holding that video attempting to demonstrate conditions of vehicle was properly excluded because proponent did not show that vehicles were similar
How later courts described this case
- holding that video attempting to demonstrate conditions of vehicle was properly excluded because proponent did not show that vehicles were similar
- holding admission of filmed experiment of test vehicle to show design defect was error when plaintiff failed to show test vehicle had same characteristics as plaintiff’s car
- rejecting argument that the dangers of shifting a car into "park" while stationary were open and obvious
- $4 million in punitive damages on facts similar to these was affirmed
Written by the judges who cited it.
The opinion
GONZALEZ, Justice,
dissenting.
I respectfully dissent. Considering the record as a whole, the erroneously admitted film and photograph, and appellees’ jury argument were reasonably calculated to cause and probably did cause the rendition of an improper judgment. Also, there is no evidence to support the finding of gross negligence.
This was a hard fought products liability suit. It arose out of an accident that occurred on January 21, 1977, when the body of Ann Nowak was found underneath her 1977 Ford automobile. There were no eyewitnesses. The accident apparently occurred when Mrs. Nowak stopped the car in her driveway and either attempted to shift the transmission into park, or she intentionally left the shift between the park and reverse positions with its engine running. The car apparently self shifted into reverse and ran over her, causing her death. The owner’s manual cautions drivers to place the vehicle in park and set the emergency brake. Had she followed these instructions the accident would not have occurred. Therefore, in my opinion, the question of Ford’s liability is close.
FILM AND PHOTOGRAPH
Over appellants’ objection, the court permitted the jury to see a filmed out-of-court experiment. As a general rule, evidence of *599 an out-of-court experiment, conducted without the presence of the opposing party, is admissible only if the conditions existing at the time of the experiment are substantially the same as those surrounding the event giving rise to the litigation. Fort Worth and Denver Ry. Co. v. Williams, 375 S.W.2d 279, 281-82 (Tex.1964).
Appellees contend that the film was not offered as evidence of how the accident occurred. Rather, it was offered to show “the design characteristics of the Ford transmission.”
The film depicted an unidentified Ford at the scene of the accident performing the same movements which, according to the appellees’ theory, caused Mrs. Nowak’s death. The car was driven to the Nowak gate and brought to a halt. The driver, who was one of the police officers who investigated the incident, testified that after he brought the vehicle to a stop, he shifted the transmission so that the gear shift indicator was pointing to “P.” The film then showed five instances where the vehicle would remain stationary for a few seconds before moving backwards toward the Nowak’s gate.
The photograph in question was admitted into evidence to show the location of the gear shift indicator during the filmed instances of unexpected vehicle movement. The photograph appeared to show the shift indicator clearly pointing to “P.”
Though appellees stated that they were not offering the film as evidence of how the accident occurred, their jury argument was to the contrary. This is what their attorney said about the film:
“You see that’s the purpose of the movie. We have tried this case so long that we have forgotten. That is the purpose of the movie. I think the evidence will show you that I was there. The purpose of that movie was to show that it could not happen any other way. This car has to go into whatever you want to call it, false park, and stay there to be able to give her time to get out of the car and walk around and pick that gate up and move it back around in this position and the car comes over here. She has got to have time to make that movement and then it shifts gears and it comes over and drags her body and mangles it in that accident . . . . ”
The film was a dramatic and effective piece of evidence to illustrate appellees’ theory of how the accident occurred. However, it was error to admit it and the photograph because the proper predicate of similarity of conditions between the experimental vehicle and the Nowak vehicle were not proven. This error was compounded by the jury argument.
The proper predicate for admitting the film and photo would have been evidence that the condition and adjustment of the transmission in the experimental vehicle was substantially similar to the transmission in the Nowak vehicle. Appellees’ evidence of substantially similar conditions was nonexistent. Therefore, the court abused its discretion in admitting both the film and the photograph. The introduction of the film and the photograph was such an error which was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Tex.R. Civ.P. (1976).
JURY ARGUMENT
The majority recognizes that there are rare instances of incurable harm from improper jury argument. This Court, in Hartford Accident and Indemnity Co. v. Thurmond, 527 S.W.2d 180, 193 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.), explained the distinction between curable and incurable jury arguments as follows:
“Improper jury arguments are usually referred to as one of two types ‘curable’ or ‘incurable.’ A jury argument is curable when the harmful effect of the argument can be eliminated by a trial judge’s instruction to the jury to disregard what they have just heard. The error is cured and rendered harmless by the instruction. On the other hand, an argument may be so inflammatory that its harmfulness could not be eliminated by an objection or *600 an instruction to the jury to disregard it. The prejudicial nature of the argument is so acute that it is incurable.”
