ESTATE OF EDWARD PLATOW et al. v. FORD MOTOR COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6937-03T16937-03T1

ESTATE OF EDWARD PLATOW

and JACKLYNN PLATOW,

Plaintiffs-Appellants,

v.

FORD MOTOR COMPANY,

Defendant-Respondent.

 
 

Argued December 19, 2005 - Decided January 17, 2006

Before Judges A. A. Rodr guez, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket

No. ESX-L-1288-99.

Michael J. Reimer, argued the cause for appellant.

Colvin G. Norwood, Jr., of the Louisiana bar, admitted pro hac vice, argued the cause for respondent (Dobis, Russell and Peterson, attorneys; James S. Dobis, on the brief).

PER CURIAM

On February 9, 1997, Edward Platow sustained permanent spinal cord injuries when the air bag in his Ford automobile deployed and struck him after his car collided with a parked vehicle. Edward and his wife Jacklynn brought this action against defendant Ford Motor Company, alleging that Edward's automobile was not crashworthy because the air bag system was defectively designed by Ford. The jury returned a verdict in favor of defendant, finding that plaintiffs had not proven the air bag system was defective. Judgment was entered on August 5, 2004 in favor of defendant and plaintiffs appeal. We affirm.

I.

We begin with a brief summary of the relevant facts based on the evidence presented at trial. On the day of the accident, Edward was at home for a birthday celebration for one of his daughters. Edward was drinking "white Cadillac[s]," a mixture of scotch whiskey and milk. At around 5:30 p.m., Shirley Darnell, who was visiting Edward and his family, asked to be driven to a bus stop about two miles from Edward's home. Edward agreed to take Darnell to the bus stop and they got into Edward's 1993 Ford Crown Victoria. According to Darnell, it was snowing and the roads had not been cleared.

Near the bus stop, Edward got out to remove Darnell's luggage from the car and Darnell exited the vehicle. Edward said that he thought a bus was approaching, so he quickly re-entered the car and drove around a corner. He watched Darnell get on the bus. Edward testified that because he was in a hurry to move his car, he did not fasten his seat belt upon re-entering the vehicle.

Edward was the only witness to the collision. Edward drove the car as it began to climb a small hill. He testified that he encountered "black ice" and the tail end of the car started to move towards the left. The vehicle swung around and headed toward the curb and a couple of garbage bags. Edward began to vigorously pump the brakes and tried to steer the car out of the skid. Edward's efforts to change the path of travel were unsuccessful. The front end of Edward's vehicle struck the rear end of a parked 1986 GMC Jimmy. The bumper of Edward's car apparently "under-rode" the bumper of the GMC Jimmy and pushed that vehicle forty-eight feet along the roadway and up a small hill. When Edward's car struck the GMC Jimmy, the air bar housed in the steering column module of the Crown Victoria deployed, evidently striking Edward with considerable force.

Edward was unconscious when he was taken to a hospital. Edward later was diagnosed with a cervical fracture at the C4 level of the spine, with resulting quadriplegia. At the hospital, Edward's blood was tested for the presence of alcohol. The test results revealed that, at the time of the test, Edward had a blood-alcohol level of .25. Brian Pape, Ph.D., defendant's toxicology expert, testified that, at the time of the accident, Edward's blood-alcohol level ranged from .20 to .26. Pape opined that, in order to have such a concentration of alcohol in his blood, Edward would have had to consume roughly twelve drinks.

At trial, the parties agreed that Edward's injury and the resulting quadriplegia were the result of his violent interaction with the deploying air bag. The parties also agreed that the injuries occurred because, at the time the air bag deployed, Edward's upper body was too close to the air bag module in the steering column of his car. However, the parties did not agree as to why Edward's upper body was too close to the air bag module when it deployed.

Edward's vehicle was equipped with two sensors mounted under the hood, along the front framework. One sensor was positioned to the right of the center of the car, and the other was positioned to the left. These two sensors were therefore situated in the so-called "crash zone." The purpose of the sensors was to detect the forces that arise during a collision and trigger the deployment of the air bag.

