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THOMAS v. FORD MOTOR CO.

November 18, 1999

ERIC
v.
THOMAS, D.M.D., INDIVIDUALLY, AS ADMINISTRATOR, AND ADMINISTRATOR AD PROSEQUEN-DUM OF THE ESTATE OF TRACY ROSE THOMAS, AND AS PARENT AND NATURAL GUARDIAN OF ALIX THOMAS, PLAINTIFF, V. FORD MOTOR COMPANY AND TRW, INC., DEFENDANTS.



The opinion of the court was delivered by: Orlofsky, District Judge.

  OPINION

This products liability case, brought under New Jersey law, presents claims relating to injuries allegedly resulting from the premature activation of airbags in a low-speed automobile collision. Plaintiff Eric Thomas ("Thomas") is suing Defendants Ford Motor Company ("Ford"), Breed Technologies, Inc. ("Breed"), and TRW, Inc. ("TRW") for injuries allegedly related to airbags installed on Thomas's 1996 Ford Explorer. Specifically, Thomas contends that the Explorer's airbags deployed improperly when the Thomas family was involved in a minor traffic accident. Thomas claims that he suffered injuries as a result of the improper deployment of the airbags and that the airbags caused the deaths of his pregnant wife and the unborn fetus she was carrying.

At this preliminary stage of the litigation, I must address motions by Ford and TRW to dismiss several of Thomas's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. One of the claims for which dismissal is sought is a negligence claim brought against Ford. Ford's motion to dismiss this claim raises a novel issue not yet addressed by the New Jersey courts, specifically, whether a common-law claim for negligent installation of a product can be brought against a party separate and apart from a claim brought under New Jersey's Product Liability Act, even though a recent amendment to the Act provides that "installers" are covered by the Act for certain purposes. For the reasons that follow, I find that a separate common-law claim for negligent installation of a product may still be maintained. Accordingly, I shall deny Ford's motion to dismiss Thomas's negligence claim against it. I shall now discuss Ford's and TRW's motions.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 1, 1999, Thomas filed a Complaint against Ford, Breed, and TRW. See Compl. (filed Feb. 1, 1999). The Complaint alleges that on February 9, 1997, Thomas and his family were traveling in the Thomas's 1996 Ford Explorer on Hand Avenue in Cape May Court House, New Jersey. See id. ¶ 15. Thomas's wife, Tracy Rose Thomas ("Tracy Thomas"), who was six-months pregnant at the time, was driving. See id. Thomas and his daughter, Alix Thomas, were passengers. See id. Thomas claims that his wife noticed a deer in the road, and attempted to avoid hitting the deer, but in doing so struck a utility pole. See id. ¶ 18. Thomas further alleges that the accident was a relatively minor one because his wife was driving slowly when the accident occurred because of inclement weather conditions. See id. ¶¶ 17, 19, 20-21. Nevertheless, the Explorer's driver's side and passenger-side airbags deployed. See id. ¶¶ 21, 24. Thomas alleges that the airbags should not have deployed because the accident involved a relatively low-speed collision with the utility pole. See id. ¶¶ 21, 23. He also claims that the deployment of the airbags proximately caused his wife's death and the death of his unborn child, as well as his and his daughter's injuries. See id. ¶¶ 21-24. He filed this action on his own behalf, on behalf of the Estate of Tracy Rose Thomas, and on behalf of his daughter, Alix Thomas, see id. ¶ 4, seeking recovery from Ford, the manufacturer of the Explorer, and from Breed and TRW, the alleged manufacturers of airbag components installed in the Thomas's Explorer. See id. ¶¶ 5-7. On October 12, 1999, Thomas voluntarily dismissed Breed as a party to the action. See Notice of Voluntary Dismissal (filed Oct. 12, 1999).

