Court Finds Some Evidence of Toyota Defective Restraint System

Recently, in Quinton v. Toyota Motor Corp. et al., No. 1:10-cv-02187 (D.S.C. April 17, 2013), the U.S. District Court for the District of South Carolina opined on some motions for summary judgment in another Toyota product liability suit. The matter arose out of a single vehicle accident that occurred in 2009 in Aiken, South Carolina. April Quinton, driving a rented 2009 Toyota Camry, lost control of the vehicle when entering a left-hand turn. The Camry exited the road, rolled over several times, and came to a rest. Quinton sustained a head injury in the accident and died nine days later. Quinton’s estate filed a wrongful death action against Toyota, alleging that Quinton’s death was caused by defects in the vehicle’s seat belt restraint system, roof structure, and supplemental restraint system.

On Toyota’s motion for summary judgment, the Plaintiff did not contest the lack of evidence regarding the seat belt restraint system and roof structure and, thus, the motion was granted. The Court held, however, that there was at least some issue of fact concerning the defective design of the supplemental restraint system. The vehicle’s supplemental restraint system consisted of frontal airbags, side torso airbags and curtain shield airbags mounted along the roof. However, the 2009 Camry lacked rollover-activated curtain shield airbags (“RCSA”). Toyota argued that it was entitled to summary judgment because the Plaintiff’s expert did not opine that the failure to include the RCSA made the system defective or unreasonably dangerous. Nonetheless, the Court held that the Plaintiff had met her burden to demonstrate that the lack of a RCSA was a design flaw and that the RCSA was a feasible alternative design. Toyota’ Accident Data Analysis Report revealed that RCSA’s could lead to a 50 percent reduction in fatalities. Toyota’s expert also indicated the installation of RCSAs was possible from a technological and economic standpoint. Given this evidence, the Court found there to be a genuine issue of material fact and denied Toyota’s motion.

Stop the Texts, Stop the Wrecks

My 87-year-old mother recently moved from her home in North Carolina to live with my sister in Pennsylvania.  She would no longer need her car, a 2000 Mercury Sable, and therefore, gifted it to my 15-year-old son for his birthday.  On one condition: that he agree not to text or talk on his cell phone while driving!  He agreed.

I have defended a number of lawsuits over the years where the at-fault driver was alleged to have been on a cell phone at the time of the accident.  But, the problem of distracted driving is not new.  Surely, the folks who drove the first cars in the early 20th century experienced distractions, perhaps when they passed a neighbor who was in a horse-drawn buggy?

According to AAA, “passengers are one of the most frequently reported causes of distraction, with young children being four times more distracting than adults and infants being eight times more distracting.”  Indeed, my first experience with distracted driving was when I was 18 years old, driving home from high school in my brand new 1980 Plymouth Horizon.  The distraction?  The four other teenage boys in the car with me!  I passed a stopped school bus, got an expensive four-point ticket, and was well on my way to a distinguished driving record.

While texting, emailing, or talking on a cell phone can be dangerous, so too is eating, smoking, changing the channel on the satellite radio, or just “rubbernecking.”  Some years ago, I defended a garbage truck driver who was distracted while drinking a 16-ounce bottle of Mountain Dew.  The result?  He ran right into the back of another truck!  Nobody got hurt, but the owner of the other truck filed a lawsuit for their property damage.  We lost.

Cell phones?  AAA reports that using a cell phone while driving quadruples your risk of an accident.  Driver inattention is a factor in over one million car crashes every year, with an economic impact of almost $40 billion annually.  Just Google “cell phones and driving.”  What are the results?  “Drivers on cell phones are as bad as drunks.”  “Despite the dangers, teens admit to cell phone use while driving.”  “Drivers on cell phones kill thousands, snarl traffic.”

The National Highway Transportation Safety Administration (NHTSA) is sponsoring a campaign to prevent texting and driving.  Information can be found on their website at stoptextsstopwrecks.org.  According to the NHTSA, five seconds is the average time a driver’s eyes are off the road while texting.  While traveling at 55 mph, that is enough time to cover the length of a football field.  A texting driver is 23 times more likely to get into a crash than a non-texting driver.  Using a cell phone while driving delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.

