Ferayorni v. Hyundai Motor Co.

• Decision Date: 08 April 1998
• Docket Number: No. 96-1745,96-1745
• Citation: 711 So.2d 1167
• Parties: 23 Fla. L. Weekly D923, Prod.Liab.Rep. (CCH) P 15,235 Anthony J. FERAYORNI, as Personal Representative of the Estate of Paulette Jo Ferayorni, Appellant, v. HYUNDAI MOTOR COMPANY and Hyundai Motor America Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1167

711 So.2d 1167

23 Fla. L. Weekly D923, Prod.Liab.Rep. (CCH) P 15,235

Anthony J. FERAYORNI, as Personal Representative of the Estate of Paulette Jo Ferayorni, Appellant, v. HYUNDAI MOTOR COMPANY and Hyundai Motor America Corporation, Appellees.

No. 96-1745.

District Court of Appeal of Florida,

Fourth District.

April 8, 1998.

Rehearing, Rehearing En Banc,

and Clarification Denied

June 18, 1998.

Thomas D. Lardin of Thomas D. Lardin, P.A., Fort Lauderdale, for appellant.

Francis M. McDonald, Jr. and Michelle M. Perez-Sotolongo of Cabaniss, McDonald, Smith & Wiggins, P.A., Orlando, for appellees.

STEVENSON, Judge.

Appellant, Anthony Ferayorni, as personal representative of the estate of Paulette Ferayorni, appeals a jury verdict of no liability in favor of the defendants, Hyundai Motor Company and Hyundai Motor America Corporation (collectively referred to herein as "Hyundai"). We affirm the verdicts reached by the jury, but remand for a new trial on the estate's claim of strict liability failure to warn because the trial court failed to instruct the jury on this claim. In so doing, we clarify that under Florida law, negligent failure to warn and strict liability failure to warn represent two distinct theories of recovery.

The estate of Paulette Ferayorni initiated this wrongful death action after the seventeen-year-old was killed in a car accident on January 26, 1991. The accident occurred when Ms. Ferayorni's vehicle, a 1990 Hyundai Excel, was struck by another vehicle. It is undisputed that the decedent was not properly utilizing her seatbelt at the time of the accident. The Excel's seat belt system consisted of a "manual" lap belt and a "passive" shoulder belt; ¹ however, the decedent was not wearing the lap belt, and she was wearing the shoulder harness under her arm, rather than over her shoulder. It is also undisputed that the cause of death was internal injuries caused by the pressure from the under-arm use of the seatbelt upon impact.

The estate's theory of the case was that Hyundai was aware that smaller drivers experience "neck-cutting" from the shoulder harness and respond by wearing the shoulder harness under their arms. The Fifth Amended Complaint raises various claims against Hyundai, including that the seatbelt mechanism was defectively designed and that Hyundai failed to warn of the risk of improperly utilizing the seatbelt. After a week-long trial, the jury returned a verdict of no liability, which the estate appeals on several grounds. We agree with the estate's argument that, while the trial court correctly instructed the jury on the law of negligence with respect to the estate's failure to warn claim, the trial court erred in refusing to instruct the jury on strict liability failure to warn.

I. Trial by consent

While the failure-to-warn claim pled in the estate's complaint alleged only Hyundai's failure to warn of the risk of wearing the shoulder harness without the lap belt, a somewhat different failure-to-warn claim emerged at trial--and persists on this appeal--concerning Hyundai's failure to warn of the risk of wearing the shoulder strap under one's arm. Although this particular failure-to-warn claim was not formally pled, our review of the trial transcript convinces us that it was tried with Hyundai's implied consent. See Fla. R. Civ. P. 1.190(b); Ford Motor Co. v. Hill, 381 So.2d 249, 250 (Fla. 4th DCA 1979)(finding that the unpled issue of strict liability was tried by the implied consent of all parties although the complaint alleged only negligence and breach of warranty), aff'd, 404 So.2d 1049 (Fla.1981). Without objection, the estate's expert witness, Dr. Robert Cunitz, testified that Hyundai should have better warned of the danger of wearing the shoulder strap under one's arm, and the estate argued in closing, without objection, that the Excel should have been equipped with a warning on the shoulder strap cautioning, "Danger--... don't place belt under your arm...."

II. "Inherently dangerous" products

We initially disagree with Hyundai's contention that, because automobiles are not "inherently dangerous," the estate was not entitled to a failure-to-warn instruction under any theory. It is true that in Tampa Drug Co. v. Wait, 103 So.2d 603, 607 (Fla.1958), the supreme court ruled that an automobile was not "inherently dangerous" and, therefore, did not give rise to a duty to warn. However, Tampa Drug was decided before Florida adopted the doctrine of strict products liability. The supreme court has since explained that

[t]he phrase "inherently dangerous" is merely a descriptive, factual conclusion, largely of historical interest, which has lost most of its utility with the evolution of products liability law and the adoption of strict liability. Prosser, Law of Torts § 96 (4th ed.1971)....

