Caprara v. Chrysler Corp.

Full title: FAUSTO CAPRARA, Respondent, v. CHRYSLER CORPORATION et al., Appellants, et…

Court: Court of Appeals of the State of New York

Date published: Jan 20, 1981

52 N.Y.2d 114 (N.Y. 1981)

436 N.Y.S.2d 251

417 N.E.2d 545

Opinion

Argued November 12, 1980

Decided January 20, 1981

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, F. WARREN TRAVERS, J.

Sheila L. Birnbaum and William R. Meagher for appellants. Robert M. Cohen, E. Stewart Jones, Sr., and Alfred C. Purello for respondent.

FUCHSBERG, J.

Central to the issues on this appeal is the admissibility of proof of a postaccident design change in support of a products liability cause of action submitted to a jury on an alleged manufacturing defect.

The plaintiff, Fausto Caprara, received a verdict on each of two causes of action, one in negligence and the other in strict products liability, against Chrysler Corporation and Chrysler Motors Corporation (Chrysler), which designed, manufactured and marketed a Dodge Coronet automobile Caprara was operating at the time of the occurrence which gave rise to this case. The Appellate Division having since affirmed on the facts and the law, though the facts were virgorously contested in the first instance, they must now be taken most favorably to the successful plaintiff (Matter of Kornblum Metals Co. v Instel Corp., 38 N.Y.2d 376, 379; CPLR 5501, subd [b]).¹ Chrysler does not dispute that plaintiff made out a prima facie case.

1 The affirmance was as to liability. On the issue of damages, the Appellate Division modified what was originally a verdict for $3,600,000 by ordering a new trial on that issue unless the plaintiff agreed to stipulate to reduce it to $2,000,000. He so stipulated.

On that basis, we note that, according to Caprara, he was driving the vehicle into a familiar downhill curve on Congress Street in the City of Troy at 25 to 30 miles per hour when, as he attempted to turn his steering wheel to navigate the turn, "the wheel seized right up", causing the car to swerve out of control and crash with consequential injuries which include quadreplegia. An experienced driver, whose familiarity with automobiles was heightened by employment in an automobile shop, plaintiff also testified that the steering mechanism had never been altered from the condition it was in when the car was sold by the defendants a year earlier and that, in the intervening time, it had functioned uneventfully.

The parties also produced an avalanche of experts. Of particular pertinence to this appeal is the testimony of plaintiff's witness William G. Burrill, an engineer specializing in automobile failure analysis, who, with the assistance of an auto mechanic, had examined the untempered wreck at the shop to which it had been taken after the crash. Burrill and the mechanic implicated a defective lower front ball joint, which helps carry the weight of the car, as the cause of the accident. They found all other parts which could have contributed to the mechanical failure experienced by the plaintiff in good condition.

Specifically, these witnesses established that, though the automobile had only traveled some 9,000 rather than the 80,000 to 150,000 miles the ball joint concededly was intended to last, by actual measurement, it displayed an amount of wear so excessive that it had reached the replacement point and no longer met the State's official motor vehicle test requirements. Moreover, they went on to explain that, in this condition, it was possible, especially at a time when a downhill shifting of weight and a left hand turn would combine to put stress on the right front, for the joint to move into a chance position in which it could suddenly produce precisely the kind of binding effect Caprara described.

Also figuring on this appeal is the testimony of Daniel W. Doran, supervisor of Chrysler's steering and suspension department, whom plaintiff also elected to call. In the course of his examination, it was developed, over Chrysler's objection, that, nearly four years after the plaintiff's accident, the appellants had modified the design of the joint by adding a plastic insert which eliminated the play which could wear down the ball. Doran further admitted that, for about eight years prior to the Caprara accident, he and Chrysler knew that General Motors had already introduced a substantially similar design change.² Although Doran agreed that the movement which the plastic removed could have resulted in wearing, he insisted that the modification was functionally irrelevant and had been adopted solely to discourage unscrupulous mechanics from inducing motorists to replace ball joints prematurely.³ Returning to the stand, Burrill countered that the design change would serve to alleviate the excessive attrition to which he earlier had attributed the accident-producing malfunction. At this juncture, of course, the plaintiff's case, as Chrysler concedes, took on aspects compatible with both manufacturing and design defect theories, each a recognized element on which a strict products liability case may be grounded (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 478).

2 [1] Though the proof of alternate design was not introduced at the trial until Doran took the stand, it did not represent a new or surprising theory. The amended complaint and the bill of particulars spoke to a defective steering system which included a defective and improperly designed lower right ball joint. It therefore was not improper for the trial court to allow in the evidence in support of that theory, and the Appellate Division certainly was justified in upholding that ruling (see Di Carlo v Ford Motor Co., 65 A.D.2d 597; McCormick v State of New York, 51 A.D.2d 28, 31; 3 Weinstein-Korn-Miller, N Y Civ Prac, par 3025.27).