The parties agreed that the detection phase of any deployment of the air bag should take around twenty milliseconds and the subsequent inflation and deployment of the air bag should only take an additional thirty milliseconds. To deploy the air bag within the fifty millisecond time frame, the bag must inflate and move towards the occupant of the vehicle at a speed of around 150 to 200 miles per hour. This rapid movement of the air bag can cause injury to persons who are too close and encounter the air bag when it is deploying.

At trial, plaintiffs advanced the theory that the air bag in Edward's car deployed late because of a design defect involving an inadequate number and poor placement of the air bag sensors in the front end of the car. Plaintiffs' experts opined that when Edward's car struck the GMC Jimmy, insufficient "crash pulse" force was transmitted to the two sensors to trigger immediate deployment of the air bag. The indirect nature of the impact force led to the late deployment of the air bag, with the consequence that Edward's upper body, acted upon by the crash forces, moved too close to the air bag prior to its deployment.

Plaintiffs' biomechanical expert Harold Alexander, Ph.D., testified that, when the air bag inflated, it struck Edward's chest and pushed it back violently, causing his head to snap down quickly, thereby fracturing Edward's cervical vertebra. Plaintiffs' safety expert Geoffrey Mahon testified that an alternative design existed, which consisted of three sensors in the front end of the car, one of which was located in the center of the front end. Mahon opined that, if the center sensor had been present in Edward's car, it would have produced a timely rather than late deployment of the air bag and Edward's injuries probably would have been avoided.

Defendant presented evidence disputing plaintiff's theory. Defendant maintained that the air bag did not deploy late and, in any event, Edward was out of position, slumped over with his head down when his car struck the GMC Jimmy. Brantman testified that the two sensors in Edward's car performed properly and deployed the air bag in a timely manner. In addition, Brantman asserted that plaintiffs' three-sensor alternative was not a better design and three sensors are not necessarily better than two. Brantman also stated that, because the air bag did not deploy late, Edward's injuries could only have occurred because he was out of position and not seated upright facing forward at the time of the collision. Furthermore, defendant's biomechanical expert James Benedict, M.D., Ph.D., testified that Edward's cervical fracture was not consistent with a scenario in which Edward was seated upright and facing forward when the crash occurred.

Following the evidence portion of the trial, and the summations by counsel, the judge instructed the members of the jury and provided them with a verdict sheet to reflect the results of their deliberations. The first question on the verdict sheet stated:

Has the plaintiff, EDWARD PLATOW, proven by a preponderance of the credible evidence that the air bag system in the 1993 Ford Crown Victoria was defectively designed (i.e. that it was not reasonably safe for its intended or reasonably foreseeable uses in that it was not crashworthy) because of the design of its sensor number and placement?

After deliberating, the jury returned its verdict and answered "No" to this question. Judgment was entered for defendant and this appeal followed.

Plaintiffs argue that the trial judge erred: 1) in refusing to exclude all evidence pertaining to Edward's consumption of alcohol prior to the accident; 2) by permitting defendant to assert a seat belt defense; 3) by submitting the issue of apportionment of the injury between the initial collision and the second impact; 4) by excluding a report prepared for the National Highway Traffic Safety Administration (NHTSA); and 5) by submitting a confusing verdict sheet to the jury. We have carefully considered each of these contentions and we have thoroughly reviewed the record of appeal. For the reasons that follow, we are convinced that plaintiffs' arguments are entirely without merit and therefore we affirm the judgment of no cause of action.

II.

Plaintiffs first assert that the judge erred in denying their motion to exclude all evidence pertaining to Edward's consumption of alcohol. Plaintiffs contend that this evidence was not relevant to the issue of whether or not defendant's air bag sensor system was defectively designed. Plaintiffs further assert that the evidence of Edward's alcohol consumption was not relevant to the issue of proximate cause because they did not assert that the defect in the sensor system caused the accident. Rather, plaintiffs contend that the alleged design defect caused the injuries.

