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2004 Jeep Cherokee Defective Seat Back Causes Traumatic Brain Injury

SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA

JASMINE RONICE MCMILLON-SMITH,
Plaintiff,
vs.
CHRYSLER LLC formerly known as DAIMLER-CHRYSLER CORPORATION;
JOHNSON CONTROLS,INC.; AUTOLIV ASP,INC; DCFS USA LLC; and DOES 1 through 100, inclusive,
Defendants.

CASE NO: RG08424047
COMPLAINT FOR DAMAGES FOR:

  1. Strict Product Liability
  2. Negligent Product Liability
  3. Fraudulent Concealment

DEMAND FOR JURY TRIAL

COMES NOW plaintiff JASMINE RONICE MCMILLON-SMITH, and for causes of action against defendants, and each of them, allege as follows.

COMMON ALLEGATIONS FOR ALL CAUSES OF ACTION

  1. At all times mentioned herein, plaintiff JASMINE RONICE MCMILLION-SMITH was and is a citizen of the state of California.
  2. At all times mentioned herein, defendant CHRYSLER LLC, formerly known as DAIMLERCHRYSLER CORPORATION (hereinafter "CHRYSLER LLC"), was and is a limited liability company organized under the laws of the state of Delaware. The members of CHRYSLER LLC are Daimler AG, a German corporation with a principal place of business in Stuttgart, Germany, and Cerberus Capital Management LP, a limited partnership Plaintiff contends on information and belief that at least one of the partners of Cerberus Capital Partners LP is a citizen of the state of California, and that CHRYSLER LLC therefore is a citizen of the state of California.
  3. At all times mentioned herein, defendant JOHNSON CONTROLS, INC. (hereinafter "JOHNSON") was and is a Wisconsin corporation with a principal place of business in Milwaukee, Wisconsin. Therefore, JOHNSON was and is a citizen of the State of Wisconsin.
  4. At all times mentioned herein, defendant AUTOLIV ASP, INC. (hereinafter "AUTOLIV") was and is a Delaware corporation with a principal place of business in Auburn Hills, Michigan. Therefore, AUTOLIV was and is a citizen of Delaware and Michigan.
  5. At all times mentioned herein, defendant DCFS USA LLC (hereinafter "DCFS") was and is a limited liability company organized under the laws of the state of Delaware. Plaintiff contends on information and belief that at least one member of DCFS is a citizen of the state of California, and that DCFS therefore is a citizen of the state of California.
  6. At all times mentioned herein, defendants DOES 1-100, and each of them, were individuals, corporations, partnerships, and/or associations residing in and/or authorized to and/or doing business in the State of California.
  7. The true names and/or capacities, whether individual, corporate, associate, governmental or otherwise of defendants DOES 1-100, inclusive, and each of them, are unknown to plaintiff, who therefore sues said defendants by such fictitious names. When the true names and or capacities of said defendants are ascertained, plaintiff will seek leave of this Court to amend the Complaint accordingly.
  8. Plaintiff is informed and believes and based thereupon alleges that each defendant designated herein as a DOE was responsible, negligently or in some other actionable manner, for the events and happenings herein referred to which proximately caused the damages to plaintiff as hereinafter alleged, either through said defendant's own negligence or through the conduct of its agents, servants, employees or representatives in some other manner.
  9. Plaintiff is informed and believes and based thereupon alleges that at all times mentioned herein the defendants, and each of them, were the agents, servants, employees, representatives and/or joint venturers of their co-defendants and were as such acting within the course, scope and authority of said agency, services, employment, representation and/or joint venture in that each and every defendant, as aforesaid when acting as principal, was negligent in the selection and hiring of each and every other defendant as an agent, servant, employee, representative and/or joint venturer.
  10. Plaintiff is informed and believes and based thereupon alleges that at all times mentioned herein each of the defendants, including defendant DOES 1-100, inclusive, and each of them, were the agents, servants, employees, representatives of each of the remaining defendants and were at all times material hereto acting within the authorized course and scope of said agency, service, employment and/or representation, and/or that all of said acts, conduct and omissions were subsequently ratified by their respective principals and the benefits thereof accepted by such principals.
  11. At all times mentioned herein, defendants CHRYSLER, LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1-100, and each of them, were and are engaged in the business of manufacturing, fabricating, designing, assembling, distributing, selling, inspecting, servicing, repairing, marketing, warranting, leasing, renting, selling, retailing, wholesaling and advertising a certain subject 2004 Jeep Cherokee SIL, California License Plate No. 5HVL002, Vehicle Identification No. 1J4GX48S84C304084 (hereinafter the "SUBJECT VEHICLE") and each and every component part thereof, which defendants knew, or in the exercise of reasonable care should have known, would be used without inspection for defects in its parts, mechanisms or design, for use in the State of California and elsewhere. Upon information and belief, CHRYSLER LLC designed and manufactured the SUBJECT VEHICLE, JOHNSON designed and manufactured the seats of the SUBJECT VEHICLE, AUTOLIV manufactured the seatbelts of the SUBJECT VEHICLE,and DCFS was the retail seller of the SUBJECT VEHICLE.
  12. On or about June 9, 2007, at approximately 1:19 a.m., plaintiff was a passenger in the rear seat of the SUBJECT VEHICLE, which was stopped in the number three lane of southbound Interstate 238 in Hayward, California. Plaintiff was wearing her available seatbelt and shoulder restraint at all relevant times. While stopped, the SUBJECT VEHICLE was rear ended by a 2000 Chevrolet Silverado. When the SUBJECT VEHICLE was rear ended, plaintiff's seat broke and collapsed rearward, permitting plaintiff's body to submarine backward and underneath her seatbelt and to ramp over her seat, causing plaintiff's head to strike the interior of the SUBJECT VEHICLE. This blow to plaintiff's head caused plaintiff to suffer severe injuries including, but not limited to, permanent brain damage.
  13. FIRST CAUSE OF ACTION