Both the AAA and NHTSA provide suggestions for improving driver behavior.  (1) Out of sight, out of mind.  When you are in the car, put your phone where you cannot get it.  A place where you will not even be tempted to look for it.  No phone.  No texting.  (2) Silence is golden.  Turn those notifications off.  The less you hear your phone, the less tempted you will be to respond while you are driving.  (3) Designate a texter.  Borrow thumbs from a friend, or lend yours to a friend.  Passengers get the privilege of texting while in motion.

Not everyone should text and walk.  No one should text and drive.

Stuart Mauney’s Day at the Races

Some years ago, on a hot August Friday night, “Bobby Joe” got a little too close to the action in the pit area of the local dragway.  A pickup truck, pulling a trailer loaded with a race car, ran over his foot, allegedly causing grievous injury.  It was so bad that, two days later, he decided he needed to be seen by a doctor about the bruise on the side of his foot.  Can you say “vexatious lawsuit’?  Yes, Bobby Joe sued both the truck driver and my client, the owner of the dragway.  No warnings!  No barriers to keep pedestrians away from the dangerous pit area!  No bold, yellow signs to tell spectators that it is not a good idea to absentmindedly walk near the burnout strip!  Did I mention this was my second case representing a dragway?

With this as background, I was excited when a friend invited me to attend the NHRA Four-Wide Nationals at zMax Dragway in Charlotte, North Carolina, last month.  It’s the only four-lane concrete dragstrip in the world, where every ticket is a pit pass.  I took a stroll through the pit area, funnel cake with powdered sugar in one hand and a fried turkey leg in the other.  I took in all the sights, sounds, and smells of NHRA drag racing.  The “sights” included Top Fuel dragsters and Pro Stock race cars.  The “sounds” included high speed devices used to fix parts on the dragsters and the chatter of crew members as they made the necessary adjustments.  The “smells”?  Gas!  Exhaust!  Burned rubber!  I even got to meet Leah Pruett, who was competing in the Pro Mod series for R2B2 Racing out of Duluth, Georgia.

With our VIP credentials, we wandered over to the starting line for a closer look.  As we did so, a truck pulling one of the dragsters came perilously close to running over my foot, almost causing grievous injury.  The nascent plaintiff’s lawyer in me began to think “What if . . . ?”  Would I have a claim against NHRA for my injuries?  Would my claim be barred by my own negligence in attempting to balance a funnel cake in one hand and a turkey leg in the other?  Had I assumed the risk of injury by getting too close to the staging area?

As these thoughts went through my head, my defense attorney instincts returned.  I quickly read the reverse side of my ticket to find a “Notice and Warning to Credential Holder.”

By buying or using this credential you agree that:

YOU ASSUME ALL RISKS AND DANGER of property damage, personal injury, death, and all other hazards related in any way to attending this event, anywhere at the facility and at all times before, during or after the races.  Dangers include flying objects, vehicles, other people, conditions at the facility, and unforeseen hazards.  You agree that NHRA, track owners and operators, racing participants, and each of their respective officers, owners, officials, sponsors, contractors, employees and agents shall not be liable for any loss, damage, or injury to you and you hereby release them from all claims for liability.  Be alert for hazards at all times.

Flying objects?  Does that include the kernel of kettle corn which grazed my cornea after it flew out of the hands of the 10-year-old kid standing in line next to me at the lemonade stand?  Other people?  Are the terms “other people” and “flying objects” mutually exclusive?  Could flying objects include other people?  Does other people include the no-shirt, beer-bellied fellow with the “Mama” tattoo who bumped into me as we were shopping in the NHRA merchandise trailer?  Does “unforeseen hazards” include hearing loss from the use of defective earplugs?  So many questions and so few answers.

Despite all the risks, dangers and hazards of NHRA Racing, we had fun and would do it again.  A “shout-out” to Dave Lee (President), Roger Burgess (Founder/Chairman of the Board), and all the other folks at ProCare Rx, who sponsor the R2B2 Racing Team, for a great experience.

See y’all at the races!

For Chevy Volts, All’s Well that Ends Well?

