Justice KITTREDGE.
This is a direct appeal in a product liability case tried to a jury in Hampton County. The jury awarded the plaintiff $16,000,000 in actual damages and $15,000,000 in punitive damages. We affirm in part, reverse in part and remand for a new trial.
This product liability action involves a 1987 Ford Bronco II 4×2, manufactured in 1986. Cheryl Hale (or her husband) purchased the 1987 Ford Bronco in June of 1999 for a nominal sum.
On June 17, 2001, Hale was driving her Bronco along Cromwell Road in Colleton County. Hale was driving several children to her house. Hale's daughter was seated in the front passenger seat. Plaintiff Jesse Branham, III, was riding in the backseat. Hale recalled that the children were "all excited." No one was wearing a seatbelt.
The weather was clear and, according to Hale, she was not speeding. Hale admittedly took her eyes off the road and turned to the backseat to ask the children to quiet down. When she took her eyes off the road, the Bronco veered towards the shoulder of the road, and the rear right wheel left
Branham filed this lawsuit against Ford Motor Company and Hale in Hampton County. At trial,
Branham alleged Ford was negligent "[i]n selling the Bronco II with a defective rear occupant restraint system." The amended complaint contains no specifications of Ford's purported negligence. At trial, Branham claimed Ford was negligent in failing to adequately test the seatbelt sleeve, but he did not challenge the seatbelt sleeve design. Branham filed a companion strict liability claim concerning the seatbelt
The trial court dismissed the strict liability claim on the ground that the seatbelt sleeve was not as a matter of law in a defective condition unreasonably dangerous to the user at the time of manufacture. Based on this premise, Ford contends the companion negligence claim must fail, for all products liability actions, regardless of the stated theory, have common elements. Madden v. Cox, 284 S.C. 574, 579, 328 S.E.2d 108, 112 (Ct.App.1985) ("In a products liability action the plaintiff must establish three things, regardless of the theory on which he seeks recovery: (1) that he was injured by the product; (2) that the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant; and (3) that the injury occurred because the product was in a defective condition unreasonably dangerous to the user."). Ford, therefore, concludes that the negligence claim (which required Branham to prove that the seatbelt sleeve was in a defective condition unreasonably dangerous to the user) should have been dismissed. We agree. When an element common to multiple claims is not established, all related claims must fail.
A negligence theory imposes the additional burden on a plaintiff "of demonstrating the defendant (seller or manufacturer) failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault." Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 539, 462 S.E.2d 321, 326 (Ct.App.1995). The fault-based element is of no moment where, as here, there is no showing in the first instance of a product in a defective condition unreasonably dangerous to the user.
In addition, Ford asserts there is no separate "failure to test claim" apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. We agree, for if a product is not in a defective condition unreasonably dangerous to the user, an alleged failure to test cannot be the proximate cause of an injury. The failure to establish that the seatbelt sleeve was in a defective condition unreasonably dangerous to the user for purposes of the strict
Relying on Bragg, the trial court determined it appropriate to grant a directed verdict on the strict liability claim, while at the same time allowing the negligence claim to go forward. We find the trial court's reliance on Bragg misplaced.
In Bragg, the trial court directed a verdict in favor of the manufacturer with respect to the strict liability claim, but refused to grant a directed verdict on the negligence claims. 319 S.C. at 538, 462 S.E.2d at 325. Bragg alleged two negligence claims: negligence "in failing to place appropriate warnings" on the product and another negligence claim "in supplying [a product] that was defective[ly] [designed]." Id. at 537-38, 462 S.E.2d at 325. The jury returned a verdict against Bragg on the negligence claims.
Bragg appealed the dismissal of the strict liability claim, "contend[ing] the court's decision to grant the motion for directed verdict on strict liability, while denying the motion for directed verdict on negligence, was logically inconsistent and reversible error because those claims are virtually identical and require the same proof." Id. at 538, 462 S.E.2d at 325. The court of appeals in Bragg affirmed the trial court and noted that "[s]trict liability and negligence are not mutually exclusive theories of recovery; that is, an injury may give rise to claims that can be established either under principles of strict liability or negligence, and failure to prove one theory does not preclude proving the other." Id. at 539, 462 S.E.2d at 326.
While we agree that strict liability and negligence are not mutually exclusive theories of recovery, we caution against a broad reading of Bragg in this regard. An analytical framework that turns solely on whether strict liability and negligence are mutually exclusive theories of recovery may miss the mark. As noted, the negligence claim must have a fault-based element, which is not required for a strict liability claim. Where one claim is dismissed and a question arises as to the continuing viability of the companion claim, the critical inquiry is to ascertain the basis for the dismissal. If one claim is dismissed and the basis of the dismissal rests on a common
In the present case, because the strict liability claim was dismissed due to the absence of an element shared by the companion negligence claim, the negligence claim should have been dismissed as well.
The trial court determined as a matter of law that the seatbelt sleeve was not in a defective condition unreasonably dangerous to the user. Consequently, the absence of this common, shared element required the dismissal of the strict liability claim and the companion negligence claim.
The "handling and stability" design defect claim (strict liability and negligence) is the gravamen of Branham's case. Branham alleged a design defect related to the rollover propensity of the Bronco. Ford appeals from the denial of its motions to dismiss the strict liability and negligence design defect claims. Viewing the evidence in a light most favorable to Branham, we find no error in the submission of these design defect claims to the jury. Pye v. Estate of Fox, 369 S.C. 555, 564, 633 S.E.2d 505, 509 (2006) (stating that on appeal from the denial of a directed verdict motion, the evidence must be viewed in a light most favorable to the nonmovant).
