Enhanced Injury Claims: The Basics
The doctrine of enhanced injury claims originated in Larsen v. General Motors, a decision from the Eighth Circuit Court of Appeals in 1968,[i] and has spread to the majority of jurisdictions, including Wisconsin.[ii] The Larsen decision was adopted by the Wisconsin Supreme Court in 1975,[iii] but despite the fact that the doctrine has been alive and well in Wisconsin for several decades, there are surprisingly few published Wisconsin cases addressing its application.
Enhanced injury claims are utilized when a plaintiff is involved in an accident and his or her injuries sustained in the accident are made worse than they otherwise would have been because of a defective product or the negligence of the enhanced injury defendant.[iv] An enhanced injury defendant is not alleged to have caused the underlying injury-producing event. Instead, an enhanced injury defendant’s liability stems from his or her negligence or arises from a defective product which caused the plaintiff to sustain enhanced injuries.[v] An enhanced injury defendant is only liable for the damages relating to the enhanced injuries.[vi] In 1994, the Wisconsin Jury Instruction Committee created Wisconsin Jury Instruction Wis. JI-CIVIL 1723, which sets forth the framework of an enhanced injury verdict form.
As reflected by the body of case law on the subject, enhanced injury cases predominantly involve product liability claims, and in particular, vehicle “second collision” or “crashworthiness” events. A crashworthiness case involves the general complaint that the vehicle was unsafe for a foreseeable collision, while a second collision case involves a collision between the plaintiff driver and some part of the vehicle that is alleged to be defective.[vii] The enhanced injury doctrine can also be applied in the medical malpractice context[viii] or in common law negligence cases.
II. Wisconsin Cases on Enhanced Injuries
The following are fact scenarios of Wisconsin cases involving enhanced injury claims:
In Sumnicht v. Toyota Motor Sales, U.S.A., the plaintiff was a passenger in a vehicle that left the roadway and collided with a tree rendering him a quadriplegic.[ix] The plaintiff had been lying in the back seat with his head behind the driver’s seat. He was not wearing a seatbelt. According to the plaintiff experts, when the vehicle impacted the tree, the plaintiff’s body was propelled forward. The plaintiff’s head became entrapped in a cut-out portion of the back of the driver’s seat while his lower torso impacted the rear of the front passenger seat, breaking it, and allowing his torso to wrap around the seat. The plaintiff brought suit against the driver, the driver’s father, and their insurers based on a negligence theory. He also sued three sellers and distributors of the vehicle under a strict product liability theory alleging the driver’s seat was defective because it did not have any energy-absorbing material beneath the vinyl seat cover. The lack of such energy-absorbing material, which would have served as a shock absorber, allowed the plaintiff’s head to be caught in the cut-out. The plaintiff reached a settlement with the driver under a Pierringer release, and proceeded to trial against the seat manufacturer. The jury apportioned liability between the driver and manufacturer at 50% each.
The decision in Maskrey v. Vokswagenwerk, A.G., is a more traditional example of an enhanced injury claim involving a two-vehicle collision.[x] The plaintiff was struck head-on by the defendant driver, who admitted at trial that he was intoxicated at the time of the accident. The plaintiff was not wearing a seatbelt, and his vehicle had a rear engine so that when the defendant's vehicle passed over the plaintiff’s front bumper, it crushed the sheet metal protecting the plaintiff’s legs. The plaintiff sustained a myriad of injuries, and subsequently brought suit against the defendant driver and the manufacturer of the plaintiff’s vehicle. The jury was asked to apportion liability for the damages between the defendant driver, the plaintiff, and the vehicle manufacturer. The jury found that 57% of the plaintiff's injuries were enhanced injuries caused by the manufacturer, 28% would have been caused anyway had there been no defect in the vehicle and were therefore attributable to the defendant driver, and 15% were caused by plaintiff's own failure to wear a seat belt.