Under our rules, all relevant evidence is admissible "[e]xcept as otherwise provided in [the rules of evidence] or by law...." N.J.R.E. 402. The term "relevant evidence" is defined in N.J.R.E. 401 to mean evidence that has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." The inquiry must focus on "the logical connection between the proffered evidence and a fact in issue." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)(quoting from State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). Evidence is relevant if it "renders the desired inference more probable than it would be without the evidence." State v. Davis, 96 N.J. 611, 619 (1984) (quoting from State v. Deatore, 70 N.J. 100, 116 (1976)). The trial judge has broad discretion in determining whether evidence is relevant. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)(citing Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

We are convinced that the trial judge did not abuse his discretion by admitting evidence of Edward's consumption of alcohol prior to the accident. A critical fact issue in this case was the position of Edward's head and upper body in relation to the air bag at the time the bag deployed. Defendant asserted that Edward was severely injured not simply because he was not wearing a seat belt at the time of the accident but also because he was slumped over to the extent that the air bag struck the top of his head. Indeed, defendant's experts testified that, in a similar crash, an unbelted driver who was seated upright in a similar Crown Victoria, would not have sustained a cervical injury as a result of the deployment of the air bag. Evidence regarding Edward's alcohol consumption provided a factual basis for the experts' opinions that Edward was not seated in an upright position when the accident occurred.

Evidence concerning Edward's consumption of alcohol prior to the collision also was relevant to the credibility of Edward's testimony regarding the accident. Edward testified that he was sitting upright and pumping his brakes when his car struck the parked GMC Jimmy. Edward was the only witness to the accident. As we pointed out previously, evidence was presented which showed that Edward probably consumed as many as twelve drinks prior to the accident. Pape testified that the level of alcohol in Edward's blood at the time of the accident would have impaired his motor and judgmental skills. This evidence was clearly relevant to whether Edward's testimony concerning the accident was worthy of belief.

Plaintiffs maintain, however, that they were prejudiced because the jury could have used the evidence of Edward's alcohol consumption to attach fault to him for causing the accident. However, the trial judge instructed the jury that the alcohol evidence could not be considered by the jury "as the causes of or reasons for the accident." Plaintiffs maintain that, despite these instructions, the jurors could not avoid considering the evidence when weighing whether defendant's air bag sensor system suffered from a design defect. We reject this contention because it is based entirely on speculation. We must assume that the jurors understood and followed the instructions given to them by the judge. State v. Savage, 172 N.J. 374, 394 (2002).

Plaintiffs additionally argue that the evidence of Edward's alcohol consumption should have been excluded under N.J.R.E. 403, which allows the trial judge to exclude otherwise relevant evidence if its probative value is substantially outweighed by the risk of undue prejudice. The contention is without merit. The evidence was clearly relevant and plaintiffs were not prejudiced by its admission. "In our adversary system, parties generally offer evidence to help their cause and prejudice that of an adverse party." Stigliano v. Connaught Laboratories, 140 N.J. 305, 317 (1995)(citing Kuddek v. Board of Educ., 222 N.J. Super. 218, 223 (Law Div. 1987)). "We would ill-serve the cause of truth and justice if we were to exclude relevant and credible evidence only because it might help one side and adversely affect the other." Ibid.

Plaintiffs additionally assert that the judge's instructions regarding the evidence of Edward's use of alcohol were erroneous. The judge instructed the jury that New Jersey law prohibits a person from operating a motor vehicle while under the influence of intoxicating liquor or operating a motor vehicle with a blood alcohol concentration of .1 percent or more. See N.J.S.A. 39:4-50(a); see also L. 2003, c. 314 (reducing the blood alcohol concentration to .08 percent, effective January 20, 2004). The judge told the jurors that if they found Edward had violated that law at the time of the accident, they could consider such violation on the issue of whether Edward was negligent.

Plaintiffs maintain that the judge erred by allowing the jury to consider the issue of whether Edward violated the statute on the issue of his negligence. However, as we stated previously, the judge instructed the jurors that the alcohol evidence "cannot be and should not be considered by you as the causes of or reasons for the accident." The jurors therefore were clearly instructed that the evidence of Edward's alcohol use should have no bearing on the issue of whether the air bag system in Edward's Crown Victoria was defectively designed. We therefore reject plaintiffs' assertion that the instructions were misleading and the attention of the jurors was erroneously diverted from the issue of design defect to the issue of Edward's pre-crash behavior.

III.

