Browning v. Paccar, Inc.

• Decision Date: 23 August 1994
• Docket Number: No. A94A1577,A94A1577
• Parties: , Prod.Liab.Rep. (CCH) P 14,060 BROWNING et al. v. PACCAR, INC.
• Court: Georgia Court of Appeals

Page 260

448 S.E.2d 260

214 Ga.App. 496, Prod.Liab.Rep. (CCH) P 14,060

BROWNING et al. v. PACCAR, INC.

No. A94A1577.

Court of Appeals of Georgia.

Aug. 23, 1994.

William S. Stone, Blakely, Foy R. Devine, Atlanta, for appellants.

Neely & Player, Edgar A. Neely, Jr., Richard B. North, Jr., Atlanta, for appellee.

BEASLEY, Presiding Judge.

In June 1988, 15-year-old Thomas Browning was riding as a passenger in a 1979 Peterbilt tractor-truck designed, manufactured, and sold as new by Paccar, Inc. Frank Browning, Thomas' uncle, was driving the Peterbilt pulling a trailer. At the same time, Jenkins was operating a pickup truck in a westerly direction on the same highway. Jenkins' pickup truck was involved in a violent collision with the Peterbilt when Jenkins, without signaling, attempted a left turn across the path of the Peterbilt. As a result, the Peterbilt overturned on its right side and caught fire, which was fueled by the contents of the fuel tank. Thomas Browning was trapped inside the Peterbilt as fire engulfed the vehicle. He and Jenkins sustained fatal injuries.

Browning's parents instituted this wrongful death action against Paccar and the administratrix of Jenkins' estate, seeking a recovery against Paccar on theories of strict liability and negligence. They assert in the complaint that Paccar designed, manufactured, and sold the Peterbilt as a new product in a defective, unsafe, and unreasonably dangerous condition, in that when the Peterbilt left the control of Paccar, it was unreasonably susceptible to having its fuel system breached and fuel ignited when involved in highway collisions.

Among other things, plaintiffs charge Paccar with negligence in the configuration of the fuel and electrical systems, particularly the location of the fuel tanks and battery box in a known high-frequency impact area, outside the frame rails, unreasonably close to both occupants and ignition sources.

In his opening statement, Paccar's attorney remarked that the Peterbilt model truck involved in this collision was first made in the late 1950's; that at least 50,000 were made with the same fuel system, which has also been put in a newer model; that this is the only claim ever made against Peterbilt or Paccar for a post-collision fire; and that there has never been any kind of recall or government action taken against this fuel system.

Based upon his reconstruction of the accident, plaintiffs' engineering expert, Dr. Charles Benedict, testified that the fire started because the impact of the collision drove the bumper into the left front wheel, the left front wheel into the battery box, and the battery box into the fuel tank, thereby causing the fuel tank to be punctured by the battery box and the fuel to drain out and become ignited by electrical arcing from the battery box.

However, a bystander testified on behalf of Paccar that the fire began with a flame around the transmission in the area of the engine and then spread to the fuel tank after another bystander sprayed it with a fire extinguisher. Paccar's investigative engineer, Gilbert, testified that a fuel line to the left tank was sheared when the cab rolled over and that spilled fuel fed the fire after it started.

Paccar's expert in automotive engineering, Noble, and its product safety manager, Riggs, both testified on the basis of the physical evidence that the battery box did not puncture the fuel tank. Noble also testified that the design of the Peterbilt fuel system was reasonably safe and wholly appropriate.

After two days' deliberation and an "Allen " charge, the jury returned a verdict in favor of the defendant. Plaintiffs appeal the court's entry of judgment on the verdict and denial of their motion for new trial.

1. The first claimed error is the court's denial of plaintiffs' motion in limine. It sought to prohibit any reference or suggestion that the product has never been recalled or that no regulatory proceeding has ever been instituted against it.

(a) First, plaintiffs rely upon a line of cases applying the general rule that in a negligence action arising from a vehicular accident, the issue before the court is the negligence or non-negligence of the defendant at the time and place of the accident, and each transaction must be ascertained by its own circumstances. Williams v. Naidu, 168 Ga.App. 539, 540, 309 S.E.2d 686 (1983). Unlike the defendant-physicians' inadmissible evidence of "no prior suits" in Williams, the evidence in this case falls within an exception to this general rule which Williams recognizes as it is described in Gunthorpe v. Daniels, 150 Ga.App. 113(1), 257 S.E.2d 199 (1979). That is where similar occurrences or methods of acting or transactions tend to prove some fact of the case on trial. Such other matters might show knowledge of a defect, or causation, or prior existence of a dangerous or hazardous condition, or it might rebut a contention of impossibility. Id.