We begin with an overview of the technical information involved in the design defect claims. Ford uses the term "stability index" to describe the overall stability of a vehicle. The stability index is a comparison of the height and width of
The stability of a vehicle is related in part to its suspension. According to Branham's expert, Dr. Melvin Richardson, a vehicle with a stable suspension is able to make a turn in the road, and "as the vehicle goes around the curve, it leans over some and ... the tires stay the same distance apart where they touch the ground." A vehicle with an unstable suspension will cause the tires to "scrub" the ground during a turn, which "cuts down friction, [and] increases tire wear," causing the vehicle to handle poorly. When a vehicle is turning and the tires begin to scrub, "you lose some of [the tire's] capabilities to keep the vehicle going in the right direction and lose some of the ability to control the vehicle."
Ford primarily employed two engineering tests as a means of determining whether the Bronco II was ready for manufacturing. The first test is called a "J" turn. In this test, as described by Dr. Richardson, the vehicle is driven down a roadway, and "as quickly as possible the driver turns [the wheel to a] predetermined angle and just holds it there" for the remainder of the turn.
The second test is called an accident avoidance maneuver test. This is where the vehicle is turned in an abrupt fashion one way, like in the "J" turn, but with the added maneuver of an immediate turn back in the opposite direction. With these engineering concepts in mind, we turn to the design defect evidence presented.
Thomas Feaheny, a former vice president at Ford, testified for Branham. Feaheny described the marketing forces and engineering insights that led to the development of the Bronco II. The genesis of the Bronco II spawned from the YUMA Program, which came into being in the late 1970s. YUMA was Ford's code name for the study of small trucks, which eventually resulted in the Ford Ranger, and later the Bronco II. The YUMA prototypes initially had a MacPherson front suspension, which, according to Feaheny, is a "type of independent
Feaheny opined that the MacPherson strut was the "best, most feasible suspension from a functional standpoint and also from a cost and weight standpoint." However, there was a divergence in viewpoints between corporate executives and engineers, as Ford's engineers advocated the use of the Mac-Pherson strut for the small truck program. Since the mid-1960s Ford had employed a Twin I-Beam suspension on its bigger trucks. Feaheny testified that "there was a belief that [Ford] should adapt [the] Twin I-Beam suspension to the new small trucks."
The engineers at Ford believed the MacPherson suspension the better choice and "opposed [the Twin I-Beam suspension] because it was directionally wrong from the standpoint of steering, handling and rollover propensity and other characteristics." Because the Twin I-Beam suspension was physically larger than the MacPherson suspension, using it required the entire vehicle to be lifted higher. This had a cascading effect on the composite makeup of the vehicle, which detrimentally moved the center of gravity higher off the ground. To make room for the Twin I-Beam suspension, the engine had to be raised "two to three" inches. With the engine raised a few inches, the transmission had to be raised, which caused the hood to be raised, which then caused the seating to be raised. The net effect of this was a higher center of gravity, "which add[ed] a rollover propensity."
Feaheny also noted that the Twin I-Beam had a tendency for "jacking." Feaheny stated that jacking is a term used to describe an occurrence when the "vehicle will slide out in a severe handling maneuver. The outboard wheel would tend to dig into ... the suspension arm, which was strong and stiff, [and it] would have to move with that wheel and the inner pivot would go up in the air." When a vehicle jacks, there is an instantaneous raising of the center of gravity, which further "increase[s] the propensity for rollover."
The reason the Twin I-Beam was selected in the face of engineering concerns was that it served a "major marketing advantage," as Ford had promoted this form of suspension on its full size trucks since the mid-1960s. In the minds of the marketing executives, the Twin I-Beam was part and parcel of a tough truck, and it made business sense to carry that suspension into the smaller trucks.
The testimony of Dr. Richardson buttressed the evidence supplied by Feaheny and Ford's internal documents. Dr. Richardson opined that the use of the Twin I-Beam suspension led to the Bronco II being unreasonably dangerous. Dr. Richardson described three common suspension systems referenced above: (1) the SLA; (2) the MacPherson; and (3) the Twin I-Beam. It was through Dr. Richardson that Branham introduced many of Ford's internal documents showing the competing concerns and interests of the engineers and management over the proper suspension.
The Bronco II was designed from the existing "bones" of the Ford Ranger. Dr. Richardson opined that using the Ranger as the design platform was an appropriate engineering decision, and that it gave Ford the advantage of using components that had already been made.
Dr. Richardson testified to a Ford document dated February 5, 1981, and titled "Revised Stability Index for Utility." The stated objective of the document was to "review alternatives to increase stability index." Reading from the document, he stated that, "a study of methods to improve the stability index for the Bronco II has resulted in several design alternatives
The document made a general assessment about improving the stability index. "In order to improve stability index substantially, the following are required: widen track width, and lower center of gravity achieved by raising the wheel center lines with respect to body with trade-offs in ground clearance and vehicle package." The document also made five proposals to achieve a higher stability index. The first two proposals did not jeopardize the target release date for the Bronco II, but the latter three did. Only one of the proposals would have achieved a stability index of 2.25 for the Bronco II, but it was not selected.
