Ray et al v. Ford Motor Company

Filing 153

MEMORANDUM OPINION AND ORDER DENYING 123 motion for summary judgment, as further set out in order. Signed by Honorable Judge W. Harold Albritton, III on 6/1/11. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

MEREDITH CHADWICK RAY and
PHILLIP RAY,
Plaintiffs,
v.
FORD MOTOR COMPANY,
Defendant.

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) CIVIL ACTION NO. 3:07cv175-WHA-TFM
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(WO)
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MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This cause is before the court on a Motion for Summary Judgment filed by Ford Motor
Company (“Ford”) (Doc. #123). The Plaintiffs, Meredith Chadwick Ray (“Meredith Ray”) and
Phillip Ray (collectively, the “Rays”) filed an Amended Complaint (Doc. #27-1) in this case
alleging that Ford is liable to them on the basis of (1) the Alabama Extended Manufacturer’s
Liability Doctrine (“AEMLD”) (Count One); (2) negligence (Count Two); (3) wantonness
(Count Three); and (4) loss of consortium (Count Four).1 Ford moved for summary judgment on
all four Counts on the basis of spoliation of the evidence, and, in the alternative, moved for
summary judgment with respect to Count One and Count Three. For the reasons to be discussed,
the Motion for Summary Judgment is due to be DENIED.

II. SUMMARY JUDGMENT STANDARD
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The Rays also alleged claims against two other defendants, who are no longer parties to
this case. See Docs. #142, #145.

Summary judgment is proper “if there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.”
To avoid summary judgment, the nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the non-movant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).

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After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

III. FACTS
The submissions of the parties establish the following facts, viewed in a light most
favorable to the Rays, the non-movants:

A.

The Accident
On April 21, 2006, Meredith Ray parked her 2002 Mercury Mountaineer in a parking lot

in Lee County, Alabama to make a payment to Acceptance Insurance. She left the vehicle
running and did not engage the parking brake, though she shifted her vehicle into “park.” Her
10-month-old daughter and her 3-year-old niece remained in the vehicle.
Meredith Ray completed her transaction with Acceptance Insurance, left the building, and
began walking between her vehicle and the side of a building to return to the driver’s seat of her
vehicle. At this time, Meredith Ray’s niece, without depressing the brake pedal, moved the
transmission shift lever into gear, causing the vehicle to move forward and to crush Meredith Ray
against the wall.
After the accident, a bystander entered the vehicle and shifted it from drive to reverse, to
stop it from crushing Meredith Ray, and then shifted it into park. Other individuals shifted the
vehicle several times to move it to different locations and eventually into storage.

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B.

Brake Transmission Shift Interlock Systems
The 2002 Mercury Mountaineer at issue in this case was equipped with a brake

transmission shift interlock system (“BTSI”). The BTSI is designed to prevent a driver from
shifting the vehicle’s transmission out of park without depressing the brake. The BTSI is
designed to accomplish this by means of a pin. If the BTSI pin has not retracted, and the vehicle
is in park, a driver should not be able to shift the vehicle out of park because the vehicle’s swing
arm will not be able to move past the BTSI pin. However, if the driver depresses the brake, the
vehicle sends an electrical signal to the BTSI, causing the pin to retract, thus allowing the driver
to shift the vehicle out of park.
Meredith Ray’s 2002 Mercury Mountaineer is part of Ford’s U152 vehicle platform. The
U152 platform had a history of shifting problems prior to the date of Meredith Ray’s accident.
Ford had created a document called a “Six Sigma Project Charter” which detailed customer
complaints and engineer findings about a shifting problem in U152 platform vehicles (the “Six
Sigma Documents”). The Six Sigma Documents state that:
Customers are dissatisfied with the increased efforts to shift in and out of park
that occur over time on all U152 left-hand drive Explorer and Mountaineer
vehicles with column shift systems. Analysis indicates that the steering column
[BTSI] pin has a 400 millisecond built-in time delay to retract upon brake apply.
Customers are shifting more quickly than the pin retracts. This causes the pin to
contact the swing arm ramp resulting in wear over time and eventual higher shift
efforts.
Sharon Welch Dep. at 19:8-23. The Six Sigma Documents state that this problem “was missed
during previous DV/PV testing because the shift system was moved at a slow enough rate to
allow the pin to be electrically retracted and never have the [swing arm] impact the pin.” Pl.’s

