Ford Motor Co. v. Washington

• Decision Date: 16 January 2014
• Docket Number: No. CV–13–449.,CV–13–449.
• Citation: 2013 Ark. 510,431 S.W.3d 210
• Court: Arkansas Supreme Court
• Parties: FORD MOTOR COMPANY, Appellant v. Paulette R. WASHINGTON, Individually and as Administratrix of the Estate of Johnny Ray Washington, Deceased, and as Parent and Legal Guardian of Terian Washington, A Minor, Appellee.

2013 Ark. 510

431 S.W.3d 210

FORD MOTOR COMPANY, Appellant

v.Paulette R. WASHINGTON, Individually and as Administratrix of the Estate of Johnny Ray Washington, Deceased, and as Parent and Legal Guardian of Terian Washington, A Minor, Appellee.

No. CV–13–449.

Supreme Court of Arkansas.

Dec. 12, 2013.

Rehearing Denied Jan. 16, 2014.

Wright, Lindsey & Jennings, LLP, Little Rock, by: Edwin L. Lowther, Paul D. Morris, and Gary D. Marts, for appellant.

The Duncan Firm, Little Rock, by: Phillip J. Duncan; Denney & Barrett, P.C., by: Richard L. Denney and LydiaJoAnn Barrett; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee.

CLIFF HOOFMAN, Justice.

Appellant Ford Motor Company (“Ford”) appeals from the judgment entered against it following a jury trial in Jefferson County Circuit Court. Ford presents five points of error on appeal: (1) whether the circuit court abused its discretion in refusing to admit evidence of seat belt noncompliance pursuant to Arkansas Code Annotated section 27–37–703 (Repl.2008); (2) whether the circuit court erred as a matter of law in determining that the defective-glass claim was not preempted by Federal Motor Vehicle Safety Standard 205 (“FMVSS 205”), 49 C.F.R. § 571.205 (2001); (3) whether the circuit court erred in denying Ford's motion for judgment notwithstanding the verdict on the issue of punitive damages; (4) whether the circuit court erred in failing to reduce the jury's compensatory-damages award, pursuant to Arkansas Code Annotated sections 16–61–204 and–205 (Repl.2005), before entering judgment for Washington; and (5) whether the nunc pro tunc designation included in the circuit court's judgment is contrary to Arkansas law. We simultaneously consider with the submission of this case a motion filed by Washington during the pendency of the appeal to strike a portion of Ford's reply brief. We affirm in part, reverse and remand in part, and rule that the motion is denied.

At approximately 10:30 a.m. on August 23, 2000, Johnny Ray Washington and his eleven-year-old son, Terian, were traveling in their 1994 Ford Explorer on Linden Street in Pine Bluff, Arkansas, when the vehicle was struck on the driver's side by Karah Allen Williams, who had run a stop sign. The Explorer rolled over twice and landed right-side up. Terian walked away from the accident, but Johnny suffered a fatal head injury when his head exited the vehicle during the rollover and was crushed. When emergency-medical technicians arrived on the scene, Johnny was in severe distress but still had a pulse and slow respirations. Johnny was transported to Jefferson County Regional Medical Center, where he was pronounced dead at 11:39 a.m.

On August 14, 2003, appellee Paulette R. Washington, the decedent's wife, individually and as administratrix of her husband's estate, and as parent and legal guardian of Terian Washington, filed a complaint in the Jefferson County Circuit Court against Ford Motor Company (“Ford”), Freeway Ford Lincoln Mercury, Inc., and Karah Allen Williams.¹ Washington asserted several claims against Ford, including negligence, strict liability, failure to warn, and breach of warranties. She asked for past and future medical expenses; past and future lost earnings; future loss of earning capacity; past and future pain and suffering; past and future mental anguish and mental harm; loss of services, society, and companionship; permanent injuries; properly damage; the reasonable value of the loss of Johnny's life; and the reasonable value of funeral expenses. She also asserted a claim for punitive damages against Ford.

The case proceeded to trial on August 16, 2010, solely against Ford, and Washington alleged that the Explorer had two defects: (1) the propensity to roll over and (2) the use of tempered, rather than laminated glass, in the side windows that made ejection or partial ejection in a rollover more likely. Although Williams had been previously dismissed, the circuit court allowed her to be placed on the verdict form for apportionment purposes. After a two-week trial, the jury returned a verdict finding that both Ford and Williams, equally, had been the proximate cause of Johnny's death. The jury awarded Washington $4,652,125 in compensatory damages and $2.5 million in punitive damages, and a judgment was entered on October 6, 2010, in which the circuit court merely reproduced the jury's answers to the special interrogatories without setting forth a specific dollar amount owed by Ford.

