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General Motors Corporation v. Farnsworth (10/16/98), 965 P 2d 1209


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

GENERAL MOTORS CORPORATION,   )
                              )    Supreme Court No. S-7700
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-91-946 CI
                              )
KIMBERLY I. FARNSWORTH,       )    O P I N I O N
                              )
             Appellee.        )    [No. 5041 - October 16, 1998]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Brian C. Shortell, Judge.

          Appearances: Daniel A. Gerety and Donald C.
Thomas, Delaney, Wiles, Hayes, Gerety & Ellis, Inc., Anchorage,
Vincent Galvin and Mark V. Berry, Bowman & Brooke, Torrance,
California, and David M. Heilbron, Leslie G. Landau, Robert A.
Brundage, and Julia C. Wo, McCutchen, Doyle, Brown & Enersen,
L.L.P., San Francisco, California, for Appellant.  Neil T.
O'Donnell, Richard E. Vollertsen, and Anne E. Kane, Atkinson,
Conway & Gagnon, Anchorage, for Appellee.

          Before: Matthews, Chief Justice, Compton,
Fabe, and Bryner, Justices. [Eastaugh, Justice, not participating.]


          FABE, Justice.


I.   INTRODUCTION
          After experiencing near fatal injuries in a car accident,
Kimberly Farnsworth sued General Motors (GM) in strict liability
for designing a defective seat restraint system.  Following a five-
week trial, the jury returned a verdict for Farnsworth, awarding
her $2,138,973 in compensatory damages and $5,600,000 in punitive
damages.  The superior court denied GM's motion for a judgment
notwithstanding the verdict and a new trial, and GM appeals.  We
conclude that the superior court erred in rejecting a comparative
negligence instruction and refusing to require the jury to allocate
fault to the driver who caused the accident.  Because they may have
affected the jury's views of GM's liability, these two errors also
impugn the finding of causation and certain aspects of the damages
awards.  However, we find no error tainting the jury's verdict that
the seat restraint system was defective or its calculation of
compensatory damages.  We therefore remand for a new trial limited
to the issues of comparative negligence, allocation of fault,
causation, and punitive damages.
II.  FACTS AND PROCEEDINGS
          On the evening of February 3, 1989, Farnsworth was riding
as a passenger in a 1984 GMC Jimmy truck driven by Jon Fennie.  On
their way back to Anchorage from dinner in Girdwood, Farnsworth and
Fennie were driving north on the Seward Highway.  As they rounded
a curve, Charles Walters, who was driving in the wrong lane,
crashed his Honda Accord head on into Fennie's truck.
          Although Fennie walked away from the accident with minor
injuries, Farnsworth nearly died.  She lingered in a coma for five
weeks, underwent ten operations, was believed to be a candidate for
a lung transplant, and had her spine reassembled using two metal
rods.  Among other complications, she lost the ability to walk and
use her hands and had to relearn these skills through physical
therapy.  Three months after the accident, the hospital released
her on supplemental oxygen and with a walker.  Farnsworth continues
to suffer from permanent restrictive lung disease and limited
spinal mobility, which hamper her ability to participate in
athletic activities.  Due to massive internal adhesions, she also
faces a high risk pregnancy if she should choose to have a child.
     A.   Farnsworth's Theory of the Case
          At trial, Farnsworth contended that a defect in the
Jimmy's restraint system caused all of her significant injuries.
[Fn. 1] According to Farnsworth, the accident was a moderate,
frontal collision that should not have resulted in serious injuries
if her restraint system had worked properly.  Her expert testified
that each of the cars was moving approximately 30 m.p.h. when they
collided, speeds that he said are more typical of accidents
occurring in residential areas rather than on highways.  He also
testified that the change in velocity (delta-v) for the Jimmy was
21-25 m.p.h.  Farnsworth argued that GM's own studies showed that
an individual in a properly designed seat restraint system should
not suffer significant injuries even in a 32-33 m.p.h. delta-v
collision.
          Farnsworth claimed that the injuries she experienced
resulted from "submarining"under her lap belt. [Fn. 2]  According
to Farnsworth, "[s]ubmarining occurs when a lap belt moves up over
the top of the load-bearing pelvis and into a person's abdomen. 
During submarining, the lap belt can cause massive abdominal
injuries and fracture the spine."  Farnsworth argued that she had
submarined under the lap belt because GM's defective design only
protected individuals the size of an average man or larger. 
Therefore, she claimed, Fennie, who at 175 pounds and 5'11"was
slightly larger than an average sized man, walked away from the
accident, whereas she, at 129 pounds and 5'3", nearly died.
          Farnsworth argued that improper testing of the Jimmy had
led to the belt's defective design.  According to Farnsworth, GM
had used only a 50th percentile male dummy in testing the Jimmy's
restraint system.  Farnsworth claimed that such testing was
insufficient because information well known by the automotive
industry establishes that submarining tendency increases as
occupant size decreases.  Thus, she asserted, GM's tests proved
only that the Jimmy would protect individuals the size of an
average man or larger from submarining.  Farnsworth argued that GM
should have conducted sled tests [Fn. 3] using the 5th percentile
female dummy, which is traditionally used by the automotive
industry to test the belt's safety for small occupants.  If GM had
conducted these tests, she contended, the defects in its seat
restraint system would have been obvious.
