Martin v. Volkswagen of America, Inc.

JAMES DICKSON PHILLIPS, Circuit Judge,

concurring specially:

Of course I concur in the result announced in the per curiam opinion. I write separately only to address some aspects of Judge Murnaghan’s criticism — using the medium of a dissent to denial of rehearing en banc — of our prior panel decision in Wilson.

I

I observe initially that there is a certain awkwardness in responding to a criticism first formally expressed by this indirect means when the criticized panel decision is being applied as precedent. Under our procedures designed to insure collegial decisions there exists an opportunity to express criticism of proposed panel decisions before they are filed, and indeed to seek en banc reconsideration of the appeal to forestall the proposed panel decision’s becoming precedent. Disagreements within the court are much better expressed and published in that context than in this belated one.

But, conceding the awkwardness, I am constrained to respond to this belated criticism of the panel decision in Wilson. The criticism contains perceptions of our proper role in finding state law in diversity cases with which I strongly disagree.

II

We of course can only predict with great trepidation the likely course of state decisional law in a context such as this one. Particularly where, as here, the relevant doctrine is in a state of flux with a growing “majority view” apparently waxing apace, and with the composition of the affected state appellate courts in a similar state of flux, the enterprise is doubly difficult.

But it seems to me a particular disservice to the state courts involved for federal diversity courts in such situations to engage in what might be considered the gentle pressure tactics of “assuming” that the state court will necessarily follow a view proclaimed by the federal court to be “enlightened.” “Enlightenment” is quite likely, in this as in other matters, to be in the eye of the beholder. Just as there are many reasons other than social or legal enlightenment that may explain a contemporary trend in decisional law, so there are many reasons other than unenlightenment that may explain a particular state’s reluctance or failure to fall in with the trend.

Admittedly, when better indicators are not available the trend factor is one that must be considered. But Judge Murnaghan’s preference for the Third Circuit’s prediction in Seese¹ — which is rested largely upon the enlightened-trend factor — over that of the Wilson panel² of this court demeans both the Wilson panel’s basis for prediction and the legitimacy of the reasons that North Carolina might have for not following the trend.³

The primary legal indicators for diversity courts should be what the courts of the state have most recently said and what basic doctrinal premises they have seemed most consistently to hold to rather than the way the general law may be trending. Cf. Seese, 648 F.2d at 836-37 (noting error in district court’s recent prediction that North Carolina would adopt theory of strict liability in tort). It is on this basis that the Wilson court’s prediction — which of course may turn out to have been a faulty one— was based. And it is only to the extent that the indicators relied upon in Wilson can be shown to be irrational that I think the Wilson decision is subject to fair criticism from within or without this court whose law it remains.

To emphasize that the Wilson prediction is not an irrational one, whatever the general trend of the law may be and, more importantly, to emphasize that there are better guides at hand for “finding” present North Carolina law than making substantive judgments about the merits of the rule of decision in question, I offer the following thoughts.

First and foremost is the fact that North Carolina has at this late date not yet joined the crashworthiness “trend.”

To dismiss this with the suggestion that it has not been possible to join because an appropriate case has not yet been presented and to forecast that — because of diversity’s refuge — it will not likely be presented in the future denigrates the wit both of the North Carolina courts and of counsel practicing in those courts. Courts minded to join “enlightened trends” in decisional law have no difficulty reaching out in “near” cases to join up. This could easily have been done, for example, in Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968), a case discussed later, where the closely related question of contributory negligence as a proximate cause of “second crash” injury was presented. Cf. Miller v. Premier Corp., 608 F.2d 973, 985-86 (4th Cir.1979) (relying on general trends in choice-of-law doctrine to determine prevailing law where there was a long lack of opportunity in the state courts to apply earlier rule of two isolated cases).

And to break any shackles imposed on state law development in diversity cases by Wilson’s application of assumed North Carolina law, all that is needed is to break up complete diversity by appropriate joinder of defendants in a state court action. Factual patterns presenting that opportunity are surely bound to arise — and almost certainly already have arisen.⁴

Next is the fact that North Carolina courts have not either been minded to join what may be considered comparable trends in liberalizing tort recovery by such doctrinal expansions as strict liability and comparative negligence.⁵ While to some this may appear unenlightened, it may to others reflect a completely respectable and deep-seated attitude of judicial restraint and deference to legislative primacy in making significant changes in long-established common law tort doctrine. In any event, judicial restraint in these related areas is a fact that must be taken into account by a federal diversity court in assessing the probable view of North Carolina’s appellate courts on the propriety of judicially adopting the crashworthiness doctrine. So the Wilson panel properly did.

