught with danger to the driver, passengers and the public, the manufacturer is under a special obligation in connection with the construction, promotion and sale of his cars." 32 N.J. at 387, 161 A.2d at 85.
The warranty theory was soon extended to strict liability in tort, even before the adoption of Section 402A by the American Law Institute. Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965); Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 63-67, 207 A.2d 305, 311-13 (1965). In subsequent cases, the court extended its rule to all defects which "proximately resulted in the damage." Rosenau v. City of New Brunswick, 51 N.J. 130, 140, 238 A.2d 169, 176 (1968); accord, Scanlon v. General Motors Corp., 65 N.J. 582, 590, 326 A.2d 673, 677 (1974); see Newmark v. Gimbel's, Inc., 54 N.J. 585, 258 A.2d 697 (1969) (defendant has burden of proving allergic reaction to hair setting lotion); Sabloff v. Yamaha Motor Co., 113 N.J.Super. 279, 273 A.2d 606 (App.Div.), aff'd, 59 N.J. 365, 283 A.2d 321 (1971) (inference of defect arising from malfunction).
New Jersey appellate courts have considered the issue of foreseeability, as it would apply to the "intended use" doctrine of Evans and Larsen. In Lamendola v. Mizell, 115 N.J.Super. 514, 280 A.2d 241 (App.Div.1971), the court faced the issue whether New Jersey's position "in the vanguard of products liability" would permit recovery to a bystander injured when an automobile went out of control. The court gave scant weight to defendant's contention that it owed no duty because such mishaps were unforeseeable:
". . . [The] limitations inherent in the concept of foreseeability, insofar as it applies to legal responsibility and the facts of the instant case, offer no salve for defendants' wounds. An automobile manufacturer, producing millions of vehicles a year, offers them for sale to the public ultimately for daily use on the countless thorough-fares of this nation. It is, therefore, well within the realm of foreseeability that a pedestrian or other traveller lawfully upon the road will be injured due to a defect in a vehicle that in some way inhibits or forecloses its control by the driver." 115 N.J.Super. at 524, 280 A.2d at 246.
"Where a manufacturer places into the channels of trade a finished product . . . which should be provided with safety devices because without such it creates an unreasonable risk of harm, and where such safety devices can feasibly be installed by the manufacturer, the fact that he expects that someone else will install such devices should not immunize him. The public interest in assuring that safety devices are installed demands more from the manufacturer than to permit him to leave such a critical phase of his manufacturing process to the haphazard conduct of the ultimate purchaser." 60 N.J. at 410, 290 A.2d at 285.
This holding was followed in Finnegan v. Havir Manufacturing Corp., 60 N.J. 413, 423, 290 A.2d 286, 292 (1972), where the court specifically refused to accept any inference contained in the Restatement of Torts that a manufacturer could avoid liability by relying on the expected use of his product by the purchaser.
This court is of the view that the New Jersey Supreme Court would not abandon its vanguard position by holding that manufacturers of automobiles can avoid liability where defects in their products increase injuries, merely because "haphazard conduct" results in an "unexpected" accident.
The manufacturer knows that accidents will occur, and that forces will be exerted upon the occupants of its products. It, therefore, has ...