Deanna J. Rowan v. Kia Motors America, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00966-COA
DEANNA J. ROWAN AND GARY ROWAN
APPELLANTS
v.
KIA MOTORS AMERICA, INC. AND PAT PECK
NISSAN, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
05/01/2008
HON. LISA P. DODSON
HARRISON COUNTY CIRCUIT COURT
CAREY R. VARNADO
PAUL BRYANT CASTON
DAVID L. AYERS
DOUGLAS BAGWELL
J. COLLINS WOHNER
JAMES JOSEPH CRONGEYER
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT ENTERED FOR
DEFENDANTS
AFFIRMED: 08/18/2009
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Deanna and Gary Rowan brought a products liability suit against Kia Motors America,
Inc. and Pat Peck Nissan, Inc., seeking damages for personal injuries suffered by Deanna as
a result of a motor vehicle accident involving a 2000-model Kia Sephia. The Rowans alleged
that the vehicle’s airbags failed to deploy on impact, causing Deanna’s injuries. The Rowans
sought damages on theories of negligence, strict liability, breach of warranty, and failure to
warn. The trial court granted summary judgment for the defendants on all counts, and the
Rowans appeal this judgment only on the issue of breach of warranty. Finding no error, we
affirm.
FACTS
¶2.
The accident at issue occurred in July 2000 in D’Iberville, Mississippi, at the
intersection of Sangani Boulevard and Highway 15. Deanna was driving the Rowans’ Kia
Sephia west on Sangani Boulevard with the intention of turning south onto Highway 15. She
stopped for the traffic light at the intersection. After the light changed, she entered the
intersection and began a left turn into the southbound lanes of Highway 15. Deanna
estimated that she reached a speed of only twenty miles per hour in attempting to make the
turn.
¶3.
As Deanna was attempting her turn, a Mitsubishi Mirage, traveling south at
approximately fifty miles per hour in the westernmost lane of Highway 15, ran the red light
and crossed in front of her vehicle. Deanna’s Kia hit the front side of the Mitsubishi, and the
impact caused both cars to spin around. Deanna’s vehicle came to rest facing the direction
she had been coming from. The Kia suffered damage to its front and was totaled as a result
of damage suffered in the accident.
¶4.
Deanna initially thought that she was unharmed, but she subsequently sought medical
attention for neck pain and was diagnosed with whiplash. Following the accident, she
suffered continuing pain in her neck and lower back, and Deanna ultimately underwent two
surgeries to repair fractured discs in her back that she alleged resulted from the accident.
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Gary, who was home at the time of the accident, alleged loss of consortium as a result of
Deanna’s injuries.
STANDARD OF REVIEW
¶5.
We review a trial court’s disposition of a motion for summary judgment de novo.
Treasure Bay Corp. v. Ricard, 967 So. 2d 1235, 1238 (¶10) (Miss. 2007). This Court
“examines all the evidentiary matters before it – admissions in pleadings, answers to
interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So. 2d 977, 979
(¶7) (Miss. 2001) (citations omitted). The moving party has the burden of demonstrating that
no genuine issue of material facts exists, and the nonmoving party must be given the benefit
of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter of law, summary
judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So. 2d 134,
136 (¶5) (Miss. 2005).
DISCUSSION
¶6.
The Rowans frame this appeal in terms of the supreme court’s decision in Forbes v.
General Motors Corp., 935 So. 2d 869 (Miss. 2006). They assert that they, like the plaintiffs
in Forbes, have produced evidence from which a jury could find an express warranty – that
the airbags in the subject vehicle would inflate upon a “severe” front or front-angle crash –
and that the Rowans relied upon that warranty in using the vehicle. See id. at 878 (¶15). In
support of this, the Rowans introduced only deposition testimony from Deanna, Gary, and
Glen Powell, a deputy with the Harrison County Sheriff’s Department. The Rowans argue
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that this alone was sufficient to survive summary judgment, because the supreme court in
Forbes held: “Fault does not need to be shown to establish a breach. The plaintiff need only
show that the product did not live up to its warranty.” Id. at 876 (¶11) (quoting Austin v.
Will-Burt Co., 232 F. Supp. 2d 682, 687 (N.D. Miss. 2002)).
¶7.
The defendants, while not conceding reliance on an express warranty, argue that the
record contains no evidence that the alleged warranty – that the airbag would deploy upon
a “severe” front or front-angle impact – was in fact breached, or that this breach – the failure
of the airbag to deploy – proximately caused the Rowans’ injuries.
¶8.