In November, we ran a post regarding Chevy Volts and their purported proclivity to catch fire after impact.  Sometimes long after impact.  Like three weeks after impact.  During the course of our discussion, we encouraged all the products hypochondriacs out there to take a deep breath and consider that maybe, just maybe, the Volts weren’t defectively designed, and therefore, were getting a bad rap.

I’m not usually a voice of moderation or restraint.  And so it was an odd thing for me to be doing, actively encouraging both moderation and restraint at the same time.  Overall, it was a very uncomfortable experience for me, and frankly, not much fun.  

However, in this case, it was absolutely the appropriate response.  On January 20, the National Highway Traffic Safety Administration (“NHTSA”) released a statement exonerating Chevy Volts regarding the conclusions of its investigation into the post-crash fire risk of Chevy Volts.  What was that conclusion?  Well, after a six week investigation, the Administration determined that “no discernible defect trend exists.”  In other words, Chevy Volts are not homicidal death machines hell-bent on burning their unsuspecting passengers alive.  I’d say that’s a definite win for consumer product safety.  Case closed.

While it may be true that all’s well that ends well, I have a couple of lingering concerns.  First of all, the entire investigation lasted six weeks.  Which (we suppose) included Thanksgiving, Christmas, New Years, and the MLK holiday.  Let’s be straight: How much federal work do we really think was done over that period of time?  Four, maybe five days, tops?  Seems like a brief investigation for an issue that received so much attention initially.

Frankly, I’m not so concerned with the amount of time that was involved in the investigation, primarily because I thought the allegations were bogus to begin with.  I think I’m more concerned that there was so much alarm at the outset of the investigation for a claim that had no merit, and was shown to have no merit in a very short amount of time.  After all, even if the Government had worked each and every day for the 6 weeks of their inquiry, in terms of investigations, 6 weeks is but a twinkling of the federal eye.

By contrast, how long will Chevy Volts feel the effects of their unfounded reputation as mobile electric chairs?  How much business did Chevy lose as a direct and proximate consequence of alarmism and over-reaction?  How much business will Chevy continue to lose?  Obviously, the nature and severity of these harms is unquantifiable; the damage has been done, and the extent cannot be known.  Of course, the Volt’s name has now been cleared, but surely that must seem like cold comfort.

Volts. Chevy Volts.

Thanksgiving is just around the corner, and you know what that means: James Bond movies will be playing around the clock. On at least three different channels. All weekend long. For whatever reason, in America, nothing says “Thanksgiving” like British spies, beautiful women, and exotic, tropical locales. And I’m thankful for that.

For many reasons, my favorite Bond movie is Goldfinger. It has the best theme song. It has some of the most iconic scenes in cinematic history (e.g., the golden girl, the laser, the nuclear device that Bond defuses with 0:07 seconds remaining). It has Oddjob. It has Bond’s love interest, who my puritan editor Dedman is allowing me to refer to only as “P. Galore.” And, perhaps most important for the Kentucky Colonel in me, the movie takes place in Kentucky – Kentucky! – and involves horseracing. This movie was destined for greatness.

But that’s not why Goldfinger is the best. It’s the best because of the interaction between 007 and the villain, Auric Goldfinger. Without question, some of the best dialogue in the entire Bond movie franchise happens between Bond and Goldfinger, and it’s usually Goldfinger doing the talking. Which leads me to the jumping off point for this post. One of my favorite quotes, not just in Bond but probably in life, comes from Mr. Goldfinger himself: “They have a saying in Chicago. Once is happenstance. Twice is coincidence. The third time, it’s enemy action.”

It was 4am on April 14, 2011 in Barkhamsted, Connecticut. Homeowner Storm Connors was awakened by the sound of commotion in his garage. He went to investigate. That’s when Connors found his garage consumed in flames. Inside were two vehicles. One, a brand new lithium-ion battery powered Chevy Volt; the other, a Suzuki Samurai that Connors had converted to electric power. Both vehicles were charging their batteries at the time of the fire, and both were badly damaged. There was some initial speculation that the Volt’s battery caused the fire; but this was never confirmed. There are also reports that the same Volt caught on fire again four days later, this time, while it was not charging.

One fire? That’s happenstance.

