VOLKSWAGEN OF AMERICA v GENTRY Leagle com — Volkswagen Transp

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VOLKSWAGEN OF AMERICA v. GENTRY No.

Pope, McGlamry, Kilpatrick Charles N. Pope, R. Timothy Wade H. Tomlinson III, Cochran, Cherry, Givens, Sistrunk, Hezekiah Sistrunk, Jr. Carter Tate, James E. Mark A. Tate, Savannah, for

POPE, Presiding Judge.

On 18, 1989, Lori Gentry, the daughter of Ralph and Sandra was riding in the right front seat of a 1981 Volkswagen when it was struck by another The Rabbit was equipped with a passive restraint system of a diagonal two-point shoulder a ramped seat and a knee (the VWRA system). The system had no lap belt; rather the seat and the knee bolster intended to restrain the lower This kind of system is as a two-point passive restraint

Lori Gentry was using the system at the time of the collision and serious liver injuries. She approximately six hours after the Her parents, individually and as administrators of daughter’s estate, filed a death action against of America, Inc. and Volkswagen AG. 1

is the second appearance of this before this Court. In v. Volkswagen of America, 238 Ga.App. 521 S.E.2d 13 (1999) ( Gentry I ), the appealed the trial court’s of summary judgment to Volkswagen on the that their state law were preempted by the National Motor Vehicle Safety Act Safety Act). In Gentry I, Court drew a distinction a claim that the 1981 was defective simply because it did not a lap belt and claims that the design selected by Volkswagen for its restraint system was defective and that the former claim was by the Federal Safety Act because the use of a restraint system without a lap was one of three options expressly under the Safety Act, and under Federal Motor Safety Standard 208 (FMVSS 49 CFR § 571.208 S4.1.2.2. Thus, Court held that to the that the Gentrys allege as a defect a failure to include a lap that claim is preempted by law. [Cits.]. Id. at 788(2)(a), 521 13. We therefore affirmed the grant of judgment as to the Gentrys’ claim the 1981 Rabbit was

defective it did not include a lap belt. Id. at 789(2)(b), 521 13 .

Volkswagen argued that all of the claims were merely upon the absence of a lap belt and that all their claims preempted. But this Court Volkswagen’s characterization of the Gentrys’ overly simplistic and noted [t]he Gentrys’ claims more than a defect solely on the absence of a lap belt. I, 238 Ga.App. at 788(2)(a), 521 S.E.2d 13. We in Gentry I then that the had asserted claims for defects in the design selected by Volkswagen for its restraint system and that claims were not precluded. Court stated that it not conflict with congressional if Volkswagen were found in tort for failing to design a restraint system that federal standards. Id.

After I, the case proceeded to trial and the were awarded $20,445.25 for medical and funeral expenses, $1 for Lori Gentry’s pain and and $10 million for wrongful death. appeals.

1. Volkswagen first that the trial court Gentry I by allowing the Gentrys’ to argue that the design in the Volkswagen restraint system have been remedied by the of a lap belt. Volkswagen moved in prior to trial to restrict the ability to discuss the issue of restraint, and specifically the VWRA absence of a lap belt. The trial denied that motion that Gentry I did not foreclose all of lap belts or pelvic restraint. the trial court interpreted I as preempting only a claim the VWRA system was defective because it did not have a lap belt. reviewing the record and the presentation of we find no basis for reversal on ground.

We find as an initial matter the Gentrys did not pursue a preempted at trial. In other words, did not argue that the VWRA was defective because it was a passive system. Rather, their was that the particular design of the system was defective, particularly for of Lori Gentry’s size, for a of reasons including the placement and of the shoulder strap and the placement of the bolster relative to various of the car seat. This claim within the guidelines of Gentry I and the law of preemption. 2

While the Gentrys’ did opine that the addition of a lap would have improved the system’s performance, they pointed to other factors would have corrected the design flaws. And although the witnesses compared the performance of the system with that of systems that include lap we find that Volkswagen such a comparison.

Volkswagen in the pre-trial order, for example, its own testing confirmed that the performed as well as manual belts—if the manual three-point systems were used. three-point systems include lap And in his opening statement, Volkswagen’s stated that the National Traffic Safety Administration had found that overall, the performed equally to the three-point 3 In fact, Volkswagen argued the VWRA system was more in reducing fatalities than three-point systems because the system did not require that a buckle himself up, but rather the engaged automatically. Volkswagen’s

in this regard opened the for a comparison of the VWRA system to systems. Volkswagen could not be to argue that its system was as as a three-point lap belt system affording the Gentrys the opportunity to that it was not.

