Ford Motor Co. v. Tippins

• Decision Date: 18 February 1997
• Docket Number: No. A96A1753,A96A1753
• Citation: Ford Motor Co. v. Tippins, 483 S.E.2d 121, 225 Ga.App. 128 (Ga. App. 1997)
• Parties: , 97 FCDR 838 FORD MOTOR COMPANY v. TIPPINS et al.
• Court: Georgia Court of Appeals

Page 121

483 S.E.2d 121

225 Ga.App. 128, 97 FCDR 838

FORD MOTOR COMPANY v.TIPPINS et al.

No. A96A1753.

Court of Appeals of Georgia.

Feb. 18, 1997.

Reconsideration Denied March 5, 1997.

Certiorari Denied June 6, 1997.

Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Charles K. Reed, Atlanta, for appellant.

Leon A. Wilson, II, Waycross, for appellees.

SMITH, Judge.

Phillip Morris Tippins and his wife were killed in a collision between their car and a van.¹Tippins' sons, as joint administrators of his estate, brought this product liability action against Ford Motor Company, alleging that the failure of Tippins' airbag to deploy contributed to his death.At trial, the jury returned a verdict in favor of the plaintiffs in the amount of $190,000.Judgment was entered in the amount of $380,000 by the trial court.Ford appeals, asserting that the trial court should have excluded certain testimony, should have directed a verdict in its favor, and should not have entered a judgment for twice the amount of the jury's verdict.We agree with Ford's last contention and reverse.

Construed in favor of the verdict, the evidence showed that, as Tippins was driving his Ford Taurus lawfully on a state highway, a full-sized Ford Club Wagon van driven by a man under the influence of drugs crossed the centerline and hit his car head-on.The witnesses agreed that the combined collision speed of the vehicles was between 60 and 70 mph.

There was no dispute that the collision was "very severe" and "a very bad wreck."Not only did the vehicles meet at high speed and head-on, the larger and heavier van also rode up over the front end of Tippins' car, doing substantial damage to the passenger compartment.The testimony of the witnesses and the photographs taken at the scene establish that there was catastrophic structural damage to Tippins' vehicle.Emergency medical personnel cut away portions of the car with the "jaws of life," folded back the roof, and pulled the remains of the dashboard away from the front seat with a winch attached to a four-wheel-drive truck.There was no dispute that the steering column was sheared off at the dashboard by the force of the collision, completely severing the steering wheel containing the driver's side airbag.The steering wheel was found "up under" Tippins' upper body.Plaintiffs elicited testimony that the front end of the van actually entered the passenger compartment, striking Tippins in the head.Plaintiffs contended, however, that a properly functioning airbag would have prevented the van's bumper from striking Tippins and killing him.

1.In its first enumeration of error, Ford complains that the trial court erred in allowing a witness for the plaintiffs, James King, to testify that the decedent could have survived the accident if the driver's side airbag had deployed.Ford contends that King was not qualified to testify as an expert in the area of biomechanics and collision survivability and that he had an insufficient factual foundation upon which to base his opinion.

It is apparent from the record that King, a retired car dealer, auto mechanic, and body shop owner, had no training or experience in any of the medical or technical aspects of biomechanics and collision survivability.It is also apparent from the testimony and evidence that the condition of the vehicle was materially altered before King examined and photographed it, both by emergency medical personnel in their rescue efforts and by others in transporting or storing the car.Evidence was also introduced suggesting that King altered the condition of the car before the photographs were taken.Because Ford's counsel failed to preserve Ford's objections for appellate review, we do not reach either of these issues.

Ford's counsel initially objected to King's lack of qualification as well as to the lack of foundation for his opinion.Plaintiffs' counsel stated, "I expect to lay that foundation," to which the trial court responded, "Okay."Plaintiffs' counsel asked some additional questions, then asked again if Tippins would have survived if the airbag had deployed; King responded simply, "Oh yeah," and "No doubt."Ford's counsel did not object again, although King was cross-examined at length on the basis for his testimony.

Because of this failure to renew its objection or object to any portion of the witness's testimony, Ford has failed to preserve this enumeration of error for appeal.Morris v. State, 212 Ga.App. 42, 44(2), 441 S.E.2d 273(1994).Ford also failed to move to strike King's testimony after cross-examination.That method of preserving an issue for appellate review, however, has been disapproved by the Georgia Supreme Court except in strictly limited circumstances.Sharpe v. Dept. of Transp., 267 Ga. 267, 268, 476 S.E.2d 722(1996).