We find this argument meritorious. As the supreme court in Forbes noted, Mississippi
Code Annotated section 11-1-63(a) (Supp. 2008) states that:
(a) The manufacturer or seller of the product shall not be liable if the claimant
does not prove by the preponderance of the evidence that at the time the
product left the control of the manufacturer or seller:
(i) 1. The product was defective because it deviated in a material way
from the manufacturer’s specifications or from otherwise identical units
manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate
warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to
other express factual representations upon which the claimant
justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably
dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product
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proximately caused the damages for which recovery is sought.
Therefore, notwithstanding the holding in Forbes, the Rowans were required to produce
evidence both that the vehicle breached the alleged warranty and that this breach proximately
caused the injuries alleged. See Forbes, 935 So. 2d at 873-74 (¶5).
¶9.
As we have said, the record contains only the depositions of the Rowans and Deputy
Powell.1 Deanna and Deputy Powell described the accident as we have outlined it above –
a front-angle collision between the Rowans’ Kia, traveling at twenty miles per hour, and
another vehicle traveling at fifty miles per hour. The damage was extensive enough to total
the subject vehicle. At issue is whether a reasonable jury could find this sufficient to prove
that the accident was “severe” such that the airbags should have deployed, as described by
the alleged warranty. In Forbes, the operative language was “hard enough,” which the
supreme court described as ambiguous. See id. at 878 (¶15). There, the supreme court found
testimony describing the collision and the damage to the subject vehicle sufficient for a jury
to find a breach of the warranty; expert testimony was not required because the issue is
whether the terms of the warranty were breached, not whether the airbag was defective from
a technical standpoint. See id. at 876-77 (¶12). As in Forbes, the alleged warranty here is
sufficiently nebulous that a reasonable jury, taking this testimony in a light most favorable
1
It is apparent from the record that the Rowans also secured the services of two expert
witnesses. In the trial court, however, the Rowans argued that their testimonies were not
necessary to defeat summary judgment, and the Rowans have not made these opinions or
depositions part of the record on appeal. We, of course, are required to decide the issue only
on the record before us. See, e.g., Oakwood Homes Corp. v. Randall, 824 So. 2d 1292,
1293-94 (¶¶3-5) (Miss. 2002).
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to the Rowans, could conclude that it was breached in the accident as described, even absent
proof that the airbag did not operate as designed.
¶10.
However, the defendants also argue that the Rowans have failed to produce evidence
from which a jury could conclude that the breach of warranty proximately caused the alleged
injuries, as required by Mississippi Code Annotated section 11-1-63(a)(iii). Although the
Rowans bear the burden of proof, they have failed to fully address this issue in their brief on
appeal; the Rowans simply assert that the failure of the airbags to deploy proximately caused
Deanna’s injuries without explanation or citation to the record. On our review of the record,
however, we can find no evidence from which a reasonable jury could conclude that, but for
the breach of warranty, Deanna would not have been injured or her injuries would have been
mitigated.
¶11.
In her deposition, Deanna did testify that she was diagnosed with whiplash following
the accident and that she had been told by her doctors that her subsequent surgeries had
resulted from injuries sustained in the accident. The supreme court in Forbes noted,
however, that proof of injury alone is insufficient for proximate cause; there must be proof
from which a jury could conclude that the airbag would have prevented the injuries suffered.
See id. at 880 (¶19).
¶12.
In order to survive summary judgment, “[t]he non-moving party’s claim must be
supported by more than a mere scintilla of colorable evidence; it must be evidence upon
which a fair-minded jury could return a favorable verdict.” Luvene v. Waldrup, 903 So. 2d
745, 748 (¶10) (Miss. 2005) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d
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1205, 1213-14 (Miss. 1996)). The plaintiffs bear the burden of proof on the issue of
causation and must “introduce evidence which affords a reasonable basis for the conclusion
that it is more likely than not that the conduct of the defendant was a cause in fact of the
result. A mere possibility of such causation is not enough.” Herrington v. Leaf River Forest
Prods., Inc., 733 So. 2d 774, 777 (¶10) (Miss. 1999).
¶13.
Deanna testified that during the accident, she was wearing a seat belt, and the force
of the impact pushed her body first left, then right, then back toward the rear. When she
finally came to rest, her chest was resting on the steering wheel. Deanna specifically testified
that she did not hit her head on the windshield, the roof, the doors, or the steering wheel
during the accident. She believed that her injuries resulted from being thrown around inside
the car, but Deanna could not identify exactly how she was injured, nor could she explain
how the airbag, had it deployed, would have mitigated the harm she suffered.
¶14.
While we recognize a possibility, based on this testimony, that the airbag could have
prevented or mitigated Deanna’s injuries, any conclusion that it did would be mere
speculation. As the Rowans have produced insufficient evidence of causation, a necessary
element of their cause of action, we must affirm the trial court’s grant of summary judgment
to the defendants.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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