          Farnsworth's design expert testified that the Jimmy's
seat restraint system failed to protect small occupants from
submarining because it was defective in three ways: (i) it had an
excessively shallow outer lap belt angle; (ii) the lap/shoulder
belt buckle junction was too close to the seat occupant's
centerline (the "CJ"length was too short); and (iii) the seat did
not contain an anti-submarining ramp.  As proof, Farnsworth pointed
to sled tests conducted on seat restraint systems analogous to the
system in Fennie's Jimmy in which the small female dummy
consistently submarined.  Farnsworth then introduced evidence
showing that the small female dummy did not submarine during sled
tests of newer Jimmy seats that incorporated the anti-submarining
features suggested by her design expert.
          Farnsworth asked the jury to award her compensatory as
well as punitive damages.  She claimed that punitive damages were
appropriate in this case because, by testing the Jimmy's restraint
system with only the 50th percentile male dummy, GM knowingly
exposed most of the population to the risk of submarining.
Farnsworth suggested that the jury calculate punitive damages by
multiplying the cost of installing anti-submarining features on
each Jimmy, $3.50, by the number of trucks sold in all fifty
states, 1.6 million.
     B.   GM's Theory of the Case
          GM argued that Farnsworth's injuries resulted not from a
defect in the seat restraint system, but from the severity of the
accident and her own misuse of the belt. [Fn. 4]  First, GM's
experts testified that the delta-v for Farnsworth was 27.9 m.p.h.
rather than 24 m.p.h. as Farnsworth's expert had concluded. 
Second, and more importantly, GM claimed that Farnsworth had
misused the belt by wearing it under her arm.  GM theorized that
due to this misuse, Farnsworth had "jackknifed"over the belt,
which in turn had caused all of her significant injuries.  GM
claimed that the pattern of Farnsworth's physical injuries was more
consistent with its theory of injury than with Farnsworth's.
          GM further claimed that its seat restraint system was not
defective.  In general, GM argued that no single design can protect
all occupants equally well and that a design that optimizes safety
for the average sized man will decrease safety for women and
children.  Similarly, it argued, a design that gives slightly less
protection against submarining may give slightly more protection
against head injury.  In particular, GM claimed that the three
alleged defects identified by Farnsworth's expert were not defects
at all.  GM argued: (i) that the outer lap belt angle was actually
steeper on Farnsworth than it would be on an average sized man;
(ii) that although the "CJ"length was shorter on Farnsworth than
on an average sized man, Farnsworth's design expert failed to show
that the CJ length was significant in this accident; and (iii) that
the seat did in fact have a 15 degree upward angle that functioned
like an anti-submarining ramp.
          Throughout the trial, GM also contested Farnsworth's
ability to prove causation.  It argued that Farnsworth's design
expert failed to specify how different and "better"designs could
have prevented Farnsworth's injuries in this accident.
          Additionally, GM stressed that even if its seat restraint
system were defective, Farnsworth's injuries were largely the fault
of Fennie and Walters.  GM argued that Farnsworth did not contest
that Walters was under the influence of cocaine at the time of the
accident and that his negligence in driving in the wrong lane was
the immediate cause of the collision.  In fact, GM claimed, Walters
had admitted that he was drug impaired, and he was tried and
convicted of criminal assault in the fourth degree for causing
personal injury to Fennie and Farnsworth.  GM also attributed fault
to Fennie, arguing that the collision would have been less severe
if he had braked more quickly.  GM claimed that Fennie's own
driving had been impaired by alcohol; the evidence at trial showed
that he had drunk a double gin before dinner and shared two bottles
of champagne with Farnsworth and another friend during dinner.
          Finally, GM claimed that punitive damages were
inappropriate.  It argued that the crash tests it conducted on the
1984 Jimmy were the most representative and meaningful tests
available.  GM explained that sled tests are the usual testing tool
because full car crash tests cost more and because it is unusual
for a complete car to be available at the time that the seat
restraint system is tested.  The 1984 Jimmys, however, were fully
completed when the seats were ready for evaluation.  As a result,
GM argued, its engineers took advantage of the unusual opportunity
and conducted the full car crash tests.  The engineers conducted
the tests with the 50th percentile male dummy because federal
standards so required.  GM claimed that the tests did not show a
submarining problem and that the company received no complaints
after the cars were placed on the market to suggest that
submarining was in fact a problem for small occupants.  It argued
that contrary to revealing its disregard for the safety of
consumers, the fact that its engineers conducted more expensive
full car crash tests proved its commitment to producing safe cars.
     C.   The Verdict
          The jury returned a verdict for Farnsworth, awarding her
$2,138,973 in compensatory damages and $5,600,000 in punitive
damages.  It found that the seat restraint system was defective and
that the defect was a legal cause of her injuries. Although the
jury concluded that Fennie was negligent, and the superior court
instructed that Walters was negligent as a matter of law, the jury
found that neither Fennie nor Walters was a legal cause of
Farnsworth's injuries.  It then allocated 100% fault for her
injuries to GM.
III. DISCUSSION
     A.   Alleged Errors in the Jury Instructions
          
