Nissan Motor Co. Ltd. v. Armstrong

145 S.W.3d 131

NISSAN MOTOR COMPANY LTD. a/k/a Nissan Motor Company & Nissan Motor Corporation in U.S.A., Petitioners, v. Marian ARMSTRONG, Respondent.

No. 01-0030.

Supreme Court of Texas.

Argued March 3, 2004.

Decided August 27, 2004.

Rehearing Denied October 15, 2004.

Appeal from the 152nd District Court, Harris County, Mark Davidson, J.

Craig A. Morgan, Brown McCarroll LLP, Joe R. Greenhill, Baker Botts LLP, Austin, for Amicus Curiae

P. Michael Jung, Strasburger & Price, L.L.P., Dallas, TX, Alan B. Daughtry, Vinson and Elkins, L.L.P., J. Greg Dow, John W. Teague, Houston, TX, and Robert A. Brundage, Leslie G. Landau, Bingham McCutchen LLP, San Francisco, CA, for Petitioner.

Grant Kaiser, Kaiser Firm, L.L.P., Houston, James F. Scherr, Scherr Legate Ehrlich, El Paso, Donald G. Wilhelm, Wilhelm Law Firm, Houston, for Respondent.

Justice BRISTER delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice OWEN, Justice JEFFERSON, Justice SMITH, and Justice WAINWRIGHT joined.

In this products liability case, the trial court erroneously admitted hundreds of reports of alleged accidents, almost all of which were hearsay and almost none of which were shown to involve defects like those alleged here. As the plaintiff's evidence and arguments at trial focused on the quantity of other accidents rather than the quality of the evidence regarding her own, we discount her new position on appeal that the improper admission of evidence of other accidents was unimportant. Accordingly, we reverse the judgment of the court of appeals,¹ and remand for a new trial.

I

Marian Armstrong's parents bought a 1986 Nissan 300ZX in January 1986, and transferred² it to her five or six years later with more than 90,000 miles on the odometer. On a rainy day in October 1992, immediately after resigning from her job, Armstrong got into her car and shifted into reverse. After she "barely touched" the accelerator, the car "took off" backwards and hit a brick building, though she was pressing the brake pedal as hard as she could. When she shifted into drive and again "barely touched" the accelerator, the car "shot forward" and struck a telephone pole, again despite application of the brakes. These collisions resulted in two broken bones in her foot and nerve damage, injuries the jury assessed at $900,000.

The Armstrongs had the car repaired, and about six months later another unintended acceleration occurred when a family friend was driving the car. A service writer at a shop specializing in ZX cars told Armstrong's father — over the telephone and without seeing the car — that the throttle cable might have been jammed by either a small rubber "boot" designed to keep dust out of the accelerator mechanism, or a white liner around the throttle cable. Armstrong's father cut off both and discarded them.

Two years before the Armstrongs bought their car, the National Highway Traffic Safety Administration (NHTSA) received a number of complaints of unintended acceleration of 280ZX and 300ZX cars. NHTSA opened an investigation, as it has done with similar complaints involving many other vehicles. Over the next four years, the agency and two outside inspection firms conducted inspections and testing, looking at potential causes that included the fuel injection system, accelerator pedal, throttle linkages, computerized control system, cruise control, brakes, engine mounts, automatic transmission, and floor mats.

In its Closing Report, NHTSA made the following findings:

[T]est and vehicle inspection results showed that the tested and inspected vehicles did not exhibit any condition that would cause the vehicle to accelerate at a high rate on its own, and the tested vehicles with the wide open throttle condition can be controlled by applying the brakes.

* * *

Available information indicates that inadvertent and unknowing driver application of the accelerator pedal when the driver intended to apply the brake appears to be the cause of many of the reported SA [sudden acceleration] related accidents under several ODI [Office of Defects Investigation] incident investigations, even though many of the drivers continue to believe that they had been pushing on the brake pedal.

* * *

During the course of this investigation, no safety-related defect has been detected. Further commitment of resources to determine whether such a trend may exist does not appear to be warranted.

Investigations conducted by other agencies in the United States and Canada reached the same conclusions, as did Nissan in its own investigation. Armstrong contends these conclusions were incorrect because Nissan never reported to any agency that the boot or throttle cable was the problem.