With the adoption of strict liability in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), the phrase became largely pass except as a rhetorical device to persuade a jury that a product contained a defect or inherent characteristic which posed a danger to users or bystanders.

Radiation Tech., Inc. v. Ware Constr. Co., 445 So.2d 329, 331 (Fla.1983).

Relying on this language, this court, in Brown v. Glade & Grove Supply, Inc., 647 So.2d 1033, 1035 (Fla. 4th DCA 1994), held that a "road grader," a device much like a tractor, could be found defective by virtue of a design defect, a manufacturing defect, or a defective warning. Brown held that under Radiation Technology, "[w]hether or not a product is 'inherently dangerous' is not determinative of the applicability of strict liability." 647 So.2d at 1035. Accordingly, we hold that the estate was not precluded from asserting its failure-to-warn claim merely because the Excel may not have been "inherently dangerous."

III. Strict liability failure to warn vs. negligent failure to warn

At the charge conference, the estate submitted its requested jury instructions on strict liability failure to warn. ² At that time, the estate correctly pointed out that "[t]here are no standard instructions that deal with the concept of warning, zero, none." Hyundai challenged the proffered instructions, arguing that "[w]arning is nothing more than a negligence case, Judge." Thus, the parties hit upon an issue that American courts have resolved with divergent results, and which Florida courts have yet to resolve--that is, whether there is a substantive difference between strict liability failure to warn and negligent failure to warn. The trial court apparently agreed with Hyundai's position that the two theories are duplicative, as it instructed the jury on the estate's failure-to-warn claim only with reference to the law of negligence. ³

Under the theory of strict products liability adopted in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), a product may be defective by virtue of a design defect, a manufacturing defect, or an inadequate warning. See Brown, 647 So.2d at 1035. In the failure-to-warn context, an "otherwise safe product" may be "defective" solely by virtue of an inadequate warning. See Giddens v. Denman Rubber Mfg. Co., 440 So.2d 1320, 1323 (Fla. 5th DCA 1983).

West 's progeny have emphasized that the strict liability theories are generally distinct from negligence. See, e.g., Moorman v. American Safety Equip., 594 So.2d 795 (Fla. 4th DCA 1992). Thus, a trial court's instruction to the jury on a claim of negligence normally will not obviate the need to instruct the jury on a parallel claim in strict liability. As this court has explained:

"[T]he doctrine of strict liability has evolved to complement the traditional conditional warranty and negligence theories." In West, the court adopted section 402A, Restatement (Second) of Torts, as the strict liability law of Florida. That section expressly says that it applies even though "the seller has exercised all possible care in the preparation and sale of his product...."

Therefore, it is unnecessary in a strict liability action to show that the manufacturer has been negligent in any way. In fact he can be found liable even though he was utterly non-negligent. It is thus obvious that strict liability has been placed into a user's arsenal of remedies as an addition to the traditional tort remedy of negligence, not in displacement of it....

Id. at 800 (quoting West, 336 So.2d at 84) (emphasis added); see also United States Mineral Prods. Co. v. Waters, 610 So.2d 20, 22 (Fla. 3d DCA 1992)("When a set of facts will support both a theory of common law negligence and strict liability, a plaintiff is entitled to proceed on either theory or both."), approved on other grounds sub nom. W.R. Grace & Co.-Conn. v. Waters, 638 So.2d 502 (Fla.1994).

However, a claim of strict liability arising specifically from a failure to warn may be an exception to the generally recognized distinction between negligence and strict liability. The issue, specifically, is whether a claim of strict liability failure to warn requires, like its counterpart in negligence, proof that the manufacturer knew or should have known of the product's dangerous propensities. As Judge Altenbernd explained in his concurring opinion in Baione v. Owens-Illinois, Inc., 599 So.2d 1377, 1379 (Fla. 2d DCA 1992):

The legal question is whether there is a substantive difference, or merely a rhetorical difference, between the two theories on duty to warn.

The Committee on Standard Jury Instructions in Civil Cases has not provided standard instructions on any theory of strict liability duty to warn "pending further developments of Florida law." Fla. Std. Jury Instr. (Civ.), IV at product liability, comment 2. In a number of jurisdictions, negligent duty to warn and strict liability duty to warn are virtually the same legal theory because they both depend upon a determination of reasonableness. 3 American Law of Products Liability 3d § 32:53 (T. Travers ed. 1987).... On the other hand, other courts have attempted to draw...