Evidence & Jury Instructions—use of seat belt, proof of design defect and Consumer Expectations vs Risk Benefit Instruction
Brethauer v. General Motors Corp., __Az. Adv. Rep.__ 1 CA-CV 07-0530 (App., March 31, 2009)(Justice Timmer)
STATEMENT IN OPENING AND IN CROSS OF PLAINTIFF THAT HE WAS NOT BELTED AT TIME OF ACCIDENT PERMISSIBLE AND FAILURE TO GIVE CONSUMER EXPECTATION PRODUCT LIABILITY INSTRUCTION HARMLESS ERROR WHERE JURY FOUND PLAINTIFF DID NOT WEAR SEATBELT
Plaintiff lost control of his 1998 GMC pickup truck on I-10 on a wet roadway and was ejected from his vehicle resulting in paraplegia. He sued GMC alleging he was seat belted at the time of the accident but due to a defect in the seat belt it unlatched during the accident and due to contributing defects in the door and window of the truck he was ejected.
Pretrial GMC moved in limine to preclude any lay witnesses from opining that plaintiff's seatbelt was defective. The trial judge denied the motion but expressed the opinion that it “could not imagine that a scene witness or medical witness should be mentioning the word 'seatbelt.'” In opening the defense stated an EMT would in fact testify the plaintiff was not belted. T
The Court of Appeals held that this statement in opening was not reversible error. The court's statement was simply a forewarning that it likely would not allow testimony about the seatbelt but was not dispositive on the issue and the fact the court later ruled the EMT report and the EMT testimony on seat belt usage was inadmissible did not change the fact that defense counsel violated no specific ruling by the court in opening so as to create reversible error.
Further the court found it appropriate for the defense to ask the plaintiff on cross-examination whether in fact he had told the EMT he was not wearing his seat belt. Even though the EMT would not be allowed to testify to this, defense counsel based upon the EMT's deposition had a good faith basis for asking the question and it was permissible.
Next plaintiff complained that the trial court improperly precluded the plaintiff from introducing evidence that an earlier model GMC pickup had been recalled because the seatbelt tended to inadvertently unlatch in frontal impact. Admittedly the fabric in the belt in the earlier trucks subject to recall was different and the instant accident did not involve a frontal impact. The latch however was identical. The Court of Appeals held that absent a showing that the recall related to belts of the material used in plaintiff's truck and that other than front end impacts caused the belt to inadvertently unlatch, the recall was too dissimilar to the instant case and would only confuse the jury and was therefore properly excluded under Rule 403 Rules of Evidence.
Plaintiff then argued that the trial court improperly excluded a collage of 10 tests by GMC of the belt system that demonstrated how the belt would inadvertently unlatch in a variety of circumstances. The Court of Appeals again disagreed finding that these 10 tests each showed a significantly different failure mode than what plaintiff alleged occurred in his accident and therefore were irrelevant and likely to confuse the jury. The fact the plaintiff's expert relied upon the collage did not in and of itself render them admissible.
Finally, the plaintiff argued that trial court erred in giving a “risk/benefit” jury instruction on products liability instead of the “consumer expectation” instruction. Under the consumer expectation theory the jury is told that the product is defective if it fails to perform as safely as an ordinary consumer would expect. This instruction is not to be given where the ordinary consumer would not know how the product should safely perform. In that instance the risk/benefit instruction which asks the jury to weigh the benefits and risks of the design in question and find the product defective only where the risks outweigh the benefits of the design.
Here the court ruled the consumer expectation instruction and not the risk/benefit instruction should have been given. Although an ordinary consumer might not understand how a seatbelt design works to assure proper performance of the belt, ordinary consumers do have an expectation that a seat belt will keep them restrained and in the vehicle in an accident.
However, the court found that under the facts of this case the failure to give the proper consumer expectations instruction was not error because the jury in its mind had to find the plaintiff was wearing his seat belt at the time to find for the defense regardless of which product liability theory they were instructed on and therefore it was harmless error to give the wrong instruction.