It was early June in Wisconsin. Three weeks before, the National Highway Traffic Safety Administration had conducted safety tests on a Chevy Volt; specifically putting the Volt through the “pole” test (which simulates a 20mph side-impact) and the “rotisserie” test (which simulates the vehicle in a collision-related roll). The Volt passed with flying colors, earning a five-star rating, which is the highest rating that can be awarded. Three weeks later, apparently while sitting at a federal junkyard, the Volt caught fire. After investigation, it was determined that the failure to de-energize the battery, along with some other case-specific circumstances, most likely caused the fire in question.

Two fires? Mere coincidence.

It was two weeks ago at Lake Norman, North Carolina. A Volt was charging in a homeowner’s garage when a fire broke out . . . . I think you know where this is going.

And now there are the alarmists. “Three times!,” they yell. “Clearly this is enemy action! Chevy and / or the Volt has declared war on American garages. They are terrorists and must be stopped. At the very least, we must bring legal action against them, suing in every state we can for civil conspiracy, RICO, and of course, unfair trade practices. These three occasions of unfriendly fire establish a pattern of conduct that prove an evil intent toward the American people. General Motors is a scourge upon civilization!”

Alright, let’s all take a deep breath and find a quiet moment to thank God we’re not among the ranks of the products hypochondriacs.

So far, the investigation of these matters has been inconclusive. Neither GM nor the government has been able to reproduce the circumstances of the fire that occurred in June. And let it not be forgotten that the June fire happened three weeks after crash testing took place. In terms of an imminent threat to health and safety, this isn’t one. And as for the fires in April and November, the causes have yet to be determined. Although at this point, there’s no more reason to suspect that the fires originated with the electric vehicles than with faulty wiring in the walls of the garages.

But let’s say that the alarmists are right and that lithium-ion batteries caused each of the three fires at issue. To them I say, “So what?” There are somewhere around 8000 Volts on the road right now. Three malfunctions out of 8000 cars ain’t too shabby. I’ll play those odds.

Personally, I hope this is all part of a very clever marketing strategy. Sales of electric vehicles seem underwhelming, due in no small part I’m sure to the reputation that EVs have slightly more power than a spinning hamster wheel. Most folks would probably be shocked to learn that an electric vehicle has enough power to start a small fire, let alone the power to burn their own house down! It would open up a whole new male market. Forget Corvettes and Porches. If you want power, get a Volt. The ads practically write themselves. “Volt. If you don’t squeeze every ounce of performance out of your car in between charges, your car will self-destruct because you don’t deserve to drive it; the Volt will also take your house, your golf clubs, and any other vehicles you may own because you don’t deserve them either. Most drivers need not apply.”

If it were up to me, I would run the ad during this Thanksgiving’s Bond-a-thon. And I would be thankful for my royalty check from GM.

Ponytail wearers have nothing to fear from new Buick Verano

I just got a new car.  Well, new to me, but not brand new.  It’s equipped with all sorts of cool features that my old car, which my parents bought for me in college, doesn’t have.  Cubby holes everywhere.  A moonroof.  Volume and channel controls on the steering wheel.  Although it’s barely been cold enough here in Greenville, South Carolina to use them, my favorite feature is heated seats (with two settings, nonetheless).

Yes, my new car is very well equipped with features that, while certainly not critical to the car’s function, make driving it a nicer, easier experience.  There is a new car on the market, however, that puts all of these features to shame — the new Buick Verano has a headrest that is designed to accommodate ponytails!

That’s right — as reported by USA Today, the headrests in the new Buick Verano are designed so that “someone with a ponytail or other big hairdo [won't] feel like their head is being pushed forward.”  A marvel of engineering.  Yet the design still complies with federal safety standards, which mandate how close a person’s head must be to the headrest.

This new feature made me wonder how many of the features in my car had to be worked around federal safety standards to provide the convenience that they give me.  I wonder if they regulate the temperature of my heated seats?  A quick search of the Federal Motor Vehicle Safety Standards didn’t come up with much, but I bet it exists somewhere.  After all, if a cup of hot coffee can get a company in hot water, I imagine a set of too-toasted buns could do the same.

