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Law of the Case That Jury Could Conclude Motor Vehicle Accident
Occurred as a Result of Defendant’s Strict Product Liability Did Not Preclude Directed Verdict in Case
Against Defendant, Ford Motor Company, Where Plaintiff Failed to Exclude all
Other Causes not Attributable to Ford, Including Evidence That Defendant may
Have Been Intoxicated at Time of the Accident.
Plaintiff sued the operator of a motor vehicle and Ford Motor Company
when she was hit by a Ford vehicle that suddenly backed up, striking the
plaintiff. The Appellate Division, First Department, had previously reversed a
lower court’s grant of summary judgment to Ford Motor Company based on
circumstantial evidence that the defendant driver was neither intoxicated nor
negligent at the time that the vehicle supposedly lurched backward at a high
rate of speed and would not brake. The court held that the defendant’s
deposition testimony could lead a jury to conclude that the vehicle did not
work as intended and exclude all other causes. At trial, the plaintiff
presented additional evidence to the effect that the defendant driver was
impaired and that his claim of having only one glass of wine would not account
for a BAC of .08. On appeal, the Appellate Division found that “the law of the
case” does not preclude a directed verdict in Ford’s case. Plaintiff failed to
exclude all other causes not attributable to Ford, and that alone compels the
dismissal of the plaintiff’s case against Ford. The plaintiff simply failed to
exclude all other causes by their own expert toxicologist who proved, in
pertinent part, that the defendant driver had consumed more than one glass of
wine and fit the legal definition of “impaired.”
•
Without a Showing That the Product in Question was Unreasonably
Dangerous as Designed, Plaintiff’s Showing That There Were Economically
Feasible Alternative Designs Available is Irrelevant.
Plaintiff alleges that she was injured during a flag football game
when her finger became entrapped in the D-ring closure of the opposing player’s
flag belt. Plaintiff commenced this action in Supreme Court, Kings County,
against the manufacturer and distributor of the flag belt, alleging, among
other things, that the belt was defectively designed. After trial, a jury
returned a verdict in favor of the plaintiff on the theory of strict products
liability design defect. Defendants moved to set aside the verdict, arguing
that the plaintiff failed to make out a prima facie showing that the flag belt
was defectively designed. The trial court granted defendant’s motion; plaintiff
appealed.
Plaintiff’s evidence regarding defective design consisted mainly of
the testimony of her expert witness, who testified that the D-ring flag belt
was not reasonably safe as designed. However, there was no substantial factual
basis for this opinion. The only stated basis for plaintiff’s expert’s opinion
was that the D-ring closure presented an opportunity for finger entrapment or
entanglement and a potential to cause harm. He acknowledged that most of the
tens of thousands of games he observed were played with quick release belts and
only a limited number were played with D-ring belts. The expert never observed
anyone’s finger become entrapped in the D-rings, and he provided no other
evidence that, except for one case, it had ever happened before.
Plaintiff’s expert had no experience in the design or manufacture of
flag belts. Similarly, he had conducted no testing of the D-ring belt. Without
any such foundational facts, plaintiff’s expert’s opinion lacked probative
value.
Further, plaintiff’s expert’s own evidence showed that in almost 20
years of regular play, mostly or always using D-ring belts, this type of injury
had never occurred, except for this incident, which strongly suggests against a
finding that the belt was substantially likely to cause injury. Without a
showing that the product in question was unreasonably dangerous as designed,
plaintiff’s showing that there were economically feasible alternative designs
available is, essentially, irrelevant.