Therefore, if an improper jury argument is so prejudicial that its harmful effect on the jury cannot be cured by an instruction to disregard it, the argument is incurable and no objection is necessary to preserve the error.
The jury argument made by the District Attorney, who was employed as local counsel for appellees, is as follows:
“. . . You see the Prank Nowaks of this world and I live with these people and I 'know them and if I use terms that may offend some of you it is because I use them with love and they, I hope, love me back. Czechs, Bohemians, I can do it, oil field trash, oil field people, but since I am with them I use those terms they know that I do not mean anything offensive towards them, but Frank is a little man sitting out there on Allenhurst Road. You heard his deposition. He certainly is not any college professor and he certainly is not able to take on the people of Ford. You talk about David and Goliath, Frank Nowak has no chance against Ford Motor Company. His resources, mental ability and everything else is just like a midget or a flea climbing up an elephant ...”
In discussing the difference between burden of proof in a civil case and in a criminal case, the appellees’ attorney went on to state:
“. .. He didn’t tell you that they [Ford] had hired a million dollar Watergate lawyer to represent them against a country prosecutor like me and he didn’t tell you that they had to prove that beyond a reasonable doubt.
In this case, and in the Court’s charge Frank Nowak has to prove his case to you by a preponderance of the evidence, 51% or the greater weight of the believable evidence that you have heard. They tried to mislead you there and then they attacked the first little guy on the stand, Bob Taylor. They attacked Nubbins Chambless, the guy that went out and made the movie. They attacked, of course, Dr. Reed, then yesterday I thought was the crowning blow was Scott King. That was reprehensible and shows the arrogance, the complete condescending attitude that Ford has towards you, towards this Court, towards us and towards Frank Nowak.
They start being condescending to you in saying, you may not be able to understand, we’re going to try to make it as simple so you poor people can understand, and it has been that way throughout this trial.
We are the great Ford Motor Company. We’re going to send these lawyers down here from Houston and fool those folks down there in the country ...”
Regarding Ford’s engineers, he said:
“The work that Cannon did as opposes to this little engineer over here, with his tailor made suit and his Italian shoes, ...
... Then they jump on little Scott King [plaintiff’s witness], well, I have known him as long as I have known some of you people, they jump on him, and they come out with some ridiculous story, if that doesn’t destroy him and if you believe anything that Carr [Ford’s expert witness] says after those two instances, then you believe in the tooth fairy, ...
If you pull musical strings, Carr will dance to any tune that Ford sings, he is completely their man.... ”
In discussing punitive damages with the jury, the attorney said:
“... Ladies and Gentlemen, in this area it is hard because we are dealing with such a large sum of money to you and I, it is peanuts to Ford.”
As correctly noted by the majority, the function of the jury was to impartially balance the product’s utility against the likelihood of and the gravity of injury from its use. With the district attorney of a small county fanning the fires of regional prejudice and passion against “big bad” corporation with Watergate lawyers and engineers wearing tailor made suits and Italian shoes, the jury was incapable, as a matter of law, to properly carry its function.
*601 The masterful jury argument also contained continuous references to matters outside the record and vouched for the credibility of the appellees’ witnesses, and, therefore, in my opinion, was improper. Since I believe that the issue of Ford’s liability was close, I find it ludicrous to say that this argument did not have an effect on the jury’s verdict.
I do not expect perfect trials. This is why we have the harmless error rule. I also believe that some appeals to a juror’s bias and prejudice are inevitable and a necessary part of our adversary system of justice. I am also aware that cases have rarely been reversed because of unobjected to jury arguments. However, in the context of this case, the argument as a whole was improper and could not have been cured by an instruction. It was so prejudicial that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Tex.R.Civ.P. (1976).
GROSS NEGLIGENCE
The jury found that Ford’s design of the transmission control system constituted gross negligence. They therefore assessed punitive damages in the amount of Four Million Dollars against Ford. The Supreme Court has defined gross negligence as follows:
“Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be effected by it.” Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165 , 10 S.W. 408 (1898).
