Before Judges Havey, Keefe and Lintner.
The opinion of the court was delivered by: Keefe, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Essex County.
Plaintiff, Joyce A. Poliseno, individually and as administratrix ad prosequendum of the estate of her deceased husband, Michael Kuhlbars, brought this wrongful death action against defendant General Motors Corporation, claiming that the driver's side door of the 1985 Corvette driven by Kuhlbars was defectively manufactured and that such defect resulted in the vehicle not being "crashworthy."*fn2 She claimed that defects in the door welds caused enhanced injuries to her husband, which resulted in his death. Plaintiff also brought suit for emotional distress injuries to herself resulting from her observation of Kuhlbars' injuries and death.
The jury found that the car contained defective driver's-side door beam welds and caused enhanced injuries. It found, however, that 80 percent of Kuhlbars' injuries were caused by the accident and only 20 percent were caused by the defective welds. The jury awarded $2.2 million in damages for Kuhlbars' wrongful death and $100,000 for plaintiff's claim of emotional distress. The trial judge molded the verdicts in accord with the jury's finding as to causation. Plaintiff appeals from the denial of her motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial. Defendant cross-appeals from the denial of its motions for a judgment notwithstanding the verdict or for a new trial.
The appeal and cross-appeal require that we determine whether: (1) the plaintiff or defendant has the burden of proof with respect to the apportionment of crashworthy damages; (2) death is an indivisible injury incapable of apportionment; and (3) if so, whether the instructions to the jury on the issue of concurrent causation were adequate. We conclude that the judge erred by placing the burden of apportionment on the plaintiff; death is capable of apportionment as to causation; there was sufficient evidence in the record from which a jury could apportion causation; the jury was not instructed properly on concurrent causation; and the insufficiency of the instructions, coupled with the erroneous allocation of burden of proof, require a new trial on the issues of causation and apportionment of damages.
The accident occurred on May 15, 1993, in Berlin, Germany. At the time, Kuhlbars was employed as a civilian accountant with the United States Armed Forces and plaintiff was employed as an attorney with the Department of Defense. Kuhlbars and plaintiff had been dining with two friends, Jean and Evelyn Boyd, that evening. After dinner, Kuhlbars, who was driving a 1985 Corvette purchased only a few months before the accident, was following a car driven by Jean Boyd through a residential area. At some point, Kuhlbars accelerated and passed the Boyd vehicle. The Corvette hydroplaned on the wet roadway, slid sideways off the road, jumped a curb on the right side of the roadway, and became wedged between a retaining wall on the right and a tree on the left.
As a result of the collision with the tree, the car was damaged along the left side, beginning at the left front wheel well and continuing to approximately the center of the driver's door, where the door had pocketed and the tree had protruded twenty inches into the driver's-side compartment. The windshield had also displaced from the left to the right, the steering wheel had been moved toward the center of the car, and the glass in the windshield and driver's-side window had shattered.
Plaintiff received only a minor laceration. Kuhlbars, however, was unconscious and was staring blankly ahead with his eyes wide open and blood coming out of his ears. Kuhlbars was removed from the car and taken to the hospital where he remained unconscious until he died on June 3, 1993. Kuhlbars had suffered multiple skull fractures, an epidural hemorrhage, a defused anoxal brain injury, a contused left lung, a tearing laceration of the left ear lobe, damage to the left optic nerve, and a broken right wrist.*fn3 At trial, the parties stipulated that Kuhlbars had died of the sequelae of the head injury he had received in the accident.
It was undisputed that the welds which had connected the driver's-side door beam to the internal structural components of the door had separated during the accident, and that this separation was not the cause of the accident.