“Drive” Sued for Failure to Live Up to “Fast and Furious” Legend

Last month, the thriller Drive starring Ryan Gosling opened in theaters nationwide.  From what we can discern from the film’s trailer, its follows a Hollywood stunt driver and his perils following some dirty-handed contract work.  For those who need a touch of romance alongside their action, the driver falls in love with the married woman whose family he entered the contract to protect.  Or something like that.  We here at Abnormal Use have not seen the film, but we think it looks somewhat entertaining.  One litigant, however, wants her money back.

A Michigan woman has filed a lawsuit against the film’s distributor, FilmDistrict, and the Michigan theater in which she saw the film, seeking a refund of her ticket price.  Yes, we know it sounds absurd to accumulate legal fees and court costs over an $8 ticket.  The movie can’t be that bad, right?  After all, it did gross nearly $12 million (with a $15 million budget) during its opening weekend.  If people can sit through three hours of The English Patient without feeling the need to sue its distributor, Drive must be horrible. Oh, and here’s the best part: She wants to certify the suit as a class action!

What could possible make Drive so horrendous that a federal class action lawsuit becomes necessary to save cinema goers from seeing it?  According to the lawsuit, the woman claims that FilmDistrict marketed Drive as being very similar to The Fast and the Furious when, in actuality, the film “bore very little similarity to a chase, or race action film . . . having very little driving in the film.”  Oh, the horror!

After you have regained your composure, let’s take a closer look at these allegations.  First, is the plaintiff really claiming she has been damaged because Drive did not meet the high standards of The Fast and the Furious?  Seriously?  While Fast was the career high point for both Vin Diesel and Paul Walker, it is a movie that can only be enjoyed along side a $3 bottle of gas station wine.  Claiming that a movie is dissimilar to Fast should be considered a compliment.  If the plaintiff claimed she had been duped into watching a pseudonymous Fast sequel, we would feel her pain.  After all, the fact that five Fast films have already been made is a grave injustice to the film industry.  But the fact that the plaintiff is actually complaining that the move is not like Fast is beyond our comprehension.

Second, even if we assume Fast has some cinematic merit, was Drive really trying to market itself as such?  Take a look at the Fast trailer from 2001. To the plaintiff’s credit, there are a lot of similarities between the two trailers.  Both have cars.  Both show people kissing.  Both have dramatic music as a background.  We can see how the plaintiff might see a resemblance.  Despite all these similarities, however, the movies are not marketed as one in the same.  In the Drive trailer, it is apparent that the movie has some story line.  After watching the Fast trailer, all we know about the film is that the actors do something in cars, and they like to do it fast.  Of course, it was probably hard to reveal a plot in the Fast trailer considering the film’s utter lack thereof. Oh, well.

 

BMW Enters Driverless Car Market

We here at Abnormal Use have blogged a few times now about Google’s attempt at a driverless car and the implications such a development might have on product liability law.  The question we posed to you, dear readers, is this:  when the law has developed around the [perceived] limits of technology, and that technology moves beyond that body of law, what happens?  When the driverless car crashes, who is responsible–can the owner of the car that caused the accident turn around and sue the manufacturer for a manufacturing or design defect? Read our prior posts for our thoughts on those general issues.

News alert: We may soon find out.  As recently reported by Wired, BMW is also testing a so-called “autonomous vehicle” and has outfitted a 5- series sedan with technology that enables the car to navigate heavy traffic, or in an emergency.  As such, the technology may not be intended to totally replace the driver, unlike the Google technology.  The BMW only takes over when driving becomes a chore: in a traffic jam.  The BMW is also not as well traveled as the Google car; BMW has put only 3,100 miles on its sedan’s odometer, while the Google car has more than 140,000.

Still, it’s further evidence that this is one direction in which automobile technology is headed, and product law must be prepared.  And yet, here is a thought: is the current state of product liability law already equipped to handle such a question?  The fundamental question of any products case is always this: what caused the injury or damage?  There are a number of possibilities – the design is bad, the manufacture of the particular product was shoddy, the owner failed to maintain the product, or it was simple operator error.  If we consider this the basic universe of theories, then is the law ready to handle the driverless car crash today?