Ford selected what is referred to as "proposal two," and it had a target stability index of 2.02. Dr. Richardson pointed out that proposal two saved Ford money. None of the proposals on this document argued for a change in the suspension system. But Dr. Richardson opined that had Ford opted to use an SLA or a MacPherson suspension system, then it could have achieved a stability index of 2.25. At that point, however, Ford had already decided to employ the Twin I-Beam suspension notwithstanding its engineers' criticisms.
Dr. Richardson testified to Plaintiff's exhibit 31, dated March 17, 1982, which discussed "J" turn testing for the Bronco II. In relevant part, the document stated the following:
(emphasis in original). Dr. Richardson testified that to his knowledge none of the recommendations set out in the document were adopted.
Dr. Richardson testified to a Ford document dated May 4, 1982. The document identified the current stability index of the Bronco II at 2.03. Dr. Richardson noted that any change to the Bronco II after the date of this document "had to be very small if [Ford] w[as] going to still put [the Bronco II] on the market in the beginning of [1983]." He went on to testify that in the state the Bronco II was then in, with a stability index of 2.03 the vehicle would be "dangerously unstable."
Branham introduced a Ford document from September 14, 1982, with the following stated purpose: "To identify advanced engineering projects that will be undertaken to provide for continued improvement, Bronco II handling, during its cycle life." Dr. Richardson responded to the document as follows:
Following up on his expert's opinion, Branham asked whether improvements were ever made to correct the problems in the Bronco II when it was released. Dr. Richardson responded, "there were no improvements made that would correct this defect."
The rollover propensity in the Bronco II 4×4, as reflected in the stability index and elevated center of gravity, was increased in the Bronco II 4×2. The two-wheel drive Bronco was lighter than its four-wheel version, resulting in reduced stability and an even higher center of gravity. The Bronco II involved in this litigation is a 4×2.
The foregoing is not an exhaustive review of the evidence presented by Branham, but it serves to support the able trial
We next address Ford's two-fold argument that: (1) Branham failed to prove a reasonable alternative design pursuant to the risk-utility test; and (2) South Carolina law requires a risk-utility test in design defect cases to the exclusion of the consumer expectations test.
For a plaintiff to successfully advance a design defect claim, he must show that the design of the product caused it to be "unreasonably dangerous." Madden v. Cox, 284 S.C. 574, 579-80, 328 S.E.2d 108, 112 (Ct.App.1985). In South Carolina, we have traditionally employed two tests to determine whether a product was unreasonably dangerous as a result of a design defect: (1) the consumer expectations test and (2) the risk-utility test.
In Claytor v. General Motors Corp., this Court phrased the consumer expectations test as follows: "The test of whether a product is or is not defective is whether the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that foreseeably attend use of the product." 277 S.C. 259, 262, 286 S.E.2d 129, 131 (1982).
The Claytor Court articulated the risk-utility test in the following manner: "[N]umerous factors must be considered [when determining whether a product is unreasonably dangerous], including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger." Id. at 265, 286 S.E.2d at 132.
Later, in Bragg v. Hi-Ranger, Inc., our court of appeals phrased the risk-utility test as follows: "[A] product is unreasonably dangerous and defective if the danger associated with
Ford contends Branham failed to present evidence of a feasible alternative design. Implicit in Ford's argument is the contention that a product may only be shown to be defective and unreasonably dangerous by way of a risk-utility test, for by its very nature, the risk-utility test requires a showing of a reasonable alternative design.
As discussed above, Branham challenged the design of the Ford Bronco II by pointing to the MacPherson suspension as a reasonable alternative design. A former Ford vice president, Thomas Feaheny, testified that the MacPherson suspension system would have significantly increased the handling and stability of the Bronco II, making it less prone to rollovers. Branham's expert, Dr. Richardson, also noted that the MacPherson suspension system would have enhanced vehicle stability by lowering the vehicle center of gravity. There was further evidence that the desired sport utility features of the Bronco II would not have been compromised by using the MacPherson suspension. Moreover, there is evidence that use of the MacPherson suspension would not have increased costs. Whether this evidence satisfies the risk-utility test is ultimately a jury question. But it is evidence of a feasible alternative design, sufficient to survive a directed verdict motion.
In 1974, our Legislature adopted the Restatement (Second) of Torts § 402A (1965), and identified its comments as legislative intent. S.C.Code Ann. §§ 15-73-10-30 (2005). The comments in section 402A are pointed to as the basis for the consumer expectations test.
The Legislature has expressed no intention to foreclose court consideration of developments in products liability law. For example, this Court's approval of the risk-utility test in Claytor yielded no legislative response. We thus believe the adoption of the risk-utility test in design defect cases in no manner infringes on the Legislature's presence in this area.
Some form of a risk-utility test is employed by an overwhelming majority of the jurisdictions in this country.
We believe that in design defect cases the risk-utility test provides the best means for analyzing whether a product is designed defectively. Unlike the consumer expectations test, the focus of a risk-utility test centers upon the alleged defectively designed product. The risk-utility test provides objective factors for a trier of fact to analyze when presented with a challenge to a manufacturer's design. Conversely, we find the consumer expectations test and its focus on the consumer ill-suited to determine whether a product's design is unreasonably dangerous.
