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51 U. Cin. L. Rev. 712 (1982)
Torts - Products Liability - Joint Tortfeasors - Second Collisions - In Second Collision Cases, a Manufacturer's Liability is Established by a Showing That the Design Defect Was a Substantial Factor in Producing Damage over and above that Caused by the Original Impact; If the Damage Consists of an Indivisible Injury, the Manufacturer and Negligent Driver Are Liable as Joint and Several Tortfeasors

handle is hein.journals/ucinlr51 and id is 730 raw text is: TORTS-PRODUCTS LIABILITY-JOINT TORTFEASORS- SECOND COLLI- SIONS-IN SECOND COLLISION CASES, A MANUFACTURER'S LIABILITY IS ESTABLISHED BY A SHOWING THAT THE DESIGN DEFECT WAS A SUBSTAN- TIAL FACTOR IN PRODUCING DAMAGE OVER AND ABOVE THAT CAUSED BY THE ORIGINAL IMPACT; IF THE DAMAGE CONSISTS OF AN INDIVISIBLE INJURY, THE MANUFACTURER AND NEGLIGENT DRIVER ARE LIABLE AS JOINT AND SEVERAL TORTFEASOS.-Mitchell v. Volkswagenwerk, A.G., 669 F.2d 1199 (8th Cir. 1982). On October 14, 1967, John Mitchell was riding as a passenger in a 1965 Volkswagen Karmann Ghia driven by Lee Mockenhaupt when the car inexplicably left the highway, struck an embankment and rolled over at least once. Mockenhaupt remained in the car and sustained minor injuries. Mitchell was ejected from the vehicle and sustained injuries resulting in paraplegia and near total disability of his upper right extremity.' John and Charles Mitchell brought suit against Volkswagenwerk, the manufacturer of the car, in the United States District Court for the District of Minnesota.2 Both parties agreed that the upper extremity injury occurred outside the car, but there was dispute as to when and how the paraplegic injury was sustained.3 The jury awarded Mitchell $570,000.00, apportioning $360,000.00 against the manufacturer and $210,000.00 against the driver. The plaintiffs sought review of the apportioned verdict, con- tending that the verdict was speculative and inconsistent with the evidence and that apportionment of damages was improper.4 On appeal to the United States Court of Appeals for the Eighth Circuit, 1. Mitchell v. Volkswagenwerk, A.G., 669 F.2d 1199, 1201 (8th Cir. 1982). After the accident the right front passenger door was found open. Id. Mitchell was found with his head and shoulder leaning against a fence post. Id. 2. Id. at 1199. Plaintiffs, John and Charles Mitchell, sued Volkswagenwerk, A.G., a West German corporation and Volkswagen of America, a New Jersey corporation. Volkswagenwerk sued the driver as third party defendant. Id. The opinion does not disclose the relationship between John and Charles Mitchell or why Charles was a party to the suit. 3. Id. at 1201. Plaintiffs contended that the paraplegic injury occurred outside the car. Defendants asserted that the injury was sustained inside the car during the rollover. There was also a factual dispute as to whether Mitchell was ejected through the door (plaintiffs' theory) or through a back window (defendants' theory). Id. The jury found that Mitchell was ejected through the door. Id. 4. Id. The plaintiffs asserted that the verdict was inconsistent with the evidence and speculative because the $360,000.00 award assessed against the manufacturer was excessive for the arm injury alone, but inadequate for both the arm injury and the paraplegia. In addition, the plaintiffs contended that apportionment of the damages was inappropriate because the paraplegic injury was indivisible and incapable of reasonable apportionment. Rather than apportion the damage, both the manufacturer and driver should be held jointly and severally liable for the total damage. Id.

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