3 Though the dissenting opinion assumes that Chrysler never received any complaint of ball joint failure of this type, except for an equivocal answer by Doran as to his personal knowledge of any complaints within an unspecified "short period of time", a search of the the record merely shows that no offer on this subject was ever made by either side.

Yet, in sending the case to the jury, the trial court decided, sua sponte and with the concurrence of Chrysler, to submit the products liability case solely on a theory of defective "manufacture and assembly". As it had on an implied warranty count, it expressly ruled out submission of the design theory as such, apparently in the interest of simplifying the case. Nevertheless, under circumstances hereinafter detailed, the Trial Judge denied defendants' motion to strike Burrill's testimony on the effect that the Chrysler design change would have had on the ball joint's durability. As to the proof supplied through Doran on the subsequent change in ball joint design, at the request of Chrysler and without exception, in its charge the court advised the jury as follows: "I instruct you that this evidence alone and by itself does not establish that the ball joints in the plaintiff's car were defective. The fact that there are one or more different designs or that there is a design change to a given product does not establish that there is any defect in any particular design, and I so charge you as a matter of law."

In addition, the court submitted plaintiff's conceptually unrelated negligence cause of action.

This as background, we now turn to the two contentions on which Chrysler, in the main, posits its quest for a new trial. One is that it was reversible error to admit the evidence of a postoccurrence change in the ball joint design altogether. The second arises from the Trial Judge's failure to instruct the jury to disregard the Burrill testimony on that subject. We believe both are without merit.

Since the Burrill testimony touches on both points, we treat first with the defendants' request that the jury be told to disregard what this witness had had to say on the difference the plastic insert would have made to the functioning of the accident-producing ball joint. The procedural genesis for this argument, an attack on the witness' qualifications as an expert, took the form of a motion to strike, solely on appellant's assertion "that Mr. Burrill acknowledged the fact that he was not an expert with regard to design of ball joints". This characterization, presumably made from memory some three weeks after Burrill had testified, went too far. A more studied reading of Burrill's testimony reveals that the witness never suggested that he did not have a professional understanding of ball joints. In substance, he merely agreed that he was not a designer of and had never participated in constructing one.

This limitation on his background did not necessarily disqualify the witness from testifying on the mechanics and merits of ball joints. As part of his engineering and automobile accident reconstruction background, Burrill, who had supplemented his undergraduate degree in mechanical engineering by completing graduate studies at Rensselaer Polytechnic Institute, had served as consultant to almost every major American automotive manufacturer.⁴ In addition, even gainsaying the formal training he enjoyed, his practical experience included actual disassembling and analysis of some 100 ball joints. As may be true, for example, of a knowledgeable music critic who has never written a note, Burrill's competency could just as well have derived from the real world of everyday use as from that of the laboratory. As the court said in Meiselman v Crown Hgts. Hosp. ( 285 N.Y. 389, 398), "[l]ong observation and actual experience, though without actual study [may] qualify a witness as an expert" (see, also, Delair v Gaudet, 4 A.D.2d 736, 737 [engineer qualified by education and experience to give expert testimony on the adequacy of the installation of a heating plant, despite having never installed one]). Accordingly, it was well within the province of the trial court, the one entrusted with the primary responsibility to pass on an expert's qualification, to have found him qualified.

4 These included General Motors, Ford, American Motors, Mack Truck, International Harvester, Mercedes-Benz and the Bendix Corporation. He also served the United States Government in a like capacity. Chrysler itself had engaged him in another suit brought against it.

Indeed, we know the court initially found him so, for it denied the motion to strike. Only when it was renewed as part of a long series of in-chambers requests to charge, made as the case was drawing to a close, did the court indicate that it would grant the motion, and then only to the extent of striking out Burrill's testimony on design. Then, demurring to a demand that it advise the jury of its ruling, the court stated, instead, that it would handle the matter in its charge. In fact, it never did so. For its part, the Appellate Division opined on review that it would have been an abuse of discretion to have granted the motion. As we see it, contextually, the failure to advise the jury to disregard the testimony in question may be construed as an ultimate de facto decision not to do so. On that premise, we conclude that it was not error for the trial court to have rested on the ruling it announced in its original disposition of the motion.

Now reaching the broader and more basic question of the role of postaccident change in this case, we start by reiterating the long accepted proposition that, in a negligence suit, proof of a defendant's postaccident repair or improvement ordinarily is not admissible. The reason for applying this rule of evidence to that kind of case is clear. Since at the heart of such an action is either affirmative conduct in creating a dangerous condition or a failure to perceive a foreseeable risk and take reasonable steps to avert its consequences, proof that goes to hindsight rather than foresight most often is entirely irrelevant and, at best, of low probative value. Where such evidence becomes admissible on some other theory or on another issue, such as control, impeachment or feasibility of precautionary measures, almost invariably Trial Judges have thought it best, lest the jury look upon it as an acknowledgment of negligence, to accompany its receipt with appropriate limiting instructions. Although the potential for prejudice would appear to provide ample reason for this cautious approach, some writers have bolstered it by also suggesting that an opposite rule would discourage defendants from repairing dangerous conditions in order to avoid generating evidence against themselves (see, generally, 2 Wigmore, Evidence [Chadbourn rev, 1979], § 283; McCormick, Evidence [2d ed], 666-669; Richardson, Evidence [10th ed — Prince], §§ 168, 221).