We believe the rule we announce today in design defect cases adheres to the approach the trial and appellate courts in this state have been following. In reported design defect cases, our trial and appellate courts have placed their imprimatur on the importance of showing a feasible alternative design. See Claytor v. Gen. Motors Corp., 277 S.C. 259, 265, 286 S.E.2d 129, 132 (1982) (adopting the risk-utility test); Kennedy v. Custom Ice Equip. Co., 271 S.C. 171, 176, 246 S.E.2d 176, 178 (1978) (affirming verdict in favor of plaintiff by noting that plaintiff presented evidence of a design alternative); Mickle v. Blackmon, 252 S.C. 202, 234-35, 166 S.E.2d 173, 187-88 (1969) (discussing a manufacturer's decision to use
In Kennedy v. Custom Ice Equipment Co., this Court specifically pointed to evidence that the challenged industrial ice machine would have been safer had the manufacturer installed a protective cover. 271 S.C. at 176, 246 S.E.2d at 178. In Gasque v. Heublein, Inc., our court of appeals acknowledged the importance of a reasonable alternative design in a product liability design defect case wherein it noted evidence of alternative designs in an opinion affirming an award for the plaintiff. 281 S.C. at 283, 315 S.E.2d at 559. In like manner is the case of Sunvillas Homeowners Ass'n v. Square D Co., where the court of appeals upheld a directed verdict in favor of a manufacturer, noting that plaintiffs did not produce any evidence of design alternatives. 301 S.C. at 334, 391 S.E.2d at 870. And more recently, in Bragg, our court of appeals again noted the absence of alternative design evidence in affirming a defense verdict. 319 S.C. at 546, 462 S.E.2d at 330. The very nature of feasible alternative design evidence entails the manufacturer's decision to employ one design over another. This weighing of costs and benefits attendant to that decision is the essence of the risk-utility test.
This approach is in accord with the current edition of the Restatement of Torts:
David G. Owen, Toward a Proper Test for Design Defectiveness: "Micro-Balancing" Costs and Benefits, 75 TEX.L.REV. 1661, 1687 (1997).
In every design defect case the central recurring fact will be a product that failed causing damage to a person or his property. Consequently, the focus will be whether the product was made safe enough. This inquiry is the core of the risk-utility balancing test in design defect cases, yet we do not suggest a jury question is created merely because a product can be made safer. We adhere to our longstanding approval of the principle that a product is not in a defective condition unreasonably dangerous merely because it "can be made more safe." As we observed in Marchant v. Mitchell Distributing Co.:
270 S.C. 29, 35-36, 36, 240 S.E.2d 511, 513, 514 (1977).
In sum, in a product liability design defect action, the plaintiff must present evidence of a reasonable alternative design. The plaintiff will be required to point to a design flaw in the product and show how his alternative design would have prevented the product from being unreasonably dangerous. This presentation of an alternative design must include consideration of the costs, safety and functionality associated with the alternative design.
Notwithstanding the existence of ample evidence to withstand a directed verdict motion on the handling and stability design defect claim, we reverse and remand for a new trial. There are three reasons we reverse and remand the finding of liability and award of actual damages. First, this case implicates two evidentiary rules related to products liability cases. The first rule provides that whether a product is defective must be measured against information known at the time the product was placed into the stream of commerce. When a claim is asserted against a manufacturer, post-manufacture evidence is generally not admissible. The second rule provides that evidence of similar incidents is admissible where there is a substantial similarity between the other incidents and the accident in dispute tending to prove or disprove some fact in controversy. Evidence was introduced that violated both of these rules. Third, Branham's closing argument was a
In order for a plaintiff to prove his case in a product liability action, he must show that the "product was in a defective condition at the time that it left the hands of the particular seller ... and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained." Claytor v. Gen. Motors Corp., 277 S.C. 259, 264, 286 S.E.2d 129, 131-32 (1982) (emphasis added) (quoting RESTATEMENT (SECOND) OF TORTS § 402A, cmt. g. (1965) adopted as legislative intent via S.C.Code Ann. § 15-73-30 (2005)); see also Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 548-49, 462 S.E.2d 321, 331 (Ct.App.1995) (recognizing that the "product must be `measured against a standard existing at the time of sale'" and that "`hindsight opinions by [...] experts suggesting that more should have been done ... are insufficient to discredit the conclusion that the manufacturer met the standard of care'") (quoting Sexton ex rel. Sexton v. Bell Helmets, Inc., 926 F.2d 331, 337 (4th Cir.1991) and Doe v. Miles Labs., Inc., Cutter Labs. Div., 927 F.2d 187, 193 (4th Cir.1991)); RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2, cmt. a. (1998) ("[F]or the liability system to be fair and efficient, the balancing of risks and benefits in judging product design ... must be done in light of the knowledge of risks and risk-avoidance techniques reasonably attainable at the time of distribution."). Because the claim here is against the manufacturer, the "time of distribution" is the time of manufacture.
While we find Branham presented sufficient evidence to create a jury question on his design defect claim, we further find Ford was prejudiced by Branham's unrelenting pursuit of post-distribution evidence on the issue of liability. Given the extent of the improper post-distribution evidence introduced, the error cannot be considered harmless.
Hale's Ford Bronco II 4x2 was manufactured in 1986. The following is a sampling of the post-manufacture (or post-distribution) evidence.
