[author: Mathew Groseclose]
A recent decision by a divided Virginia Supreme Court in Funkhouser v. Ford Motor Company, 2012 Va. LEXIS 132, appears to make a debatable expansion in the use of evidence of other incidents in product liability actions. In Funkhouser, the family of a young girl sued a minivan manufacturer after the girl died from severe burns suffered when the family’s Ford minivan unexpectedly caught fire. The fire started after the minivan’s engine had been shut down and after the key had been removed from the ignition. Although unable to identify a specific defective component, the plaintiff’s expert testified that the fire stemmed from an unknown electrical source beneath the dashboard.
It is important to note that the plaintiff originally alleged the fire was caused by a faulty electrical connection in the vehicle’s cigarette lighter, but—unable to prove this allegation—he amended the complaint to allege a failure to warn of a more generalized risk of the potential for an electrical fire originating in the dashboard.
Before trial, the circuit court granted Ford’s motion to exclude evidence of seven previous minivan dashboard fires. There were some basic similarities in all of the fires. Specifically, all of the previous fires originated beneath the dashboard of the same model Ford minivan after the engine had been shut down and the key removed from the ignition. Some of the fires were the subject of origin and cause investigations that concluded the fires originated from unknown electrical causes in different areas beneath the dash. However, none of the previous fires were alleged to have originated from the cigarette lighter and, in fact, certain of the fires allegedly originated in other areas like the instrument panel.
The circuit court held, given the unknown source of the Funkhouser fire, it was impossible for the plaintiff to show the other fires arose from the same defect or danger. The “circuit court reasoned ‘that the Funkhauser defect has to be identified with specificity to charge Ford with actual notice of that defect.’” Deeming it unfair to charge Ford with a duty to warn of defects and dangers Ford had no reason to know existed, the circuit court excluded evidence of the other incidents and precluded the plaintiff’s expert from relying on the incidents as a predicate for his testimony.
On appeal, the Supreme Court reversed. Preliminarily, the Supreme Court stated the general rule that evidence of other similar incidents can be admissible to establish knowledge of a dangerous condition, provided the prior incidents occurred under similar circumstances and were caused by a similar defect or danger. The court, however, contrasted the use of such evidence in cases where the plaintiff alleges a design defect with its use in cases founded on a failure to warn theory of liability. The court reasoned that Funkhouser’s burden under his failure to warn claim was not to show “the specific mechanical cause of the . . . minivan fire,” but instead more generally to show the “Funkhauser minivan was unreasonably dangerous for its intended use.”
Under this more general and amorphous standard, the court reasoned that four of the seven previous incidents were sufficiently similar to be admitted as relevant to demonstrating Ford’s awareness of an unreasonable hazard of dashboard fires. The court affirmed the exclusion of three of the incidents, because their cause had never been investigated and there was no evidence they were the result of “faulty electrical wiring in the dashboard area.”
In his dissenting opinion, Justice Cleo Powell, who was joined by Chief Justice Cynthia Kinser and Justice S. Bernard Goodwyn, challenged what he perceived to be the majority’s deviation from precedent. Justice Powell emphasized that the admissibility of other incidents, regardless of the plaintiff’s theory of liability, depends upon a showing of both “similar circumstances” and that the incidents were caused by the “same or similar defect or danger.” He took issue with the majority’s use of the same evidence to satisfy both elements of this essential foundation. Specifically, he took issue with the fact that the majority inferred the existence of a similar “danger” from the similarity in some of the circumstances between the various incidents. Justice Powell, however, argued that “[t]he test of substantial similarity requires, in part, that the other incidents be caused by the same or similar defects and dangers as those at issue.” Consequently, Justice Powell concluded that, “[b]ecause Funkhouser cannot show what defect caused the fire in his Windstar, he necessarily cannot show that the defect in the other Windstars were similar.”
Justice Powell in his dissent advances a position more soundly based in precedent. Nevertheless, product liability practitioners should be aware of the majority’s decision as its broad reasoning could be used in future cases to weaken the evidentiary standard for prior incidents used to corroborate the existence of an actual defect or danger.