Question: MECURIO v. NISSAN MOTOR CORP., 81 F. SUPP. 2D 859 (N.D. OHIO 2000)

FACTS Roy Mercurio drove his Nissan Altima into a tree at a speed of between 30 and 40 miles per hour. At the time, his blood alcohol content was at least .18 percent. When the car struck the tree, the passenger compartment collapsed and Mercurio suffered a severe closed head injury. Mercurio's wife brought a products liability action against Nissan, the car's manufacturer, claiming that the car was not crashworthy. DECISION The defendant first argued that evidence of Mercurio's blood alcohol content should be admitted into court to show that Mercurio had engaged in unforeseeable misuse of the car. The court rejected the defendant's argument, stating that "[t]he fact that a collision may have been caused by the driver's intoxication, as opposed to another form of negligence, does not reduce the manufacturer's duty to provide a reasonably safe vehicle."

The court noted that "although the intended purpose of automobiles is not to participate in collisions, it is foreseeable that the collisions do occur, and an automobile manufacturer is under an obligation under Ohio law to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision." The court concluded that "[r]egardless of the cause of Mercurio's accident, the type of accident that is at issue in this case-a frontal collision with a stationary object at thirty to forty miles per hour-is foreseeable." Thus, evidence of Mercurio's blood alcohol content was not admissible to demonstrate unforeseeable misuse of the car. The defendant next argued that by driving under the influence of alcohol, Mercurio voluntarily assumed the risk of whatever injuries he suffered. Under Ohio law, a plaintiff assumes the risk of an unreasonably dangerous condition when:

(1) he knows of the condition;

(2) the condition is patently dangerous; and

(3) he voluntarily exposes himself to the condition.

Here, the court found, the dangerous condition that Mercurio allegedly assumed was the alleged uncrashworthiness of the car, not the risk of an accident generally. The defendant had not alleged, however, that Mercurio knew that the vehicle's subfloor posed a risk of buckling or that the subfloor was patently dangerous, or that Mercurio voluntarily exposed himself to the dangers of driving in a vehicle that was not crashworthy. Under these facts, the defendant could not raise the defense of assumption of risk. Thus, the court granted the plaintiff's motion to exclude any reference to Mercurio's consumption of alcohol on the night of his automobile accident.