    (Strict Product Liability against all Defendants)

  14. Plaintiff re-alleges and incorporates by reference each of paragraphs 1-12, above, as though fully set forth herein.
  15. Defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1-100, and each of them, knew that the SUBJECT VEHICLE was to be purchased and used without inspection for defects by the users of that vehicle, including, but not limited to, plaintiff.
  16. The SUBJECT VEHICLE, including each of its component parts, was manufactured, designed, assembled, packaged, tested, fabricated, analyzed, inspected, merchandised, marketed, distributed, labeled, advertised, promoted, sold, supplied, leased, rented, repaired, adjusted, selected and used by defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1 - 100, and each of them, with inherent vices and defects both in design and manufacturing (hereinafter "SUBJECT DEFECTS"), and by their failure to warn of the SUBJECT DEFECTS of which they were at all times aware, which SUBJECT DEFECTS made the SUBJECT VEHICLE and each of its component parts dangerous, hazardous and unsafe both for its intended use or for reasonably foreseeable misuses.
  17. These SUBJECT DEFECTS included, but were not limited to the following:
    • Unsafe seats and seat backs, which failed to perform during the accident sequence, causing plaintiff's body to submarine backward and underneath her seatbelt and to ramp over her seat, which in turn allowed plaintiff's head to strike the interior of the vehicle, thereby causing plaintiff to suffer a traumatic brain injury and related complications. At all times prior to their manufacture, design, assembly, packaging, testing, fabrication, analysis, inspection, merchandising, marketing, distribution, labeling, advertising, promotion, sale, supply, leasing, rental, repair, adjustment, selection and use of the SUBJECT VEHICLE, defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1-100 knew and were well aware, from both prior accidents, lawsuits, and warranty claims, and from mandatory pre-production fuel system integrity tests required by law to be conducted under Federal Motor Vehicle Safety Standard 49 C.F.R. § 571.301 ("FMVSS 301"), that the SUBJECT VEHICLE's seat backs were too weak, and were incapable of withstanding foreseeable, modest, rear-end impacts at closure speeds as low as 30 miles per hour, without collapsing and causing catastrophic injuries to properly restrained occupants such as plaintiff herein. Despite the availability of simple methods to correct the defects, as recommended on information and belief by defendants' own automotive engineers, including but not limited to, strengthened seat back frames, stronger recliners, dual recliners, and belt-integrated seats, and in spite of the known risk of serious and fatal head and spinal injuries and occupant ejection, defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1-100, and each of them, chose to ignore the inherent safety problem, and took no action to prevent such debilitating injuries and deaths, because of concern solely over cost penalties, including increased production costs and reduced profits.
    • A defective and unsafe restraint system, which defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1-100, and each of them, knew and were aware, from prior accidents, incidents, claims, lawsuits, warranty claims, other media publications, and from their own FMVSS 301 fuel integrity test, would fail to restrain an occupant in the SUBJECT VEHICLE in the event of a rear impact event, which would cause the rear seat to collapse rearward, and allow plaintiff to submarine under the seatbelt restraint system, ramp over her seat, and strike her head on the interior of the vehicle, thereby causing a traumatic brain injury and related complications.
    • Inadequate and/or lack of any warnings regarding the above defects.
  18. The SUBJECT VEHICLE and each of its component parts was unsafe for its/their intended use and reasonably foreseeable misuses by reason of the defects in its design and/or manufacturing and/or failure to warn by defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS and DOES 1-100, and each of them, in that when the SUBJECT VEHICLE and each of its component parts was used by plaintiff on or about June 9, 2007, as intended or in a reasonably foreseeable manner, the SUBJECT VEHICLE, during a reasonably foreseeable rear end impact event, was dangerous and defective, and the rear passenger seat and seat back broke, rendering the restraint system totally ineffective, and forcing plaintiff's body to catapult backwards, causing a serious traumatic brain injury and related complications, legally resulting in plaintiff's damages as set forth herein.
  19. As a direct and legal result of the conduct of defendants, and each of them, and the defects inherent in the SUBJECT VEHICLE, plaintiff suffered serious physical and mental injuries to her body and mind, all in turn legally resulting in plaintiff's special and general damages in a sum in excess of the minimum subject matter jurisdiction of this Superior Court according to proof at trial. Plaintiff's special damages include past and future medical expenses to treat the severe injuries she suffered in the motor vehicle accident, past and future lost earnings and loss of earning capacity, and consequential property damage. Plaintiff's claimed general damages are for the past and future pain, suffering and emotional distress she has endured and will continue to endure for the remainder of her lifetime.
  20. ALLEGATIONS SUPPORTING EXEMPLARY DAMAGES PRAYER ON FIRST AND SECOND CAUSES OF ACTION, BY PLAINTIFF, AGAINST DEFENDANTS CHRYSLER LLC, JOHNSON AND DOES 1 THROUGH 100, INCLUSIVE