Here it is alleged that the design and manufacture of the vehicle caused the injury. If what was claimed as a dangerous defect were such, it would have occurred in the thousands of identical vehicles which had been produced upon the same design and by way of the same manufacturing process as the subject vehicle. The fact that none of such vehicles had been subjected to recall and Paccar had never been subjected to regulatory action with respect to the claimed defect despite the thousands of identical vehicles in use, tends to negate the allegation that the configuration was a dangerous design. All the vehicles shared a common design and manufacture, just as the 125 turkey dinners in Carsten v. Wilkes Supermarket of Gwinnett County, 181 Ga.App. 834, 353 S.E.2d 922 (1987), shared a common preparation process.

In the case of the turkey dinners, the evidence that no consumers attributed illness to them except plaintiffs was deemed relevant to show defendant's preparation of them was not negligent. Similarly, in this case of fuel and electrical system configuration on vehicles, the evidence that the customary methods for protecting the public from defective vehicles had not been instituted in connection with these vehicles was relevant to show defendant's design and manufacture was not negligent. Admission of the evidence did not violate OCGA § 24-2-2.

(b) Plaintiffs also argue that a recall or regulatory proceeding could not have occurred, in that there are no government standards applicable to the design and manufacture of fuel systems in tractor-trucks such as the Peterbilt.

Paccar presented evidence that even though there are no federal motor vehicle safety standards directly applicable to Paccar in its manufacture of the Peterbilt, a defect in the fuel system creating a safety hazard on the highways could result in regulatory action or a forced recall.

Evidence that there has been a recall is only admissible if there is first introduced some independent proof that the particular product in question suffers from the same defect. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 286(2), 260 S.E.2d 20 (1979). On the other hand, the absence of a recall is not irrelevant where, as here, the manufacturer is engaged in mass production of a vehicle over a period of many years and the claim is that each vehicle suffered from the same design defect.

2. Plaintiffs contend that the court erred in: (1) refusing to admit evidence of other litigation against Paccar, (2) refusing to admit evidence of other litigation against various of Paccar's competitors, and (3) refusing to allow cross-examination of Riggs regarding Paccar's knowledge of the litigation against its competitors.

Evidence of this other litigation consisted of a copy of a complaint filed by Benton against Paccar in federal district court in 1975 and copies of reported decisions, primarily by federal circuit courts of appeal, in suits by Huff against White Motor Corporation and by the Maxeys and the Sodens against Freightliner Corporation. Judgments were entered against defendants in each suit.

(a) At trial, plaintiffs sought to question their expert Benedict about whether or not a manufacturer in exercising reasonable care in designing, manufacturing, and marketing a product would follow litigation concerning competitors' products that are similar in design. Paccar objected to Benedict's testifying concerning litigation involving other vehicles built by other manufacturers without a showing of substantial similarity. Plaintiffs then elicited testimony from Benedict concerning the similarities between this suit and the suit against Freightliner Corporation by the Maxeys and the similarities in the design of all the manufacturers' trucks. Paccar objected to plaintiffs' introduction of published court decisions in cases against the other manufacturers, because the statement of facts in each opinion is skeletal and Paccar would be unable to establish through cross-examination that the other cases are in fact dissimilar.

The court refused, not incorrectly, to allow plaintiffs to prove facts through the introduction of the court opinions. "Ordinarily the reviewing court does not discuss the facts of the case, save in so far as a discussion of the facts may be necessary in the determination of questions of law." McCullough v. State, 11 Ga.App. 612, 617(5), 76 S.E. 393 (1912). "[A] judicial opinion should be admitted as substantive evidence of a similar accident only in the rarest of cases when no other form of evidence is available and then only with detailed limiting instructions." Johnson v. Colt Indus. Operating Corp., 797 F.2d 1530, 1534(3) (10th Cir.1986). There appears no reason that evidence of the other accidents could not have been adduced in another more complete form.

The court did allow plaintiffs to ask Benedict whether there had been complaints or litigation about defects in the outside-the-frame-rail gas tanks and designs prior to Paccar's assembly of this truck. When the court...