          1.   Standard of review
          
          In reviewing the superior court's rulings on jury
instructions, we determine whether the challenged or refused
instruction is a correct statement of the law and then decide
whether any error was prejudicial.  See Loof v. Sanders, 686 P.2d
1205, 1211 (Alaska 1984).   In evaluating whether the instruction
correctly stated the law, we apply our independent judgment.  See
Cummings v. Sea Lion Corp., 924 P.2d 1011, 1019 n.11 (Alaska 1996). 
If we decide that an error occurred, we evaluate whether the error
was prejudicial by putting ourselves "in the position of the jurors
and determin[ing] whether the error probably affected their
judgment."  Staton ex rel. Vincent v. Fairbanks Mem'l Hosp., 862
P.2d 847, 851 (Alaska 1993).  The appellant bears the burden of
establishing prejudicial error.  See Myers v. Robertson, 891 P.2d
199, 208 (Alaska 1995).  
          2.   Did the superior court err in refusing to instruct
the jury on Farnsworth's comparative negligence?

          GM argues that the superior court erred when it refused
GM's request for a jury instruction on Farnsworth's comparative
negligence.  GM contends that this ruling significantly affected
the verdict because its central defense theory was that
Farnsworth's misuse of her belt, coupled with the force of the
accident itself, caused her injuries.
          Farnsworth claims that according to our prior decisions,
comparative negligence is a defense in strict liability cases only
where the plaintiff knowingly and unreasonably uses a defective
product, not in cases of product misuse.  We disagree with her
interpretation of the case law. [Fn. 5]  
               a.   Comparative negligence in strict liability
cases
          
          The superior court rejected GM's proposed instruction
because it concluded that Dura Corp. v. Harned, 703 P.2d 396
(Alaska 1985) permits the defense of comparative negligence only in
those strict liability cases where the plaintiff knowingly uses a
defective product.  In Dura, the defendant contended that the
plaintiff used a product even though he was aware that it lacked a
safety device.  See Dura, 703 P.2d at 403-04.  We therefore applied
a specific set of rules for deciding what kind of plaintiff
negligence is relevant in a case where the alleged defect was the
absence of a safety device.  See id. at 404.  We did not suggest,
however, that comparative negligence was a defense to a strict
liability claim only when a plaintiff knowingly used an unsafe
product.  In fact, we explicitly stated that the comparative
negligence defense also extends to cases where the plaintiff
misused the product.  See id. at 403. [Fn. 6]  Dura's language
represents the law of this state as it was established in Butaud v.
Suburban Marine & Sporting Goods, Inc., 555 P.2d 42, 46 (Alaska
1976).
          In Butaud, the plaintiff claimed that he had been injured
by a defective snow machine.  See Butaud, 555 P.2d at 46-47. 
Addressing the manufacturer's claims on appeal, we ruled that
comparative negligence is a defense to strict liability in tort. 
See id. at 45.  Further, we stated that the defense of comparative
negligence in strict liability cases is not limited to situations
where "the plaintiff uses the product with knowledge of the
defective condition, but also extends to those cases where the
plaintiff misuses the product and that misuse is a proximate cause
of his injuries."  Id. at 46 (emphasis added).  Butaud itself
concerned the second type of comparative negligence, product
misuse, which GM contends occurred in this case.  As a result,
Butaud and Dura clearly support GM's interpretation of the law.
[Fn. 7] 
               b.   Harmless error analysis
          Because we conclude that the superior court erred in
refusing GM's proposed comparative negligence instruction, we must
now examine if this error was harmless.  An error is harmless "if
the verdict necessarily shows that the jury would have rejected the
defense contained in a requested instruction had the instruction
been given."  Weston v. State, 682 P.2d 1119, 1122 (Alaska 1984). 
          Farnsworth argues that the superior court's failure to
give the comparative negligence instruction was harmless because of
the "all or nothing"strategy that she pursued at trial.  According
to Farnsworth, the theory of the case that she presented to the
jury was premised on the view that it should rule in her favor only
if it found that she had used the belt properly.  Thus, although
Alaska law may not have barred Farnsworth from recovering against
GM even if she had misused the belt, see AS 09.17.060, AS
09.17.900, Farnsworth claims that she asked the jury to find GM
liable only if it concluded that no misuse had occurred.  Because
the jury in fact ruled in her favor, Farnsworth contends that it
must have rejected GM's belt misuse theory, thus rendering harmless
the failure to instruct on comparative negligence.
          Farnsworth's argument, however, is premised on the
assumption that the jurors clearly understood her theory of the
case: that GM should be held liable only if they found that
Farnsworth had used the belt properly.  But we are not convinced
that the jurors comprehended Farnsworth's trial strategy.  First,
we note that the testimony presented on this issue at trial is
equivocal.  Although Farnsworth and her biomechanic expert, Dr.
Martha Bidez, suggested that GM should be absolved of liability if
Farnsworth had worn the belt under the arm, Farnsworth's design
expert, Steve Syson, testified merely that such misuse would
"degrade"the belt's performance; he did not claim that GM should
be free of all responsibility if the belt had been misused. [Fn. 8] 
Similarly, in closing argument, Farnsworth's lawyers failed to
mention her "concession"that belt misuse was a complete defense
for GM.
          Second, and more importantly, none of the instructions
informed the jury of Farnsworth's theory of the case.  Cf. Cummings
v. Sea Lion Corp., 924 P.2d 1011, 1019 n.11 (Alaska 1996) (stating
that the "superior court's denial of a proposed jury instruction
will be upheld if the instructions given, when read as a whole,
adequately inform the jury of the relevant law") (citations
omitted).  In fact, Instruction 19 may have suggested to the jury
that GM could be held responsible for Farnsworth's negligence.
          Instruction 19 stated: "[i]n determining whether a
product is used in a reasonably foreseeable manner, the focus is on
what is foreseeable to manufacturers.  Foreseeable uses include not
only careful or intended product use, but also product misuse that
is known or can be anticipated to occur."  (Emphasis added.) 
Farnsworth advocated for this instruction because she claimed that
"reasonably foreseeable use in this case [was] . . . the use of the
belt under the arm . . . ."  The superior court included the
instruction based on this argument. 
          Absent further explanation, this instruction was
inappropriate in the context of this case.  Farnsworth was not
alleging, nor could she have, that the belt was defective because
it failed to protect her when worn under the arm.  Instead, she
claimed that her injuries were caused by submarining.  Product
misuse entered this case only as a defense for GM.  Instruction 19
failed to make this clear to the jurors and instead may have
suggested to them that GM could be held fully liable for
Farnsworth's injuries even if she had worn the belt under her arm.
[Fn. 9]
          Reviewing the events at trial and the instructions as a
whole, we reject Farnsworth's claim that the jury's verdict
necessarily shows that it rejected GM's belt misuse theory. 
Instead, we conclude that GM has carried its burden of showing that
the error of denying the comparative negligence instruction
probably affected the jurors' judgment.  The instructions provided
no opportunity for the jury to allocate fault to Farnsworth if it
concluded that she had worn the belt under the arm.  As a result,
we conclude that the issue of Farnsworth's comparative negligence
must be submitted to the jury on remand. [Fn. 10]
          3.   Did the superior court err in refusing to instruct
that Walters caused Farnsworth's injuries as a matter of law?