  21. Plaintiff is further informed and believes and thereon alleges that defendants CHRYSLER LLC, JOHNSON and DOES 1-100, and each of them, intentionally engaged in conduct which, with respect to the SUBJECT DEFECTS that plaintiff alleges were a legal cause of her loss, damages, injuries and harm, exposed plaintiff and other users of the SUBJECT VEHICLE to the risks of death and catastrophic injuries arising from potential dangers known to the defendants, in order to advance the defendants' pecuniary interests and thus acted with a conscious disregard for the safety of plaintiff and other users of the SUBJECT VEHICLE, warranting an award of exemplary damages against Defendants CHRYSLER LLC, JOHNSON and DOES 1-100, and each of them, pursuant to California Civil Code § 3294 c)(1), and the rule enunciated in Ford Motor Co. v. Home Ins. Co. (1981) 116 Cal. App.3d 374, 381-382 and PPG Industries, Inc v. Transamerica Ins. Co. (1996) 49 Cal.App.4th 1120. The facts supporting the defendants' intentional conduct which exposed plaintiff and other users of the SUBJECT VEHICLE to serious potential danger known to the defendants in order to advance the defendants' pecuniary interests, are on information and belief, as follows.
  22. Since the inception of the FMVSS 301 fuel tank integrity rear impact test, defendants CHRYSLER LLC, JOHNSON and DOES 1-100, and each of them, have known that in rear impacts of 30 miles per hour, each and every one of defendants' seat backs in each and every one of defendants' vehicles failed, causing the occupant of such seat to catapult backwards, and to submarine under the seatbelt restraints, thereby causing major spinal, head and neck injuries. Since at least 1968, defendants CHRYSLER LLC, JOHNSON, and DOES 1-100, and each of them, have known that the seats and seat backs of their vehicles were of insufficient strength to withstand rear end collisions of 30 miles per hour (mph) or greater. In 1968, General Motors Corporation engineer, Thomas Ruster, prepared a memorandum in which he advised the management of defendants CHRYSLER LLC and DOES 1-100 that a potential hazzard existed in rear end collisions of 30 mph or greater, because the occupant's head was being forced into the interior of the vehicle, after the occupant had ramped over their seat, with possible damage to the spine. In addition, Mr. Ruster advised defendants that loss of control of the vehicle was a further risk because while the driver was in the horizontal position, the driver could no longer reach the vehicle controls, causing a second and otherwise avoidable accident. Additionally, while any occupant was in the horizontal position, there was a total failure of the restraint system because the shoulder harness is attached to the vehicle's frame rather than to the seat itself, and could not function with the seat in the horizontal position.
  23. Recommendations were made to enhance the strength of the seats and seat backs by strengthening the seats and seat backs at the three locations where they fail: the connection between the seat back and cushion frame, the seat track connection where the seat slides forward and back, and the point at which the seat fastens to the floor. For the cost of approximately $50 - $100, defendants could have used wider and stronger metal for the seat cushion frames and could have strengthened the point at which the seat back connects to the cushion frame, the point at which the seat slides back and forth, and the point at which the seat fastens to the floor. Despite the recommendations of defendants' own automotive engineers, and in spite of the known risk of serious and fatal spinal injuries, and occupant ejection, defendants chose to ignore the inherent safety problem, and took no action to prevent such debilitating injuries and deaths, because of concerns about cost penalties. Defendants' decision to save money at the expense of innocent human life and pain and suffering constitutes, despicable conduct and callous disregard for the safety of the motoring public, including plaintiff. Defendants have failed to act for years and have conspired to resist obvious major opportunities to improve motor vehicle safety by improving the seats and seat backs of their vehicles, all to advance their own pecuniary interests.
