This action arises from a collision that occurred on August 25, 1977 on Schley Avenue in Bronx County. Traffic was permitted to flow on Schley Avenue in a northerly and southerly direction. Plaintiff was a passenger on a motorcycle driven by defendant JS in a northerly direction. The motorcycle came into contact with an automobile driven by defendant MD in a southerly direction. MD had been double-parked immediately prior to the occurrence. He had driven his vehicle to the left in order to enter a traffic lane on Schley Avenue. As the defendant MD vehicle was entering the traffic lane, the collision occurred.
Conflicting evidence was presented at trial as to the facts and circumstances surrounding the collision. Of particular importance were questions relating to whether (i) the impact had taken place on JS’s side of Schley Avenue and (ii) the speed of the motorcycle. As a result of the collision, plaintiff landed approximately seventy-two feet from the point of impact. A further issue of importance was presented as to whether the plaintiff flew through the air after the impact or whether she rolled to that position after being thrown from the motorcycle. Although plaintiff was wearing a Super Magnum helmet manufactured by defendant BH Corp., she sustained brain injury damage together with other injury in the occurrence. The helmet cracked during this incident.
Plaintiff prosecuted this case upon four theories: (i) negligence, (ii) strict products liability, (iii) breach of express warranty and (iv) breach of implied warranty. In order to establish her case against the defendant BH Corp., plaintiff introduced proof to show that the defendant BH Corp. had violated minimum safety standards promulgated by the Department of Transportation (D.O.T.) The D.O.T. requested the Southwest Research Institute (SWRI) to perform compliance tests on the Super Magnum model during the 1970’s. This model passed all tests until October and November of 1976 when four out of six test helmets had dwell time readings in excess of the safety standards. Suffice it to say that plaintiff’s expert, the doctor, testified as to the correlation between dwell time and the chance of brain damage.
Plaintiff’s case was also buttressed to a limited extent by the testimony of the defendant BH Corp.’s Director of Research and Development. The testimony of the latter suggested at one point that the helmet’s liner did not properly respond under the severe impact in this case.
The defendant BH Corp., on the other hand, adduced evidence tending to indicate that the Super Magnum model met the minimum safety standards of D.O.T. It was the defendant BH Corp.’s contention that testing protocol was not followed in the testing by SWRI of the first four helmets. It was the defendant BH Corp.’s further contention that SWRI’s equipment was not properly calibrated during the testing of the last two helmets. Another of the defendant BH Corp.’s experts, Dean LF, testified that the Super Magnum model had provided the plaintiff with more protection than any other model then on the market.
The D.O.T. never took any formal action nor did it make any informal determinations with regard to the SWRI test reports of non-compliance. Eventually, during the trial of this action, the D.O.T. terminated its investigation in this matter. The parties did not learn of this termination until after the personal injury trial had ended and a verdict rendered for the plaintiff.
The jury returned a verdict in plaintiff’s favor on all theories except breach of express warranty. Plaintiff was awarded (i) $450,000 for pain, suffering and disability, (ii) $1,750,000 for future medical costs, (iii) $450,000 for custodial care, and (iv) $350,000 for diminution of total earnings. The apportionment was 15% to JS, 10% to defendant MD, and 75% to the defendant BH Corp. JS and the defendant BH Corp. now appeals.
The defendant BH Corp. raises many issues in its brief. Many of these issues do not receive separate headings. In discussing these issues, we have joined and rearranged the issues where appropriate.
The defendant BH Corp. did not except to these portions of the charge. Thus, the above excerpts constitute the law of the case. The defendant BH Corp. was and is bound by the charge on this point as a result of its failure to except.
For purposes of the retrial hereinafter ordered, we make the following comments. If the jury accepts the validity of the SWRI report, then the report may be considered as some evidence that the defendant BH Corp. violated a minimum safety standard. The report plus all other evidence in the record should be considered by the jury in determining whether there was an actual violation of the minimum safety standards set forth in F.M.V.S.S. No. 218. At the retrial, the jury must also consider the fact that the D.O.T. has dropped the investigation in this matter. An actual violation of the minimum safety standards must necessarily translate into a specific defect in the Super Magnum model. The jury must find, of course, that the specific defect was the proximate cause of plaintiff’s injuries. The foregoing comments are not intended to be restrictive. Plaintiff, if so advised, may introduce such other evidence as may show a defect and the consequences of that defect.
Second, it should be stressed that the defendant BH Corp. did not object to the submission of the case upon the four theories mentioned above. Therefore, the defendant BH Corp. has not reserved its right to contend upon appeal that the case should have only been submitted on the theory of strict products liability.
The present action is a second collision case as against the defendant BH Corp. Under the crashworthiness or second collision doctrine, plaintiff was required to prove that her injuries were more severe than they would have been had the helmet been properly designed. The jury should not have been permitted to infer that the helmet was defective from the circumstances surrounding the occurrence. As a consequence of the collision, plaintiff would have necessarily sustained some injuries. Hence, the jury could not infer that the helmet was defective from the mere fact that plaintiff was injured. Plaintiff was required to show by independent proof that a defect in the helmet caused enhanced injuries. The error in these portions of the charge requires a new trial.
While the defendant BH Corp. did except to these portions of the charge, it failed to pursue the second collision doctrine in other phases of the charge. For example, the defendant BH Corp. never requested that its damages be limited to any enhancement caused by the defect in the helmet if such defect were found. Again, by failing to except at the trial level, the defendant BH Corp. may not raise this error on appeal.