          GM argues that the superior court erred in refusing to
instruct the jury that Walters caused Farnsworth's injuries as a
matter of law.  We agree.
          Walters was tried and convicted of criminal assault in
the fourth degree for "causing personal injury"to Fennie and
Farnsworth.  No one disputed that Walters's negligence in fact
caused the accident.  Analogizing to other areas of tort law, GM
argues that the original tortfeasor is always considered a legal
cause of a plaintiff's further injuries unless there is a
superseding cause.  Because Farnsworth did not allege that the
defects in the restraint system were a superseding cause, GM claims
that the only question that should have been posed to the jury was
the proportion of Walters's fault.
          GM's position is consistent with related tort principles. 
An original tortfeasor is considered a proximate cause, as a matter
of law, of injuries caused by subsequent negligent medical
treatment.  See Restatement (Second) of Torts, sec. 457 (1965) ("If
the negligent actor is liable for another's bodily injury, he is
also subject to liability for any additional bodily harm resulting
from normal efforts of third persons in rendering aid which the
other's injury reasonably requires, irrespective of whether such
acts are done in a proper or a negligent manner.").  Just as the
injury caused by the original tortfeasor exposes the injured
individual to the potential negligence of doctors, so did Walters's
negligence in causing the accident expose Farnsworth to the
potential defects in the seat restraint system.  
          Farnsworth suggests that Walters should not be considered
a legal cause of injuries caused by her seat belt because a seat
belt's sole purpose is to protect someone after a collision occurs. 
However, a doctor, like a seat belt, is necessary only because
something goes wrong.  Phrasing the issue in terms of
foreseeability, it is just as foreseeable to an original tortfeasor
that equipment in a car may malfunction as it is that a doctor may
act negligently in treating the plaintiff's injuries. 
          Holding Walters liable as a matter of law for
Farnsworth's enhanced injuries also furthers one of the policy
goals of tort law.  Tort law seeks to deter future behavior that
exposes others to injury.  In this case, Walters drove while he was
under the influence of cocaine.  His actions caused the collision
that exposed Farnsworth to the defect in her seat restraint system. 
Allowing a jury to return a verdict allocating no fault to Walters
for her injuries frustrates the purpose of deterring Walters and
others from driving while they are under the influence of drugs.  
          Finally, ruling that Walters caused Farnsworth's enhanced
injuries as a matter of law does not significantly reduce the
jury's role in the complicated factual determination of allocation
of fault.  Adopting GM's position only slightly reduces the jury's
field of choice: instead of allocating fault to Walters from 0% to
100%, the jury would have had to allocate some fault to Walters. 
As a result, we conclude that the superior court erred in refusing
to instruct the jury that Walters caused Farnsworth's injuries as
a matter of law.  The court should give GM's requested instruction
on remand.
          4.   Did the superior court err in instructing the jury
on apportionment of damages?