  24. Had defendants taken the recommendations of their own engineers, the rear seat of the SUBJECT VEHICLE which plaintiff was occupying would not have failed, and plaintiff would not have suffered a traumatic brain injury and related complications as alleged herein.
  25. The actions of defendants CHRYSLER LLC, JOHNSON and DOES 1-100, and each of them, individually and in concert with other auto makers, as herein described, were thus undertaken with a willful and conscious disregard for the rights and safety of consumers and users of said defendants' vehicles, including the SUBJECT VEHICLE, in order to advance the pecuniary gains of the defendants and each of them, and were despicable because such aforesaid conduct would and does kill people, and cause major head, neck and spinal injuries, including but not limited to plaintiff, during the course of the accident which is the subject matter of this lawsuit.
  26. Plaintiff further alleges that the conduct of defendants CHRYSLER LLC, JOHNSON, and DOES 1-100 was undertaken with the result that the SUBJECT VEHICLE's ultimate defects in its design and production were fully intended by the defendants to reside therein such that they were and are the product of the entire corporate management and corporate policy of the defendants with respect to the conscious willful and disregard of public safety for defendants' pecuniary gain with regard to the design, manufacture, production and marketing of the SUBJECT VEHICLE.
  27. Plaintiff further alleges that the conduct of the defendants was undertaken with the result that the SUBJECT VEHICLE's ultimate defects in its design and production were fully intended by the defendants to reside therein. Plaintiff is informed and believes that the decisions made by the defendants and each of them to design and manufacture the SUBJECT VEHICLE with its defective seats and seat backs, its defective restrain system and components, and failure to warn of these defects, all in the defective and dangerous manner as alleged herein, were made by corporate management of the defendants and each of them, by the product of corporate policy, in that such major and strategic design and manufacturing decisions, by virtue of the corporate structure of the defendants and each of them, could be made only at the level of corporate management, as the product of corporate policy, given the substantial capitalization requirements and risks associated with such high level design and manufacturing decisions, across an entire vehicle platform line for the SUBJECT VEHICLE, such that they were and are the product of the entire corporate management and corporate policy of the defendants with respect to the conscious, willful and disregard of public safety for defendants' pecuniary gain regarding the design, manufacture, production, marketing and sale of the SUBJECT VEHICLE.
  28. As a direct and legal result of the aforementioned conduct of defendants, and each of them, an award of exemplary and punitive damages against defendants CHRYSLER LLC, JOHNSON, and DOES 1-100, and each of them, is proper and appropriate to punish said defendants and to deter such conduct in the future.
  29. SECOND CAUSE OF ACTION