In response to the finding of driver pedal-error, Nissan recalled 1979-1987 models to install a shift-interlock system that required drivers to step on the brake before shifting out of park.³ Armstrong's car had such an interlock. After the recall, claims of unintended acceleration dropped dramatically.

Nissan made one more design change. In 1995 Nissan redesigned the throttle cable and incorporated a smaller boot on ZX cars, at a cost of $10.66 per unit. Nissan contends the change was made to standardize parts among its vehicles, but Armstrong argues the real reason was to eliminate the defects in the design.

Armstrong sued Nissan Motor Co. Ltd. and Nissan North America, Inc. for products liability, negligence, gross negligence, breach of warranty, fraud, negligent misrepresentations, and violations of the Texas Deceptive Trade Practices — Consumer Protection Act.⁴ In support of her claim that the throttle cable was defective, Armstrong presented expert testimony from a mechanical engineer, factual testimony from four other owners who had experienced unintended acceleration in 300ZX cars, 16 written reports of unintended acceleration, and Nissan's database of 757 consumer complaints. Nissan objected unsuccessfully to most of this evidence on grounds of hearsay, relevance, and incompetence.

The jury returned a verdict favorable to Armstrong on each of her fifteen theories of liability. The trial court rendered judgment on the jury's findings of design, manufacturing, and marketing defects, negligence, and gross negligence, but rendered judgment notwithstanding the verdict on the other theories. Although Armstrong and Nissan had stipulated to $2 million in punitive damages if the jury found gross negligence (which it did), the trial court remitted this amount to $1.2 million.

Both sides appealed. When the court of appeals affirmed, both sides petitioned this Court for review.

II

A

This is not the first lawsuit in Texas alleging that a vehicle accelerated on its own. This Court and others have considered several such cases involving different vehicles, different asserted defects, and different alternative causes.

In Gammill v. Jack Williams Chevrolet, Inc., we affirmed summary judgment for the manufacturer of a 1988 Isuzu Trooper in a suit alleging that the accelerator pedal became entangled with wiring below the dashboard.⁵ The Gammills pointed to a scrape on the wiring sheath as evidence of entanglement and expert testimony that a different design could have avoided the defect.⁶ But while their expert on unintended acceleration was a licensed mechanical engineer with substantial experience working on cars, he had never designed them.⁷ Accordingly, we held the trial court did not abuse its discretion in finding him unqualified to testify about design defects; as this was the only testimony supporting the plaintiffs' claims relating to the car's accelerator system, we affirmed the trial court's summary judgment finding no defect.⁸

In General Motors Corp. v. Hopkins, we affirmed a judgment against the manufacturer of a 1970 Chevrolet pickup based on allegations that a lockout pin jammed a carburetor in the open position, causing an influx of fuel and unintended acceleration.⁹ We held the verdict was supported by evidence that (1) after the accident, the lockout pin was found in the jammed position, (2) a similar malfunction had occurred with the same vehicle earlier, and (3) GM files contained a picture and correspondence among GM engineers addressing the problem.¹⁰

But in Henderson v. Ford Motor Co., we reversed a judgment against the manufacturer of a 1968 Lincoln Continental based on allegations that a piece of rubber from a gasket jammed the carburetor's throttle blades.¹¹ Though the carburetor was found in that condition some years later, no expert testified it had been caused by an unreasonably dangerous design or that an alternative would have prevented it.¹²

In all of these cases, it was not enough that a vehicle accelerated when claimants swore they had done nothing. Instead, we have consistently required competent expert testimony and objective proof that a defect caused the acceleration. The courts of appeals have done the same, holding liability cannot be based on unintended acceleration alone,¹³ on lay testimony regarding its cause,¹⁴ or on defects not confirmed by actual inspection.¹⁵ Courts elsewhere do too.¹⁶

These requirements are not peculiar to unintended acceleration cases. We recently held in Ford Motor Co. v. Ridgway that an engine fire in an older vehicle was not evidence that the vehicle was defective; there were simply too many potential causes to assume from the one that the other must have been the culprit.¹⁷ Instead, we held that a specific defect must be identified by competent evidence and other possible causes must be ruled out.¹⁸

These requirements are especially compelling in unintended acceleration cases. Not only are there many potential causes (from floor mats to cruise control), but one of the most frequent causes (inadvertently stepping on the wrong pedal) is untraceable and unknown to the person who did it.¹⁹

Accordingly, we again affirm that the mere occurrence of an unintended acceleration incident is no...