Ford Motor Co. v. Nowak

Citation638 S.W.2d 582
Decision Date30 June 1982
Docket NumberNo. 1834,1834
PartiesFORD MOTOR COMPANY and T. A. Andrews Pontiac, Olds, Cadillac, Inc., Appellants, v. Frank NOWAK and Eloise Nolan, Appellees.
CourtTexas Court of Appeals

William C. Slusser, Randall A. Hopkins, Baker & Botts, Houston, R. D. Cullen, Cullen, Carsner, Seerden & Williams, Victoria, Rick Rogers, Porter, Gonzalez & Rogers, Corpus Christi, for appellants.

John O'Quinn, Murphrey, O'Quinn & Cannon, Houston, Russell H. McMains, Edwards & Perry, Corpus Christi, for appellees.

Before NYE, C. J., and BISSETT, YOUNG, UTTER, KENNEDY, and GONZALEZ, JJ., En Banc.

OPINION

UTTER, Justice.

This is a products liability case. The suit arose as a result of an auto accident in which Mrs. Ann Nowak was killed. There were no eyewitnesses to the accident; however, it was agreed that when the accident was discovered, the body of the decedent, Mrs. Ann Nowak, was found underneath her 1977 Ford automobile, which was the only vehicle involved. As a result of this accident, Frank Nowak, the deceased's husband, filed suit against appellant Ford Motor Co., et al., seeking wrongful death and punitive damages.

The case was submitted to the jury on special issues from which the jury found, inter alia, that 1) the transmission control system of the Nowak Ford was defectively designed; 2) this defective design was a producing cause of the accident; 3) the shift lever on the Nowak Ford could be left in a position which appeared to the driver to be the proper position when it was possible for vehicle vibration to move the transmission into reverse in an unattended vehicle; and 4) that Ford failed to adequately warn its consumers about this problem. The jury further found pecuniary damages in the amount of $400,000 and punitive damages in the amount of $4,000,000. The trial court entered judgment for appellee in accordance with the jury verdict. Ford duly perfected this appeal.

Ford, in its first and sixth points of error, argues that the jury findings on design defect are "against the great weight and preponderance of the evidence". In reviewing an "against the great weight and preponderance of the evidence point", we must consider all of the evidence, including evidence which tends to prove the existence of vital facts as well as evidence which tends to disprove its existence. If a jury finding, considering all of the evidence of probative value, is so contrary to the weight and preponderance of the evidence as to be clearly wrong and unjust, we should sustain the point, reverse the judgment of the trial court and remand the case for a new trial. This is true even if the verdict is supported by more than a scintilla of evidence, and even though reasonable minds could differ about the conclusion to be drawn from the evidence. Otherwise, this Court should overrule the point and affirm the judgment. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Sam Kane, Inc. v. Mathisen, 504 S.W.2d 804 (Tex.Civ.App.--Corpus Christi 1974, writ ref'd n.r.e.). Ruiz v. Flexonics, 517 S.W.2d 853 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 359 (1960); Garwood, The Question of Insufficient Evidence on Appeal, 30 Texas L.Rev. 803 (1952).

In addition to these well-established review guidelines, a products liability cause of action also requires consideration of the following: Whether a product is defectively designed requires the jury to balance the product's utility against the likelihood of and the gravity of injury from its use. The finding on defectiveness may be influenced by evidence of a safer design that would have prevented the injury. Turner v. General Motors Corporation, 584 S.W.2d 844 (Tex.1979); Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex.1980); Burks v. Firestone Tire & Rubber Company, 633 F.2d 1152 (5th Cir. 1981). Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.). Since defectiveness of the product in question is determined in relation to safer alternatives, the fact that risks could be diminished easily or cheaply may influence the outcome of the case. Boatland of Houston, Inc. v. Bailey, supra.