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Ex. D at 13. This problem was the highest warranty expenditure on a daily basis for all of Ford
steering. Snider Dep. at 22:17-24; Porter Dep. at 35:21 - 36:02.
Ford’s engineers investigated this problem, and identified as one of the “error states” of
the BTSI system, that “[c]ustomer is able to shift out of Park even without putting foot on brake .
. . .” Pl.’s Ex. D at 6. Ford’s Six Sigma Documents indicate that, over time, due the swing arm
coming into contact with the BTSI pin, the swing arm would develop a divot, which caused
problems shifting into park. See, e.g., Pl.’s Ex. D at 12-13.

C.

Testing the Vehicle
On August 9, 2006, Wayne McCracken (“McCracken”), the Rays’ expert, inspected

Meredith Ray’s 2002 Mercury Mountaineer. McCracken Dep. at 75:5-7. While inspecting the
vehicle, McCracken stated that he shifted the vehicle approximately 5 to 10 times, at various
speeds, to determine whether it had a defect. McCracken Dep. at 90:7-9. Subsequently, on
February 27, 2007, the Rays filed suit against Ford. The vehicle was later inspected by
McCracken and disassembled on March 14, 2008, at which time Ford’s representatives were
present. McCracken Dep. at 185:10-19.
McCracken’s testing and inspection indicated problems consistent with those discussed in
Ford’s Six Sigma Documents. Specifically, McCracken found instances when the BTSI failed to
operate properly after the vehicle had been shifted into park. For example, video evidence
presented by the Rays, filmed on August 8, 2008, shows the BTSI pin contacting with the swing
arm and causing erratic movement as the vehicle is shifted in and out of park. See Pl.’s Ex. M.
The Rays assert that this video evidence shows that “although the transmission is fully in park,
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because the BTSI fails to operate properly the operator can then shift the vehicle from park into a
forward gear without stepping on the brake.” Pl.’s Resp. at 13.
Additionally, McCracken noted that a dimple had developed on the swing arm in
Meredith Ray’s vehicle. He concluded that “[t]he appearance and condition of the [BTSI] at that
time . . . is identical to information and photographs contained in the [Six Sigma Documents].”
Pl.’s Ex. F at 2.

IV. DISCUSSION
Ford has moved for summary judgment in this case. Ford argues that it is due summary
judgment (1) with respect to the Rays’ entire case because of the doctrine of spoliation of the
evidence; (2) with respect to the Rays’ AEMLD claim because the Rays cannot show that the
2002 Mercury Mountaineer was defective, or that it reached the Rays without substantial change
in its condition; and (3) with respect to the Rays’ wantonness claim because the Rays have not
shown wanton conduct. The court rejects each of these arguments, and concludes that summary
judgment is due to be DENIED.

A.

Spoliation of the Evidence
Ford’s first argument is that it is due summary judgment with respect to all of the Rays’