Plaintiffs next argue that the judge erred in allowing the admission of evidence that Edward was not wearing a seat belt at the time of the collision. In our view, the contention is without merit.

In Waterson v. General Motors Corp., 111 N.J. 238, 241 (1988), the Supreme Court established the principle that, "if a jury finds that a plaintiff's failure to wear a seat belt constitutes negligence that contributed to plaintiff's injuries and damages, that negligence shall be considered in determining plaintiff's award." The Court explained that the "relevant inquiry" is not whether the failure to wear a seat belt was a cause of the accident but whether the non-use of the device "contributed to plaintiff's injuries." Id. at 264. Applying comparative negligence principles, the Court stated that "all relevant factors" should be considered in arriving at "appropriate damages awards." Ibid. However, there must be evidence that "the failure to wear a seat belt" increased the "extent or severity" of plaintiff's injuries. Ibid.

As we noted previously, the jury in this case found that the air bag system in Edward's Crown Victoria was not defectively designed. Therefore, the jury did not make an award of damages and was not required to consider whether Edward's non-use of the seat belt increased the "extent or severity" of the injuries that resulted when the air bag deployed.

Nevertheless, the evidence was clearly admissible under Waterson for the purpose of making such an apportionment of fault, in the event the jury was required to address that issue in its deliberations. Here, defendant presented evidence which showed that Edward's injuries occurred because, at the time the air bag deployed, he was slumped over and too close to the air bag module. Alexander, plaintiffs' expert on biomechanics, testified that Edward would not have sustained the catastrophic injury to his cervical spine had he been wearing the seat belt.

Plaintiffs argue that the issue of apportionment should never have been presented to the jury. Plaintiffs assert that it was agreed that the "mechanism" of Edward's injury was the deployment of the air bag, which caused the cervical fracture. But plaintiffs ignore the critical fact that while Edward's injury was caused by the deployment of the air bag, there was evidence from their own expert which established that Edward's position in the seat increased the severity of his injury. Alexander testified:

Q. Dr. Alexander, did you write...Mr. Platow's injuries occurred as a result of his failure to utilize the seat belt restraint system in the vehicle. Did you say that - did you write that?

A. Yes, I did.

Q. The next sentence is: Had he been restrained by the combined shoulder/seat belt restraint system, the forward motion of his torso would have been arrested by the seat belt system prior to the engagement of the airbag restraint, and the acceleration experienced by his body would have been significantly diminished. Did you write that?

A. Yes, I did.

Q. And that is your opinion, is it not?

A. That is still my opinion, yes.

Q. This is not Ford's opinion, this sentence which says: If Mr. Platow had been wearing his seat belt, his cervical spine would not have been exposed to such high forces, and he would not, probably not have been injured, except for some abdominal and chest bruising and transient spinal sprains. That is your opinion, is it not?

A. Yes, it is.

Q. It has always been your opinion?

A. That's correct.

Q. And it is still your opinion if Mr. Platow had in fact been wearing his seat belt the outcome would have been vastly different?

A. That's correct.

Thus, evidence of Edward's non-use of the seat belt was clearly admissible under Waterson.

Plaintiffs argue, however, that the Waterson "seat belt defense" is pre-empted by standards for air bags established by Congress and by the NHTSA in FMVSS 208, which established a timetable for the installation of air bags in motor vehicles for the protection of unbelted occupants. See 49 C.F.R. 571.208. We decline to consider this issue. Although evidence was admitted on the issue of Edward's non-use of the seat belt, the judge made clear that the evidence was not to be considered in determining whether the air bag sensor device in the Crown Victoria was defectively designed. The evidence relates only to the issue of damages and in this case, the jury did not reach that issue because it found no defect. Thus, the Waterson "seat belt defense" has no bearing on the jury's determination or the judgment in this case.

IV.

We next consider plaintiffs' assertion that the judge erred in refusing to admit into evidence a report concerning the accident prepared for the NHTSA and barring any use of the report at trial.

The report was prepared by Richard Lawrence, an investigator for Veridian Engineering, the entity assigned by the NHTSA to investigate the accident after plaintiffs' counsel brought the matter to the agency's attention about three years after the event. At the time of Lawrence's investigation, Edward's Crown Victoria and the GMC Jimmy were not available for inspection. Plaintiffs' biomechanical expert and their accident-reconstruction expert apparently assisted Lawrence during his investigation.

