Volkswagen of America v. Gentry

• Decision Date: 28 March 2002
• Docket Number: No. A01A2264.,A01A2264.
• Citation: 254 Ga. App. 888,564 S.E.2d 733
• Parties: VOLKSWAGEN OF AMERICA, INC. et al. v. GENTRY et al.
• Court: Georgia Court of Appeals

564 S.E.2d 733

254 Ga. App. 888

VOLKSWAGEN OF AMERICA, INC. et al. v. GENTRY et al.

No. A01A2264.

Court of Appeals of Georgia.

March 28, 2002.

Reconsideration Denied April 12, 2002.

Welch, Spell, Reemsnyder, Pless & Davis, Ronald D. Reemsnyder, Laura M. Tate, King & Spalding, Byron Attridge, Chilton D. Varner, Amy M. Power, Atlanta, for appellants.

Pope, McGlamry, Kilpatrick & Morrison, Charles N. Pope, R. Timothy Morrison, Wade H. Tomlinson III, Columbus, Cochran, Cherry, Givens, Smith & Sistrunk, Hezekiah Sistrunk, Jr., Atlanta, Carter & Tate, James E. Carter, Mark A. Tate, Savannah, for appellees. POPE, Presiding Judge.

On February 18, 1989, Lori Gentry, the 16-year-old daughter of Ralph and Sandra Gentry, was riding in the right front passenger seat of a 1981 Volkswagen Rabbit when it was struck by another car. The Rabbit was equipped with a fully passive restraint system consisting of a diagonal two-point shoulder belt, a ramped seat and a knee bolster (the "VWRA system"). The VWRA system had no lap belt; rather the ramped seat and the knee bolster were intended to restrain the lower body. This kind of system is known as a two-point passive restraint system.

Lori Gentry was using the VWRA system at the time of the collision and suffered serious liver injuries. She died approximately six hours after the collision. Her parents, individually and as administrators of their daughter's estate, filed a wrongful death action against Volkswagen of America, Inc. and Volkswagen AG.¹

This is the second appearance of this case before this Court. In Gentry v. Volkswagen of America, 238 Ga.App. 785, 521 S.E.2d 13 (1999) ("Gentry I"), the Gentrys appealed the trial court's grant of summary judgment to Volkswagen on the ground that their state law claims were preempted by the National Traffic & Motor Vehicle Safety Act ("Federal Safety Act"). In Gentry I, this Court drew a distinction between a claim that the 1981 Rabbit was defective simply because it did not include a lap belt and claims that the specific design selected by Volkswagen for its passive restraint system was defective and held that the former claim was preempted by the Federal Safety Act because the use of a passive restraint system without a lap belt was one of three options expressly permitted under the Safety Act, and specifically under Federal Motor Vehicle Safety Standard 208 ("FMVSS 208"). 49 CFR § 571.208 S4.1.2.2. Thus, this Court held that "to the extent that the Gentrys allege as a design defect a failure to include a lap belt, that claim is preempted by federal law. [Cits.]." Id. at 788(2)(a), 521 S.E.2d 13. We therefore affirmed the grant of summary judgment as to the Gentrys' claim that the 1981 Rabbit was defective "because it did not include a lap belt." Id. at 789(2)(b), 521 S.E.2d 13.

Volkswagen argued that all of the Gentrys' claims were merely based upon the absence of a lap belt and thus that all their claims were preempted. But this Court found Volkswagen's characterization of the Gentrys' claim "overly simplistic" and noted that "[t]he Gentrys' claims assert more than a defect based solely on the absence of a lap belt." Gentry I, 238 Ga.App. at 788(2)(a), 521 S.E.2d 13. We held in Gentry I then that the Gentrys had asserted claims for defects in the specific design selected by Volkswagen for its passive restraint system and that those claims were not precluded. This Court stated that "it would not conflict with congressional intent if Volkswagen were found liable in tort for failing to design a passive restraint system that exceeded federal standards." Id.

After Gentry I, the case proceeded to trial and the Gentrys were awarded $20,445.25 for reasonable medical and funeral expenses, $1 million for Lori Gentry's pain and suffering and $10 million for wrongful death. Volkswagen appeals.

1. Volkswagen first asserts that the trial court misapplied Gentry I by allowing the Gentrys' witnesses to argue that the design flaws in the Volkswagen restraint system could have been remedied by the addition of a lap belt. Volkswagen moved in limine prior to trial to restrict the Gentrys' ability to discuss the issue of pelvic restraint, and specifically the VWRA system's absence of a lap belt. The trial court denied that motion stating that Gentry I did not foreclose all discussion of lap belts or pelvic restraint. Rather, the trial court interpreted Gentry I as preempting only a claim that the VWRA system was defective solely because it did not have a lap belt. After reviewing the record and the presentation of evidence, we find no basis for reversal on this ground.

