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Czarnecki v. Volkswagen of America12/31/1991
ly dangerous;
(3) The design defect was a cause of plaintiff's paraplegia; and
(4) Plaintiff's damages were caused by the defect.
If the plaintiff fails to prove any of the preceding elements, your verdict must be for Volkswagen.
If you find that the rear setback assembly of the 1982 Volkswagen Rabbit sedan was defectively designed, but that the plaintiff would have received his injuries regardless of the defect, then the defect was not a cause of the plaintiff's injuries.
If you find the defendant liable under the instructions I have given you, you must determine the damages as the difference between what would have been suffered in the accident in the absence of a defect, and what was in fact suffered additionally as a result of the defect.
(Emphasis added.) The jury was also instructed that Czarnecki could only recover for "enhanced" injuries -- i.e., those injuries caused by a defect, not including injuries that would have resulted from the crash even if a reasonably safe rear seat back assembly design had been used. Czarnecki contends that these instructions erroneously put the burden of proof on him to prove the extent to which the product defect enhanced his damages over those that would have occurred from the crash itself. In this regard, Czarnecki argues that the trial court erred in refusing to give the following
jury instructions on burden of proof and apportionment of damages:
If you find the defendant liable under the instructions I have given you, you must determine the damages as the difference between what would have been suffered in the accident in the absence of a defect, and what was in fact suffered additionally as a result of the defect. However, "if from the facts of this case you feel that there is no reasonable basis upon which to apportion the damage . . ., then it is your duty to award plaintiff a verdict for the full amount of his damages against the defendant . . . ."
Before you can find the defendant liable, you must first find that plaintiff's injury was caused by a defect in the seat mounting of the product. A defect causes an injury if it helps produce the injury, and if the injury would not have happened without the defect. The plaintiff has the burden of proving that the defect helped produce the injury. If he does so, the defendant has the burden of proving that the injury would have happened even if there had been no defect.
Czarnecki recognizes that his proposed instructions would not have been necessary had the jury been presented with only the two theories as to the cause of his paraplegia that are discussed above. However, Czarnecki argues that VW also presented the jury with a third theory. According to Czarnecki, VW contended that, if Czarnecki did suffer a Chance fracture, it was not necessarily neurologically benign, but rather may have caused neurological damage. According to Czarnecki, if the jury believed his theory that there was a Chance fracture in the first impact followed by a compressive load from the defective seat back, but also believed a Chance fracture can cause neurological damage, the party that had the burden of proof as to apportionment of damages would lose because it would be virtually impossible to determine how much of the paraplegia was caused by the first impact and how much by the second impact. Consequently, Czarnecki argues that his proposed instructions were necessary to put the burden of apportionment of damages on VW as called for in Holtz v. Holder, 101 Ariz. 247, 418 P.2d 584 (1966).
In response, VW argues
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