This definition has been recently reaffirmed by the Supreme Court in Burk Royalty Company v. Walls, 616 S.W.2d 911, 920 (Tex.1981), where the court held:
“The essence of gross negligence is not the neglect which must, of course, exist. What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the penal nature of the imposition of exemplary damages. The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare and safety. In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care.” Burk Royalty Company v. Walls, supra, 922.
The court further held:
“In determining whether there is some evidence of the jury’s finding of gross negligence, the reviewing court must look to all of the surrounding facts, circumstances, and conditions, not just individual elements or facts. ... A mental state may be inferred from actions. All actions or circumstances indicating a state of mind amounting to a conscious indifference must be examined in deciding if there is some evidence of gross negligence.” (emphasis added.)
The majority in this case is of the opinion that (1) Ford knew about this “problem”; (2) that Ford recommended a feasible design change which would solve the “problem”; and (3) that Ford nevertheless took no corrective action. There is, however, no evidence in the record to support these conclusions.
In 1971 and 1972, Ford Motor Company knew that the FMX gear selector lever could be mispositioned, and that it could, under some circumstances, move into reverse. This lawsuit, however, was based upon another “problem.”
The “problem” in Ford vehicles, according to appellee, was that they have a “unique hair trigger design” and are thus unusually susceptible to moving into reverse because of the “balance of forces” in the transmission, or that they are uniquely likely to mislead the user. It is these allegedly unique characteristics of the Ford design which, according to appellee, render it defective. There is, however, not one scintilla of evidence that any Ford engineer, knew or believed that Ford vehicles were unusually susceptible to vibrating into reverse, attributed the complaints received to *602 the “balance of forces” in the transmission, or believed that the Ford design was particularly likely to mislead users.
The complaints, documents and incidents relied upon by the appellee to establish that Ford “knew” of “the problem” establish only that Ford knew that its vehicles were subject to the same general risk of misposi-tioning which is inherent in all column mounted shift selector designs (including G. M. & Chrysler). There is no evidence that any Ford engineer was ever consciously aware of the characteristics which appellee contends are unique or unusual.
Although the majority points out that over a six year period there were 728 accidents attributed to the transmission, when this number is put in the proper perspective and considered along with the number of automobiles Ford sold per year and the incalculable number of shifts per year, it becomes insignificant.
The record disclosed that a correspondence between Eastern Airlines and Ford was admitted into evidence with the instruction that it not be considered for the truth of the matters alleged therein. Though paying lip service to this limitation, the majority uses this correspondence as proof that 1) there was a defect; 2) Ford was aware of it; and 3) Ford did nothing about it. Other evidence in the record discloses that the difficulties experienced by Eastern Airlines were the result of neither the general risk inherent in the design nor the unique risk alleged by appellee to exist in the Ford design. Rather, Eastern was experiencing problems with broken and worn parts, or with parts modified by the post-sale builder of Eastern’s specialty vehicles.
The first letter from Eastern, which was dated May 14, 1973, refers to a vibration from the park to reverse position when the transmission control selector “fails or wears.” A letter dated March 29, 1974, indicates that the “broken or worn parts” were given to a Ford engineer in Miami. A memorandum dated March 11, 1974, indicates that the incidents were due to “the left motor mounts breaking.” A letter dated July 26, 1974, concerned Ford’s investigation of Eastern’s complaints. It concluded:
“Misadjusted chassis linkage plus steering column relocation by vehicle supplier: Bullard Aircraft Equipment Co.; Miami, Florida prevents sufficient angular travel of transmission outer manual lever to properly engage parking pawl and parking gear in transmission.”
The record further discloses that no Ford engineer ever suggested any change that was intended to alter the balance of forces in the transmission or the appearance of the indicator. The 1980 changes referred to by the majority were not designed to change the balance of forces in the transmission or to affect the indicator. Rather, they were designed to enhance the “feel” of a shift into park.
A review of the record as a whole leads me to the conclusion that there is no evidence from which the jury could find that the utility of the transmission was outweighed by the likelihood of and the gravity of injury from its use. Further, there is no evidence that Ford was consciously indifferent to appellees’ rights, welfare and safety, so as to justify the award of punitive damages.
For these reasons, I would reverse and remand the judgment of the trial court on the issue of compensatory damages and render a take nothing judgment on the issue of punitive damages.