claims under the doctrine of spoliation of the evidence.
Federal law governs the imposition of sanctions for spoliation of the evidence in a
diversity suit because spoliation sanctions are an evidentiary matter. Flury v. Daimler Chrysler
Corp., 427 F.3d 939, 944 (11th Cir. 2005). The Eleventh Circuit also has explained, however,
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that in evaluating the need for sanctions, federal courts look to factors enumerated in state law,
because federal law does not set forth specific guidelines regarding sanctions for spoliation. Id.
The parties agree that Alabama state law is the relevant state law to look to in this case.
In analyzing the propriety of sanctions for spoliation of the evidence, the Alabama Supreme
Court applies five factors: (1) the importance of the evidence destroyed; (2) the culpability of the
offending party; (3) fundamental fairness; (4) alternative sources of the information obtainable
from the evidence destroyed; and (5) the possible effectiveness of other sanctions less severe than
dismissal. Story v. RAJ Properties, Inc., 909 So.2d 797, 803 (Ala. 2005).
Although the Eleventh Circuit has looked to state law in analyzing spoliation of the
evidence, the Eleventh Circuit has also outlined the boundaries of sanctionable conduct under
federal law. In Flury, the Eleventh Circuit explained that dismissal is the most severe sanction
available, and should only be used where there is a showing of bad faith and where lesser
sanctions will not suffice. Flury, 427 F.3d at 944. In describing the standard governing bad
faith, the Eleventh Circuit explained that the law does not require a showing of malice, but that
instead, in determining whether there is bad faith, a court should weigh the degree of the
spoliator’s culpability against the prejudice to the opposing party. Id. at 946. Although the
Eleventh Circuit was examining Georgia law in Flury, the court explained that “Georgia state
law on spoliation is wholly consistent with federal spoliation principles.” Id. at 944.
Interpreting the applicable Eleventh Circuit law, this court has stated that, “where the
only sanction sought is summary judgment . . . only if there is a finding of bad faith, determined
by weighing the degree of the spoliator’s culpability and prejudice to the opposing party, and
only if no lesser sanction will suffice, may a sanction as severe as summary judgment be
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imposed.” Greyhound Lines, Inc. v. Goodyear Tire & Rubber Co., No. 3:08cv516-WHA, 2009
WL 798947, at *2 (M.D. Ala. Mar. 25, 2009) (Albritton, J.) (denying summary judgment, sought
on spoliation grounds, when bus company suing tire company over an allegedly defective tire on
its bus repaired the bus without giving the tire company a prior opportunity to inspect the bus,
though it provided the tire company with the allegedly defective tire).
Ford argues that, under the applicable legal standard, it is due summary judgment because
the 2002 Mercury Mountaineer was shifted on several occasions after the accident, and this
shifting must have caused the defect that the Rays now complain of. Ford notes three instances
of shifting. First, while the vehicle was crushing Meredith Ray, a bystander got into the vehicle,
and shifted it to move it off of Meredith Ray, and then shifted it into park. Second, the vehicle
was shifted several times after the accident to move it from the accident scene and eventually into
storage. Third, McCracken stated that he shifted the vehicle approximately 5 to 10 times while
testing it.
The court’s first duty, as charged by the Eleventh Circuit under Flury, is to examine the
evidence of bad faith. Ford presents no evidence of malice on this point.
Because there is no evidence of malice, to determine whether there is bad faith, this court
has been instructed to weigh the culpability of the Rays and the prejudice to Ford. Flury, 427
F.3d at 926. The court finds no culpability with respect to two of the shifting incidents: the
pedestrian moving the vehicle off of Meredith Ray to stop it from crushing her, and other parties
moving the vehicle to storage. The first act was taken by a third party who was trying to save
Meredith Ray from severe bodily injury or death, and such an act, even if taken at the request of
Meredith Ray, surely cannot be considered to be evidence of bad faith on the part of the Rays.
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Neither does the moving of the car to storage show bad faith. Ford has not explained who moved
the vehicle to storage, who asked them to do so, or submitted any facts that would show bad
faith. Even if the Rays requested that someone move the vehicle to storage, Ford does not
explain how this shows culpability on the part of the Rays.
Thus, the only potential evidence of culpability presented by Ford is evidence suggesting
that the Rays acted willfully by not inviting Ford, as a potential defendant in a future claim by the
Rays, to inspect the vehicle before McCracken began shifting it. However, neither party has
presented any evidence that McCracken shifted the vehicle in a manner designed to alter it, or
that McCracken thought or could have reasonably thought that shifting the vehicle approximately
5 to 10 times would cause the BTSI defect in this case. In fact, Ford’s own Six Sigma
Documents, which McCracken was aware of, show that the BTSI problem at issue developed in
vehicles over the course of thousands of miles of driving and shifting. See, e.g., Pl.’s Ex. D at 3,
7-8, 9, 13. Additionally, McCracken testified that he believed that it would take a long time, not
merely “5 to 10” shifts, to cause the problem that existed in Meredith Ray’s vehicle. In his
deposition, McCracken stated:
Q.