The following synopsis on how to judge whether or not a product was defectively designed was aptly stated in Boatland. In that case, the Supreme Court stated:

"Whether a product was defectively designed must be judged against the technological context existing at the time of its manufacture. Thus, when the plaintiff alleges that a product was defectively designed because it lacked a specific feature, attention may become focused on the feasibility of that feature--the capacity to provide the feature without greatly increasing the product's cost or impairing usefulness. This feasibility is a relative, not an absolute, concept; the more scientifically and economically feasible the alternative was, the more likely that a jury may find that the product was defectively designed. A plaintiff may advance the argument that a safer alternative was feasible with evidence that it was in actual use or was available at the time of manufacture. Feasibility may also be shown with evidence of the scientific and economic capacity to develop the safer alternative. Thus, evidence of the actual use of, or capacity to use, safer alternatives is relevant insofar as it depicts the available scientific knowledge and the practicalities of applying that knowledge to a product's design."

Appellees contend that the accident occurred in the following manner: Mrs. Nowak stopped her car in the driveway and attempted, but failed, to shift completely into Park; that, after shifting into what she apparently thought was Park, she left the engine running and walked behind the car to close the driveway gate; that as she was closing the gate, the car shifted into reverse, striking and rolling over her, causing her death. Appellees contend that this self-shift occurred because Ford defectively designed and marketed a transmission control system that could be left between the Park and Reverse positions on a flat area referred to as the gatepost.

In this connection, appellees specifically allege that the major defect in the Ford transmission design is in the design and mechanical operation of the part known as the rooster comb. These alleged defects are as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

1. The hill between the park and reverse valleys is too flat so that little torque is required to move the plunger from the park valley to the reverse valley.

2. The spring-loaded plunger is too weak which further reduces the amount of torque needed to move the rooster comb.

3. The linkage that operates the parking gear is attached to the rooster comb in a manner that can cause torque to be applied to the rooster comb to move it from park to reverse.

Ford, on the other hand, contends that the design of the system is such that, while it would be possible, it is very unlikely that a driver would mis-position the shift lever between Park and Reverse, so that the parking mechanism was not fully engaged. Ford admits that if the engine was running, the parking mechanism was not fully engaged and the hand parking brake was not properly set, the car might move backwards. Ford further argued that its system conformed to the recommendations of the Society of Automotive Engineers and that a better design was not available. To aid in our discussion of design defect, the drawing below has been reproduced to show the parts of the transmission involved.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In the present case, in order to review the evidence of design defect under the previously stated guidelines, it is necessary to summarize the testimony of appellees' expert, Mr. Walter Reed, and of the two Ford engineers, Mr. Lee Carr and Mr. Fredrich W. King, III. Throughout the opinion, the word "gatepost," unless otherwise indicated, should be construed to mean the position of the shift lever when it lands on the flat surface between Park and Reverse.

Mr. Reed, appellees' expert, testified that the linkage design used in the Ford transmission system is such that when the driver fails to shift completely into Park and the gear shift lever lands on the gatepost surface, the car will probably self-shift into Reverse.

In describing why this is likely to happen, Mr. Reed explained the linkage system in the FMX transmission in the following manner: The linkage system (as shown above) is designed so that it falls into the Park gear which is the "official park." In order to fall directly into Park, the gears controlling the rear wheels must be in perfect alignment. However, generally, when one comes to a stop, the rear wheels will be in a position which causes the gears not to be in perfect alignment, and what will actually happen is that the motion of the car will move it somewhat down into this park position. While this is happening, there are three springs in the linkage system which are at work. If the parking pawl does not fall into the parking gear, the spring compresses. The spring is holding the detent plunger and trying to keep the car from going from Park to Reverse. The other spring is compressed at this point and is trying to push the parking pawl into the parking gear, and at the same time, trying to push back the other way and push the rooster comb from Park to Reverse. The third spring is a coil spring. The balance of the forces involved with these springs and the rooster comb is so close that it is inclined to spring back to reverse because of engine vibration. Reed stated that this result was the most undesirable of the three possibilities, i.e., falling into Park, staying on the gatepost, or falling into Reverse. The total system results in a "hair trigger" characteristic susceptible of...

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