Branham introduced a memorandum dated April 14, 1989, dealing with a meeting that three Ford engineers had with "six people from Consumers Report." The memorandum stated that:
The memorandum went on to note the following: "Our data are not terribly favorable. Our rollover rate is three times higher than the Chevy S-10 Blazer." This evidence of the Bronco II's rollover rate is post-manufacture evidence.
Later in the same 1989 memorandum, as the engineers discuss how they thought they did, this comment is made: "We think, however, that we have clouded their minds, loosened some conclusions they may have reached prior to our meeting and sent them off to search for additional information that could work to our advantage." The "clouded their mind" comment became a mantra for Branham on the issue of liability and otherwise.
Through Branham's expert, Dr. Richardson, a 1989 film was introduced. Counsel emphasized this film, taped in 1989, comparing the S-10 Blazer and the Bronco II. As reflected in Plaintiff's exhibit 54A, which is the corresponding report to the videotape, Ford requested "additional `J' turn tests" on May 17, 1989 for various vehicles, including a 1989 Bronco II 4x4. The tape (post-manufacture evidence) revealed that the 1989 Bronco II did not handle as well as the S-10 Blazer.
Dr. Richardson also testified to a document, Plaintiff's exhibit 168, referencing post-manufacture evidence that compared a 1989 Bronco II (referred to in the document as BII) to the UN46 prototype, now known as the Ford Explorer. This exhibit shows the additional evidence of the rollover tendency of the Bronco II that came to light after 1986:
This post-distribution exhibit concludes:
Yet another example of post-distribution evidence is found in a March 3, 1989 memorandum addressing an accident caused while testing a prototype anti-lock braking system (ABS) at the Dearborn Proving Grounds (DPG). The memorandum revealed that on February 28, 1989, a "demonstration was conducted on an ice pad located on the DPG East-West runway" and that the "accident involved a Kelly-Wayes Company owned 1989 Bronco II with prototype ABS." The goal was to test the efficacy of the ABS system when running partially on ice and partially on dry ground. During the test procedure the Bronco II rolled over. The rollover occurred on ice.
There are other examples of post-manufacture evidence, but the few examples cited illustrate the inherent prejudice that flows from post-distribution evidence. It is
Whether the 1987 Ford Bronco II was defectively designed and in a defective condition unreasonably dangerous must be determined as of the 1986 manufacture date of the vehicle. Ford's 1986 design and manufacture decision should be assessed on the evidence available at that time, not the increased evidence of additional rollover data that came to light after 1986.
In Whaley v. CSX Transportation Inc., this Court recognized that similar accidents are admissible if they "tend[ ] to prove or disprove some fact in dispute." 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005). The Court also recognized that this type of evidence has the potential to be "highly prejudicial."
Whaley was employed by CSX Transportation. Whaley became ill, allegedly due to work conditions, with heat-related symptoms first reported on May 24, 2000. Whaley introduced evidence that "between 1984 and 2000, CSX had received ninety-seven employee complaints about heat. In addition, the trial judge permitted Whaley to introduce evidence that, between 1993 and 2000, eighteen CSX employees had suffered heat stroke." Whaley, 362 S.C. at 483, 609 S.E.2d at 300. Because "Whaley did not establish that the reported complaints and injuries stemmed from the same or similar circumstances as his injuries[,]" it was error to admit the evidence. Id. at 483-84, 609 S.E.2d at 300. Yet Whaley never attempted to introduce evidence of other incidents that occurred after the 2000 injury date.
On the issue of liability, Branham presented voluminous evidence of post-manufacture rollover data. The post-manufacture evidence of purported similar incidents was error, even if the "substantially similar" threshold was met.
This Court recently revisited Whaley in a products liability setting, Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 169 (2010) (Shearouse Adv. Sh. No. 10 at 37). In Watson, we repeated that "[e]vidence of similar accidents, transactions, or happenings is admissible in South Carolina where there is
We turn now to the evidence of pre-manufacture rollover data. Branham introduced evidence of rollover accidents involving the Bronco II and other vehicles in the same class that was known at or prior to the 1986 manufacture of Hale's Bronco II. Ford claims the pre-manufacture comparative evidence of rollover accidents violates the Whaley-Watson "substantially similar" test because there was no showing that the cause of the other accidents was similar to the cause of the rollover accident at issue.
In commenting on this evidentiary dispute, we must be careful not to foreclose the discretion of the trial court in ruling on objections during the course of the retrial. This is especially true with "other similar incidents" evidence because of its potential to be "highly prejudicial," thereby implicating Rule 403, SCRE. Our discussion, therefore, is intended as a general guideline, as we recognize a host of factors can arise during the course of a trial that impact a trial court's decision to admit or exclude evidence.
With that caveat, on the record before us, we disagree with Ford. Admittedly, a showing of comparative rollover accident rates does not establish the manner in which any particular accident occurred. But Ford misconstrues the essence of Branham's design defect claim. To the extent Branham is able to establish (at or prior to the manufacture date of the subject vehicle) the rate or number of rollover accidents of the Bronco II was greater as compared to other vehicles in its class, such evidence may well be relevant on whether the Bronco II was unreasonably dangerous.
Like the trial court, we are persuaded by neither Ford's general argument that many accidents may be attributable to inexperienced or impaired drivers, nor its specific reference to Hale's inattention as the cause of the June 17, 2001 accident.