    (Negligence [Product Liability] against all Defendants)

  30. Plaintiff re-alleges and incorporates by reference each of paragraphs 1-26 , above, as though fully set forth herein.
  31. At all times herein mentioned, defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1-100, and each of them, had a duty to properly manufacture, design, assemble, package, test, fabricate, analyze, inspect, merchandise, market, distribute, label, advertise, promote, sell, supply, lease, rent, warn, select, inspect and repair said product and each of its component parts.
  32. At all times herein mentioned, defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1-100 knew, or in the exercise of reasonable care should have known that the SUBJECT VEHICLE and each of its components parts were not properly manufactured, designed, assembled, packaged, tested, fabricated, analyzed, inspected, merchandised, marketed, distributed, labeled, advertised, promoted, sold, supplied, leased, rented, repaired, selected and provided inadequate warnings for the use and purpose for which it was intended in that it was likely to injure the person who used said product, each of its component parts and/or aftermarket parts and/or installation guides.
  33. Defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1-100, and each of them, so negligently and carelessly, manufactured, designed, assembled, packaged, tested, fabricated, analyzed, inspected, merchandised, marketed, modified, distributed, labeled, advertised, promoted, sold, supplied, leased, rented, repaired, selected and provided inadequate warnings and provided the SUBJECT VEHICLE and each of its component parts so that the same was a defective and dangerous product, unsafe for the respective use and purpose for which it was intended when used and driven as recommended or for reasonably foreseeable misuse by members of the public, including the driver of the 2000 Chevrolet Silverado which hit the SUBJECT VEHICLE in a foreseeable rear end impact event. In particular, the SUBJECT VEHICLE and each of its component parts, during a reasonably foreseeable event, was dangerous and defective in that the rear seat and seat back failed, rendering the restraint system ineffective, causing severe injury to plaintiff, as alleged herein.
  34. As a direct and legal result of the negligence, carelessness, and unlawful conduct of defendants CHRYSLER LLC, JOHNSON, AUTOLIV, DCFS, and DOES 1-100, and each of them, and the defects inherent in the vehicle, defendants legally caused the severe personal injuries to plaintiff alleged herein, all in turn legally resulting in plaintiff's special and general damages set forth herein, including past and future medical expenses, past and future lost earnings, consequential property damage, and past and future general damages for pain, suffering and emotional distress.
  35. THIRD CAUSE OF ACTION

    (Fraudulent Concealment against all Defendants)