In Farrell v. John Deere Co., the plaintiff was injured by a corn head and husker (“the picker”) powered by a tractor.[xi] While the plaintiff was picking corn, the picker stopped working. The plaintiff left the tractor running while he investigating the problem, but did not remember if he shut off the tractor’s power take-off, which powered the picker. The owner of the equipment had wired the cover of the husking rolls of the picker open, and when the plaintiff put his hands into the area of the rolls, the picker suddenly started up, pulling the plaintiff’s hands into the picker and causing him to sustain severe injuries. A neighbor found the plaintiff and disengaged the tractor’s power take-off to free him. The plaintiff filed suit against the seller and manufacturers of the picker and tractor, and as against the manufacturer of the picker, he alleged that the lack of an emergency stop mechanism “enhanced” his injuries. The court split causation on the jury instructions and special verdict form into two parts: entanglement and enhancement. The jury found the plaintiff responsible for the entanglement, but found that the defective product enhanced his injuries. Ultimately, the jury concluded that the plaintiff was responsible for 35% of his damages with the manufacturer of the picker liable for the remaining 65%. The court of appeals noted:
[Plaintiff’s] contributory negligence in legally causing the accident and [manufacturer’s] separate conduct in failing to design and provide an accessible emergency shut-off device to one already entangled in the machine constituted distinct factors and events contributing to [plaintiff’s] total injuries. It was [manufacturer’s] design and manufacture of a defective product and its negligence in failing to install an emergency stop device alone that caused the subsequent and enhanced injuries.[xii]
Hansen v. Crown Controls Corp. involved a plaintiff who was operating a stand up forklift when a dockboard supporting it collapsed. [xiii] After the dockboard collapsed, the forklift tumbled and the plaintiff’s left leg was crushed by the falling forklift. The plaintiff claimed that the forklift manufacturer was at fault because the forklift cab did not have a door, which plaintiff argued would have protected his leg from injury. The trial court accepted the plaintiff’s argument that the damage to his leg should be treated as an “enhanced injury” that was distinct from the injuries that he received from the fall alone.
III. Application of the Enhanced Injury Doctrine
There are a variety of ways the enhanced injury doctrine can be used to the advantage of a litigant. The doctrine can be used to seek recovery of damages for injuries sustained in an accident where the underlying tortfeasor may not have the insurance coverage or other financial means to pay any judgment the plaintiff may obtain against him or her. It also can be used to remove the plaintiff from the comparative negligence analysis (assuming the plaintiff’s negligence was not a cause of the enhanced injuries) while still allowing the plaintiff to recover damages for injuries he or she has sustained in an accident involving an enhancing event. Defendants also can use the doctrine as a basis for seeking contribution from other parties alleged to have caused the plaintiff’s injuries to be enhanced.
A. Shifting the Burden of Proof
Enhanced injury cases involve a unique shifting of the burden of proof from the plaintiff to the enhanced injury defendant. The Wisconsin Supreme Court in Maskrey stated that “[t]he requirement…that the plaintiff prove the extent of enhancement of injuries would, in some cases, require the plaintiff to isolate that portion of injuries caused solely by the manufacturer. This may be an impossible task and is not required by the law of this state.”[xiv] As with any typical personal injury case, the plaintiff bears the burden of proving liability on the part of the enhanced injury defendant. Once the plaintiff establishes that the enhanced injury defendant was negligent or the product at issue was defective, and such negligence or defective product was a cause of his or her injuries, the burden of apportioning the injuries and damages between the underlying accident and enhancing event shifts to the enhanced injury defendant.[xv] This burden shift results in the enhanced injury defendant having to prove a negative—i.e., which injuries and damages were not related to the enhancing event, as well as offer affirmative evidence that the plaintiff sustained enhanced injuries.[xvi]
Relieving the plaintiff from affirmatively proving the allocation of damages provides the plaintiff’s counsel with an opportunity to selectively exclude harmful evidence relating to the cause of the accident.[xvii] This tactic is particularly effective in two types of factual scenarios: 1) cases involving serious injury or death where the plaintiff has substantial contributory negligence; and 2) accidents where the defendant-driver is uninsured or insolvent, but the enhanced injury defendant has a deep pocket.[xviii] The shifting burden also serves to penalize an enhanced injury defendant who fails to try and apportion the injuries between the underlying and enhancing events by making them jointly and severally liable for all of the damages.
B. The Doctrine as a Defense
The enhanced injury doctrine implicitly assumes that another is responsible for the injuries received above and beyond those that naturally occurred from the original accident.[xix] Although there is no Wisconsin precedent explicitly recognizing the enhanced injury doctrine as a viable defense, there is nothing in the existing body of case law that implies the doctrine cannot be employed defensively to prevent an inequitable allocation of damages.[xx] An original tortfeasor could theoretically seek to use the doctrine as a means of obtaining contribution from a party that allegedly caused enhancement of the plaintiff’s injuries. The original tortfeasor would, presumably, have the same burden as the plaintiff in proving the enhanced injury claim. That is to say, the original tortfeasor would bear the burden of establishing that the enhanced injury defendant’s negligence or defective product was a cause of the injuries and damages sustained by the plaintiff, thereby shifting the burden of apportionment of the injuries and damages to the enhanced injury defendant.
