Catherine Williams, Individually and as Personal Representative of the Estate of Stanley Williams, Deceased; Tiffany Williams, Cortney Williams and Ashley Williams v. Ford Motor Company and Gillespie Motor Company d/b/a Gillespie Ford--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-01-00839-CV
Catherine WILLIAMS, Individually

and as Personal Representative of the Estate of Stanley Williams, Deceased;
Tiffany Williams, Cortney Williams, and Ashley Williams,
Appellants
v.
FORD MOTOR COMPANY and Gillespie Motor Company d/b/a/ Gillespie Ford,
Appellees
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 96-CI-16377
Honorable Frank Montalvo, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 7, 2003

AFFIRMED

Stanley Williams died when he lost control of the 1994 Taurus SHO ("Super High Output") he was driving (and which he had leased from Gillespie for the previous seventeen months) and smashed into the second floor of a hotel. It is undisputed that, at the time Williams lost control of the car, he was traveling at a speed of ninety to one hundred miles per hour. What is disputed is the cause of Williams' excessive rate of speed. At trial, the Williams contended Williams' excessive rate of speed - and therefore the accident - was caused by a stuck throttle held open by a cruise control cable that had become jammed in the "servo pulley." Ford argued Williams was simply driving too fast.

The trial court directed a verdict against the Williams on their claims of manufacturing defect, failure to warn, breach of express and implied warranty, and punitive damages and submitted issues to the jury on the Williams' design defect claim and Ford's defense that Williams was driving too fast. The jury found there was no design defect and Williams' negligence proximately caused the accident. The trial court rendered judgment on the jury's verdict. The Williams appeal, contending the trial court erred in several of its evidentiary rulings, submitting the negligence issue, and granting the directed verdict. We hold the trial court's rulings on the evidentiary issue were proper, as was the grant of directed verdict; and there was no error in the charge.

1. The Williams first argue the trial court erred in excluding an exhibit containing Ford and Mazda recall notices stating that certain vehicle models contained defectively manufactured cruise control cables: the defective cables had "an inadequate layer of plastic over the ends of the conduit lay wires at the speed control servo end of the cable," which "creates the potential for a stuck throttle." The recall notices were for specific 1998 or 1999 model year makes not including the Taurus or Taurus SHO; and did not involve the same cruise control system used in the 1994 Taurus SHO. (1) Furthermore, the recall notices related only to vehicles manufactured in specific assembly plants during specific periods of time. There is no evidence that the defectively manufactured part referenced in the recall notices was used in the 1994 Taurus SHO. Given these circumstances, we hold the recall notices were not relevant; accordingly, the trial court did not abuse its discretion in excluding the recall notices from evidence. See Tex. R. Evid. 402 (only relevant evidence admissible), 401 (defining "relevance").

2. The Williams next argue the trial court erred in excluding as hearsay the "CQIS Detail Reports," which are compilations by Ford of customer complaints regarding unintended acceleration in 1993-95 Tauruses, because these reports were not offered to prove the truth of the matters asserted. We cannot agree. As the Williams admit elsewhere in their brief, they "had to convince the jury ... that the throttle had become stuck before the Taurus went out of control and crashed"; and this "would have been easy to do if documentary evidence had been admitted, showing this had occurred hundreds of times in vehicles with the identical servo cable." The Williams cannot have it both ways. Either the reports were offered for the truth of the matters asserted and thus, while perhaps "relevant" to prove the claimed design defect, were inadmissible hearsay; or the reports were not offered for their truth and were patently irrelevant. Either way, the trial court properly did not admit the "CQIS Detail Reports" into evidence. See Tex. R. Evid. 401 (defining "relevance"), 402 (only relevant evidence admissible), 801 (defining "hearsay"), 802 ("[h]earsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority"). The Williams also argue the reports are excepted from the hearsay rule as admissions by a party opponent. See Tex. R. Evid. 801(e)(2). We again disagree. Although the reports are generated by Ford, they consist of hearsay statements made by customers, unidentified technicians, service managers, and dealers and other unidentified people. The contents of the CQIS Detail Reports were not shown to be admissions of a party opponent and the trial court did not abuse its discretion by excluding them as hearsay. Moreover, the vast majority of the complaints do not involve vehicles with the same cruise control system as the 1994 Ford Taurus SHO or did not involve similar complaints, and were thus not relevant.