Is it possible that . . . this divot, as you described it, could have been created
in one of these subsequent shiftings to the time when the accident occurred?

A.

I don’t believe that’s probable at all, no.

Q.

Why not?

A.

Because of the size and depth of the divot. It takes repeated cycles for that
to occur. I don’t know how many. I suspect it depends on how much contact
there is between the pin and the swing arm.

Q.

Well, you -- I thought you previously testified that you did not measure the
size and depth of the divot.
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A.

I did not, but I can visually see it.

Q.

Do you know at what size and depth is required in order to provide this false
Park position?

A.

Well, I think the answer is thousands of miles of use. That seems to be the
conclusion of the [Six Sigma Documents]. Also, if you take a look at the
warranty claims, you’re going to see sometimes as much as a couple of years
between date of sale and warranty claim, so obviously people are putting
thousands of miles on these vehicles before the divot becomes of a size to
start giving false Park conditions.

Q.

Okay.

A.

It doesn’t happen in a few shifts, in other words.

Q.

So it wouldn’t happen in 10 to 20 shifts, --

A.

No.

Q.

-- is what you’re saying? No?

A.

No.

McCracken Dep. at 187:14 - 188:23 (emphasis added). This evidence shows that McCracken
reasonably believed that he was not altering the vehicle during his testing. Ford presents no
counter evidence or argument on this point. Therefore, the court concludes that any culpability
the Rays could possibly have attributed to them was minimal at best. See Wal-Mart Stores, Inc.
v. Goodman, 789 So. 2d 166, 176 (Ala. 2000) (refusing to grant a new trial on spoliation grounds
because “nothing in the record shows that Goodman knew that the entire box would be a key
piece of evidence in her case, and Wal-Mart provided no evidence to show that Goodman
intentionally destroyed the box in order to inhibit Wal-Mart’s case”).
On the issue of prejudice to Ford, Ford contends that it has been prejudiced because
evidence of the vehicle before it was shifted by McCracken would have been extremely
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important to its defense. Ford argues that without an opportunity to inspect the vehicle in its
condition at the time of the accident, Ford cannot determine whether the defect at issue existed at
that time, or whether the defect was actually caused by shifting that occurred after the accident.
In support, Ford cites a number of Alabama cases in which the evidence at issue was
completely destroyed by the plaintiffs, and argues that, like the defendants in those cases, it
cannot adequately defend itself due to the spoliation caused by the post-accident shifting in this
case. See, e.g., Verchot v. Gen. Motors Corp., 812 So. 2d 296, 301-02 (Ala. 2001); Capitol
Chevrolet, Inc. v. Smedley, 614 So. 2d 439, 442-43 (Ala. 1993); Cincinnati Ins. Co. v. Synergy
Gas, Inc., 585 So. 2d 822, 827 (Ala. 1991); Iverson v. Xpert Tune, Inc., 553 So. 2d 82, 84-87
(Ala. 1989). However, those cases are distinguishable from this case for several reasons. First,
the evidence in this case was not completely destroyed; the BTSI and shifting system still exists,
and Ford has inspected it. See Vesta Fire Ins. Corp. v. Milam & Co. Const., Inc., 901 So. 2d 84,
99 (Ala. 2004) (rejecting argument for spoliation because, among other reasons, “there has not
been complete destruction of material evidence; rather, a significant body of evidence remains”).
Second, reading the evidence in the light most favorable to the Rays, the non-movants, the court
cannot find that the defect at issue was caused by the limited amount of post-accident shifting
that occurred in this case. This conclusion is supported by both the Six Sigma Documents as
well as McCracken’s testimony, as discussed above. Third, unlike cases in which the evidence
was completely destroyed, Ford can adequately defend itself before a jury in this case, through
cross examination and testimony of its own experts. If Ford desires to argue that McCracken
may have created the defect in the 2002 Mercury Mountaineer, it can do so before a jury. But
Ford has not presented enough evidence at this point in the proceedings to eliminate any issue of
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fact on that point. In sum, while Ford may have suffered some prejudice by not being able to
examine the vehicle prior to the limited post-accident shifting in this case, since the Rays did not
call Ford to the scene of the accident before the vehicle was moved off Meredith Ray and driven
to storage and before they had an expert inspect the vehicle and shift the transmission a few times
before they filed suit, the court concludes that such prejudice does not rise to the level of
requiring summary judgment.
Weighing the evidence in favor of the non-moving parties, the Rays, the court concludes
that Ford has failed to prove that the Rays acted with such culpability, or that Ford suffered such
substantial prejudice, so as to constitute bad faith for which only the sanction of summary
judgment would suffice.2 Accordingly, summary judgment is due to be DENIED to the extent
Ford seeks summary judgment on the ground of spoliation of the evidence.