On April 5, 1999, Ford filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss certain of Thomas's claims for failure to state a claim upon which relief may be granted. See Ford Mot. to Dismiss (filed Apr. 5, 1999). On May 26, 1999, TRW also filed a motion to dismiss pursuant to Rule 12(b)(6), moving for a dismissal of the same claims Ford seeks to dismiss. See TRW Mot. Dismiss (filed May, 26, 1999).

This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332 (1994).*fn1

II. THE GOVERNING LEGAL STANDARD FOR A MOTION TO DISMISS
    PURSUANT TO FED. R. CIV. P. 12(b)(6)

"In considering a motion to dismiss under Rule 12(b)(6), the court may dismiss a complaint if it appears certain that the plaintiff cannot prove any set of facts in support of its claims which would entitle it to relief." Mruz v. Caring, Inc., 39 F. Supp.2d 495, 500 (D.N.J. 1999) (Orlofsky, J.) (citing Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988)). "While all well-pled allegations are accepted as true and reasonable inferences are drawn in the plaintiff's favor, the Court may dismiss a complaint where, under any set of facts which could be shown to be consistent with a complaint, the plaintiff is not entitled to relief." Id. (citing Gomez v. Toledo, 446 U.S. 635, 636, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990)); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Finally, "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (noting that this procedure "streamlines litigation by dispensing with needless discovery and factfinding").

III. DISCUSSION

A. A Claim on Behalf of the Fetus

Ford and TRW claim that the Complaint contains ambiguous language concerning the death of Thomas's unborn child. See Ford Mem. Law Supp. Mot. Dismiss at 2 (filed Apr. 5, 1999); TRW Mem. Law. Supp. Mot. Dismiss at ii (filed May 26, 1999). Specifically, Ford and TRW contend that Thomas is attempting to state a statutory claim relating to the death of his unborn child even though such claims are not cognizable under New Jersey's Wrongful Death Act or New Jersey's Survival Act. See Ford Mem. Law Supp. Mot. Dismiss at 2-3; TRW Mem. Law. Supp. Mot. Dismiss at ii-iii. Ford and TRW move to dismiss any such claims for failure to state a claim upon which relief may be granted. See Ford Mem. Law Supp. Mot. Dismiss at 3; TRW Mem. Law. Supp. Mot. Dismiss at iii. Thomas agrees that claims relating to the death of a fetus are not cognizable under New Jersey statutory law, but argues that it is sufficiently clear from the language of the Complaint that Thomas is not impermissibly seeking recovery on a statutory ground. See Pl.'s Answer in Opp'n to Mot. to Dismiss (filed April 5, 1999).

I begin by noting that Ford's, TRW's, and Thomas's understanding of New Jersey law is correct. The Supreme Court of New Jersey held in Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988) that a fetus is not a "person" within the meaning of New Jersey's Wrongful Death Act and that a claim brought under the Wrongful Death Act because of the death of a fetus is barred. See id. at 428, 545 A.2d at 147. Moreover, while New Jersey courts have not addressed the issue, at least one federal court has ruled that the Giardina holding and the language of the Survival Act imply that an action brought on behalf of a deceased fetus pursuant to the Survival Act is similarly barred. See Alexander v. Whitman, 114 F.3d 1392, 1399-1400 (3d Cir. 1997). This is not to say, however, that parents are without legal recourse when their unborn fetus dies as a result of the tortious conduct of another. As Ford and Thomas recognize, see Ford Mem. Law Supp. Mot. Dismiss at 2-3; Pl.'s Answer in Opp'n to Mot. to Dismiss at 4, parents of deceased fetuses may bring a common-law claim for compensatory damages for emotional distress and mental anguish suffered as a result of the loss of a fetus. See Giardina, 111 N.J. at 420, 545 A.2d at 143.