First, as referenced in a Ford document (Plaintiff's exhibit 168), Ford recognized the tendency of the Bronco II to roll over, describing it as driving "sensitivity" which is "aggravated by the fact [that] most operators in rollover accidents are either inexperienced drivers, under the influence of alcohol or both." Assuming a number of rollover accidents are caused by inexperienced or impaired drivers, there is no suggestion in this record that inexperienced or impaired drivers disproportionately favored the Bronco II, thus skewing the comparative rollover accident data. It is inferable that rollover accidents caused by inexperienced or impaired drivers are shared by all vehicles in the class, not just the Bronco II. While Ford's position may have appeal as a jury argument, it is of little moment on the admissibility question in the record before us.
Second, there may be little or no doubt as to Hale's negligence, but that misses the point in terms of the admissibility of comparative rollover accident data. A car manufacturer must design and produce vehicles that are not in a defective condition unreasonably dangerous to the user. Cars are designed with utility and safety in mind, and careless driving is a foreseeable reality. The general nature of the alleged negligent driving on the part of Hale was (or should have been) part of the evaluative process that culminated in the ultimate decision of Ford to design, manufacture and market the Bronco II to the driving public. Ford had a duty to design and manufacture the Bronco II as a reasonably safe vehicle.
It is improper for counsel to make a "closing argument to the jury ... calculated to arouse passion or prejudice." Gathers v. Harris Teeter Supermarket, Inc., 282 S.C. 220, 231, 317 S.E.2d 748, 755 (Ct.App.1984). The closing argument of Branham's counsel was designed to inflame and prejudice the jury. Closing argument excerpts include:
It is unmistakable that the closing argument relied heavily on inadmissible evidence. In addition, as will be discussed below, much of the prejudice resulting from the improper evidence was merged in closing argument with Branham's pursuit of punitive damages in requesting that the jury punish Ford for harm to Branham
Over Ford's objection, the trial court required the jury to apportion liability between Ford and Hale. This was error. S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 303, 641 S.E.2d 903, 907-08 (2007) ("[A] special verdict question may be so defective in its formulation that its submission results in a prejudicial effect which constitutes reversible error."). Whether Ford was prejudiced by the improper verdict form is speculation, but we address the issue in light of the remand for a new trial.
Ford and Hale were alleged joint tortfeasors. The accident occurred in 2001. In 2001, multiple tortfeasors were jointly and severally responsible for all damages. Concerning a
The jury apportioned fault 55% Ford and 45% Hale. Allocating fault between Ford and Hale served no legitimate purpose. Our comparative system for allocating liability between a plaintiff and a defendant is in no manner implicated where fault lies, if at all, among multiple defendants. Since the Nelson v. Concrete Supply
The trial court justified the apportionment question on the basis of a need to ensure that any punitive damage award was supported by a negligence cause of action, and not the strict liability claim. The trial court's reasoning is not persuasive. If there were genuine concern regarding the basis of a plaintiff's
A detailed verdict form would have specified whether a finding of negligence against Ford was based on the seatbelt sleeve claim or the design defect claim, or both. A proper verdict form would have avoided the confusion caused by having the jury apportion blame between jointly and severally liable defendants. More to the point, Ford's requested special verdict form would have avoided the very real risk that the jury (unaware of joint and several liability principles) would take the cue from the apportionment question and inflate the actual damage award to ensure Branham received a full recovery from the one deep-pocket defendant. The actual damage award causes genuine concern as to the effect on the jury of the improper verdict form.
Ford challenges the jury's award of $16,000,000 actual damages and $15,000,000 punitive damages. Because of our directive for a new trial, we decline to address Ford's contentions that these awards are excessive.
Ford contends the $16,000,000 actual damage award is grossly excessive. "When a verdict is `grossly excessive and the amount awarded is so shockingly disproportionate to the injuries as to indicate that the jury acted out of passion, caprice, prejudice, or other consideration not founded on the evidence, it becomes the duty of this Court, as well as the trial court, to set aside the verdict.'" Sanders v. Prince, 304 S.C. 236, 238, 403 S.E.2d 640, 642 (1991) (quoting Small v. Springs Indus., Inc., 292 S.C. 481, 487, 357 S.E.2d 452, 455 (1987)). In light of the remand for a new trial, it is unnecessary to resolve Ford's claim that the actual damage award is grossly excessive.
The issue of punitive damages was properly submitted to the jury. Ford, however, contends that the $15,000,000 punitive
The pervasive prejudice resulting from the improper post-manufacture evidence on the issue of liability was compounded in Branham's pursuit of punitive damages. Perhaps the manifestation of this error is most easily seen in counsel's request that the jury punish Ford for harming others beyond Branham. See Durham v. Vinson, 360 S.C. 639, 653, 602 S.E.2d 760, 767 (2004) (reversing an award of punitive damages because the trial court allowed the jury to "punish" the defendant for a "bad act unrelated" to the defendant's action toward the plaintiff); see also Philip Morris USA v. Williams, 549 U.S. 346, 350, 353, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007) (reversing a punitive damages award where plaintiff's counsel asked the jury to "think about how many other Jesse Williams in the last 40 years in the State of Oregon there have been," and holding that "the Constitution's Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation").
As outlined above, punishing Ford in this case for harming all Bronco II rollover victims was a central theme in counsel's closing argument.