Google Crashes – Literally (More on the Driverless Car Dilemma)

Back in October, we blogged about Google’s new driverless car and used that new technology as a starting point to ask some poignant questions about how the law has failed, in general, to keep pace with the current speed of innovation.  Our specific question on that date was as follows:

As both the ABA Journal and The New York Times point out, the obvious question is this: Who is liable for an accident caused by a car that is driving itself – the person sitting in the driver’s seat of the car who isn’t actually driving, or the manufacturer of the driverless car itself?

At the time, there hadn’t yet been an accident caused by the software.  Well, now we have one.  As recently reported by friend of the blog Alan Crede of the Boston Personal Injury Lawyer Blog, Google’s brainchild caused an accident.  (For the record, Google’s position is that a human driver who overrode the software caused the accident).  Just as we did in our prior post, Crede used the Google Car opportunity to pontificate about larger legal questions facing the advent of fast-moving technologies.  We were, however, pleasantly surprised to see that Crede does not take the typical plaintiff’s attorney-approach to the issue, but rather argued that companies should not fear developing such cutting-edge technologies because of fears of liability.  Rather, Crede advocated for the imposition of liability on the owner or passive “driver” of the car itself, not the manufacturer.  In so doing, he argued:

Since, presumably, most accidents involving robot-driven vehicles will be due to some software error, perhaps the victims of robot car accidents will sue Google or other robot car manufacturers in product liability actions for selling defective products (defective software code). Such a system would insure that accident victims are compensated, but it would also mean that robot car manufacturers — the Googles, Fords and Toyotas of the world — would become the insurer of every car accident. Could any car manufacturer afford such a burden? Likely not.

It seems what we need therefore — in order to insure that the victims of robot-driven cars are compensated — is new legislation which would change the common law rules that govern car accidents. In particular, we need a system of compulsory auto insurance and a new legislatively-created rule that the owners of driverless cars are responsible for all accidents that they cause, regardless of whether they were piloting the car at the moment the accident occurred.

Such a change would replace our current negligence-based system of liability for car accidents with a strict liability regime that makes cars’ owners automatically liable for any damage caused by their cars, but it seems the only workable legal framework for a future of driverless cars.

Under the current legal regime, car manufacturers would have to insure every accident on their own, a burden that no company, even one as large as Google, can afford.

An interesting idea.  Thoughts?  Personally, I am not sure that this type of legislation is a good idea.  What happened to placing liability on the actual party at fault?  Ostensibly, the “driver” who is just sitting in the car isn’t at fault for the accident – maybe it was a software glitch that caused the accident.  Furthermore, who in their right mind would buy a car knowing that it would be their fault if the car causes an accident, even though they had no control over how it was designed?  Or am I sounding like a plaintiff’s attorney?  On second thought, don’t answer that last question.

South Carolina Court of Appeals Reverses Products Liability Verdict Against Ford Motor Company

There is no question that South Carolina’s appellate courts are taking a harder look at expert testimony in products liability actions.  They’re looking not just at who’s qualified to be an expert, Watson v. Ford Motor Co., 699 S.E.2d 169 (S.C. 2010), but also, the subject matter experts may address, Jackson v. Bermuda Sands, Inc., 677 S.E.2d 612 (S.C. Ct. App. 2009). Just last week, the court of appeals issued an opinion in 5 Star, Inc. v. Ford Motor Company, No. 4862 (S.C. Ct. App. Aug. 10, 2011), which addresses when expert testimony may be required.

We here at Abnormal Use have completely plagiarized the court’s account of underlying facts for your convenience. Here you go: “5 Star is a lawn maintenance and pressure washing company owned by Stan Shelby. In February of 2005, 5 Star bought a 1996 Ford F-250 pickup truck with 227,000 miles for $1,500.00. On September 24, 2005, Shelby parked the truck for the weekend in 5 Star’s North Charleston warehouse, which also housed tractors, trailers, lawn mowers, and other equipment related to the business. When Shelby returned two days later he discovered that a fire had occurred. The truck was destroyed, and the building and several other pieces of equipment were severely damaged. There were no personal injuries. Before suit was filed and before Ford was given an opportunity to inspect the truck, Shelby had the truck towed from his property and crushed.”

