Ford Motor Co. v. Bartholomew

• Citation: 297 S.E.2d 675,224 Va. 421
• Decision Date: 03 December 1982
• Docket Number: No. 801026,801026
• Court: Virginia Supreme Court
• Parties: FORD MOTOR COMPANY v. Constance K. BARTHOLOMEW. Record

Page 675

297 S.E.2d 675

224 Va. 421

FORD MOTOR COMPANY v. Constance K. BARTHOLOMEW.

Record No. 801026.

Supreme Court of Virginia.

Dec. 3, 1982.

Richard H. Lewis, Fairfax (Steven W. Bancroft, Fairfax, on briefs), for appellant.

Bernard S. Cohen, Alexandria (Robert C. Dunn, Cohen & Annand, P.C., Alexandria, on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ., concur.

POFF, Justice.

This is a manufacturer's appeal from a judgment entered in favor of a consumer in a products liability case.

Constance Bartholomew filed a motion for judgment seeking compensatory and punitive damages for injuries sustained in an automobile accident. Plaintiff alleged that Ford Motor Company and Dave Pyles Lincoln Mercury, one of its retail dealers, were liable to her on theories of negligence, strict liability, failure to warn of a design defect, and breach of implied warranty. The trial court granted Dave Pyles' motion to strike plaintiff's evidence against it but refused Ford's motion. At the conclusion of all the evidence, the trial court struck plaintiff's claim for punitive damages. The jury returned a verdict for plaintiff and fixed her damages at $50,000. Ford filed a motion to set aside the verdict and to enter judgment in its favor or, in the alternative, to award a new trial on liability and compensatory damages. The trial court overruled Ford's motion but ordered a remittitur of $33,500. Plaintiff elected to accept the remittitur under protest, and the trial court entered judgment in her favor for $16,500.

The accident occurred on October 22, 1976, in a parking lot near a grocery store where plaintiff had gone to shop. After she had bought her groceries, plaintiff, accompanied by her two-month-old son, drove her four-door Lincoln sedan to the front of the store, stopped in the parcel pick-up lane, and waited for help in loading her purchases. When help did not arrive, she decided to load the groceries herself. The pick-up lane was on a slight grade, so plaintiff "put the car in Park, ... put the brake on, and ... got out of the car, leaving the door open". The weather was "chilly", and to keep the infant warm, she left the motor and heater running. After placing several grocery bags in the back seat, she noticed that the car was moving backwards. She began running with the car, trying to get back into the front seat, but the door knocked her down and the left front wheel ran over her left leg. The car continued moving across the parking lot until it collided with several other cars. Panic-stricken, plaintiff "dragged" herself to her car to check on her child.

The infant was not injured, but plaintiff suffered soft tissue damage to her leg, with swelling and bleeding under the skin. She incurred $292.10 in medical expenses for treatment as an outpatient. A month after the accident, the bruise had almost disappeared, but swelling, pain, and some limitation of flexion of the knee persisted over a period of nearly two years. Plaintiff's friends testified that she had undergone noticeable personality changes as the result of her experience. Plaintiff introduced no evidence of loss of earnings or earning capacity.

Plaintiff purchased the 1973 Lincoln, formerly owned by her father, from the dealer who had taken it in trade. She drove the car for nearly two years and had experienced no difficulty with the transmission until March 1975. On that occasion, she had parked her car facing away from a wall in a parking garage. She remembered that she had "put the car in Park and ... press[ed] the emergency brake". When she "went to turn the key in the ignition the car slammed into the back wall." Dave Pyles towed the car to its shop, inspected the transmission, and made repairs. Plaintiff was not satisfied that the problem had been corrected because the gear shift lever "had a little bit of play in it" and "the needle never quite went completely into 'P' ". She took the car back to the dealer "several times" and, on each occasion, the mechanics assured her, "Don't worry about it. Nothing's wrong with it." Following the accident out of which this suit arose, she took the car to a different mechanic who replaced a "grommet" or bushing in the transmission linkage. The grommet, which was located "right next to the column shift lever", was "split in two different pieces."

