WESLEY, J.:

In the early morning hours of May 10, 1995 Silhadi Alami was driving home alone in his Volkswagen Jetta on the Saw Mill River Parkway in Yonkers. Traveling at approximately 35 miles per hour, the Jetta left an exit ramp and collided with a steel utility pole. Alami died as a result of his injuries -- fractures of the ribs, rupture of the liver and massive internal hemorrhaging. At the time of the collision, his blood alcohol content exceeded the limits set forth in Vehicle and Traffic Law § 1192(2).

Alami's widow commenced this action against Volkswagen of America, Inc. seeking to recover damages on the theory that a defect in the vehicle's design enhanced decedent's injuries. Volkswagen moved for summary judgment arguing that decedent's intoxication was the sole cause of the crash and that no defect or malfunction in the Jetta caused or contributed to it. In light of Alami's intoxication at the time of the accident, Volkswagen also asserted that plaintiff's claim was precluded on public policy grounds. Volkswagen's motion did not address whether plaintiff could sustain her claim that the vehicle was defective.

In opposing the motion, plaintiff submitted an affidavit and report from an expert who had inspected the vehicle, autopsy report, photographs of the scene, police report and crash test results from Volkswagen and the federal government. The expert asserted that due to structural deficiencies in the manufacture of the vehicle, its floorboard buckled upward during the collision. He noted that the vehicle did not have adequate subframe reinforcement, and that the resultant buckling caused the decedent to be thrown forward, causing thoracic and abdominal injuries that led to his death. The expert concluded that if the vehicle had a transverse stringer to provide adequate structural support and a three-point combination lap and shoulder harness -- safety features which were readily available and in common use in the automobile industry -- the decedent would have survived the crash with minimal injury.

Supreme Court granted Volkswagen's motion. The court applied our holdings in Barker v Kallash (, 63 NY2d 19) and Manning v Brown (, 91 NY2d 116) to preclude plaintiff's claim based on its finding that decedent's drunk driving constituted a serious violation of the law and that his injuries were the direct result of that violation. The Appellate Division affirmed, holding only that "the negligent manner in which the decedent was operating his vehicle was the sole proximate cause of the collision and his fatal injuries" (278 2 262). We now reverse.

Volkswagen and amici argue that plaintiff's claim should be precluded on public policy grounds because the decedent was intoxicated at the time of the accident. They point to Barker and Manning, in which we held "that where a plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff's conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are the direct result of that violation" (Manning, 91 NY2d at 120 [citing Barker, , 63 NY2d 19, supra]). When this test is met, recovery is precluded "at the very threshold of the plaintiff's application for judicial relief" (Barker, 63 NY2d at 26).

Operating a motor vehicle while in an intoxicated condition is indisputably a serious violation of the law. "The importance of the governmental interest [in deterring drunk drivers] is beyond question" (People v Scott, , 63 NY2d 518, 525). But plaintiff contends that her husband's intoxication was not the direct cause of the injuries for which recovery is sought. Relying on Humphrey v State of New York (60 2 742) and our analysis in Barker and Manning plaintiff contends that, because this action is premised on defects in the vehicle and their role in her husband's death, Barker and Manning do not bar her claim.

In Barker, we noted that "the public policy of this State generally denies judicial relief to those injured in the course of committing a serious criminal act" (63 2 at 24, supra [citing Reno v D'Javid, , 42 NY2d 1040]). However, in Barker we were careful to note that "[t]he rule denying compensation to the serious offender would not apply in every instance where the plaintiff's injury occurs while he is engaged in illegal activity

Footnotes

1   It may well be that many plaintiffs will not recover damages for their injuries because a Judge will conclude that intoxication was, as a matter of law, the sole cause of their injuries ( see, e.g., Shevalier v Bentley, 268 AD2d 622; Hyland v Calace, 244 AD2d 318). Indeed, that would be the case here were it not for the alleged design defects in the vehicle.

2   On this summary judgment motion, Volkswagen did not contest the adequacy of the expert's affidavit and report submitted by plaintiff. The Appellate Division's determination that Alami's intoxication was, as a matter of law, the "sole proximate cause" of the accident and decedent's injuries is therefore disturbing. We also have no occasion to address the impact of Geier v American Honda Motor Co. (529 US 861) -- rendered subsequent to Volkswagen's summary judgment motion -- on plaintiff's claim.

3  Contrary to the majority's assertion, precluding this suit would not relieve Volkswagen of its obligation to manufacture safe cars (see, Op., at __). If a car manufacturer breaches its duty to design a safe automobile, that duty is (and should be) eminently enforceable by the universe of deserving plaintiffs. This Court did not "relieve" Manning and Barker of their respective duties to drive safely or refrain from helping to make a bomb. Preclusion operates not to extinguish a duty, but to prohibit a particular criminal plaintiff (or here, decedent's estate) from profiting by enforcing that duty.

4  For example, in Johnson v State of New York (253 2 274 [1999]), a State trooper arrested the plaintiff's decedent but allegedly failed to guard him adequately. The decedent escaped and died. The court held that the State had satisfied its duty of care to guard the decedent, and in any event, the escape was a serious criminal act warranting preclusion under Barker. In Johnson, as with the Barker burglar, the duty preceded the criminal act. It is difficult to see how this and other entirely proper applications of Barker and Manning can survive the majority's analysis (see, e.g., Phifer v State of New York, 204 AD2d 612, 613 [1994] [precluding suit by an intoxicated car thief alleging that the State breached its duty not to leave keys in the car]; Guadamud v Dentsply Intl., Inc., 20 F Supp 2d 433, 436- 437 [EDNY 1998] [precluding products liability suit under Barker where the plaintiff unlicensed dentist was injured when equipment exploded in her hands]).

5  According to the record, decedent's blood alcohol content was between 0.17 and 0.22. Although we cannot say with precision what decedent's blood alcohol content was at the time of the accident, he was undeniably very drunk, approximately double the 0.10 limit of Vehicle and Traffic Law § 1192(2).

6  The propositions for which we cited Humphrey in Barker and Manning do not support plaintiff. In Barker, we stated that

"[a] complaint should not be dismissed merely because the plaintiff's injuries were occasioned by a criminal act (cf., Humphrey v State of New York, , 60 NY2d 742, 744)" (Barker, 63 NY2d, at 25 [emphasis added]).

Humphrey did not deal with preclusion. It articulated basic tort principles under which the "mere" fact of a plaintiff's criminal conduct does not prevent the plaintiff from recovering. Here, plaintiff's suit should be barred not because decedent's injuries were "merely" occasioned by a criminal act, but because decedent's "serious violation of the law" was the sole cause of his accident and "a direct cause" of his injuries (Barker, 63 NY2d, at 24 [emphasis added]).

In Manning, we observed that the plaintiff

"[sought] redress in connection with the very conduct that constitutes a violation of the law. Her injuries were the direct result of her knowing participation in joyriding (see, Barker v Kallash, supra, 63 NY2d, at 25, 32; cf., Humphrey v State of New York, , 60 NY2d 742, 744)" (Manning, 91 NY2d, at 121).

In that passage, we compared Manning's conduct with Humphrey's conduct, and pointed out that Humphrey could maintain a cause of action even though there were other causes of the accident. In the case before us, however, decedent was solely responsible for his accident.

Thus, there is nothing in the Barker or Manning Court's "cf." citations to Humphrey, and nothing in Humphrey itself, that aids plaintiff here.