Here’s a few additional facts taken from the opinion. Apparently, “the most significant damage to the building was directly above the truck’s engine compartment, which indicated  . . . that the engine compartment was the area of origin of the fire.” Furthermore, “the only thing that will produce heat” in the engine compartment when the vehicle is not being operated is the speed control deactivation switch. “[This] switch serves as a mechanism to deactivate the cruise control when the driver presses the brake pedal. The switch is wired into the brake light circuit, which, for safety reasons, must remain energized at all times. Keeping this circuit energized allows the brake lights to be illuminated by pressing the brake pedal even when the vehicle is turned off. The switch is ‘redundant,’ meaning it serves as a back-up in case the primary deactivation switch malfunctions.”

Due to the constant flow of electrical current, the switch can get hot. Apparently, a fuse is connected to the switch, which is tripped at 15 amps of electrical current. This is designed to prevent the switch from overheating. However, the switch was only rated to handle 2 amps of electrical current. This means there’s a range of 13 amps of current above the switch’s rating but below the fuse’s trigger that can course through the switch uninterrupted. “The allegedly defective quality of the switch is that it allows brake fluid, which is flammable, to remain in dangerous proximity to the energized electrical circuit [which, as we’ve just discussed, can get hot], separated only by a thin membrane.” Oh, and by the way, “Ford concede[d] the switch was defective.”

The case was tried in September 2008. The jury returned a verdict of $41,000.00 in actual damages for 5 Star. And everyone lived happily ever after — until 10 days later when the appeal was filed.

On appeal, the court focused on whether 5 Star presented any evidence that Ford had breached its duty to exercise reasonable care in designing the switch / fuse system, which is necessary in products cases based on design defects. The court held that “5 Star not only failed to present any evidence that Ford’s conduct in designing the switch was negligent, 5 Star failed to present any evidence of Ford’s conduct whatsoever.” The court further held that a directed verdict should have been entered for the Ford Motor Company.

Judgment reversed.

In a footnote, the court stated that 5 Star did not brings claims against Ford under strict liability or breach of warranty. We don’t want to play Tuesday morning quarterback, but including those claims probably would have been game-changers.

There’s one thing that prompts some curiosity. The court held that “[b]ecause 5 Star failed to present any expert testimony on the design of the speed control deactivation switch and whether the design was negligent in 1996, the trial court erred in not directing a verdict in favor of Ford.” But under the facts of this case, was expert testimony really necessary? If 5 Star’s theory was that Ford should have used a different switch, or a different fuse, or should not have routed a constant electrical current through the switch, certainly, expert testimony on those matters would be appropriate. But we’re not convinced that 5 Star’s theory was that complicated. Based on our reading of the facts, 5 Star’s theory seems to have been very simple: Ford designed a system that allowed brake fluid to be in close proximity to a heat source; brake fluid is flammable; the combination of heat and fuel caused a fire that destroyed 5 Star’s truck. If this was Plaintiff’s theory, again, was expert testimony really necessary?

In a different, but comparable context, the court of appeals has previously held that reasonable people of ordinary prudence should know that ladders conduct electricity, Anderson v. Green Bull, Inc., 471 S.E.2d 708 (S.C. Ct. App. 1996), that using golf carts at night is dangerous, Moore v. Barony House Restaurant, LLC, 674 S.E.2d 500 (S.C. Ct. App. 2009), and that using watercraft near swimmers can endanger the swimmers’ lives, Dema v. Shore Enters., Inc., 435 S.E.2d 875 (S.C. Ct. App. 1993). If people are assumed by law to have these types of knowledge, then wouldn’t the law also assume that the average person of ordinary prudence also knows that exposing flammable liquids to heat can cause fire? If the law would impose that knowledge on natural persons, then wouldn’t it also impose that knowledge on corporate persons? And if the matter were truly within the ambit of common sense, then why would expert testimony be necessary — even admissible — on the matter anyway?

Don’t get us wrong. We appreciate the court’s invigorated efforts to rein in expert testimony, which is too often manipulated and abused. And we also appreciate Ford Motor Company’s nearly single-handed efforts to finance the litigation that is clarifying the law of expert testimony in South Carolina. We’re just watching and waiting to see if this decision will get taken up to the Supremes.