Durham v. County of Maui

• Decision Date: 17 February 2010
• Docket Number: Civ. No. 08-00342 JMS/LEK.
• Citation: 692 F. Supp.2d 1256
• Parties: Sheri Gail DURHAM, Individually and as next of Friend of Marisa Uma Lama Durham, Minor et al., Plaintiffs, v. COUNTY OF MAUI, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

692 F. Supp.2d 1256

Sheri Gail DURHAM, Individually and as next of Friend of Marisa Uma Lama Durham, Minor et al., Plaintiffs, v. COUNTY OF MAUI, et al., Defendants.

Civ. No. 08-00342 JMS/LEK.

United States District Court, D. Hawai'i.

February 17, 2010.

Kenneth B. Chaiken, Robert L. Chaiken, Chaiken & Chaiken, PC, Lee Brown, Eric Porterfield, The Brown Law Firm, Dallas, TX, Phillip L. Deaver, Sarah M. Love, Bays Deaver Lung Rose & Holma, Amanda J. Weston, John H. Price, Honolulu, HI, for Plaintiffs.

Kenneth S. Robbins, Robbins & Associates, Marilyn S.H. Naitoh, Randall Y.S. Chung, Matsui Chung Sumida & Tsuchiyama, Honolulu, HI, Richard B. Rost, Moana Monique Lutey, Department of the Corporation Counsel, Anthony P. Takitani, Gilbert S.C. Keith-Agaran, Takitani & Agaran A. Law Corporation, Wailuku, HI, for Defendants.

ORDER DENYING FORD MOTOR COMPANY'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES (DOC. NO. 518)

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

This action arises from a July 26, 2006 two-car accident between a 2004 Ford Focus station wagon (the "subject vehicle") driven by Mark Durham and rented from Maui Windsurfing Vans, Inc. ("Maui Windsurfing"), and a 2003 Hyundai Santa Fe Sport Utility Vehicle ("SUV") driven by Patty Conte. Mark Durham passed away as a result of his injuries in the accident. His daughters, Jessica and Marisa, both passengers in the subject vehicle, also sustained injuries and Jessica passed away over two years later.

As a result of this accident, Plaintiffs Sheri Gail Durham ("Sheri Durham"), individually and as next friend of Marisa Durham, and Denise Ann Jenkins ("Jenkins"), as the Administrator of the Estates of Mark Durham and Jessica Durham, (collectively "Plaintiffs"), allege that the subject vehicle was defective because it lacked side airbags and its side structure and seat belts in concert with the seats did not reasonably minimize head and chest injuries in side impact collisions involving SUVs. Plaintiffs therefore allege product defect claims against Ford Motor Company ("Ford") for negligence, gross negligence, strict liability, and survival and wrongful death (Counts III, V, and IX of the Second Amended Complaint ("SAC")).

Currently before the court is Ford's Motion for Partial Summary Judgment on Plaintiffs' claim for punitive damages ("Ford's Punitive Damages Motion"). Ford argues that Plaintiffs are not entitled to punitive damages because no genuine issue of material fact supports by clear and convincing evidence that Ford acted wantonly or oppressively, and Ford complied with government safety standards and industry custom and practice. As explained below, the court DENIES Ford's Punitive Damages Motion because genuine issues of material fact exist from which a jury could find support by clear and convincing evidence that Ford acted with the requisite culpability for punitive damages.

II. BACKGROUND

A. Factual Background

This action arises from a July 26, 2006 two-car accident at the intersection of Pulehu Road and Hansen Road in the County of Maui. Mark Durham was driving the subject vehicle on Pulehu Road with his two minor daughters, Jessica and Marisa. From the police investigation, it appears that Mark Durham failed to heed a stop sign at the intersection with Hansen Road, resulting in the SUV driven by Patty Conte on Hansen Road hitting the subject vehicle on its left side. Ford Ex. A. Mark Durham passed away as a result of the injuries in the accident. Jessica and Marisa also sustained injuries, and Jessica passed away over two years later.

Plaintiffs assert claims against Ford for negligence, gross negligence, strict liability, and survival and wrongful death. In support of these claims, Plaintiffs assert that the subject vehicle was defective because it lacked side airbags and its side structure and seat belts in concert with the seats did not reasonably minimize head and chest injuries in side impact collisions involving SUVs. Plaintiffs further assert that these defects caused Defendants' injuries—one of Plaintiffs' experts, Tyler Kress, posits that Mark and Jessica Durham would have suffered much less severe injuries if the subject vehicle had the appropriate side structure design and utilized side airbags. Pls.' Ex. G, Kress Decl. ¶ 3.

In support of their claim that Ford acted grossly negligent, Plaintiffs assert that Ford's failure to implement a safer side structure and install side airbags in the subject vehicle was wanton, malicious, and grossly negligent when viewed objectively at the time of the accident. SAC ¶ 72. In support of this assertion, Plaintiffs have presented evidence regarding, among other things, Ford's knowledge of side impact injuries and the benefits of side airbags, Ford's development and implementation of side airbags, and Ford's decision to make side airbags only optional in the Focus.