James Pugh, plaintiff's expert in the fields of accident reconstruction, metallurgy, welding, and biomedical engineering, testified that the Corvette's door beam had separated during the accident because it was defectively welded and thus was not strong enough to bear the load of this low-speed accident. He explained that the driver's-side door contained a high strength, low alloy steel beam whose purpose was to strengthen or stiffen the door of the car, thereby resisting penetration and protecting the driver. The beam was joined at its forward end to the hinge on the door frame by seven spot welds. A "spot weld" is a weld made by passing an electric current through two pieces of compressed metal, causing the metals to melt and fuse. According to Pugh, the welds deviated from several of defendant's internal standards. While defendant offered evidence to rebut that contention, defendant does not challenge the jury's finding of defect on appeal. Therefore, we need not discuss the evidence concerning the manufacturing defect in more detail.
The focus of this appeal is, rather, on the experts' divergent views concerning the force of impact, the sequence of events after impact, including the damage to the vehicle, and Kuhlbars' movement within the vehicle.
With regard to the accident dynamics, Pugh determined that the Corvette had been proceeding at approximately seventeen miles per hour with a principal direction of force of twenty degrees when the left front wheel struck a glancing blow to the tree. During the collision, the car experienced a change in velocity or "delta-V" of between ten and fifteen miles per hour. The car continued forward scraping the tree, until the tree reached the left door where the beam failed because of the defective welds, causing the tree to pocket or protrude into the driver's-side space, hitting Kuhlbars. Pugh admitted that there was a tendency for a driver to "move forward" when pocketing occurs, but explained that in this particular incident "most of the motion," and therefore the cause of Kuhlbars' injuries, occurred as a result of the tree moving into Kuhlbars.
Pugh described the accident as "moderate" and not severe, given Kuhlbars' speed and the fact that the car had impacted the tree with a glancing blow, rather than a direct hit. Thus, he maintained that if the weld had been properly joined, the beam would have remained intact during the accident and would have been able to bear the load of the glancing blow. Moreover, had the beam stayed intact, the tree would only have intruded into the driver's-side compartment approximately five inches, instead of twenty, and as a result, Kuhlbars would have sustained only a minor laceration as opposed to a fatal head injury.
On the same subject, Douglas Lane, defendant's senior staff analysis engineer and accident reconstruction expert, testified that the Corvette's left front wheel had hit the tree at a fifteen to twenty-five degree "side slip" angle, while traveling at a speed of between twenty-five and twenty-nine miles per hour. Lane concluded that the car collided with the tree at approximately ten miles per hour, experienced a "delta-V" of between twenty and twenty-three miles per hour and a principal direction of force of between forty and fifty-five degrees. He described the impact as "very significant," and concluded that the door beam had separated late in the accident sequence near the time of maximum engagement with the tree, as evidenced by the U-shaped deformation pattern of the door beam. In his opinion, if the welds had separated during the early part of the impact with the tree, as suggested by Pugh, the door beam would have been straight, not U-shaped.
George Mackay, defendant's expert in biomechanics and damage analysis, analyzed the damage to the Corvette and determined that there was "progressive damage of the left front wheel, the side panel, the base of the A-post and then the door." He concluded that prior to the separation of the welds, the driver's-side window shattered, Kuhlbars's head then moved out of the shattered driver's-side window at a forty-five-degree angle, and hit the tree at approximately twenty-five miles per hour. He explained that generally an occupant of a vehicle moves along the angle of the principal direction of force. Thus, as a result of the force caused by sliding contact with the tree, Kuhlbars' head had begun to move toward the left and forward "relatively early during the crash sequence." He explained that
because of the sequential loading along the side of the car from the left front wheel, the side panel into the base of the A-pillar, those forces are of sufficient duration and magnitude that the driver is beginning to move laterally and forward relative to the inside of the vehicle and thus his head progresses forward and at an angle through the side window which will be fractured when you get some significant displacement of the base of the A-pillar . . . . So, that his head will pass through an empty space and contact the tree well before the full development of the deformation of the door.
He concluded that Kuhlbars' head injury was caused by the direct contact with the tree and not by the tree's intrusion into the ...