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DAY v. VOLKSWAGENWERK A.G.

August 24, 1977

NANCY V. DAY and NORMAN D. DAY
v.
VOLKSWAGENWERK AKTIENGESELLSCHAFT and VOLKSWAGEN OF AMERICA, INC. v. FRANK PAPARO



The opinion of the court was delivered by: MCGLYNN

 AND NOW, this 24th day of August, 1977, upon consideration of the Plaintiffs' Motion for a New Trial, it is hereby

 ORDERED that the said Motion be and the same is hereby DENIED.

 BY THE COURT:

 JOSEPH L. MC GLYNN, JR. J.

 MEMORANDUM

 MC GLYNN, J.

 This case arose out of an intersectional collision in which plaintiffs' 1968 Volkswagen Type II "Microbus" van was struck in the area of the driver's door by a 1967 Ford which had disregarded a red traffic signal and which was travelling at a speed estimated at 35 to 40 miles per hour. As a consequence, plaintiff suffered serious injuries to her neck and spine, which resulted in partial paralysis, some sensory impairment, and diminished breathing capacity, all of a permanent nature.

 Prior to the institution of this action, plaintiffs' claim against the driver of the Ford, Frank Paparo, was settled for $100,000, the maximum coverage under his liability insurance policy. The claim against the Volkswagen defendants focuses upon allegations that the van was defective when sold to the Days in that it was not equipped with shoulder restraints, and that defendants failed to warn of the vehicle's inherent dangers.

 After a lengthy trial, in response to written interrogatories, the jury specifically found that the subject van was not defective by virtue of the absence of shoulder restraints, and that defendants were not negligent in failing to install such equipment. Plaintiffs move now for a new trial. For the reasons hereinafter set forth, the motion will be denied.

 Plaintiffs assign error to the refusal of the Court to allow evidence on the issue of failure to warn, and the refusal to charge the jury on that theory of liability. Plaintiffs argue that Volkswagen knew of the results of crash-tests indicating the danger of serious injuries in the event of a front-end collision, but nevertheless failed to warn of the necessity of installing and utilizing the optional shoulder restraints. In support of their argument, plaintiffs cite Berkebile v. Brantly Helicopter Corp., 225 Pa. Super. 349, 311 A. 2d 140 (1973) [ Berkebile I ], Greiner v. Volkswagenwerk, AG, 540 F.2d 85 (3d Cir. 1976), and Restatement (Second) of Torts ยง 402A, comments j and k (1965).

 In Berkebile I, the manufacturer of a helicopter failed to warn the purchaser/pilot that in order for the craft's autorotation system to become operative, it must be activated within a few seconds of an engine failure. The Superior Court held that inadequate warnings of inherent or latent limitations of a product are sufficient to establish strict liability in tort even absent a defect in the design, manufacture, or preparation of that product, where the inadequate warning proximately caused an injury. In essence, it is the inadequacy or absence of the warning that renders the product defective. See also Greiner v. Volkswagenwerk, AG, supra.

 Defendants do not dispute that no warning was given to the Days prior or subsequent to the purchase of their 1968 Microbus van. They assert that because the absence of shoulder restraints was obvious to anyone who entered the van, no such warning was required. This is particularly true, according to defendants, in light of the fact that the owner's manual supplied with the Days' van disclosed the presence of lap-type belts only, further stating:

 
"Each outboard seat is equipped with a third mounting point to facilitate subsequent installation of ...

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