  36. Plaintiff re-alleges and incorporates by reference each of Paragraphs 19 through 26, of the First Cause of Action above, as though fully set forth herein.
  37. At all times herein mentioned, defendants CHRYSLER LLC, JOHNSON and DOES 1 through 100, knew and were aware, based upon numerous FMVSS 310 rear-impact fuel integrity tests, the Thomas Ruster memorandum, and numerous lawsuits and claims of passenger and driver deaths and catastrophic injuries resulting from failures in the seat backs of the defendants' products, that each and every one of the seat backs within the defendants' vehicles could and would fail in foreseeable rear-end impacts in closure speeds of 30 miles per hour or less, and that use of the defendants' products carried the risks and dangers of death and/or serious injuries to users of the product through no fault of such users, which dangers and risks were known exclusively to the Defendants and not known to occupants and users of defendants' products.
  38. Based upon their accumulated knowledge of the dangers and risk of their products resulting from their unduly weak and failure-prone seat backs, which dangers and risks were generally unknown to plaintiff and other users of those products and which plaintiff and such users would not ordinarily discovery and/or be aware, defendants and each of them were duty bound to disclose such dangers and risks of seat back failure to plaintiff and the public pursuant to the well-settled doctrine enunciated in Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 448.
  39. At all times herein mentioned until after the accident which is the subject of this lawsuit, plaintiff was ignorant of the dangers and risks of death and catastrophic injury from foreseeable failure of defendants' seat backs.
  40. Defendants and each of them actively concealed the dangers and risks of death and catastrophic injury from foreseeable failure of their seat backs from plaintiff and members of the public with the purpose and intent of deceiving plaintiff and other members of the public into using defendants' products, because defendants, and each of them knew, that if such dangers had been disclosed by defendants as required by applicable law, plaintiff and other members of the public would never have knowingly have used the defendants' products for fear that they were unsafe.
  41. Plaintiff reasonably relied upon defendants' aforementioned deceptions, in unwittingly believing that the subject vehicle and its seats were safe, when in truth they were not, by thereupon using and occupying the defendants' products, including the subject vehicle and its defective seats, including at the time and place of accident which is the subject of this action.
  42. As a direct and legal result of their reliance upon defendants' aforementioned deceptions, plaintiff was caused to suffer and suffered damages as alleged hereinabove in an amount in excess of the minimum subject matter jurisdiction of this Court, according to proof.
  43. Plaintiff is informed and believes and thereon alleges that defendants' deceptions were of the kind and nature which could have been undertaken only as the product of upper management charged with the design, construction, marketing of the defendants' products, with the advice and consent of their risk managers and in house counsel, who at all times herein mentioned, approved and ratified such aforementioned deceptive actions of the defendants on their behalf, although the names and titles of such defendants' managing, approving and ratifying agents are presently unknown, but which names and titles are known to the defendants and each of them, and such names and titles of such defendants' managing, approving and ratifying agents will be ascertained and disclosed during discovery in this action and/or by further amendment hereto according to proof.
  44. In committing the aforementioned deceptions, defendants and each of acted with intent of depriving plaintiff of her money, legal rights and/or to visit injury upon plaintiff and other members of the public, as a result of which plaintiff is entitled to an award of punitive damages against defendants, and each of them, pursuant to Civil Code § 3294(c)(3), to punish such defendants and to deter such wrongful conduct in the future.

WHEREFORE, plaintiff prays for judgment against defendants and each of them as follows:

  1. For special and economic damages including, but not limited to, plaintiff's past and future medical expenses, past and future loss of earnings and loss of earning capacity, and consequential property damage in an amount to be determined but which exceeds the jurisdictional limit of this Court;
  2. For past and future non-economic losses for pain, suffering, and emotional distress in an amount to be determined;
  3. For prejudgment interest, as determined by and accrued according to applicable statutes;
  4. For costs of suit incurred herein;
  5. For exemplary and punitive damages, against defendants CHRYSLER LLC, JOHNSON, and DOES1 - 100 on the first and third causes of action; and
  6. For any other and further relief the Court deems just and proper.

DATED: November 18, 2009 Respectfully submitted,
Bisnar Chase Personal Injury Attorneys

By: __________________________________
BRIAN D CHASE, Esq.
SCOTT A. RITSEMA, Esq.
Attorneys for Plaintiff JASMINE RONICE
MCMILLON-SMITH
DEMAND FOR JURY TRIAL
Plaintiff JASMINE RONICE MCMILLION-SMITH, hereby demands a trial by jury.

DATED: November 18, 2009 Bisnar Chase Personal Injury Attorneys

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