3. The Williams also argue that the trial court erred in excluding the Updegrove Study, which compiled the results of interviews with vehicle operators and observers regarding operator complaints of unintended acceleration. Again, however, the trial court properly excluded this report as inadmissible hearsay. See Tex. R. Evid. 401 (defining "relevance"), 402 (only relevant evidence admissible), 801 (defining "hearsay"), 802 ("Hearsay is not admissible except as provided by statute or these rules or by other rules presecribed pursuant to statutory authority").

4. The Williams next argue the trial court erred in admitting the statement in the police report of the investigating officer that Tiffany Williams said her father "liked to drive fast." We again disagree. The trial court properly admitted the report as either a business record or public record or report. See Tex. R. Evid. 803(6), 803(8). And Tiffany Williams' statement, whether contained in the report or the investigating officer's testimony, was admissible as an admission by a party opponent, see Tex. R. Evid. 801(e)(2), and to rebut the Williams' claim that Williams was driving fast unintentionally. See Tex. R. Evid. 404(b) (evidence of other acts admissible to show "intent ... or absence of mistake or accident"), 406 (habit).

5. The Williams also complain that the trial court erred in granting Ford's motion for directed verdict on the allegations of manufacturing defect, marketing defect/failure to warn, breach of express warranty, breach of implied warranty of fitness for a particular purpose and punitive damages. We again disagree.

a. Manufacturing Defect. Proof of a manufacturing defect requires showing that the product as manufactured did not conform to the design intended by the manufacturer. See The Torrington Co. v. Stutzman, 46 S.W.3d 829, 844 (Tex. 2000). The Williams' evidence related only to the design of the cruise control system and did not present any discrepancy in the manufacture of the servo cable or pulley from the design specifications. The recall notices were for a manufacturing defect, but there was no showing that the recalled part was used in the 1994 Taurus SHO. Had the recall notices been admitted as evidence, the directed verdict still would have been proper.

b. Marketing defect/failure to warn. The Williams argue that the recall notices, CQIS reports and the Updegrove study provide evidence sufficient to raise a fact issue for the jury. However, even if the notices, reports and study had been admitted the directed verdict would have been proper because neither the excluded nor admitted evidence shows that Ford actually knew or should have reasonably foreseen the risk of harm at the time the product was marketed. See USX Corp. v. Salinas, 818 S.W.2d 473, 483 (Tex. App.-San Antonio 1991, writ denied).

c. Implied warranty of fitness for a particular purpose. The Williams evidence does not show that Ford had knowledge that the vehicle was intended to be used for other than the ordinary purpose. Tex. Bus. & Com. Code Ann. 2.315 (Vernon 1994).

d. Express Warranty. Of the admitted and excluded evidence, there is no evidence of representations made to Williams when he leased the vehicle. Tex. Bus. & Com. Code Ann. 2.313 (a) (Vernon 1994).

e. Punitive Damages. There is no evidence that Ford acted with malice. See Tex. Civ. Prac. & Rem. Code Ann. 41.001(7) (Vernon 1997). Even if the recall notices and investigation reports had been admitted, that evidence tends to disprove that Ford would be liable for punitive damages.

Viewing the evidence in the light most favorable to the Williams, including the excluded evidence, there is not sufficient proof to raise a fact issue for the jury on the Williams' claims and it was not error for the trial court to enter a directed verdict. See Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). 6. The Williams also complain that the trial court erred in submitting a question to the jury on Stanley Williams' negligence. This submission was not error because contributory negligence is recognized as a comparative defense to strict liability. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 428-29 (Tex. 1984). Furthermore, after the jury found Ford not liable for a design defect there was no need to reach the question on Williams' negligence.

The judgment of the trial court is affirmed.

Sarah B. Duncan, Justice

1. The Williams contend the similarity of the components of the cruise control system used in the 1994 Taurus SHO and the cruise control system used in the vehicles subject to the recall was "finally admitted to" by Ford's expert, Victor DeClercq, during cross-examination. We disagree. DeClercq testified that all Tauruses other than the Taurus SHO used "a vacuum type of control mechanism," the Taurus SHO used a "next generation servo" and other Ford models used "an integrated system." DeClercq then testified that the next generation servos contained some of the same parts:

Q: Now, when they introduced the next generation servo with the stepping motor, did all of them have the same type of design of the basic body design and the servo cable cap with pulley and clutch and motor?

A: I believe those elements were common.

Plainly, "them" refers to "the next generation servo with the stepping motor." DeClereq did not testify the components of "the next generation servo with the stepping motor" were the same or similar to those in the cruise control systems in the recalled vehicles.