U.S. Fifth Circuit Affirms Verdict Against Unmanned Utility Vehicle Manufacturer, Allowing Evidence of Other Incidents and Affirming Jury Instruction on Alternative Feasible Design

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Plaintiff suffered permanent injuries when an unmanned utility vehicle, the “Workhorse”, ran her over. A key turns on the Workhorse’s electrical system, but it does not start the engine. Rather, there is a microswitch in the accelerator pedal which turns on the engine and propels the vehicle. The Workhorse also has a two-part brake pedal: The lower pedal is the vehicle’s service brake, and the upper pedal engages the parking brake. Textron recommends disengaging the parking brake by depressing it again. But, important here, there is a second way to disengage the parking brake: by pushing the accelerator — the two pedals are mechanically linked. Thus, if the parking brake is engaged, depressing the accelerator will (1) turn on the engine; (2) release the parking brake; and (3) accelerate the vehicle. Textron foresaw certain risks in this scheme, and warned operators to always turn the key to the off position before exiting the vehicle. Yet, Textron was likewise aware that users disobeyed this directive from time to time. All this is to say, should one neglect to turn off the key, all it takes is something to fall with sufficient force on the accelerator to create a runaway vehicle.

Plaintiff owned and used a Workhorse on her Texas ranch. One afternoon, she set out on the Workhorse to move a group of cattle, all the while storing a 50-pound bag of cattle feed on the Workhorse’s floorboard. Once the plaintiff reached a gate, she applied the parking brake and exited the vehicle. As far as the parties can surmise, the cattle then knocked over the feed bag onto the accelerator, causing the Workhorse to run over the plaintiff and render her a quadriplegic.

The plaintiff’s design defect claim alleged the pedal configuration — specifically, the link between the accelerator and parking brake — created an unreasonable risk of unintended acceleration. At trial, the Nesters proposed four safer alternative designs: First, and principally, that removing the link between the accelerator and the parking brake would cause the brake to remain engaged even if something hit the accelerator. To which Textron responded that the revving engine would overpower the parking brake, causing excessive wear on the brakes. Second, that a pedal guard (a shield of sorts) would stop objects from falling on the pedal. To which Textron responded that such a design would create a tripping hazard. Third, that a weight-sensitive switch in the driver’s seat would turn off the engine when the operator exited the vehicle. To which Textron responded that the switch would render the Workhorse unusable in the farm context because the bumpiness of the terrain would cause the vehicle to constantly stop and start. And fourth, that a second, hand-operated parking brake would prevent future accidents. To which Textron responded that such a design, used only on vehicles with hydraulic brakes, could not be adapted to the Workhorse’s mechanical-brake system.

The jury found for the Nesters on the design defect claim.  The jury also found that plaintiff herself was negligent, and apportioned fault 50/50. Finally, the jury awarded over $15 million in damages.

On appeal, the manufacturer argued that the district court’s jury instruction did not substantially cover the overall-safety component – i.e. that, under Texas law, a safer alternative design must not render the product less safe in other circumstances.  But the U.S. Fifth Circuit affirmed: “the extant definition of a safer alternative design — specifically, its requirement that such designs cannot substantially impair the product’s utility — gave Textron the practical means to raise its concerns about the Nesters’ proposed designs. Take, for instance, the Nesters’ primary fix, the link-removal design. Textron’s rebuttal to that theory was, in the words of one of its witnesses, that removing the link between the parking brake and accelerator was a ‘bad idea … because people are going to drive with the brakes engaged on the car and they’re going to destroy their brakes.’ The semantic consequences therefrom — a vehicle with useless brakes versus a vehicle with useless, unsafe brakes — are one in the same. And Textron’s closing argument confirms just that. There, Textron’s counsel explained that removing the link ‘will create more injuries than having it on there’ and, on the flip side of the same coin, that the link helps ‘increase braking effectiveness.’ The district court’s instruction therefore gave counsel the opportunity to emphasize the matters in his favor contained in the proposed instructions during jury argument — a final consideration that weighs in favor of a substantial-coverage finding.

“At the end of the day, Textron asks us to hold that the district court erred by refusing to deviate from a standard Texas instruction. That definition permitted Textron to make its arguments about various tradeoffs to the jury (it did so) and gave those jurors a means to find in Textron’s favor (they balked). Those circumstances do not instill in us substantial and ineradicable doubt about whether the jury was properly guided, and we do not find an abuse of discretion.”

The Fifth Circuit also affirmed the district court’s decision to admit a YouTube video of another unintended-acceleration event during a high-school football game twelve days after the plaintiff’s injury. In the video, an unoccupied E-Z-GO cart with the same pedal design as the Workhorse collided with a group of people after two end-zone pylons depressed the cart’s accelerator pedal.  While the later-occurring incident could not be used to show notice of a defect, the video was “nevertheless probative of the existence of a design defect — that is, whether the Workhorse’s pedal design was unreasonably dangerous given the magnitude of the risk. Yes, everyone at trial agreed that unintended acceleration could happen. But Textron in no way conceded that the risk was an unreasonable one, arguing instead that the design was a ‘good, safe system’ only dangerous to those who took ‘unreasonable and negligent actions,’ thus making the possibility of ‘unintended acceleration very, very low.’ A video depicting just how two misplaced pylons could lead to a runaway vehicle allowed the jury to evaluate that risk for themselves.”

 

Nester v. Textron, Inc., No.16-51115, 2018 WL 1835816 (5th Cir. April 18, 2018).

 

 

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