that the Days would be aware of the absence of shoulder restraints, since that fact was both obvious to the naked eye of anyone who made even a cursory inspection of the vehicle, and was specifically referred to in the owner's manual.
Plaintiffs further contend that because Volkswagen knew of the results of crash-tests conducted in 1966 indicating a danger of serious injuries in front-end collisions, this fact imposed a duty to warn of the general danger of the vehicle. However, this argument too must fail. It is, or certainly should be obvious to anyone purchasing or driving a rear-engine van of the type involved here, that passengers in the front seat of such a vehicle are much more exposed to the possibility of serious injury in the event of a front-end collision than they would be as passengers in the more conventional, front-engine mounted station wagon. Thus, the danger inherent in riding in the front seat of a rear-engine type vehicle is not a latent limitation requiring a warning of the risk involved.
Therefore, I am satisfied that the court's refusal to allow the proffered evidence and to submit the warning issue to the jury was proper.
Moreover, I am unable to discern any evidence of a causal connection between the absence of warnings and Mrs. Day's injuries. Certainly the lack of warnings had no connection with the operation of the Paparo vehicle which unquestionably was the cause of the accident. And to suggest that had the warnings been given, the Days might not have purchased the van is pure speculation. See Greiner v. Volkswagen (on remand), 429 F. Supp. 495 (E.D. Pa. 1977).
Finally, our research has not disclosed any cases in which a Pennsylvania Court has adopted the concept of enhanced injury in crashworthy or second accident cases. Compare Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976) (applying New Jersey law) with Colosimo v. May Department Store, 466 F.2d 1234 (3d Cir. 1972) (concurring opinion) (applying Pennsylvania law).
The leading Pennsylvania case on enhanced injury is Barber v. Kohler, 428 Pa. 219, 237 A.2d 224 (1968) in which the plaintiff, while working on a scaffold approximately three feet above the ground level, fell into an open hole which was in excess of sixteen feet in depth. Plaintiff contended that the defendant was negligent in failing to cover the hole so as to prevent persons such as plaintiff from falling into it. The Court stated that "while appellant may have sustained greater injuries by falling to the bottom of the hole than he would have received had the hole been covered, that has no bearing on the cause of the fall." The Court held that the defendants conduct was not the proximate cause of the plaintiff's injuries. And the Court also stated: ". . . a long line of cases in this court has held that the determination of the extent, if any, of incremental injury resulting from defendant's negligence is impossible to determine. This court has continually stated that, in a case like the instant one, a lessening of injury, absent defendant's negligence, is pure conjecture." 428 Pa. at 222 (citation omitted).
But as Judge Aldisert noted in Huddell : "the crashworthy or second collision theory of liability is a relatively new theory, its contours are not wholly mapped, but one thing, at least, is clear: the automobile manufacturer is liable only for the enhanced injuries attributable to the defective product." 537 F.2d at 738.
Therefore, I will assume that the Pennsylvania Courts would adopt the Huddell analysis and allow recovery for enhanced injury in second accident cases. This offers little comfort to the plaintiffs however, for unlike the head rest in Huddell, it cannot be demonstrated how the presence of warnings would have lessened Mrs. Day's injuries. Without such proof, the jury cannot properly assess responsibility against Volkswagen. Huddell, supra, at 738. Greiner, of course, is distinguishable on this issue because in that case there was no problem of incremental damages -- the injury having resulted from the inherent limitation of the vehicle totally independent of any action on the part of a third party tortfeasor.
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