Finally, there is the guidance to be had from recent doctrinal expressions by North Carolina’s highest court. Judge Mumaghan rightly points out that the crashworthiness principle most directly involves, in conceptual terms, the proximate causation element in tort law. And he correctly points out that, along with other courts, North Carolina’s have treated the issue of proximate causation, where it is substantively in play, as one so heavily fact-laden that resolving it as a matter of law on the pleadings or by directed verdict is seldom appropriate. The North Carolina cases cited by Judge Murnaghan certainly bear that out. But they are beside the point.

The underlying conceptual problem in substantive crashworthiness doctrine precisely concerns identification of the accident-occurrence upon which the proximate causation inquiry is to be focused. Is it the initial impact of vehicle with some external object — another vehicle, a tree, a ditch-bank — that sets in train a series of traumatic “crashes”? Or is it the specific physical trauma traceable to second (and third, etc.) “crashes” that are in turn arguably traceable in causal terms to design defects that concededly have no causal relation to the “first crash”? Courts that reject crashworthiness doctrine are likely to do so by a purely conceptual analysis that identifies the first impact as the sole accident-occurrence upon which proximate causation injury is rightly focused, with liability for all direct and consequential damages flowing from that impact (including all ensuing “crashes”) then being imposed solely upon the actor whose negligence proximately caused that impact.

In these purely conceptual terms, there is strong indication that the North Carolina Supreme Court presently identifies the “first impact” as the critical and sole one for proximate causation — hence tort liability — analysis. In Miller v. Miller, supra, Justice Susie Sharp, writing for the court, employed exactly this analysis in rejecting as a matter of law a vehicle accident defendant’s defense of contributory negligence based upon the plaintiff’s failure to wear a seat belt. The defense was not available, either in complete bar or for purposes of mitigation of damages by apportionment, wrote Justice Sharp. The plaintiff’s failure — even if negligent — “did not contribute to the occurrence of the accident,” 273 N.C. at 231, 160 S.E.2d at 68 (emphasis added). Furthermore, damages were not rationally apportionable on a theory of mitigation so that theory must also be rejected as a basis for the defense. Cf. Seese, 648 F.2d at 851-52 (Adams, J., dissenting) (must distinguish injuries attributable to accident from injuries due solely to defect).

Miller is not a pure “crashworthiness”— doctrine case. But its conceptual analysis of the critical causation issue must be the starting point for any honest reappraisal leading to adoption by North Carolina courts of the crashworthiness doctrine. A federal diversity court, seeking to divine state law in this realm, must also take this analysis as a starting point for its own conceptual analysis of where state law presently stands. If, in the event, the federal court’s finding of state law based upon that analysis turns out to be faulty, it will not be because the court failed to look first to that primary indicator. On the other hand, any prediction that fails to reckon with this doctrinal expression as the benchmark for conceptual analysis could not be one faithful to our obligation to find state law as it exists at the time for decision.

In this case every relevant consideration suggests that we should simply have reversed on the authority of Wilson, and left the matter there. I wish it had been possible to do so.

1 . Seese v. Volkswagenwerk A.G., 648 F.2d 833 (3d Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981).

2 . Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir.1981).

3 . The Third Circuit, in fact, is more deferential — in a commendable display of intra-system comity — than is Judge Murnaghan. It has now recognized the primacy in that circuit of the Wilson “finding” of North Carolina law as applied to cases arising after Wilson. See Seese v. Volkswagenwerk, A.G., 679 F.2d 336 (3d Cir.1982) (on appeal from denial of Rule 60(b)(6) motion following this court’s decision in Wilson).

4 . There is at least the possibility that the failure so far to present the issue for clean resolution by the North Carolina court bespeaks not lack of opportunity but a prudent perception by learned counsel of the plaintiffs .bar that the North Carolina courts were less likely to adopt crashworthiness doctrine than were federal diversity courts to predict its adoption. If so, their informed reading of the state of North Carolina’s law perfectly comports with that of the Wilson panel.

5 . See Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504 (1980); Price v. Seaboard Air Line Railroad, 274 N.C. 32, 161 S.E.2d 590 (1968).