"[T]his court has often noted that even an otherwise valid objection is waived unless timely made at trial.[Cit.] Objections presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.[Cit.]"Butler v. State, 172 Ga.App. 405, 406-407(1), 323 S.E.2d 628(1984).Under these circumstances, we cannot address the issue of the qualification of plaintiffs' witness James King or the foundation for his testimony.

2.In a related enumeration of error, Ford contends the trial court erred in failing to direct a verdict in its favor because of the absence of evidence that the collision was survivable.Despite plaintiffs' contentions to the contrary, the testimony of James King is the only evidence that the collision was survivable.Since Ford did not object, however, King's testimony constitutes some evidence of survivability and fulfills the "any evidence" rule applicable to motions for j.n.o.v. and directed verdict.Outdoor Systems v. Woodson, 221 Ga.App. 901, 902(1), 473 S.E.2d 204(1996).Ford's argument that this Court has the authority to reverse a verdict as against the weight of the evidence is without merit: such a reversal is a discretionary decision resting solely with the trial court.OCGA § 5-5-21;Antique Center of Roswell v. City of Roswell, 196 Ga.App. 894(3), 397 S.E.2d 146(1990);McBowman v. Merry, 104 Ga.App. 454, 455-456(1), 122 S.E.2d 136(1961).

3.In its third enumeration of error, Ford argues that plaintiffs failed to show that its product was defective.Once again, King's testimony is the only evidence concerning a defect in the airbag system.King was never offered or qualified as an expert witness with respect to airbag design, and he offered little if any foundation for his opinion that the airbag electronics should have been located in the rear of the vehicle to avoid damage.He simply stated that, "you've got some bad engineers,""the whole [airbag] system is wrong," and "you're 20 years behind time."He also testified that he did not agree with the government standards or statistics on airbags and added that if Ford's engineers had come to his house he could have told them how to build the airbag system.Once again, Ford failed to object either to King's lack of qualification as an expert or to the lack of factual foundation for his opinions, and under the "any evidence" rule, this unobjected-to testimony suffices to present the case to a jury.

4.Ford also contends that the trial court should have granted its motion for a directed verdict because plaintiffs presented no evidence that the "enhanced injury" attributable to Ford's product caused Tippins' death.There was no direct evidence as to any injuries to Tippins other than the head injury, because the family refused an autopsy.The EMT who attended Tippins on the scene recorded "massive head and chest trauma" and "probable" multiple extremity fractures, but acknowledged that he could not state positively the extent of Tippins' other injuries.The embalmer testified that the decedent "was, like his wife, messed up so bad, I don't know if I can say one thing that caused his death or not."Witnesses engaged in much speculation regarding the presence or absence of signs of other injuries and their inferences from their observations, but no direct evidence of other injuries was presented.Plaintiffs contended that the absence of testimony regarding the presence of other injuries showed that the head injury was the sole cause of Tippins' death, that the deployment of the driver's side airbag would have prevented the head injury, and that Tippins therefore would have survived.

Ford complains that plaintiffs never proved the extent of "enhanced injury" to Tippens caused by the failure of the airbag, citing Polston v. Boomershine Pontiac-GMC Truck, 262 Ga. 616, 423 S.E.2d 659(1992).Ford's reading of Polston, however, is not a correct statement of the law.Polston holds that once the plaintiff has proved the existence of an injury-enhancing defect, the burden falls on the defendant to prove the degree of injury attributable to other causes.Id. at 618-619, 423 S.E.2d 659.The burden fell upon Ford, not plaintiffs, to show the extent of injury not caused by the failure of the airbag.

This, as the dissent in Polston observes, requires the defendant to prove an essential element of the plaintiff's case.Id. at 622, 423 S.E.2d 659(Hunt, J., dissenting).We note, too, that in wrongful death actions such proof is unavailable to the defendant.In the case of a non-fatal injury, as in Polston, the defendant can require the plaintiff to submit to an independent medical examination, OCGA § 9-11-26(a), but no analogous discovery is possible in a death case.Because Tippins' family forbade an autopsy, it was impossible for Ford to obtain any medical evidence regarding the degree of injury attributable to other causes.But because we are...