Be that as it may, it is the rule that Chrysler claims was violated by the introduction of the evidence of post-accident design change. Recognizing that the question is one of first impression in this court, it would have us hold in principle that this exclusionary practice is as applicable to a strict liability claim as it is to one posited on common-law negligence alone.

Meeting this issue, we do not track unknown terrain. When we adopted the theory of strict products liability as the basis for a cognizable cause of action, we hearkened to the fact that a "developing and more analytical sense of justice, as regards both the economics and the operational aspects of production and distribution has imposed a heavier and heavier burden of responsibility on the manufacturer" (Codling v Paglia, 32 N.Y.2d 330, 339). In this response to a growing societal commitment to product safety, we stressed the need to overcome the inordinately difficult problems of proof which face contemporary consumers who suffer at the hands of articles of commerce whose proclivities to injure so often are within the sole ken of those who design and manufacture them (Lambert, Touchstones of Tort Liability, 33 ATL LJ 378, 402-403).

To that end, under the evolved doctrine of strict products liability, the scienter that is so vital to the negligence suit need not be shown. The shift so wrought is from fault to defect. No longer does anything turn on whether the defendant knew or reasonably could have been expected to know of the defect. Stigmatizing the manufacturer as negligent serves no legal purpose. In easing the path to proof, we have even gone so far as to announce that it is not even essential to a prima facie strict products case that the defect be isolated, for, if a plaintiff "has proven that the product has not performed as intended and excluded all causes of the accident not attributed to defendant, the fact finder may * * * infer that the accident could only have occurred due to some defect" (Halloran v Virginia Chems., 41 N.Y.2d 386, 388). So, while a producer is not an insurer and its product need not be accident proof, it will not be shielded by the fact that it and its employees put forth their best and most meticulous efforts. If the product can be found to be defective when it leaves their possession,⁵ if the defect was a substantial factor in producing plaintiff's injuries, without more the defendant, "the one in the best position to have eliminated those dangers", must respond in damages (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 387).

5 A "defective product" has perhaps been most succinctly defined as one "not reasonably safe" (Wade, Strict Tort Liability of Manufacturers, 19 SW LJ 5, 18) or "unreasonably unsafe" (Department of Commerce Model Uniform Product Liability Act, 44 Fed Reg 62714-62715 [1979]).

This contrast between negligence and strict products liability law is dramatic. In the former, that a defendant acted with due care will exonerate it from liability to the most seriously injured plaintiff. But, in strict products liability, it is no longer any answer that the defendant injured the plaintiff carefully.⁶ Those who market products must stand behind them.

6 Since this case was not submitted to the jury on a defective design theory, we have no occasion to treat with the balancing of benefits against risks involved in ascertaining whether a product manufactured as designed under the then existing state of the art is reasonably safe (see Robinson v Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, supra; Barker v Lull Eng. Co., 20 Cal.3d 413; Restatement, Torts 2d, § 402A; Wade, On Product "Design Defects" and Their Actionability, 33 Vanderbilt L Rev 551, 572 et seq.; Wade, On the Nature of Strict Tort Liability for Products, 44 Miss LJ 825, 837). The dissenters' dissertation on this subject is therefore largely besides the point.

It follows that the logic behind the exclusionary rule, born in a negligence setting, where, absent negligence, liability could not exist, affords little, if any, support for the slavish application of the rule to cases brought on a legal theory so antithetical to the strictures of negligence law that respected scholars have suggested that "the determination of whether a reasonably prudent manufacturer would put the product on the market must be made with the assumption that the manufacturer knew of the dangerous condition of the product" (Wade, On Product "Design Defects" and Their Actionability, 33 Vanderbilt L Rev 551, 567 [1980]). One need not adopt this statement to recognize that it breathes the spirit of strict products liability.

In alleviating the problems of proof consumers formerly faced in such cases, it cannot have been intended to countenance an evidentiary rule which would so sweepingly exclude postaccident design evidence of a defect simply because it touches on prior conduct which under present law is irrelevant to liability (Twerski, Rebuilding the Citadel, The Legislative Assault on the Common Law, 15 Trial No. 11, at pp 55, 58 [Nov., 1979]). Beyond that, the very economic realities that shaped these legal changes — among others, the growing market share of the mass manufacturer, the well-nigh universality of insurance, the escalation of governmental regulation — undermine any assumption that it is necessary to pay the price of sheltering defendants in strict products liability litigation from evidentiary use of their product changes in order to persuade them to make improvements to which self-interest must propel them in any event (see 2 Weinstein's Evidence, par 407[02], at pp 407-9 — 407-10, and 1979 Supplement, at pp 110-111; Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke LJ 837, 848-850; Note, Evidence of Subsequent Repair, Yesterday, Today and Tomorrow, 9 U Cal Davis L Rev 422). At the very least, the balance that, in the traditional negligence cause, was weighted to avoid the prejudice rather than to find the relevancy is tipped the other way in a strict liability suit.