In addition, we that at least some of the to which Volkswagen now objects was by its own counsel on cross-examination. For example, Muzzy, the Gentrys’ engineering testified during direct that a number of design in the VWRA system might saved Lori Gentry’s Included among these was the addition of a lap strap. The Gentrys’ then addressed the other but did not elicit further testimony a lap belt. On cross-examination, however, counsel elicited an opinion Muzzy that all two-point restraint systems were and worked to elicit an opinion the only way to make them was to add a lap belt. This cross-examination beyond the Gentrys’ position, into the area prohibited by I. Volkswagen cannot claim from evidence it elicited its own cross-examination. See generally Moody v. 269 Ga. 217. 220(3), 496 S.E.2d 907 (a party cannot induce and then benefit from

2. Volkswagen asserts that it was entitled to a judgment not withstanding the (j.n.o.v.) because the Gentrys’ could not testify that other than the absence of the lap proximately caused Lori death. Based upon our of the arguments and the record, we find the evidence when viewed as a presented a jury question of the of causation, and the trial court denied Volkswagen’s motion for

3. Volkswagen further asserts it was error for the trial court to plaintiffs’ experts to testify as to interpretation of FMVSS 208 and to allow the to determine what FMVSS 208 Volkswagen asserts that was a question of law for the court, and that the was bound by NHTSA’s interpretations of its own

The jury is entitled to consider the of a manufacturer’s compliance with standards or regulations in determining the product design was a reasonable Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 577, 481 S.E.2d 518 (1997). asserts that its VWRA complied with FMVSS 208 a two-point passive restraint was one option sanctioned by the rule. It asserts that NHTSA the use of the VWRA system due to the passive which reduced a passenger’s to travel without restraint. Gentry I, the Gentrys could not Volkswagen’s compliance with 208 in that regard, nor could the judge allow the jury to a different interpretation on that of the rule.

But we must separate out sanctioned choice of a two-point restraint system from the claims that the VWRA in particular, was defective because it did not protection to someone of Lori size. That claim was under Gentry I and placed at the reasonableness of Volkswagen’s particular restraint system design. The therefore, was allowed to consider Volkswagen complied with safety standards in that The testimony which Volkswagen in support of this argument the permitted issues of the VWRA particular design, including the adjustment and the fit as it applied to Lori and not the decision to pursue a passive system. And, in fact, counsel stated that he did not to one of the expert’s testifying to his understanding of safety requirements. Nor do we find the testimony of Jack Martens a conversation with one of Volkswagen’s engineers raised a question of law for the to determine.

Volkswagen has not asserted any of the Gentrys’ experts misstated or the standards about which testified. Compare Bammerlin v. Intl. Transp. Corp., 30 898. 900 (7th

Cir.1994) plaintiffs experts misstated standards, judge had the obligation to for the jury what the safety said). Nor has Volkswagen pointed to any NHTSA determination stating the particular aspects of the VWRA about which the experts were in compliance with the 208, and which may have the jury. 4 Further, Volkswagen has not that it requested jury on the particular safety standards at or that such instructions refused. In fact, the trial specifically charged the jurors they could not find the system defective because it did not a lap belt. Thus, the judge did not authority to the jurors for determining the of FMVSS 208 with regard to the lap issue, but rather interpreted it for

Accordingly, we do not find that the was improperly allowed to determine the of FMVSS 208 or other federal but rather was properly allowed to the reasonableness of Volkswagen’s design in the of those regulations.

4. Volkswagen asserts that the trial erroneously instructed the jury and argument to the effect that it find liability for a violation of the Safety Act. In particular, asserts that the Gentrys’ was allowed to persuade the jury to enough damages to make VW and repair all VWRA-equipped vehicles.

In of this argument, Volkswagen to testimony the Gentrys elicited on that cars with the system were sold in the United States and to testimony on cross-examination regarding the cost and time needed to equip a system car with a lap belt or a belt. Volkswagen objected to the of evidence regarding the cost of a manual lap belt at trial, and the fully briefed the issue for the court. The Gentrys proffered evidence to show the alternatives to Volkswagen at the time they to pursue a two-point passive system, as a factor for the jury to in determining the reasonableness of the VWRA design. See Banks v. ICI Americas, 264 Ga. 736(1), 450 S.E.2d 671 (1994). also proffered this in support of their claim for damages. They argued this evidence would be to show modifications that the could have made to the system if the jury found Volkswagen was put on notice of potential with the VWRA system.