          Instruction 24 provided that if the jury found that a
defect in the seat restraint system was a substantial factor in
causing Farnsworth's enhanced injuries, GM could be held liable for
all of her injuries unless GM proved that they could be apportioned
between enhanced and non-enhanced injuries.  GM claims that
Instruction 24 did not belong in the case, and that even if it did,
it placed the burden of apportionment on the wrong party. [Fn. 11]
          An apportionment of damages instruction is appropriate
only when the plaintiff is alleging that a single harm, such as
paraplegia, was caused both by the defect and the severity of the
crash itself.  See, e.g., Mitchell v. Volkswagenwerk, AG, 669 F.2d
1199, 1201 (8th Cir. 1982).  In such cases, the instruction informs
the jury that once the plaintiff proves that the defendant's
defective design was a substantial factor in causing the injury,
the defendant must be held jointly and severally liable for the
entire harm.  See id. at 1201-02.  The instruction is based on the
reasoning that it is impossible to divide a single harm: a
plaintiff cannot be expected to prove what portion of an injury
like paraplegia was caused by the defect and what portion was
caused by the collision.  See id. at 1203 n.2.  The apportionment
instruction therefore permits the jury to hold the car manufacturer
liable for all of the plaintiff's damages even though the car
manufacturer is theoretically responsible only for damages caused
by the defect.
          It is true that in this case neither Farnsworth nor GM 
contended that some of Farnsworth's injuries were caused by the
defect and some were not; this fact suggests that apportionment was
not at issue in this case.  See Czarnecki v. Volkswagen of America,
837 P.2d 1143, 1148 (Ariz. App. 1991) (stating, in a
crashworthiness case, that an apportionment instruction would not
be proper where both sides had pursued an all or nothing strategy). 
But when Judge Shortell offered to eliminate the apportionment
instruction if GM stipulated that the injuries were not
apportionable, GM declined.  In these circumstances, it was
reasonable for Judge Shortell to include the instruction in order
to provide guidance to the jury in case it decided to reject the
parties' all or nothing approach.
          Having concluded that the superior court did not err in
including Instruction 24, we now turn to the question of whether
the instruction accurately stated the law of apportionment.  GM
argues that the instruction should have placed the burden of
apportioning injuries on Farnsworth, and Farnsworth claims that the
instruction correctly placed the burden on the defendant, GM.  The
issue of who has the burden to apportion injuries in a
crashworthiness case is hotly contested.  See Restatement (Third)
of Torts, supra, sec. 16 cmt. d (describing the debate in the cases
and law reviews);  see also Note, Apportionment of Damages in the
"Second Collision"Case, 63 Va. L. Rev. 475 (1977) (advocating
Farnsworth's position); Levenstam & Lapp, Plaintiff's Burden of
Proving Enhanced Injury in Crashworthiness Cases: A Clash Worthy of
Analysis, 38 De Paul L. Rev. 55 (1989) (advocating GM's position). 
The rule advocated by Farnsworth is the majority position, dubbed
the Fox-Mitchell approach.  See Mitchell v. Volkswagenwerk, AG, 669
F.2d 1199 (8th Cir. 1982).  It is also the position supported by
the drafters of the third Restatement of Torts.  See Restatement
(Third) of Torts, supra, sec. 16.  The minority position, advocated
by GM, is referred to as the Huddel approach, named after Huddel v.
Levin, 537 F.2d 726 (3rd Cir. 1976). [Fn. 12]
          Adopting the reasoning of the Huddel court, GM contends
that the plaintiff must bear the burden of apportioning injury
because a crashworthiness claim rests on the idea that a defect
enhanced the plaintiff's injuries.  See Huddel, 537 F.3d at 738. 
Thus, according to GM, a plaintiff who fails to show what injuries
he or she would have sustained absent the defect has failed to show
enhancement and therefore failed to establish a crashworthiness
claim.
          Relying on the Fox-Mitchell approach, Farnsworth responds
that the burden of apportionment belongs to the defendant.  In
Mitchell, the court reasoned that the same rules should apply to a
crashworthiness claim as apply to claims of harm caused by multiple
tortfeasors: once a plaintiff proves that the tortious conduct of
two or more defendants has combined to bring about harm to the
plaintiff, the burden is placed on the defendants to limit their
liability by apportioning the injury.  See Mitchell,  669 F.2d at
1206 (citing Restatement (Second) of Torts, supra, sec. 433B).   
          Farnsworth also argues that three policy reasons justify
placing the burden of apportionment on the defendant.  First, it
would be unjust to allow a proven wrongdoer to escape liability
when the harm cannot be apportioned.  Second, the manufacturer is
in the best position to perform such apportionment given its
extensive knowledge of the product and its technical resources. 
Third, a contrary rule would allow a manufacturer to escape
liability even when a plaintiff had shown that the manufacturer had
sold a defective product.
          Using the concept of "enhanced"injury as the framework
for a crashworthiness case does lead one to the conclusion that a
plaintiff who fails to show what injuries he or she would have
suffered absent the defect has failed to show enhancement at all. 
However, it is just as reasonable to use the concept of multiple
tortfeasors as the framework for an indivisible injury claim.  Once
this framework is adopted, the rules of section 433B of the
Restatement of Torts are triggered and the burden of apportioning
injury falls on the defendant.  Alaska has explicitly adopted the
Restatement's rules for apportioning injury in multiple tortfeasor
cases.  See State v. Abbott, 498 P.2d 712, 728 (Alaska 1972); see
also Restatement (Third) of Torts, supra, sec. 16 cmt. d (stating
that
the majority of courts that have addressed the issue as well as the
drafters of the Restatement find the analogy to section 433B
compelling).
          Although both the Fox-Mitchell approach and the Huddel
approach are logically defensible, we find the majority rule more
compelling for policy reasons.  We agree with Farnsworth that it
should be the proven wrongdoer who must bear the burden of limiting
its liability; it would be unfair to require a plaintiff who has
already proved that a defect was a substantial factor in causing
his or her injuries to try another case based upon what might have
happened absent the defect.  Thus, we conclude that Instruction 24
accurately stated the law of apportionment by placing the burden of
apportioning injury on the defendant.  The superior court committed
no error with respect to this instruction. [Fn. 13]
          5.   Did the superior court err in instructing the jury
that it could find defect under the consumer expectation test?

          GM next argues that the superior court erred in
permitting the jury to find the restraint system defective under
the consumer expectation test.  We reject GM's argument. 
          In Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska
1979), we adopted a two-prong test for finding defect in design
cases.  Under this test, the factfinder can find a product
defective either 
          if the plaintiff demonstrates that the product
failed to perform as safely as an ordinary consumer would expect
when used in an intended or reasonably foreseeable manner [consumer
expectation test] . . . or if the plaintiff proves that the
product's design proximately caused his injury and the defendant
fails to prove . . . that on balance the benefits of the challenged
design outweighed the risk of danger inherent in such design [risk
benefit test].