Consonant with the inapplicability of the blanket exclusionary rule to strict products liability cases, a restriction to which we today give our approval, in the present case the evidence of design change was supportive of the "manufacturing and assembly" defect theory on which the trial court sent the strict liability case to the jury. The juxtaposition, both by verbal description and physical examination, of a joint assembled with a plastic insert and one without, by offering a graphic explanation of the slack eventually taken up by the insert, was bound to help the jury understand the defect on which the plaintiff relied. It tended, too, to indicate that the appellants themselves eventually formed the opinion that the ball joints in Caprara's car had a potential for movement when installed. And, it added to the probability that it was this defect rather than other causes that produced the accident. Thus, reasonable persons in the exercise of their independent judgment could have found the evidence relevant and material. Nor need the proof have been conclusive for it to be probative. There is no good reason why, as suggested by the dissenters, such evidence should be admitted only when absolutely necessary or as a last resort. To so relegate it would ignore the fact that, in truth-finding, it is at times the quality and at times the quantity which carries conviction.

We thus conclude that the challenged evidence was properly received, most certainly on the strict products liability theory. Furthermore, in light of the fact that Chrysler, as indicated, did not request a charge limiting the purposes for which the evidence could be used, we need not and do not reach the issue of whether in the circumstances here the jury should have been instructed that the evidence should not be considered in determining whether Chrysler was negligent (see Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke LJ 837, 851-852). This again emphasizes that it is not necessary to decide whether such evidence would have been admissible on a theory of design defect, for the case was not submitted to the jury on that theory.

Finally, as regards the dissenters' damages discussion, the simple fact is that the defendants preseved for appeal no question other than that contained in their request for a charge on the reduction of plaintiff's future earnings loss to present value. Nor, on this singular reviewable item, did the defendants offer expert or other proof, or ask the court to take judicial notice of any facts that could have entered into such a calculation, which of course would have to include the impact of the more than offsetting inflation which appears to have become a chronic affliction.

Nor, can we say as a matter of law that the very large reduction effected by the Appellate Division in the size of the general award of damages made for the catastrophic quadreplegic injuries to this 21-year-old plaintiff did not more than subsume any correction that reasonably could be urged. It goes without saying that that court, lacking clairvoyance, in evaluating a verdict intended to compensate for a projected long lifetime of pain, suffering, helplessness and all the other tangible and intangible losses that were sure to follow, faced an unusually difficult judgmental responsibility, for the fulfillment of which no less than a sophisticated elasticity will ever do. In no two cases are the quality and quantity of such damages identical. As has been pointed out by pragmatists and theorists who have wrestled with the problem of how damages in such cases may justly be arrived at, evaluation does not lend itself to neat mathematical calculation (see James, Damages in Accident Cases, 41 Cornell LQ 582, reprinted in Schreiber, Damages in Personal Injury and Wrongful Death Cases, Practicing Law Institute, New York). It follows that, if we are to essay anew the difficult and perhaps complicating venture of delineating more rigid guidelines for the evaluation of an always varying pattern of damages, we had better await a case in which we can reach the question (CPLR 5501, subd [a], par 3; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 115).

For all these reasons, the order of the Appellate Division should be affirmed.

JASEN, JONES and MEYER, JJ. (dissenting).

Reversal and new trial is required because (1) the matter having been submitted to the jury only on manufacturing defect and not on design defect, evidence of subsequent design change was irrelevant, (2) evidence of subsequent design change is so prejudicial that it should be admitted, even if admissible in strict liability cases, only when, because other proof is not available, its probative value outweighs its prejudicial effect; in the instant case other evidence was available, and (3) the Trial Judge erred in denying defendant's request to charge that future lost earnings should be discounted to present value.

I

The theory upon which the action was submitted to the jury, as the majority concedes (at p 120), was of a defect in manufacture and assembly. Straining to sustain the admission of evidence of subsequent design change in a case not submitted to the jury on a design defect theory, the majority fails to recognize the essential difference between the two, a distinction re-emphasized only last year in Robinson v Reed-Prentice Div. of Package Mach. Co. ( 49 N.Y.2d 471), and muddies not only the law of evidence but the rules governing product liability as well.