Regarding side impact injuries generally, Ford was aware that while frontal impacts occur more frequently, the risk of injury in side impacts is greater because there is less space between the victim and the point of impact. Pls.' Ex. A at 201:17-02:16; Pls.' Ex. C. Ford was also aware that within the class of side-impact accidents, "mass mismatch" accidents—in which a higher mass vehicle hits a lower mass vehicle—have a greater risk of injury than in other side-impact accidents. Pls.' Ex. A at 48:12-23. During his deposition, Michael Leigh, Ford's corporate representative, estimated based on National Highway Traffic Safety Administration publications that there are approximately 10,000 fatalities caused in side-impact accidents per year, id. at 17:15-24, and 90 percent of these fatalities occur in passenger vehicles. Id. at 122:24-23:2; id. at Depo. Ex. 10 FF00588. In total, Leigh agreed with a 1995 Ford video announcing Ford's development of head/chest airbags for side-impact crashes, which states that "according to recent U.S. government accident data, more than 60,000 people are killed or seriously injured in side-impact traffic accidents each year. Twenty Five percent of those victims suffer head injuries." Pls.' Ex. A at 195:17-196:1; Pl.'s Ex. C.

Regarding Ford's knowledge of the benefits of side airbags, Ford asserted in that same 1995 video that side airbags "will make it possible for more people to walk away from potentially fatal crashes," and Ford's Head of Auto Safety touted that side airbags could dramatically reduce head injuries associated in mass-mismatch accidents. Pls.' Ex. C; Pls.' Ex. A at 205:18-06:19. Leigh further explained that side airbags were Ford's answer to reducing the number of head injuries in side-impact crashes. Pls.' Ex. A at 199:1-25.

In 1999, individuals at Ford proposed implementing "improvements in structure, padding, and combinations of throrax/curtain side impact airbag systems" to enhance side impact protection. Pls.' Ex. E, Depo. Ex. 00252001. Ford theorized that implementing these improvements could reduce the risk of serious injuries by 25% in United States passenger cars and carry a variable cost of only $12 per unit. Pls.' Ex. A, Depo. Ex. 2 at XXXXXXXX-XX. Despite its own calculations, Ford was also aware that the Insurance Institute for Highway Safety ("IIHS") determined that side airbags could reduce the risk of fatalities by as much as 45%. Pls.' Ex. A at 74:6-17.

Ford began high volume implementation of side airbags in 1997 in the Mondeo in Europe and in 1999 in the Town Car, Continental, Cougar, and Winstar. Id. at 36:12-24. Side airbags came standard on the Focus in Europe around 1997 or 1998, but were only an option in the United States for the 2000 model year. Id. at 62:19-23, 72:3-12. It was not until 2008 that Ford altered the Focus' side structure and made side airbags standard in the United States. Id. at 114:18-21; Pls.' Ex. B. at Depo. Ex. 11.

Ford was aware that the Focus without side airbags performed poorly. In 2000, the IIHS performed side-impact testing on the Focus by striking it with a 1996 Ford Explorer and shared its results with Ford by 2002. See Pl.'s Ex. A at 105:4-107:21; id. at Depo. Ex. 10 at F00585, F00596. The IIHS publicly released its results in 2005, rating the Focus without side airbags "poor." Pls.' Ex. B at Depo. Ex. 10. Specifically, the IIHS found that driver head, neck, and torso injuries, and driver and rear passenger head protection were all poor. Id.; see also Pls.' Ex. A at 106:22-108:2. The IIHS concluded that "serious skull fracture and/or brain injuries, plus rib fractures and/or internal organ injuries would be likely" for the driver and that "rib fractures as well as a left femur fracture would be possible" for the rear passenger. Pls.' Ex. B at Depo. Ex. 10. Not surprisingly, the Focus with side airbags performed better in preventing head and thorax injuries than the Focus without side airbags. Pls.' Ex. A at 102:1-104:19.

Despite knowing that side airbags in the Focus would decrease injuries and deaths, Ford chose not to make them standard until 2008 in the United States based on "planning and marketing, particularly marketing, because planning and marketing have—they're closest to what we call the pulse of the customer and know what the customers are looking for." Pls.' Ex. A at 137:21-38:6. Ford utilized this "general approach to let customers decide if they wanted that option." Id. at 86:20-87:6. The cost to Ford of installing side airbags in the Focus was approximately $100 per vehicle, id. at 91:14-21, and each sale generated approximately $200 in revenue to Ford. See id. at 92:2-13; see also Pls.' Ex. H (stating that for this option, the retail price was $350 and the dealer invoice price was $312). Less than 10% of consumers, however, purchased this option. See id. at 97:15-16.

B. Procedural History

On July 24, 2008, Plaintiffs filed this action. Plaintiffs' SAC alleges claims against Ford for negligence, gross negligence, strict liability, and derivative claims for...