We next examine the admission of financial data regarding Ford. Unless the United States Supreme Court holds otherwise under the Due Process Clause, we adhere to South Carolina law that "the wealth of a defendant is a relevant factor in assessing punitive damages." Welch v. Epstein, 342 S.C. 279, 307, 536 S.E.2d 408, 423 (Ct.App.2000). This is frequently described as the "ability to pay" factor. But this factor is not without boundaries. "Punitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences." Honda Motor Co. v. Oberg, 512 U.S. 415, 432, 114 S.Ct. 2331, 129 L.Ed.2d 336 (1994); see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 427, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) ("[R]eference to [the defendant's] assets ... ha[s] little to do with the actual harm sustained by the [plaintiff]. The wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award.").
Branham presented evidence of Ford's net worth, income, revenues and cash flow. In 2005, Ford's net worth was $12,597,000,000. Also in 2005, Ford had $1,986,000,000 in income, $177,000,000,000 in revenue and $21,000,000,000 in cash flow. Branham extrapolated these figures to "per week," "per day," and "per hour." For example, concerning Ford's cash flow, "[t]hat's $416 Billion per week,
This Court has approved the use of a defendant's net worth as a proper guide in assessing the "ability to pay" factor. Hicks v. Herring, 246 S.C. 429, 437, 144 S.E.2d 151, 154 (1965) (noting that "the wealth of a defendant is a relevant factor in
Because the United States Supreme Court has discovered that a state court's punitive damages award implicates federal substantive due process, this Court is not the final arbiter of determining what financial evidence is proper in assessing punitive damages. Evidence concerning net worth appears the safest harbor. Honda Motor speaks directly to "net worth." 512 U.S. at 432, 114 S.Ct. 2331. Consideration of a defendant's net worth is well-rooted in the common law of punitive damages. State Farm v. Campbell's cautionary observation that "reference to [the defendant's] assets ... ha[s] little to do with the actual harm sustained by the [plaintiff]" militates against venturing beyond net worth and extrapolations from net worth. State Farm, 538 U.S. at 427, 123 S.Ct. 1513. The retrial shall be confined to such evidence.
While the United States Supreme Court's foray into punitive damages law is, to be sure, confusing, there can be no serious doubt concerning financial evidence of the salaries and compensation of a defendant corporation's officers. Such evidence introduces an arbitrary factor in a jury's consideration and assessment of punitive damages.
Branham went far beyond the pale in submitting evidence of Ford's senior management compensation, including the following: In 2005, the Ford Chairman and Chief Executive Officer was compensated by stock options worth $5,300,000; the Ford President and Chief Operating Officer received a salary $1,458,000 in 2005; the Ford Executive Vice President received a salary of $972,000 in 2005; the Ford Chief Financial Officer received a salary of $916,000 in 2005; a
We reach Ford's final challenge assigning error to the trial court's failure to realign defendant Hale as a plaintiff. Ford requested realignment of Hale as a plaintiff so that Ford would not have to share its allotment of preemptory jury strikes
Hale and her counsel sat on the plaintiff's side throughout the trial, beginning with jury selection. We recognize that Hale filed a cross-claim against Ford, but that claim was severed from this trial. Hale's counsel declined to cross-examine any witness called by Branham but one. The one witness Hale cross-examined was Branham's economic expert. The question: "[H]ow many millions are in a billion?"
The only bona fide defendant in this case was Ford. The following is the totality of Branham's closing argument concerning Hale:
Trial judges in South Carolina have the authority to realign parties. Beyond a court's inherent authority to manage and conduct a trial, our Rule 21, SCRCP, regarding joinder of parties is identical to the federal rule, Rule 21, FRCP.
Rule 21, SCRCP.
Federal courts rely on Rule 21 as authority to realign parties. See In-Tech Mktg. Inc. v. Hasbro, Inc., 685 F.Supp. 436, 442 n. 19 (D.N.J.1988) (noting that Rule 21 "permits [the District] Court, sua sponte to re-align any party at any time"); First Nat'l Bank of Shawnee Mission v. Roeland Park State Bank & Trust Co., 357 F.Supp. 708, 711 (D.Kan. 1973) (noting that the District Court "may order a realignment of the parties `on such terms as are just'" pursuant to Rule 21). Our sister state of Georgia relies on Rule 21 in recognizing that "a trial court does have the discretion, `at any stage of the action and on such terms as are just,' ... to realign the
The Cawthon decision is instructive. At trial, the Cawthons made a motion to have a co-defendant realigned as a plaintiff. The "Cawthons were concerned that they would be forced to share jury strikes with the [codefendant whose interests were aligned with the plaintiffs]." Id. at 33. The trial court recognized the unfairness of the present alignment, "but [stated] that it had no authority to realign the parties." Id. Relying on its own version of Rule 21, the Georgia Supreme Court found the trial court erred in "concluding it did not have discretion to realign the parties," and affirmatively held that trial courts have the right to realign parties in the interests of justice. Id.
We adopt the reasoning of Cawthon, including the authority of a trial court to realign parties "at any stage of the action." Id. The decision whether to realign the parties lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion and resulting prejudice.
The judgment of the trial court is affirmed in part, reversed in part and the case is remanded for a new trial.
TOAL, C.J., and BEATTY, J., concur.
PLEICONES, J., concurring in part and dissenting in part in a separate opinion, in which WALLER, J., concurs.