Strict products liability permits recovery by the plaintiff upon a showing that the product which caused the injury was defective when it was put on the market (Codling v Paglia, 32 N.Y.2d 330, 342). As the law of products liability has developed in this State, a defect in a product may arise in one of three ways: a defect in construction, through mistake in manufacturing or assembly (Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395; Codling v Paglia, 32 N.Y.2d 330, supra), a defect in design (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, supra; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376; Bolm v Triumph Corp., 33 N.Y.2d 151), or failure to give adequate warning or instruction in the use of the product (Wolfgruber v Upjohn Co., 72 A.D.2d 59, affd 52 N.Y.2d 768; Torrogrossa v Towmotor Co., 44 N.Y.2d 709). Though this appeal properly involves only the first, the majority's confusion of the first two requires that we differentiate defective manufacture from improper design.

Although sometimes difficult to delineate (see Barker v Lull Eng. Co., 20 Cal.3d 413; Wade, On the Nature of Strict Tort Liability for Products, 44 Miss LJ 825; see, also, Prosser, Law of Torts [4th ed], § 99), a real distinction exists, both in law and in fact, between manufacturing defects and design defects. Manufacturing defects, by definition, are "imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. A [defectively manufactured] product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design." (Henderson, Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Col L Rev 1531, 1543.) Stated differently, a defectively manufactured product is flawed because it is misconstructed without regard to whether the intended design of the manufacturer was safe or not. Such defects result from some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction. Common examples of manufacturing defects are the proverbial hairline fracture in the exploding bottle or the flawed piece of metal in the automobile steering column. (See Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395, supra; Codling v Paglia, 32 N.Y.2d 330, supra.)

In contrast, a design defect is one which "presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to [the] detailed plans and specifications" of the manufacturer (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479, supra.) Thus, unlike manufacturing defects, design defects involve products which are made in precise conformity with the manufacturer's design but nevertheless result in injury to the user because the design itself was improper. Moreover, unlike manufacturing defect cases where the decisive issue is the existence of the defect without regard to the care exercised by the manufacturer, a defendant in a design defect case can avoid liability by demonstrating that he used that "degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended" (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 385, supra.) Indeed, it has been said that "the standards for imposing liability for such unreasonably dangerous design defects are * * * general negligence principles". (Bolm v Triumph Corp., 33 N.Y.2d 151, 157-158, supra.) Instances of design defects are the motorcycle luggage rack situated such that it aggravates injuries to the driver when involved in a collision (Bolm v Triumph Corp., 33 N.Y.2d 151, supra), or the printing press without hand guards to protect its user (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, supra).

In this case, though plaintiff's complaint alleged, inter alia, that the ball joint was improperly "manufactured and assembled" and "defectively designed", the evidence initially introduced advanced only the theory of defective manufacture and assembly. Ten days into the trial, however, plaintiff's theory shifted to the concept that Chrysler's ball joint was defectively designed. Only then was evidence of the subsequent design change introduced and were Doran and Burrill called to testify as to the addition of the plastic insert in the Chrysler ball joint. The matter was, however, submitted to the jury solely on the issue of manufacturing defect, apparently because the Trial Judge, having decided to strike Burrill's design change testimony, concluded that there was insufficient evidence to present a jury question on the issue of design defect.¹ Thus, the only issue before the jury was whether the particular ball joint in plaintiff's automobile had been defectively manufactured because of faulty crimping or misassembly. On the question whether a mishap in the manufacturing process caused the ball joint in plaintiff's automobile to be defective, evidence that four years later the design of the joint was changed was in no sense probative. The majority's suggestions that such evidence was bound to help the jury understand that Chrysler itself "eventually formed the opinion that the ball joints in Caprara's car had a potential for movement when installed" (at p 125) and "added to the probability that it was this defect rather than other courses that produced the accident" (id.) are nonsequiturs in light of the uncontroverted evidence that there was no potential for movement when the car was on the ground, that the only "end play" in the ball joint reduced by the plastic insert was the "artificial end play" created when the automobile was lifted off the ground, and that the weight of the automobile when it is on the ground causes the ball joint to be pressed into its housing, locking it into place. The evidence of design change by Chrysler should have been excluded because it had no relevance to the only issue before the jury: whether there had been a manufacturing defect (see Hoenig, Products Liability: Views on Proposed Code of Evidence, NYLJ, Dec. 15, 1980, at p 1, col 1; at p 3, col 1).

1 The fact that plaintiff presented no evidence that Chrysler ever received a complaint of failure of the ball joint plaintiff claims to have been defectively designed in the 13 million automobiles using the joint manufactured between 1962 and 1972 supports the conclusion of the Trial Judge not to submit the issue to the jury.

II

Even if we accept the majority's view that the evidence had some probative effect, it should have been excluded because it was cumulative and its probative value did not substantially outweigh its prejudicial effect.

Both briefs state that the Trial Judge admitted the postaccident design evidence on the basis of the holding in Barry v Manglass ( 55 A.D.2d 1, 7) that "the rule excluding evidence of postoccurrence repairs in negligence cases should not be applied to products liability cases." The ruling was, thus, made on the law and not in the exercise of discretion. Accepting for purposes of argument that there may be cases in which such evidence should be admitted, not only under the usual exceptions to show feasibility, ownership or control if controverted, or to impeach, but also to establish defect in design, we conclude that it was reversible error to permit introduction of the evidence in the present case.