B.

Alabama Extended Manufacturer’s Liability Doctrine
Ford argues that it is entitled to summary judgment on the Rays’ claim under the

AEMLD.
To establish a claim for a defective product under the AEMLD a plaintiff must show that
the defendant placed a defective product on the market that was unreasonably dangerous and that
caused injury or damage, the defendant was engaged in the business of selling the product, and
the product was expected to and did reach the user without substantial change in condition.
Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir. 1993).

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Ford has not requested any sanction other than summary judgment. The court does not
suggest, however, that any other sanction would be appropriate.
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The Rays in this case bring a claim for design defect under the AEMLD. That is, they
allege that Ford improperly designed the 2002 Mercury Mountaineer that injured Meredith Ray.
Ford contends that the Rays’ AEMLD claim must fail because (1) the Rays have failed to show a
defect in the vehicle; and (2) the Rays have failed to show that the vehicle reached them without
substantial change in its condition. Based on the state of the evidence at this point in the case,
the court rejects Ford’s arguments.

1.

Defective

Ford first argues that the vehicle is not defective. A “‘defect’ is that which renders a
product ‘unreasonably dangerous,’ i.e., not fit for its intended purpose.” Casrell v. Altec Indus.,
Inc., 335 So. 2d 128, 133 (Ala. 1976). Thus, for example, a product is defective if it does not
meet the “reasonable expectations of an ordinary consumer as to its safety.” Jordan v. Gen.
Motors Corp., 581 So. 2d 835, 837 (Ala. 1991).
As another judge in this district has noted, Alabama case law requires an AEMLD
plaintiff to come forward with, among other things, at least some evidence to support an
inference that the product in question was defective. Rudd v. Gen. Motors Corp., 127 F. Supp.
2d 1330, 1345 (M.D. Ala. 2001) (Thompson, J.). Mere proof of an accident with ensuing
injuries is insufficient to establish AEMLD fault because “the plaintiff must affirmatively show
that the product was sold with a defect or in a defective condition.” Jordan, 581 So. 2d at
836-37.
Ford presents no affirmative evidence that the vehicle in this case lacked a defect, but
instead, emphasizes that the Rays have the burden to present evidence of a defect.
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The Rays presented evidence of a defect. The Six Sigma Documents show that Ford
faced a number of warranty claims relating to shifting issues prior to Meredith Ray’s injury.
Additionally, McCracken testified in his deposition as to the BTSI problems, and to his having
found evidence of the defective condition in his inspection of the Rays’ vehicle. Also, both the
Six Sigma Documents and McCracken’s testimony show that the BTSI problems could cause a
safety problem with the vehicle: specifically, the vehicle could shift out of park without the
driver depressing the brake. Reading this evidence in a light most favorable to the Rays, the nonmoving party, the court finds that a reasonable jury could find that a defect existed in the 2002
Mercury Mountaineer because it did not meet the reasonable expectations of an ordinary
consumer as to its safety.

2.