The of evidence is committed to the sound of the trial court, whose shall not be disturbed on appeal it amounts to an abuse of discretion. omitted.) Cooper Tire c. Co. v. 273 Ga. 454. 457(2), 543 S.E.2d 21 Having reviewed the arguments, we no abuse of discretion in the trial admission of this evidence. In we do not find that this injected a claim for a violation of regulations into the trial.

also points to the Gentrys’ closing argument that the could help get the VWRA off the road through its verdict. the propriety of this portion of the argument, Volkswagen waived its to contest the argument on appeal it failed to pose a contemporaneous Whitley v. Gwinnett County, 221 18. 24(10), 470 S.E.2d 724 (1996).

further takes issue the trial court’s charge to the that the Gentrys were that Volkswagen violated

the 208 and the recall provisions of the Federal Act. They assert this instruction improperly the jury to find liability upon a violation of federal We disagree. The jury charge, viewed as a whole, properly the jury regarding the elements of the claims. See Kodadek v. Lieberman, 247 606. 609(1), 545 S.E.2d 25 We also note that the court did not give the portion of the requested charge stating a violation of these rules and amounted to negligence per se.

5. Volkswagen argues that it was error for the court to allow the testimony of Fremling of the Swedish Road Office. They assert the Gentrys failed to give adequate notice that intended to call Fremling as an or that they intended to an issue of Swedish law into the Volkswagen further asserts Fremling’s testimony was irrelevant and with U.S. law.

We find no abuse of discretion in the court’s admission and management of testimony. Before allowing to testify, the trial judge his testimony outside the presence of the with cross-examination by Volkswagen’s The trial judge also his own questions to Fremling and then that Fremling could as a lay person regarding his prior with Volkswagen. Throughout the of Fremling’s direct testimony, posed a number of objections as to and on the ground the Gentrys’ questions in to the realm of expert testimony. The court sustained the majority of objections and cautioned the Gentrys’ from getting much too to what an opinion of an expert render. We find that the court successfully limited testimony to matters appropriate for a lay And we do not agree with Volkswagen his testimony improperly injected law into the trial.

In addition, we no abuse of discretion in allowing testimony for purposes of rebutting argument that the VWRA was not defective because it was approved and by NHTSA. In Georgia, a plaintiff may a claim against an automobile even if the automobile is in compliance U.S. safety standards. v. Volkswagenwerk Aktiengesellschaft, 267 Ga. at 577, 481 518. Fremling’s testimony was to show that another that was the functional equivalent of had concerns regarding the safety of the system. The evidence was also as to whether Volkswagen was placed on of safety concerns with the system prior to 1980.

6. next contends that the court erred in excluding exhibits that it contends the reasonableness of its design. We note at the Volkswagen has failed to identify it even offered five of exhibits (Exhibits 98, 99, 100, 666 and into evidence or where the court ruled upon an offer. Where there is no from the trial court the admission of evidence, there is for us to review. Garrett v. McDowell, 242 78. 527 S.E.2d 918 (2000).

The trial excluded Volkswagen’s Exhibit 48, a written by NHTSA’s director, Claybrook, on the ground of hearsay. asserts, however, that letter falls into a rule exception covering from a legal investigation to explain conduct and ascertain OCGA § 24-3-2. But Volkswagen to explain how or why the letter falls that exception. Accordingly, we no abuse of discretion by the trial in excluding that exhibit.

The is ambiguous as to whether the remaining exhibits—all NHTSA studies—were at trial. The trial court ruled that the studies admitted, but heard further on the issue without making any ruling. It appears, however, the exhibits may not have been out with the jury at the close of Even if these exhibits not formally admitted, we find no error because Volkswagen was

the opportunity to elicit testimony the findings from these

7. Volkswagen also asserts in the trial court’s decision to two studies conducted by its witness Seiffert. Again, Volkswagen has to demonstrate where it offered one of studies (Exhibit 104) evidence, and therefore we cannot Volkswagen’s argument as it pertains to document. The Gentrys objected to the study on the ground of hearsay that Seiffert was not the only and the trial court sustained the We find no abuse of discretion in ruling. Nor do we find any harm as had the opportunity to question Seiffert on the studies.