Justice PLEICONES:
I concur in part and dissent in part. While I agree that the risk-utility test is the appropriate test for design defect cases, I do not believe this Court has the power to simply discard the consumer expectations test, expressly adopted by the General Assembly in S.C.Code Ann. §§ 15-73-10 through 30. Furthermore, in my opinion, much of the evidence the majority views as improper "post-manufacture" evidence was properly
As the majority notes, the General Assembly adopted the Restatement (Second) of Torts § 402A in 1974. See S.C.Code Ann. §§ 15-73-10 through 30. The comments to § 402A, which form the basis for the consumer expectations test, were expressly adopted as legislative intent. S.C.Code Ann. § 15-73-30. The majority then notes that the American Law Institute has, in the Restatement (Third) of Torts, moved away from the consumer expectations test for design defects in favor of the risk-utility test and proposes that this Court do the same. While I agree with the majority that the risk-utility test is the appropriate test for design defect cases, I do not believe that this Court has the authority to simply reject the General Assembly's chosen test, even if we believe that body would approve of the change. See Benat v. State Farm Mut. Ins. Co., 286 S.C. 132, 333 S.E.2d 57 (Ct.App.1985) ("It is the duty of this court to interpret the law. We have no legislative authority and cannot vary a statutory scheme and this is true no matter how logical the basis of the variance.").
However, I believe that this Court may effect the same result under the existing statute by interpreting the consumer expectations test in the specific context of design defect cases. S.C.Code Ann. § 15-73-10 provides that "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability...." Comments to § 402A explain that a product is in a "defective condition unreasonably dangerous to the user or consumer or to his property" when the product is in "a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." Restatement (Second) of Torts § 402A cmt. g. A product is unreasonably dangerous when it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer." Restatement (Second) of Torts § 402A cmt. i. These comments form the basis for the consumer expectations test.
Accordingly, I concur in the majority's decision to apply risk-utility principles to design defect claims. However, in my view, such change must be achieved within the framework of existing statutory provisions.
I respectfully disagree with the majority's stance on "post-manufacture" evidence. The majority reverses the jury verdict based, in part, on its finding that "Ford was prejudiced by Branham's unrelenting pursuit of post-manufacture evidence on the issue of liability." The opinion defines "post-manufacture evidence" as "evidence of facts neither known nor available at the time of manufacture." Such evidence is, in the majority's view, inadmissible because "[w]hen assessing liability in a design defect claim, the judgment and ultimate decision of the manufacturer must be evaluated based on what was known at the time of manufacture." I believe the majority's rule sweeps too broadly and absorbs within its ambit evidence which is properly admissible in a design defect case.
I note at the outset that the majority opinion may be read as barring any evidence created after the date of manufacture. If this is the majority's view, I strongly disagree. In my view, such a rule would deprive the fact finder of relevant evidence regarding what the manufacturer knew or should have known, design alternatives, and the risk inherent in the manufacturer's design.
In a products liability action, the plaintiff must prove (1) that he was injured by the product; (2) that the injury occurred because the product was in a defective condition, unreasonably dangerous to the user; and (3) that the product at the time of the accident was in essentially the same condition as when it left the hands of the defendant. See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 539, 462 S.E.2d 321,
In seeking to meet his burden, the plaintiff introduced the following evidence which the majority finds objectionable:
In finding the above evidence improper and inadmissible, the majority notes that:
While I agree in general with the majority's proposition, I note that when the reports were generated or tests conducted is of little consequence, since testimony established that the vehicles tested were substantially the same as the model involved in the accident, the testing methods were available to Ford prior to the date of manufacture, and the rollover risk was known to Ford prior to the date of manufacture. In
First, I believe the evidence was admissible to show foreseeable risk. The risk-utility test, as set forth in the Restatement (Third) of Torts, speaks not in terms of evidence of risk of which the manufacturer was actually aware, but in terms of foreseeable risk. No party disputes that Ford had the ability to test the 1987 Bronco II in the same way as was done in the disputed evidence mentioned above. In fact, Ford conducted such tests, the results of which led some Ford engineers to conclude that the wheel base design was flawed.
Second, I believe the video was admissible to show the viability of the proposed reasonable alternative design. To satisfy the risk-utility test, the plaintiff must prove, in most instances, that the foreseeable risk could have been avoided by the adoption of a reasonable alternative design. Restatement (Third) of Torts: Products Liability, § 2 cmt. d. The alternative design must be one that could have been practically adopted at the time of the sale. Id.
The plaintiff proposed reasonable alternative designs that were available at the time of manufacture, i.e. the MacPherson Strut suspension system and SLA suspension system, and he was entitled to an opportunity to show that the alternative designs could have reduced or avoided the foreseeable risk. Testimony at trial established that the Blazer used the SLA suspension system and the video demonstrated that the SLA
Finally, I believe the memo, film, and document were properly admissible to aid the plaintiff in proving the final element of the risk-utility test: that "the omission of the alternative design renders the product not reasonably safe." Though the "post-manufacture" evidence dealt with Bronco II vehicles manufactured between 1987 and 1989, testimony at trial established that there were no major changes to the Bronco II after 1987. The vehicles' rollover propensities are therefore relevant to the issue of the reasonableness of Ford's choice of the Twin I-Beam suspension system over the SLA or MacPherson system.
For the reasons stated above, I concur in part and dissent in part.
WALLER, J., concurs.