Consequently, the question of whether or not to grant Ford's and TRW's motions to dismiss depends upon whether Thomas is, in fact, seeking relief under the Wrongful Death and Survival Acts for the death of his unborn child. I conclude that Thomas has not asserted a claim for the death of his unborn child under either New Jersey's Wrongful Death Act or the Survival Act. Although there are references throughout the Complaint to the death of Thomas's unborn child, none of these references can be construed to articulate a barred claim. Most of these references appear in Counts wholly unrelated to the Complaint's Wrongful Death and Survival Acts Counts. See, e.g., ¶¶ 46, 49, 58-60, 69-71, 89, 94, 97, 99 (concerning product liability and breach of warranty claims). In fact, Counts I and II of the Complaint, which set forth Thomas's Wrongful Death and Survival Acts claims, make no direct mention of the death of Thomas's unborn child at all. Only one paragraph in the Complaint even potentially supports Ford's and TRW's view that a barred claim is alleged: "Individually, Dr. Thomas claims as damages any and all damages recoverable as a result of the death of Tracy Rose Thomas and his unborn baby as well as any damages to which he is entitled under N.J.S. 2A:31-1 et seq. and N.J.S. 2A:15-3." Compl. ¶ 26. This language is potentially ambiguous because the death of Thomas's unborn child and the statutory citations to the Wrongful Death and Survival Acts appear in the same paragraph. Nevertheless, I find that it is clear that the paragraph seeks recovery under the Wrongful Death and Survival Acts as alternatives to recovery for the death of Thomas's unborn child. It is especially clear that relief is not sought on behalf of Thomas's unborn fetus pursuant to the Survival Act. No Estate is raised on behalf of the fetus and paragraph twenty-six indicates from the outset that the claim is being made on behalf of Thomas "individually." Given the language of the Complaint and that on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), I must draw all reasonable inferences in favor of the Plaintiff, see Mruz, 39 F. Supp.2d at 500, I find that Thomas has not pled any barred statutory claims. Accordingly, I shall deny Ford's and TRW's motions to dismiss any claim by Thomas attempting to recover for the death of his unborn child under either New Jersey's Wrongful Death Act or New Jersey's Survival Act.

B. Claim for Hedonic Damages

Ford and TRW also move to dismiss Thomas's claim for "hedonic damages." See Ford Mem. Law Supp. Mot. Dismiss at 3-7; TRW Mem. Law. Supp. Mot. Dismiss at iii-iv. They contend that hedonic damages, or damages for the "loss of life's pleasures," are available only under New Jersey's Survival Act and not New Jersey's Wrongful Death Act. See Ford Mem. Law Supp. Mot. Dismiss at 3-4; TRW Mem. Law. Supp. Mot. Dismiss at iii. Furthermore, they assert that hedonic damages are only available to the extent that Tracy Thomas's death was not instantaneous and that she survived the deployment of the airbags for some interval of time before she died. See Ford Mem. Law Supp. Mot. Dismiss at 5-6; TRW Mem. Law. Supp. Mot. Dismiss at iv. TRW argues additionally that Tracy Thomas had to be conscious during this interval for hedonic damages to be available. See TRW Mem. Law. Supp. Mot. Dismiss at iv. Ford and TRW contend that the Complaint in this case is insufficient in that it does not allege that Tracy Thomas's death was not instantaneous. See Ford Mem. Law Supp. Mot. Dismiss at 6-7; TRW Mem. Law. Supp. Mot. Dismiss at iv. Again, Thomas substantially agrees with Ford and TRW's legal analysis. See Pl.'s Answer in Opp'n to Mot. to Dismiss at 5. He contends, however, that the Complaint need not allege with any specificity whether and to what degree Tracy Thomas survived the deployment of the airbags. See id.

For the most part, the parties have set forth the law concerning hedonic damages with substantial accuracy. Hedonic damages are available under New Jersey's Survival Act and not under New Jersey's Wrongful Death Act. See Clement v. Consol. Rail Corp., 734 F. Supp. 151, 156 (D.N.J. 1989) (Fisher, J.). Moreover, hedonic damages are available only to the extent that Tracy Thomas survived the tortious act that proximately caused her death for some period of time. See id. at 155-56. She need not have been conscious during this interval, however, ...


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