We find as an initial matter that the Gentrys did not pursue a preempted claim at trial. In other words, they did not argue that the VWRA system was defective because it was a passive two-point system. Rather, their theory was that the particular design of the VWRA system was defective, particularly for someone of Lori Gentry's size, for a number of reasons including the placement and angle of the shoulder strap and the placement of the knee bolster relative to various positions of the car seat. This claim fell within the guidelines of Gentry I and the federal law of preemption.²

While the Gentrys' experts did opine that the addition of a lap belt would have improved the VWRA system's performance, they also pointed to other factors which would have corrected the alleged design flaws. And although the Gentrys' witnesses compared the performance of the VWRA system with that of other systems that include lap belts we find that Volkswagen invited such a comparison.

Volkswagen stated in the pre-trial order, for example, that its own testing confirmed that "the VWRA performed as well as manual three-point belts—if the manual three-point belt systems were used." Manual three-point systems include lap belts. And in his opening statement, Volkswagen's counsel stated that the National Highway Traffic Safety Administration ("NHTSA") had found that "overall, the VWRA performed equally to the three-point system."³ In fact, Volkswagen argued that the VWRA system was more effective in reducing fatalities than manual three-point systems because the VWRA system did not require that a rider buckle himself up, but rather the system engaged automatically. Volkswagen's argument in this regard opened the door for a comparison of the VWRA system to other systems. Volkswagen could not be heard to argue that its system was as safe as a three-point lap belt system without affording the Gentrys the opportunity to argue that it was not.

In addition, we note that at least some of the evidence to which Volkswagen now objects was elicited by its own counsel on cross-examination. For example, William Muzzy, the Gentrys' engineering expert, testified during direct examination that a number of design changes in the VWRA system might have saved Lori Gentry's life. Included among these suggestions was the addition of a "lap strap." The Gentrys' counsel then addressed the other factors, but did not elicit further testimony regarding a lap belt. On cross-examination, however, Volkswagen's counsel elicited an opinion from Muzzy that all two-point passive restraint systems were defective and worked to elicit an opinion that the only way to make them nondefective was to add a lap belt. This cross-examination went beyond the Gentrys' position, venturing into the area prohibited by Gentry I. Volkswagen cannot claim error from evidence it elicited during its own cross-examination. See generally Moody v. Dykes, 269 Ga. 217, 220(3), 496 S.E.2d 907 (1998) (a party cannot induce error and then benefit from it).

2. Volkswagen asserts that it was nevertheless entitled to a judgment not withstanding the verdict ("j.n.o.v.") because the Gentrys' experts could not testify that defects, other than the absence of the lap belt, proximately caused Lori Gentry's death. Based upon our review of the arguments and the record, we find that the evidence when viewed as a whole presented a jury question of the issue of causation, and the trial court properly denied Volkswagen's motion for j.n.o.v.

3. Volkswagen further asserts that it was error for the trial court to allow plaintiffs' experts to testify as to their interpretation of FMVSS 208 and to allow the jury to determine what FMVSS 208 means. Volkswagen asserts that issue was a question of law for the court, and that the court was bound by NHTSA's interpretations of its own rules.

The jury is entitled to consider the issue of a manufacturer's compliance with federal standards or regulations in determining whether the product design was a reasonable one. Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574, 577, 481 S.E.2d 518 (1997). Volkswagen asserts that its VWRA system complied with FMVSS 208 because a two-point passive restraint system was one option sanctioned by the rule. It also asserts that NHTSA encouraged the use of the VWRA system due to the passive component, which reduced a passenger's ability to travel without restraint. Under Gentry I, the Gentrys could not contest Volkswagen's compliance with FMVSS 208 in that regard, nor could the trial judge allow the jury to place a different interpretation on that aspect of the rule.

But we must separate out Volkswagen's sanctioned choice of a two-point passive restraint system from the Gentrys' claims that the VWRA system, in particular, was defective because it did not provide protection to someone of Lori Gentry's size. That claim was allowed under Gentry I and placed at issue the reasonableness of Volkswagen's particular passive restraint system design. The jury, therefore, was allowed to consider whether Volkswagen complied with federal safety standards in that design. The testimony which Volkswagen cites in support of this argument addressed the permitted issues of the VWRA system's particular design, including the seat adjustment and the fit as it applied to Lori Gentry, and not...