2 No. 15
Shauna Alami, &c.,
Appellant, v. Volkswagen of America, Inc.,
2002 NY Int. 18
February 19, 2002
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Fred R. Profeta, Jr., for appellant. David B. Hamm, for respondent. Product Liability Advisory Council; Mothers Against
Drunk Driving, amici curiæ.
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
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
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
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
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
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
), 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  [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.