Id. at 884 (citing Barker v. Lull Engineering Co., 573 P.2d 443,
457-58 (Cal. 1978)).   
          GM argues that the consumer expectation test does not
make sense in a complex design case like this one and urges that it
should be abandoned for three reasons.  First, it contends that
consumers may have unreasonable or uninformed expectations. 
Second, GM claims that the test is standardless and thus leads to
haphazard verdicts.  Third, it argues that the test is particularly
out of place in complex design cases because consumers have no
basis for forming expectations about how products like cars should
perform in serious accidents.  GM buttresses its position by
pointing out that the proposed new Restatement of Torts and the
majority of states do not allow recovery under the consumer
expectation test without also requiring that the product's risks
outweigh its benefits.
          Farnsworth responds that the consumer expectation test is
well established in Alaska's product liability law and has been
applied in numerous cases since it was adopted by this court in
Beck. [Fn. 14]  She also contends that even if the test were
inappropriate in certain situations, this case does not present one
of those situations because seat belts are familiar products about
which consumers can form reasonable expectations.  In addition,
Farnsworth challenges GM's interpretation of the case law and
insists that only a minority of states reject the consumer
expectation test as an alternative to the risk benefit test. [Fn.
15]
          We agree with the California Supreme Court that consumers
can form reasonable and educated expectations about how certain
products should perform.  See Soule v. General Motors Corp., 882
P.2d 298, 310 (Cal. 1994) (stating "we cannot accept GM's
insinuation that ordinary consumers lack any legitimate
expectations about the minimum safety of the products they use.  In
particular circumstances, a product's design may perform so
unsafely that the defect is apparent to the common reason,
experience, and understanding of its ordinary consumers."). [Fn.
16]  When a seat belt, designed to be an instrument of protection,
becomes an instrument of life-threatening injury, a consumer is
justified in concluding that it did not perform as safely as
promised.  A seat belt is a familiar product whose basic function
is well understood by the general population.
          In addition, our initial reasons for adopting the
consumer expectation test are sound.  In Beck, we adopted the test
as part of Alaska's product liability law partly because it
"incorporates notions of the implied warranty of fitness for
reasonable use, a primary concept in the evolution of strict
products liability . . . ."  Beck, 593 P.2d at 885.  The "implied
warranty of fitness or merchantability requires that goods 'be fit
for the ordinary purposes for which the goods are used.'"  Id. at
885 n.49 (quoting AS 45.05.096(b)(3), renumbered as AS
45.02.314(3)).
          In this case, a jury that believed Farnsworth's version
of the facts could intelligently conclude that the Jimmy's
restraint system was unfit for ordinary use.  According to
Farnsworth, she and Fennie were wearing their seat belts normally
in a typical frontal collision of moderate severity.  Fennie was
protected by his seat belt and walked away from the accident with
minor injuries.  In contrast, Farnsworth submarined under her lap
belt and lingered near death in a coma for five weeks.  The parties
did not contest that the seat belt itself caused her injuries. 
Given these facts, there is no reason why a jury would be
"haphazard"in deciding that Farnsworth's seat restraint system was
unfit for ordinary use because it failed to protect smaller
occupants from submarining.  The superior court did not err in
permitting the jury to find the restraint system defective under
the consumer expectation test.
     B.   Other Alleged Errors
          1.   Did Farnsworth present sufficient evidence to
support the jury's finding of causation?

          GM argues that there was insufficient evidence to support
a finding that defects in the restraint system caused Farnsworth's
injuries.  Although we believe that the record would support a
finding of causation, we do not fully address GM's argument because
we conclude that the failure to give a comparative negligence
instruction requires retrial of the causation issue.  
          "Where two issues are interwoven and not reasonably
divisible . . . a new trial on both issues is required." 
Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 795 (Alaska 1981). 
In this case, the issue of comparative negligence was closely tied
to the issue of causation.  GM argued not only that Farnsworth had
been negligent in misusing the seat belt but also that her
negligence caused her injuries; according to GM's theory of the
case, Farnsworth was injured because her belt misuse caused her to
"jackknife"over the belt.  As we concluded above, however, the
jury instructions provided no opportunity to attribute fault to
Farnsworth for her alleged negligence.  In fact, Instruction 19 may
have suggested to the jury that GM could be held responsible for
any belt misuse and thus may also have suggested that GM could be
held accountable for injuries caused by this misuse.  We therefore
conclude that the superior court's error in failing to give a
comparative negligence instruction taints the finding of causation. 
The parties should retry this issue on remand.
          2.   Challenges to the punitive damages award
          GM challenges the punitive damages award on four grounds:
(i) that its compliance with applicable federal regulations
precluded punitive damages as a matter of law; (ii) that there was
insufficient evidence to support a finding of punitive damages;
(iii) that the award was excessive; and (iv) that the award was
extraterritorial and thus unconstitutional under BMW of North
America, Inc. v. Gore, 517 U.S. 559 (1996).
          Addressing other claims raised by this appeal, we
concluded above that the superior court erred in rejecting an
instruction on Farnsworth's comparative negligence and in refusing
to require the jury to allocate fault to Walters.  Because these
erroneous rulings may have increased GM's culpability in the jury's
eyes by diminishing the culpability of other potential wrongdoers,
we vacate the punitive damages award.  We therefore need not
address GM's arguments on excessiveness, sufficiency of the
evidence or extraterritoriality [Fn. 17] because the jury may award
a different amount of punitive damages or no punitive damages on
remand.  We also do not address GM's argument regarding its
compliance with relevant federal regulations.  Because GM raised
this point for the first time on appeal, [Fn. 18] the superior
court never had the opportunity to address it and thus there is no
decision for us to review.  See Nenana City School Dist. v.
Coghill, 898 P.2d 929, 934 (Alaska 1995).
IV.  CONCLUSION
          We REMAND for a new trial limited to the issues of
causation, punitive damages, Farnsworth's comparative negligence,
and allocation of fault to Walters and Farnsworth.  Because no
error tainted the jury's finding that GM's seat restraint system
was defective or its compensatory damage calculation of $2,138,973,
these aspects of the verdict should stand on remand.
          REVERSED in part, AFFIRMED in part, and REMANDED.


                            FOOTNOTES


Footnote 1:

     Farnsworth presented a "crashworthiness"claim.  The proposed
final draft of the Restatement (Third) of Torts describes a
crashworthiness claim as follows:

          Typically, the plaintiff is involved in an
automobile accident caused by conduct or circumstances other than
a product defect.  The plaintiff would have suffered some injury as
a result of the accident even in the absence of the claimed product
defect.  However, the plaintiff contends that the injuries were
aggravated by the vehicle's failure reasonably to protect occupants
in the event of an accident.  

               In the early era of product design
litigation, controversy arose over whether a manufacturer owed any
obligation to design its product so that injuries would be
reasonably minimized in the event of an accident.  That controversy
is now settled.  Although accidents are not intended uses of
products, they are generally foreseeable.  A manufacturer has a
duty to design and manufacture its product so as reasonably to
reduce the foreseeable harm that may occur in an accident brought
about by causes other than a product defect.

Restatement (Third) of Torts sec. 16 cmt. a (Proposed Final Draft, 
April 1, 1997).  GM does not contest Farnsworth's ability to
recover under a crashworthiness theory, and we therefore take this
occasion to explicitly endorse the crashworthiness doctrine as a
valid theory of recovery.  We note, however, that Farnsworth's
claim differs from the traditional crashworthiness claim in that
she alleged that the defective seat restraint system caused all,
rather than part, of her significant injuries.