Lawrence issued a report dated May 18, 2001, in which he stated that Edward's quadriplegia was "more closely associated to [a] flexion [injury to Edward's spinal column], than [an] extension [injury]." Lawrence stated that because he could not inspect the Crown Victoria, it was not possible to come to any definitive conclusion regarding the "source of the driver's injury." However, Lawrence stated that that "deployment of the driver air bag probably occurred 'late' in the crash sequence due to the under-ride element of the vehicle engagement."

Plaintiffs obtained the report more than two years after Lawrence submitted it to the NHTSA. Plaintiffs requested permission from the NHTSA to depose Lawrence concerning his report but the NHTSA denied that request. During the trial, plaintiffs' counsel stated that he would attempt to introduce the report into evidence. Defendant filed a motion in limine to preclude use of the report but the judge deferred consideration of the motion. Plaintiffs rested without seeking admission of the report, however, plaintiffs' counsel sought to question defendant's last witness, air bag expert Brantman concerning the report. Defendant objected and the judge sustained the objection.

We are convinced that the judge did not abuse his discretion in barring plaintiffs' counsel from questioning Brantman concerning the report. Plaintiffs insist that the report was admissible, but even if that were so, the judge properly found that the prejudice to defendant outweighed any probative value of that evidence. N.J.R.E. 403. Plaintiffs never admitted the report but chose instead to interject the report into the case late in the trial. Lawrence was not a witness and could not be cross-examined on his report. Moreover, the NHTSA had denied plaintiffs' request to depose Lawrence. The judge did not abuse his discretion in precluding plaintiffs from questioning Brantman about the report. The judge properly found that defendant would be unduly prejudiced by permitting Brantman to be cross-examined concerning the report when it had not been admitted by plaintiffs and defendants did not have an opportunity to question its author concerning his opinions.

We add that Lawrence's report was of limited probative value. As we stated previously, Lawrence did not inspect the vehicles involved in the collision. He opined that the air bag deployed "late" in Edward's car but plaintiffs had presented expert testimony in support of that theory. Lawrence's report with its brief opinion on the late deployment of the air bag therefore was cumulative. In the circumstances, we are not convinced that plaintiffs were prejudiced by the judge's ruling.

V.

Plaintiffs also contend that the verdict sheet submitted to the jury was "so convoluted" that the jury could not have been expected to render a meaningful verdict. Plaintiffs assert that question # 1 improperly limited the issue of the defect to the number of sensors and their placement in Edward's Crown Victoria. Plaintiffs maintain that there was no need to limit the defect in that manner. Plaintiffs assert in their brief, "The evidence was that the air bag deployment was delayed. That was the defect."

We are constrained, however, to point out that plaintiffs' counsel never objected to question # 1. Indeed, plaintiffs' counsel agreed on the record to the verdict sheet. Therefore, we consider this contention under the plain error standard in R. 2:10-2. Plaintiffs must show that the language in the question was an error that was clearly capable of producing an unjust result. Ibid. Because question # 1 accurately focused the jury on the precise allegation advanced by plaintiffs, there was nothing misleading about it. There was no error, let alone plain error, in the first question on the verdict sheet.

 
Plaintiffs also take issue with questions 2, 8, 9, 10, 11 and 12 on the verdict sheet. But the jury only answered the first question and ended its deliberations at that point. Thus, any error in the remaining questions has no bearing on the jury's verdict.

Affirmed.

Edward died on November 29, 2004. On February 2, 2005, we entered an order amending the case caption to substitute "Estate of Edward Platow" as the first named appellant in this matter. We will, however, refer to Edward and Jacklynn as "plaintiffs" in this opinion.

Defendant's air bag expert Russell Brantman, Ph.D., pointed out in his testimony that a "fast blink" of the human eye takes about one hundred milliseconds. He said, "the airbag doesn't deploy in a blink of an eye, it deploys in about half the time of the blink of an eye."

(continued)

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A-6937-03T1

January 17, 2006