Barry v Manglass (supra) is distinguishable because it involved a recall letter sent under a statute (US Code, tit 15, § 1402, subd [a]) requiring a manufacturer to notify a purchaser of "any defect * * * which [the manufacturer] determines, in good faith, relates to motor vehicle safety" and which thus constituted a clear admission, albeit under force of the statute, of defect, while postoccurrence design change to the extent that it constitutes an admission at all is much less probative of defect. Moreover, both Barry and Ault v International Harvester Co. ( 13 Cal.3d 113), on which Barry heavily relies, proceed from the premise that the rationale for the exclusionary rule is deterrence of the manufacturer from effecting repairs. Since the manufacturer subject to strict products liability has other incentives for marketing a nondefective product, it is reasoned, it is not necessary to exclude evidence of subsequent repair or design change as an encouragement for him to make such repair or change.

While the deterrence rationale is one of the reasons usually given for exclusion, it is neither the sole nor should it be the primary reason. To reason as do Ault and Barry is to accord deterrence undue weight and to grossly underplay the prejudicial effect of the evidence. Neither history nor logic requires or warrants so doing.

The early cases emphasized lack of probativeness and the prejudice resulting from admission as the primary reasons for exclusion, and referred to deterrence only incidentally if at all. Thus, in Morse v Minneapolis St. Louis Ry. Co. ( 30 Minn. 465, 468-469), decided in 1883, the basis for the exclusion was stated as follows: "[S]uch acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence."

The United States Supreme Court in Columbia R.R. Co. v Hawthorne ( 144 U.S. 202, 207), after quoting the Morse statement, phrased the rule in the following language: "[T]he evidence is incompetent, because the taking of such precautions against the future is not be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant" and in Smyth v Upjohn Co. ( 529 F.2d 803, 804), the Second Circuit Court of Appeals, concluding that New York State courts did not accept the Ault rule, stated that: "The rationale behind the doctrine is that the evidence of remedial action, being based on hindsight, does not tend to show that the defendant had failed to act with reasonable care at an earlier period of time. The evidence, on the other hand, could be highly prejudicial and might discourage a person from making repairs to remedy a potentially dangerous situation." Without unduly expanding this opinion by quoting from other similar out-of-State case authorities,² we note that the instant case is the first in which this court has departed from this basic rationale, and that in a carefully reasoned opinion by Justice RICHARD D. SIMONS, the Fourth Department, in Bolm v Triumph Corp. ( 71 A.D.2d 429), distinguished both Ault and Barry and refused to permit evidence of postaccident design change in a strict liability case.³

2 (See, e.g., Ortho Pharm. Corp. v Chapman, 388 N.E.2d 541, 561 [Ind]; Moldovan v Allis Chalmers Mfg. Co., 83 Mich. App. 373; La Monica v Outboard Mar. Corp., 48 Ohio App.2d 43; Hayson v Coleman Lantern Co., 89 Wn.2d 474. Generally, see, Costello and Weinberger, The Subsequent Repair Doctrine and Products Liability, 51 N.Y.SBJ 463; Comment: 13 San Diego L Rev 208; Admissibility of Evidence of Subsequent Repairs or Other Remedial Measures in Product Liability Cases, Ann., 74 ALR3d 1001.)

3 The majority takes the position that subsequent change evidence is admissible in any product liability case even though based upon defect in manufacturing rather than design. We disagree and would exclude such evidence in design defect cases, essentially for the reasons stated by Justice SIMONS in Bolm (supra).

Secondary authorities likewise fail to accord to deterrence an overriding role. Wigmore (Evidence [Chadbourn rev, 1979], vol 2, § 283, subd [4]) states the ground for exclusion as "that the supposed inference [of negligence or fault] from the act is not the plain and most probable one," then notes that such theoretical relevance as the evidence has is overcome on policy grounds that the evidence "would be liable to overemphasis by the jury, and that it would discourage all owners, even those who had genuinely been careful, from improving the place or thing that had caused the injury" (at p 175). Except as part of the quotation from the Morse case, neither Richardson ([10th ed — Prince], §§ 168, 221) nor Fisch (New York Evidence, § 798) mentions deterrence. McCormick ([2d ed], at pp 666-669) notes that in most cases courts have not felt called upon to state the basis of the rule (at p 666, n 9). Though he writes that, with those that do, the predominant reason is the policy against discouraging the taking of safety measures rather than the lack of probative significance, he, nevertheless, concludes (at pp 668-669) that before admitting evidence of subsequent change for any purpose "the court should be satisfied that the issue on which it is offered is of substantial importance and is actually, and not merely formally in dispute, that the plaintiff cannot establish the fact to be inferred conveniently by other proof, and consequently that the need for the evidence outweighs the danger of its misuse" (emphasis supplied).