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8. Volkswagen also takes with the trial court’s to allow evidence of other transactions.

In product liability evidence of other incidents the product is admissible, and relevant to the of notice of a defect and punitive provided there is a showing of similarity. Without a showing of similarity, the evidence is irrelevant as a of law.

(Citations omitted.) Ray v. Motor Co., 237 Ga.App. 317(1), 514 S.E.2d 227 (1999). And we the trial court’s admission of evidence under an abuse of standard. Cooper Tire c. Co. v. 273 Ga. at 457(2), 543 S.E.2d 21 .

Here, the court reserved one day of trial to argument and testimony on the issue of prior similar incidents. The offered this evidence to that Volkswagen was on notice of defects prior to Lori accident. The judge subsequently that only certain of the incidents were sufficiently to the accident in this case and allowed the use of such evidence on only under very circumstances. In addition, he gave a instruction to the jury on the use of this Volkswagen has not indicated where it exception to this instruction or any additional instruction. Having the argument and the testimony, we cannot that the trial court its discretion in admitting the evidence of similar incidents. See Mack v. Conkle, 263 Ga. 539. 544(3), 436 635 (1993).

With regard to the Stow incident, which after the Gentry accident, the court heard the pertinent of Stephen Stow outside the of the jury and heard argument on the before allowing him to testify the jury. The trial judge substantial similarity in that the incident involved the same system, a frontal collision as did the accident, and the same mechanism of (although the part of the body was different). In each accident, the loaded, or hit, the shoulder resulting in injuries to the torso. The also showed that wife was somewhat close to Gentry in size and also up on the floor of the car following the collision. evidence was proffered, in part, to Volkswagen’s defense of misuse of the because the evidence showed the Stow victim was using the correctly and nevertheless ended on the with injuries to the torso. upon our review of the record we no abuse of discretion in the admission of testimony on this ground.

9. next assert a series of in the trial court’s charge to the

(a) Volkswagen asserts that the court failed to charge Volkswagen could not be held for failing to equip the 1981 with a three-point belt and two of its proposed charges. The trial did in fact give one of the requested by instructing the jury that it not find the VWRA system solely because it did not include a lap The only portion of the charge was a parenthetical (three-point manual following the term lap belt. The requested charge merely the same principle in a different We find no error.

We also find no error in the court’s failure to charge the Gentrys had to offer proof of an safer design, practicable the circumstances, as that

charge was an statement of the law, addressing one of the factors to be considered under the test adopted by our Supreme in defective design cases. v. ICI Americas, 264 Ga. at 734-735, 736, n. 6, 450 671.

(b) Volkswagen next that the trial court charged the jury that the were entitled to recover if it the vehicle defective. It asserts this charge improperly the requirement that the jury find proximate cause.

But is a fundamental rule in Georgia jury instructions must be and considered as a whole in determining the charge contained error. and footnote omitted.) Kodadek v. 247 Ga.App. at 609(1), 545 S.E.2d 25. The judge charged the jury the Gentrys were required to three elements, including cause and gave a thorough on what was required to find cause. Accordingly, we find no

(c) Nor do we find erroneous the trial charge regarding Volkswagen’s to warn because, when as a whole, the charge limits duty to reasonably foreseeable and to reasonably foreseeable users. See Farmer v. Brannan Auto 231 Ga.App. 353. 355(1), 498 583 (1998).

(d) Volkswagen asserts error in the trial court’s to give its proposed charge on the of product alteration. We find no because the trial court on misuse of the product and the consumer’s decision not to use the product as it was originally and designed, which covered the of Volkswagen’s proposed charge.


(e) has failed to demonstrate that it on the record to the trial court’s jury charge regarding the of a party’s non-production of evidence. By to object to this charge, failed to preserve the issue for review. Smith v. Curtis, 226 470. 471(1), 486 S.E.2d 699

(f) We find no merit in Volkswagen’s objection to the jury charge on the that it improperly injected the of insurance into the trial. The as given accurately reflects the which the Supreme Court of listed for proper consideration in a liability case. Banks v. ICI 264 Ga. at 734-735, 736, n. 6, 450 S.E.2d

Judgment affirmed.

BLACKBURN, and MIKELL, J. concur.

FootNotes

1. of America and Volkswagen AG will be to collectively as Volkswagen.

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