As a fourth point, the defendant BH Corp. maintains that the trial court abused its discretion in limiting the direct examination of the defendant BH Corp.’s expert, Dr. G. This expert was a neurological surgeon who had treated over one thousand trauma injuries to the brain. The defendant BH Corp. attempted to examine Dr. G with regard to the protection afforded to the plaintiff by the helmet. The trial court sustained an objection by plaintiff. Under the second collision doctrine, Dr. G’s testimony on this issue was very relevant. The defendant BH Corp. should have been permitted to show that the helmet reduced the injuries and did not cause any enhanced injuries.
Fifth, error is alleged with reference to the admission of the police report. This report was inexplicably admitted during the testimony of defendant MD. The police report indicates that a police officer was at the scene. The report is signed by police officer. Neither Byrne nor the police officer testified at trial. Therefore, no foundation was laid for the admission of this exhibit.
It should be stressed that this exhibit was particularly important to the resolution of the liability issues. It contained a schematic showing the point of impact to be on JS’s side of Schley Avenue. Additionally, it indicated that JS’s motorcycle did skid forty feet before the impact. Based upon the schematic in the police report, plaintiff’s reconstruction expert, Reconstruction expert, had made his own drawing of the event. JS and The defendant BH Corp. were denied the right to test the accuracy of the police report because neither of the responding officers was present at trial. It was impossible for the defendants to test whether the accident report was based upon eyewitness observations of the officers or whether it was based upon hearsay.
Sixth, it is asserted that one of plaintiff’s experts, Dr. BY, improperly testified from two reports that did not constitute business records. Dr. BY was a psychologist and director of a free program for rehabilitation of the brain injured at New York University Hospital. Plaintiff had been enrolled in that program.
The first report was in the nature of a graph which showed that plaintiff’s progress as a file clerk was below normal. This graph was excluded from evidence. Over objection, Dr. BY was permitted to interpret it for the jury. A second report indicating the plaintiff’s lack of progress on the job was admitted over the defendant BH Corp.’s motion to strike.
Each of these reports were prepared one week before trial by an unnamed assistant of Dr. BY. The reports were not prepared in the regular course of business but were specifically prepared to assist Dr. BY with his testimony at trial. To an extent, these reports furnished evidence that was cumulative. They buttressed Dr. BY’s prior testimony that test results had demonstrated the plaintiff was unemployable. Nonetheless, these reports and any testimony concerning the substance of these reports should have been excluded. The admission of the one report and the testimony concerning the other confirmed the severity of plaintiff’s brain damage. It is very likely that the jury placed particular significance upon these reports in assessing damages.
Seventh, the defendant BH Corp. avers that the trial court erroneously prevented it from cross-examining plaintiff’s reconstruction expert, Reconstruction expert, concerning lacerations found on plaintiff’s body after the occurrence. In reconstructing the event, the reconstruction expert had relied upon many indicia including the nature and extent of the injuries to the plaintiff. The trial court should have permitted greater latitude in cross-examination upon this subject. Nonetheless, in the context of this protracted trial, we find this error to be harmless. The defendant BH Corp. had effectively impeached Reconstruction expert by establishing that he was unaware that both defendant MD and the plaintiff had testified that the plaintiff had flown through the air before coming to rest on the grille. In this light, Reconstruction expert’s testimony as to the lacerations was of minor value.
As an eighth issue, the defendant BH Corp. asserts that its cross-examination of plaintiff’s engineer, the doctor, was severely limited on the topic of dwell time. Plaintiff’s expert testified that when a helmet exceeded impact safety standards, the brain was placed in a zone of danger. The trial court, for the most part, restricted the evidence at trial to that bearing upon the minimum safety standards of D.O.T. The defendant BH Corp. contends that it should have been allowed to show that other national safety standards did not place any significance upon the dwell time concept. Despite The defendant BH Corp.’s protestation in this regard, the record shows that it was able to elicit from plaintiff’s expert that these tests did not place the same emphasis on dwell time. For instance, upon cross examination, plaintiff’s expert admitted that the Snell Foundation had abandoned this concept before the occurrence. The defendant BH Corp.’s claim of error in this regard is not substantiated by the record.
Ninth, the defendant BH Corp. argues that the verdict was contrary to the weight of the evidence. A verdict should be set aside only where it seems palpably wrong and it can be plainly seen that the preponderance is so great that the jury could not have reached their conclusion upon any fair interpretation of the evidence. By reason of the defendant BH Corp.’s failure to except to the charge on many critical points, the plaintiff was allowed to recover by merely showing that there was a violation of the minimum safety standards and that such violation caused the plaintiff’s injuries. Under this criterion, we find that the verdict was not against the weight of the evidence.
Tenth, error is alleged with regard to the portion of the charge which permitted the jury to apply a reduced burden of proof if it found that plaintiff actually suffered a loss of memory. In her testimony at her examination before trial and at trial, plaintiff did not seem to recall any of the details surrounding the occurrence except for the fact that she went flying through the air. Under this circumstance, the trial court properly allowed the jury to apply a charge under Schechter.
Finally, the defendant BH Corp. contends that the trial court should have granted a one day continuance so that the defendant BH Corp. could call a medical specialist. As the trial court observed, there was more than ample medical evidence in the record at that juncture. It cannot be said that the court abused its discretion in denying a continuance.
d October 27, 1982, awarding the plaintiff $450,988.55 against defendant JS, $300,665.73 against defendant MD, and $2,255,722.11 against defendant BH Corp., should be reversed, on the law, and the matter should be remanded for a new trial, with costs to abide the event.
Judgment, Supreme Court, Bronx County, entered on October 27, 1982, reversed, on the law, the judgment vacated and the matter remanded for a new trial with $75 costs and disbursements of this appeal to abide the event.
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