It is, of course, true that even the traditional exceptions to the subsequent repair rule in negligence cases involve the danger that the evidence will be misused by the jury, and that the law has in such cases relied upon jury instructions limiting the use to which the evidence can be put by the jury as a sufficient protection against misuse. That reliance has, however, been born of necessity by reason of the inability to prove an element of the cause of action, such as control, controverted by defendant, without the subsequent repair evidence. It recognizes the unfairness of permitting defendant to both deny such an element and object to evidence which strongly tends to prove that element, and leaves to defendant the choice between admitting the element (e.g., control) and thus excluding the evidence, or denying the element and thus opening the door to admission of subsequent repair or design. Such instructions have, moreover, been relied upon in areas of fault with which jurors, who in final analysis establish for each case what reasonable care means, are much more likely to be conversant than are they with respect to the technically sophisticated question of design or manufacturing defect (cf. Henderson, Manufacturer's Liability For Defective Product Design, 56 NCL Rev 625, 626). Accepting the somewhat dubious concept that such instructions can be understood and will be applied in such cases,⁴ we suggest that in strict product liability cases, where, as the majority points out, "it is not even essential to a prima facie strict products case that the defect be isolated" (at p 123) subsequent design change evidence, like the lure of the Lorelei's siren song, will in almost all cases determine the result.⁵ Human nature being what it is, jurors who need only determine whether plaintiff has reasonably excluded other causes and whether the product was defective can hardly be expected to look beyond the admission which they will believe to be implicit in defendant's having made a design change, the more particularly so when the field involved is a technical one with which the average juror has no familiarity except through the battle of experts presented before him. Thus, the very element of strict liability law on which the majority relies is the element which, in our view, according realistic significance to the probability of prejudice, requires exclusion of the evidence unless plaintiff satisfies the Trial Judge that despite real effort to uncover other evidence in proof of defect he has been unable to do so. Only in such a case can the need for the evidence justify exposing defendant to the danger of its prejudicial misuse.

4 (1 Weinstein's Evidence, par 105[05], at p 105-36; vol 2, par 407[02], at p 407-9; vol 2, par 407[04], at p 407-23, n 26; Note, Evidence of Subsequent Repairs: Yesterday, Today And Tomorrow, 9 U Cal Davis L Rev 421, 428, 438, 440.)

5 Unfortunately so far as law review literature reveals, there is no empirical data establishing the extent to which admission of such evidence results in a verdict for plaintiff. It has been characterized as "extremely damaging" (Bauman v Volkswagenwerk AG., 621 F.2d 230, 233; see, also, Werner v Upjohn Co., 628 F.2d 848, 853).

To admit evidence of subsequent change on a less limited basis in strict liability cases generally is to make every manufacturer the insurer of the safety of his product. By the conclusion they reach, the majority, while verbalizing the concept that a manufacturer is not an insurer, in effect makes him just that. As recently as Robinson v Reed-Prentice Div of Package Mach. Co. ( 49 N.Y.2d 471, 481 supra), we have refused to expand the scope of the manufacturer's duty so far as to "be tantamount to imposing absolute liability on manufacturers for all product-related injuries," yet the majority broadly declares (at p 124) that "Those who market products must stand behind them." Such reasoning is not far from that of the Pennsylvania Supreme Court which in Azzarello v Black Bros. Co. ( 480 Pa. 547, 553), while denying that it was imposing liability as an insurer, cast the supplier "in the role of a guarantor of his product's safety". Yet as Professor Wade correctly notes:⁶ "What is the distinction between an insurer and a guarantor?" The economics involved may ultimately justify imposing such a burden on the manufacturer in favor of the consumer, but if that is to be done it should be done by the Legislature not by the courts.⁷ The absolute rule adopted by the majority, admitting subsequent design evidence without requiring that its prejudicial effect be balanced against plaintiff's ability to prove a case without such evidence cannot be logically justified.⁸

6 (Wade, On Product "Design Defects" and Their Actionability, 33 Vanderbilt L Rev 551, 567, n 81.) As Professor Wade recognizes (ibid., at p 570), "coherent analysis in design defect cases requires a balancing process. An absolute test for liability is not feasible unless one seeks to impose an insurer's liability."

7 The legislative trend is toward restriction rather than expansion of liability and exclusion rather than admission of subsequent repair evidence. See the Model Uniform Product Liability Act, proposed by the United States Department of Commerce (44 Fed Reg 62714 [Oct. 31, 1979]). That act prohibits use of subsequent repair or design change to prove defect (id., at p 62728), as have a number of State statutes (Twerski, Rebuilding the Citadel, The Legislative Assault on the Common Law, 15 Trial No. 11, at pp 55, 58). But what Professor Twerski decries is not that they exclude subsequent design change evidence but that they "go well beyond the narrow issue of subsequent design change and exclude a broad range of newly developed information from the litigation scene" (id.).