On October 20, 2010, Ford filed a motion for judgment notwithstanding the verdict or alternatively, for a new trial, which was denied. Ford filed a timely notice of appeal, and Washington filed a notice of cross-appeal. This court dismissed Ford's first appeal without prejudice due to the lack of a final order because no written order had been entered dismissing Freeway Ford. See Ford Motor Co. v. Washington, 2012 Ark. 325, 2012 WL 4017383 (“ Ford I ”). We then dismissed the second appeal for lack of finality because the judgment did not set forth a specific dollar amount owed by Ford. See Ford Motor Co. v. Washington, 2013 Ark. 88, 2013 WL 776233 (“ Ford II” ). Following a second remand, the circuit court entered an order on April 8, 2013, awarding judgment against Ford in the amount of $7,152,125. The court also included a nunc pro tunc provision in the order, making the judgment retroactive to October 6, 2010, the date of the original judgment, for post-judgment-interest purposes.

Ford filed a motion to alter or amend the judgment, arguing that the nunc pro tunc designation was improper; a motion for JNOV; and a motion for remittitur, arguing that the award of compensatory damages should be reduced in accordance with the jury's 50–50 allocation of fault between Ford and Williams. These motions were denied by the circuit court on April 29, 2013, and Ford filed a timely notice of appeal on May 3, 2013.

I. Section 27–37–703

For its first point on appeal, Ford contends that the circuit court abused its discretion when it found that Ford had not met the requirements of Arkansas Code Annotated section 27–37–703 and prohibited Ford from introducing evidence that Johnny was not wearing a seat belt at the time of the accident. Ford maintains that it put forth sufficient proof to meet its burden under the statute. Ford also asserts that the circuit court abused its discretion in allowing Washington to present testimony that Johnny was wearing his seat belt because once Washington “opened the door,” it was error not to allow Ford to rebut that evidence, even where such evidence was otherwise inadmissible.

In response, Washington argues that Ford did not meet its statutory burden and that the circuit court was correct to reject Ford's evidence suggesting that Johnny was not wearing a seat belt because it was “conjecture,” “lack[ed] foundation,” and was “merely conclusionary.” Further, Washington asserts that Ford's “opening the door” argument is not preserved.

According to Ark.Code Ann. § 27–37–703 (Repl.2008), which governs the admissibility of such evidence,

(a)(1) The failure of an occupant to wear a properly adjusted and fastened seat belt shall not be admissible into evidence in a civil action.

(2) Provided, that evidence of such failure may be admitted in a civil action as to the causal relationship between noncompliance and the injuries alleged, if the following conditions have been satisfied:

(A) The plaintiff has filed a products liability claim other than a claim related to an alleged failure of a seat belt;

(B) The defendant alleging noncompliance with this subchapter shall raise this defense in its answer or timely amendment thereto in accordance with the rules of civil procedure; and

(C) Each defendant seeking to offer evidence alleging noncompliance has the burden of proving:

(i) Noncompliance;

(ii) That compliance would have reduced injuries; and

(iii) The extent of the reduction of such injuries.

(b)(1) Upon request of any party, the trial judge shall hold a hearing out of the presence of the jury as to the admissibility of such evidence in accordance with the provisions of this section and the rules of evidence.

(2) The finding of the trial judge shall not constitute a finding of fact, and the finding shall be limited to the issue of admissibility of such evidence.

On the second day of trial, Ford filed a motion for admission of evidence of the decedent's failure to wear a seat belt, asserting that it had met the prerequisites of section 27–37–703. Specifically, Ford put forth the deposition testimony of Dr. Robert Piziali, a mechanical-engineering and accident-reconstruction expert, who testified that there were no marks on the vehicle's restraint system consistent with belt use; that there were no marks on the decedent that were consistent with belt use; that the position of the decedent's head at the time of the injury was inconsistent with restraint use; that if the decedent had been properly restrained, his head would not have been able to exit the vehicle; and that had he been properly restrained, the decedent would not have been in a position to be killed.

To rebut Ford's evidence of seat belt nonuse, Washington presented the deposition testimony of Timothy Clowers,² a paramedic who had arrived on the scene of the accident and attended to Johnny. Clowers testified that “from the best of my recollection,” he remembered having to undo the decedent's seat belt before tending to his injuries. When he was referred to a notation contained in the decedent's emergency-room records stating, “motor vehicle accident, unrestrained driver,” Clowers stated that he did not recall telling emergency-room personnel that the decedent was or was not restrained. Clowers further stated that he could not disagree with the notation without knowing the basis for it, but that, in his experience, emergency-room personnel generally assume that a person was not restrained when the...