IV. Uncertainty in the Interplay with Comparative Negligence
The tricky aspect of the enhanced injury doctrine is the interaction between comparative negligence principles and the shifting burden of allocation of damages between the underlying and enhancing events. When the injuries sustained by the plaintiff are truly indivisible and there is an apportionment of liability between the original defendant, the plaintiff, and the enhanced injury defendant for the underlying accident, the question of how to rationally apply the plaintiff’s comparative negligence is not clear. Typically, unless there is a basis to argue the plaintiff contributed to causing the enhanced injuries, the plaintiff’s percentage of contributory negligence in causing the underlying accident, if any, is not applied to the damages attributable to the enhanced injuries.[xxi] So, how is comparative negligence applied when the plaintiff is dead, he or she was contributorily negligent in causing the underlying accident that resulted in his or her death, and the original tortfeasor and enhanced injury defendant are both found liable? Does this mean the plaintiff may collect 100% of the damages against the enhanced injury defendant without application of comparative negligence principles? This would seem to produce an absurd result, and the rational conclusion is that the original tortfeasor and enhanced injury defendant should be jointly and severally liable for the damages after the total damages award is reduced by the plaintiff’s percentage of fault.
What if the plaintiff was not killed by the accident, but sustained divisible injuries and the enhanced injury defendant, for whatever reason, fails to allocate the damages between the underlying and enhancing events, in effect making the injuries “indivisible”? Does the enhanced injury defendant now enjoy the benefit of comparative negligence by applying the plaintiff’s percentage of fault, leaving the enhanced injury defendant jointly and severally liable for the remaining balance of the damages? Or is the enhanced injury defendant jointly and severally liable for the full damages? The answers to these questions remain unclear.
An approach that could possibly address these uncertainties would be to place the initial burden of proving liability on the plaintiff, and if both the original tortfeasor and enhanced injury defendant are found liable, they would become jointly and severally liable for all damages. The plaintiff’s comparative negligence, if any, would serve to reduce the recoverable damages or otherwise bar any recovery if the plaintiff’s percentage of fault exceeds 50%. The party with the most to gain by apportioning the injuries and damages between the underlying and enhancing events could then present evidence to establish such an apportionment. The plaintiff may opt to apportion the injuries and damages so as to avoid application of his or her comparative negligence to the damages attributed to the enhanced injuries. An enhanced injury defendant might seek to apportion the damages because he or she feels damages attributable to the enhancing event are minimal in comparison to the total damages. The original tortfeasor might seek to apportion the injuries for the purpose of obtaining contribution from the enhanced injury defendant. There are a variety of possibilities.
The slow development of the law on the enhanced injury doctrine in Wisconsin is likely due to several factors. Such claims are typically expensive as they often require multiple experts, attorneys likely shy away from pursuing such claims because of their complexity, and there are simply not many situations that lend themselves to pursuing an enhanced injury claim and even fewer where the potential financial reward outweighs the cost of litigating the claim. With time, the courts will be forced to clarify the workings of the enhanced injury doctrine and its interplay with various other legal concepts, including comparative n
[i] Larsen v. General Motors, 391 F.2d 495 (8th Cir. 1968).
[ii] James Niquet, Evidentiary Problems of Apportionment under Wisconsin Second Collision Law, 72 Marq. L. Rev. 539, 540 (1989); Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977); Grundmanis v. British Motor Corp., 305 F. Supp. 303 (1969).
[iii] Arbet v. Gussarson, 66 Wis. 2d 551, 225 N.W.2d 431 (1975).
[iv] Farrell v. John Deere Co., 151 Wis. 2d 45, 443 N.W.2d 50 (1989).
[v] Id. at 61-62.
[vii] Foland, Enhanced Injury: Proof in “Second Collision” and “Crashworthy” Cases, 16 Washburn L.J. 600, 606-07 (1977).
[viii] Butzow v. Wausau Memorial Hospital, 51 Wis. 2d 281, 288-89, 187 N.W.2d 349 (1971) (finding both accident causing tortfeasors and negligent medical practitioners liable for the injuries aggravated by the medical malpractice).
[ix] Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 360 N.W.2d 2 (1984).
[x] Maskrey v. Vokswagenwerk, A.G., 125 Wis. 2d 145, 370 N.W.2d 815 (Ct. App. 1985).
[xi] Farrell, 151 Wis. 2d at 61-62.
[xiii] Hansen v. Crown Controls Corp., 181 Wis. 2d 673, 512 N.W.2d 509 (Ct. App. 1993).
[xiv] Sumnicht, 121 Wis. 2d at 358.
[xv] Maskrey, 125 Wis. 2d at 158-59.
[xvi] James D. Ghiardi, Second Collision Law—Wisconsin, 69 Marq. L. Rev. 1 (1985).
[xvii] Niquet, Evidentiary Issues, supra note 2, at 545.
[xix] Monte Weiss, The Enhanced Injury Doctrine as Defense, Wis. Lawyer (Nov. 1996), at 3.
[xxi] Niquet, Evidentiary Issues, supra note 2, at 551-55.