8 To say (at p 126) that there is no good reason to limit admission to evidence necessary to plaintiff's case is simply to ignore entirely the prejudice inherent in such evidence. Even the Note, Evidence of Subsequent Repairs: Yesterday, Today And Tomorrow (9 U Cal Davis L Rev 421) cited by the majority, which argues for the discard of the exclusionary rule, recognizes (at p 440) that "the defendant is entitled to have such evidence excluded if irrelevant or if the trial court agrees that admission would be unfairly prejudicial to defendant."

Were the balancing rule applied to the present case reversal would be required, for the evidence of change was "cumulative at best" (Knight v Otis Elevator Co., 596 F.2d 84, 91). There was other evidence available to plaintiff to prove the defect for there was evidence that Chrysler knew that more than eight years prior to the sale to plaintiff of the car in which he was injured, its leading competitor had changed its ball joint design to include a plastic insert. Nor does the cautionary instruction given obviate the error, for there being other evidence available there was no reason to subject Chrysler to the possibility of prejudice which admission of the evidence necessarily involved.⁹

9 Evidence that General Motors used such an insert, though no more probative than the later Chrysler design change that incorporated an insert in the joint, is far less prejudicial because it involves no element of admission by Chrysler.

III

With respect to damages, Chrysler's attorney requested an instruction "as contained in PJI 2:290 commencing at page 647." Mistaken are the majority's suggestions (at p 126) that defendant's attorney should have asked for a charge concerning inflation (that being the function of plaintiff's attorney, not defendant's) and that it was necessary to ask the Trial Judge separately to notice judicially the facts that enter into the present value calculation, they being clearly spelled out in the charge requested, and the Trial Judge having in any event denied the request not for any such reason, but out of hand.

The charge referred to by Chrysler's attorney relates to future earnings only, and the request was preceded by counsel's statement that he assumed the court would "charge PJI 2:290 regarding loss of earnings." Chrysler now argues that not only future lost earnings, but future medical expenses and future pain and suffering should have been discounted. As to the latter two issues, the error¹⁰ was not preserved. It was, however, preserved as to future earnings and since plaintiff had a life expectancy at the time of trial of 35 years, the amount awarded for future earnings, if discounted, could have been but a small fraction of the aggregate of annual earnings on an undiscounted basis over the full life expectancy.¹¹ Since the jury's award was a lump sum $3,600,000, we should not assume that the reduction made by the Appellate Division necessarily compensates for the failure to give the charge requested. Indeed, in our view, since defendant presses the failure to charge as requested as reversible error, we should reverse, rather than assume that the Appellate Division's reduction removed any prejudice from the error (especially when, as here, the Appellate Division's reduction is made without any indication of the method by which it is arrived at). By allowing such reduced verdicts to stand we permit the Appellate Division to function as the trier of fact in fixing damages notwithstanding that defendant is entitled to the jury's verdict on that as well as all other factual issues, under proper instructions on the law. Moreover, we stultify the development of the law in relation to the items that are discountable (see note 10 above), the way in which the matter should be presented to the jury (Chiarello v Domenico Bus Serv., 542 F.2d 883, supra; Lawless, Computation of Future Damages: A View From the Bench, 54 Georgetown LJ 1131), the effect of inflation (cf. Spadaccini v Dolan, 63 A.D.2d 110), what, if anything, the jury is to be told about income taxes in relation to discounted value (cf. Coleman v New York City Tr. Auth., 37 N.Y.2d 137; Norfolk Western Ry. Co. v Liepelt, 444 U.S. 490, rehearing den 445 U.S. 972; and see Encyclopedia New York Law, Damages, §§ 1031, 1142; 1 N.Y. PJI, p 644), areas of New York's law of damages in need of clarification if damage awards are to retain logical relationship to the items of injury compensated for.

10 Future expenses, like future earnings, should be discounted (Wolfe v General Mills, 35 Misc.2d 996; Leasure, How to Prove Reduction to Present Worth, 21 Ohio St LJ 204, 205; 1 N.Y. PJI, at p 640). Pain and suffering likewise should be discounted (Chiarello v Domenico Bus Serv., 542 F.2d 883, 887; Leasure, op. cit., at p 207; and see, generally, Restatement, Torts 2d, § 913A).

11 Defendant calculates the figures, based on salary at time of injury of $150 per week increased for wage increases by 10% for each of the remaining 35 years, at $2,113,990 before taxes, and those earnings discounted on the basis of a 6% return compounded annually at $275,041.76.

It would serve little purpose in a dissent to expound at length on each of those points. Suffice it to say that it was reversible error for the Trial Judge not to have charged as requested and that even if there had been no error in the admission of evidence, the matter should be remanded for retrial on the question of damages.

Chief Judge COOKE and Judges GABRIELLI and WACHTLER concur with Judge FUCHSBERG; Judges JASEN, JONES and MEYER dissent and vote to reverse in a separate opinion.

Order affirmed, with costs.