Footnote 2:

     Farnsworth described her injuries as "enhanced,"that is
caused by the malfunction in the seat belt rather than by the
severity of the collision.  If Farnsworth had argued that the
collision itself had caused some of her injuries, these injuries
would have been non-enhanced.


Footnote 3:

     In a sled test, the passenger compartment is separated from
the rest of the vehicle, mounted on a sled and run into a barrier
at 30 miles per hour.


Footnote 4:

     Because Farnsworth's side of the vehicle was undamaged and she
did not strike anything inside the truck, the parties agreed that
all of Farnsworth's injuries were caused by the belt itself.  As a
result, the parties' dispute focused on why the belt had caused the
injuries.  Farnsworth argued that it had caused her injuries
because it was defective, whereas GM claimed that the injuries
stemmed from her misuse of the belt and the force of the accident. 



Footnote 5:

     Farnsworth also argues that a comparative negligence
instruction would have been inappropriate in this case because the
jury could not have properly compared fault for conduct that she
conceded would be a complete defense for GM.  We address this
argument in our discussion of whether the superior court's denial
of the comparative negligence instruction was harmless error.


Footnote 6:

     In order to support her interpretation of the case, Farnsworth
quotes a portion of Dura stating that "failure to exercise ordinary
care is not sufficient to raise a jury question on the issue of
comparative negligence in a products liability case based on strict
liability in tort."  Dura, 703 P.2d at 405 n.5.  This quote,
however, is inapposite.  In note 5, we were overruling a previous
case holding that ordinary negligence, such as dropping a gun,
could be considered comparative fault.  See id.  Farnsworth's
knowing misuse of the belt by wearing it under her arm would not be
ordinary negligence in this sense. 

          Farnsworth's incorrect interpretation of Dura appears to
stem from language in Lamer v. McKee Indust. Inc., 721 P.2d 611
(Alaska 1986).  Unfortunately, Lamer misstates Dura's holding.  A
footnote in Lamer provides: 

          It should be emphasized that in a products
liability case based on strict liability in tort, comparative
negligence is limited to the plaintiff's voluntary assumption of a
known risk and that the plaintiff's mere failure to exercise
ordinary care is not enough to justify submitting the issue of
comparative negligence to the jury. 

Id. at 618 n.8. However, as described above, Dura stated that the
defense of comparative negligence applies in two types of cases:
knowing product misuse where misuse is a proximate cause of
injuries, or assumption of the risk by a plaintiff who is aware of
the product's defect.  The quote in Lamer leaves out the first part
of Dura's discussion of comparative negligence probably because
Dura itself concerned the second type of comparative negligence.


Footnote 7:

     In fact, the majority in Butaud refused to adopt the position
that Farnsworth advocates in the present appeal and which Justice
Burke defended in his dissent.  See Butaud, 555 P.2d at 47 (Burke,
J., dissenting).  Moreover, our decisions subsequent to Dura and
Lamer have explicitly confirmed that product misuse may be
comparative negligence in strict liability cases.  See Keogh v.
W.R. Grasle, Inc., 816 P.2d 1343, 1351 (Alaska 1991); Corning
Manufacturing v. Earthmovers of Fairbanks, 763 P.2d 499, 506 n.10
(Alaska 1988).


Footnote 8:

     Farnsworth testified:

          Q:   Is it your understanding that if you wear
the seat belt under your arm improperly that that is not a proper
use of the system and it's dangerous?

          A:   I wouldn't expect it to save me if I
wasn't wearing it properly.

          Q:   And . . . is it your testimony that if
you wear your belt that way, that that would be improper and a
misuse of the belt?

          A:   Sure.

          Syson testified:

          Q:   From a design standpoint, wearing the
belt under your arm, that would be misuse, wouldn't it?

          A:   That would be my opinion, yes.

          Q:   And from a design perspective, wearing
the belt under your arm would degrade the protection that the
system was intended to provide, wouldn't it?

          A:   Based on all of the field accident data
I've seen, I believe you're correct. . . .

          Dr. Bidez testified:

          Q:   And if the belt was being worn under the
arm, that would be an improper use of the belt, correct?

          A:   Sure.

          Q:   And that would be something that you
would not fault General Motors in that instance, would you?

          A:   That's correct. I would not be sitting
here if Ms. Farnsworth had had that belt under her arm. She did
not.


Footnote 9:

     On appeal, Farnsworth argues that this instruction was
appropriate because GM presented evidence that she may have been
seated in numerous positions that degraded the performance of the
restraint system.  Farnsworth claims that the instruction explained
to the jury that such positioning was foreseeable to the
manufacturer and should not have rendered the restraint system
ineffective.  However, Farnsworth suggested this argument in the
trial court only briefly and at the end of the parties' lengthy
discussion of Instruction 19.  GM is correct that Farnsworth's
initial and primary reason for offering the instruction was to
explain to the jury that wearing the belt under the arm was
foreseeable to GM.  Furthermore, even if the instruction would have
been appropriate to the extent that it helped jurors analyze GM's
arguments regarding Farnsworth's seating position, it would still
have been incorrect to give the instruction without explaining that
the phrase "misuse"did not refer to GM's belt under the arm
theory. 

          We therefore agree with GM that the superior court erred
in giving this instruction.  Although the instruction correctly
stated that product misuse can sometimes be a foreseeable use, cf.
Hiller v. Kawasaki Motors Corp., 671 P.2d 369, 373 (Alaska 1983),
the instruction was misleading in the context of this case.

          We do not believe, however, that Instruction 19 could
have suggested to the jury that the belt was defective because it
failed to protect Farnsworth when worn under the arm.  All the
defect evidence at trial centered on the issue of submarining.  At
no point during trial did Farnsworth argue that the belt was
defective because it failed to protect her when misused.  In fact,
Judge Shortell specifically forbade Farnsworth from making such an
argument.  Given these facts, we conclude that this instruction
does not impugn the jury's findings on defect.