William H. Divine, a mechanical-electrical engineer, qualified as plaintiff's expert witness. Divine testified that, based upon his study of "the transmission linkages and ... the adequacy of the pieces in the linkage", the system was "dangerous and unsafe". He explained that "the transmission is designed in a manner that a reasonable, prudent individual can be led to place the shift lever on the land between park and reverse". ^* Thus, the transmission could "have the appearance of ... being in Park" when, in fact, it was not fully engaged, a phenomenon referred to at trial as the "illusory park position". In that position, vibration could cause the transmission to slip into reverse gear. It was Divine's opinion that plaintiff "did not truly put the transmission into Park" even though "[s]he thought she did". Divine believed that a split grommet could have caused "increased sloppiness" in the linkage and aggravated the risk of mispositioning the shift lever.

In the opinion of Robert Everson, one of Ford's expert witnesses, the transmission system in plaintiff's car "was not unreasonably dangerous for its intended use; in fact, it was safe for its intended use. It met the state of the art." He acknowledged that a driver, "through carelessness", might "put the tang up on the land", but he said that the same was true with respect to the automatic transmission systems in Chrysler and General Motors products. If such a car were parked on a grade, Everson stated, placing the transmission in illusory park would "have the same effect" as placing it in neutral, i.e., if the emergency brake were not set, the car would start to roll if there were "[a]ny kind of force input; slamming the door or opening the door, shaking the car, putting groceries in and that sort of thing." Speaking of the split grommet, Everson said that "no single missing bushing in the linkage would cause you to not be able to get into park."

Plaintiff introduced as exhibits a number of Ford's interoffice communications. These documents showed that Ford had received numerous customer complaints concerning the illusory park problem. Ford's witnesses testified that they had investigated all reports and concluded that the cause of the problem was driver carelessness. Nevertheless, their engineers evaluated several proposals for design modifications and adopted one. Other proposals were rejected because experiments indicated that they would not reduce the risk of driver error. We will discuss these proposals in more detail later in this opinion.

Ford's major contention on appeal, structured in several parts, is that the evidence was insufficient "to establish a prima facie case" of negligence and causal connection. Plaintiff cannot rely upon the testimony of her expert witness to support the verdict, Ford says, because his testimony "was speculative and not based on facts in evidence" and because it "contradicted [plaintiff's] own unequivocal testimony of facts within her knowledge." Even if the expert testimony is considered, however, Ford believes that the evidence fails to establish liability for negligence, breach of implied warranty, or failure to warn. Further, Ford argues that plaintiff is not entitled to recover because she "misused her vehicle and was contributorily negligent as a matter of law." Finally, Ford maintains that the trial court should have set aside the verdict and awarded a new trial on the ground the damage award was so excessive that it tainted the validity of the jury's liability verdict.

By assignments of cross-error, plaintiff attacks the trial court's rulings on punitive damages, remittitur, and certain other questions raised at trial.

I. PRIMARY NEGLIGENCE

(a) Expert Opinion

Ford's assignments of error do not challenge the credentials of plaintiff's expert witness or question the admissibility of his testimony. Rather, Ford's position is that Divine's opinion concerning the cause of the accident "has no probative value" because it was based on speculation rather than facts in evidence.

"The plaintiff's case," Ford contends, "depends upon Mr. Divine's analysis of the 'land' in the Ford transmission." Ford explains why it believes his analysis has no evidentiary merit. There was no evidence of "objective engineering standards governing the width of the land or any other aspect of transmission design" and "the jury was not given any objective measure to apply". Divine's opinion that Ford's design was "dangerous and unsafe" and "does not conform with what I consider to be ... safe engineering standards" was based upon a comparison with the design in only one other automobile, an Oldsmobile, "without regard to what anyone else in the industry did." And, Ford complains, Divine "did not offer any test results to verify his theory."

As we read Divine's testimony, his analysis was not limited to the design of the land. In the course of his analysis, Divine studied instruction manuals and data compiled by the National Highway Traffic Safety Administration; consulted with other experts; experimented with the transmission systems in plaintiff's Lincoln, a Cadillac, and his own Ford automobile; observed mechanics as they disassembled transmission components; and disassembled one transmission with his own hands. Describing himself as an "application engineer", Divine repeatedly explained that his opinion was based upon the experiments he conducted and upon an analysis of the interrelationship of all the components of the transmission linkage system--"the shift lever to the insert plate to the steering column,...