Footnote 10:

     GM also argues that the superior court erred in refusing to
give the passenger's duty of care instruction, which would have
permitted the jury to find Farnsworth negligent in relying on
Fennie as a driver.  Even if the superior court erred in refusing
this instruction, the error was harmless.  Because the jury found
that Fennie's conduct was not a legal cause of Farnsworth's
injuries, it also implicitly concluded that her alleged negligence
in relying upon him was not a legal cause of those injuries.  We
find no error tainting the jury's decision that Fennie's conduct
was not a legal cause of Farnsworth's injuries; therefore, the
issue of her alleged negligence in relying upon his driving need
not be tried upon remand.


Footnote 11:

     An apportionment instruction does not affect the issue of
allocation of fault.  A jury which holds a defendant liable for all
of the plaintiff's damages under an apportionment instruction is
still free to allocate fault to other wrongdoers from whom the car
manufacturer could seek contribution.  See Mitchell, 669 F.2d at
1203.  In this case, Instruction 25 told the jury how to allocate
fault to responsible parties.


Footnote 12:

     Of the 16 state courts that have spoken on the issue, 13
support Farnsworth's position and 3 support GM's.  See Restatement
(Third) of Torts, supra, sec. 16 cmt. d.  The three state courts
that
have adopted GM's position are New York, Michigan and New Mexico. 
Id.


Footnote 13:

     GM also argues that the superior court's error in giving the
apportionment instruction was compounded by its refusal to give
GM's supplemental causation instruction.  Because we conclude that
the superior court did not err in giving the instruction, we do not
address this third argument.


Footnote 14:

     Farnsworth also argues that GM waived the right to challenge
the use of the consumer expectation test because it failed to
request separate findings on the two defect tests.  In making this
argument, Farnsworth relies on the law of states other than Alaska. 
Under Alaska law a new trial must be held where proper and improper
theories were submitted to the jury and it was asked to render a
general verdict unless it appears that the prevailing party was
entitled to the verdict on other grounds as a matter of law.  See
Matomco Oil Co. v. Arctic Mechanical, Inc., 796 P.2d 1336, 1343
(Alaska 1990).  


Footnote 15:

     Which states do and do not allow recovery under the consumer
expectation test is intensely debated by scholars.  See Marshall S.
Shapo, In Search of the Law of Products Liability: The ALI
Restatement Project, 48 Vand. L. Rev. 631, 666 (1995) (stating that
the cases repeatedly cited by the reporters leave considerable room
for interpretation and explaining that the author's independent
review of 14 of these cases revealed that only one to three
provided strong support for the proposition that American courts
predominantly rely on the risk benefit test as opposed to the
consumer expectation test); see also John F. Vargo, The Emperor's
New Clothes: The American Law Institute Adorns a "New Cloth"for
Section 402A Products Liability Design Defects -- A Survey of the
States Reveals a Different Weave, 26 U. Mem. L. Rev. 493, 556-57,
951-53 (1996) (conducting a state survey and concluding that 19
jurisdictions "apply an ordinary consumer expectation test to
design defect cases as an exclusive or independent and alternative
measure of strict liability design defects").


Footnote 16:

     GM is incorrect in asserting that the Soule court abandoned
the consumer expectation test in all crashworthiness cases. 
Instead, Soule held that the consumer expectation test is
appropriate only if consumers' everyday experience with the product
allows them to form conclusions about its minimum safety features. 
See Soule, 882 P.2d at 308.  The California Supreme Court made no
sweeping generalizations about which products would satisfy the
above requirement.  In addition, Soule affirmed the place of the
consumer expectation test in California product liability law,
stating "[w]ithin these [above] limits, the test remains a workable
means of determining the existence of design defect.  We therefore
find no compelling reason to overrule the consumer expectations
prong of Barker at this late date, and we decline to do so."  Id.
at 310.

          Soule did recognize, however, that some products may be
so unfamiliar to the average consumer that it would be difficult to
form any intelligent expectations about how they should perform. 
The issue in Soule was whether a wheel and a wheel bracket were
defective because they collapsed rearward and inward during an
accident.  See Soule, 882 P.2d at 301.  According to the plaintiff,
the collapse of the wheel caused the area beneath the pedals to
crumple which in turn fractured her ankles.  Id.  The court ruled
that the consumer expectation test was not a proper method of
determining defect under those facts because "[a]n ordinary
consumer of automobiles cannot reasonably expect that a car's
frame, suspension or interior will be designed to remain intact in
any and all accidents."  Id. at 310.  We do not address in this
case whether, as the Soule court suggested, the consumer
expectation test is inappropriate under certain facts.


Footnote 17:

     Furthermore, GM waived the extraterritoriality argument. 
Unlike BMW in Gore, GM did not file a motion in limine to exclude
evidence of extraterritorial sales.  See Gore Supreme Court Oral
Argument, 1995 WL 605988 p.4.  Neither did GM object to
Farnsworth's closing argument, where the extraterritorial sales
were discussed.  Instead, GM raised the extraterritoriality
argument for the first time in its motion for a new trial and
remittitur.  On remand, however, if the jury chooses to award
punitive damages, the superior court should assure that the award
comports with the principles established by the Supreme Court in
Gore.


Footnote 18:

     There was no substantive discussion of how compliance related
to punitive damages in pre-trial argument.  In its motion for
judgment notwithstanding the verdict, GM argued for the first time
that compliance with federal standards should limit a punitive
damages award.  However, GM did not claim that compliance
prohibited a punitive damages award as a matter of law.  Instead,
it discussed the issue as one objective factor that the superior
court could rely upon in deciding whether the punitive damages
award was excessive.