At the Time it Left Ford’s Hands

Ford next argues that the Rays failed to show that the vehicle reached them without
substantial change in its condition. Ford does not cite any evidence supporting its position,
despite stating that “the evidence in this case is directly to the contrary” of the Rays’ position.
In response, the Rays introduced evidence supporting their argument that the BTSI
problems at issue were a defect that existed when the 2002 Mercury Mountaineer left Ford’s
control. Specifically, the Rays introduced Ford’s Six Sigma Documents which stated that a
number of vehicles in Ford’s U152 platform, such as the 2002 Mercury Mountaineer, suffered
from a BTSI problem that could cause the transmission to shift out of park without the brake first
being applied. In addition, the Rays introduced McCracken’s expert testimony, in which
McCracken said that the defect that caused the accident in this case was the same BTSI problem
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in Ford’s U152 platform. This evidence, read in a light favoring the Rays, can establish that the
alleged defect existed at the time the vehicle left Ford’s control.
In arguing that the Rays cannot prove that the vehicle was defective at the time it left
Ford’s hands, Ford reiterates the previous arguments it made regarding spoliation. Specifically,
Ford argues that the Rays cannot prove that the vehicle was defective at the time it left Ford’s
hands because the Rays were responsible for causing the defect at issue through post-accident
shifting of the vehicle. To the extent this argument is relevant, the court rejects it for the same
reasons previously discussed.
In sum, a genuine issue of material fact exists for a jury to determine, and summary
judgment is due to be DENIED as to the Rays’ AEMLD claims.

C.

Wantonness
Ford argues that it is entitled to summary judgment on the Rays’ wantonness claim, and

therefore, the Rays may not recover punitive damages. Punitive damages may be awarded “in a
tort action where it is proven by clear and convincing evidence that the defendant consciously or
deliberately engaged in . . . wantonness.” Ala. Code § 6-11-20(a).
Alabama courts have defined wantonness as “the conscious doing of some act or the
omission of some duty while knowing of the existing conditions and being conscious that, from
doing or omitting to do an act, injury will likely or probably result.” Bozeman v. Centr. Bank of
the South, 646 So. 2d 601, 603 (Ala. 1994) (quoting Stone v. Southland Nat’l Ins. Corp., 589 So.
2d 1289, 1292 (Ala. 1991)). While “it is not essential that the actor should have entertained a
specific design or intent to injure the plaintiff,” the actor must have been “conscious that injury
15

will likely or probably result from his actions.” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007)
(citing Joseph v. Staggs, 519 So. 2d 952, 954 (Ala. 1988)). “Simple negligence is the inadvertent
omission of duty; and wanton or willful misconduct is characterized as such by the state of mind
with which the act or omission is done or omitted.” Dorman v. Jackson, 623 So. 2d 1056, 1058
(Ala.1993) (citations omitted).
Alabama courts have found wantonness claims sufficient to submit to a jury when a
defendant is aware of a safety problem, fails to correct it, and the problem causes an injury. For
example, in Brown v. Turner, 497 So. 2d 1119 (Ala. 1986), the Alabama Supreme Court held
that there was a jury question on a wantonness claim when a plaintiff repeatedly complained to a
defendant that a machine in its factory was defective, the defendant did not fix the machine, but
instead told the plaintiff that the machine was “not going to hurt anything,” and the machine later
malfunctioned and crushed the plaintiff’s finger. Id. at 1119-20; see also Lance, Inc. v.
Ramanauskas, 731 So. 2d 1204, 1211-12 (Ala. 1999) (finding wantonness when a defendant
vending machine company “knew the necessity for testing electrical receptacles to which its
vending machines are connected for adequate grounding,” the defendant did not properly train
employees to check machines for proper grounding, the defendant’s employee failed to check the
vending machine at issue, and a child was killed by electrocution as a result); Duncan v. Ford
Motor Co., 682 S.E. 2d 877, 886-87 (S.C. Ct. App. 2009) (upholding jury award of punitive
damages, under wantonness legal standard like that of Alabama, because defendant Ford knew
prior to the time it manufactured the plaintiff’s vehicle, based on tests conducted by a group of
scientists tasked to determine the cause of under-hood fires in Ford’s vehicles, that a seal in the
vehicle could fail, and that the failure could cause fires); cf. Gen. Motors Corp. v. Johnston, 592
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So. 2d 1054, 1060-61 (Ala. 1992) (holding that punitive damages awarded by jury on wantonness
claim were not excessive when General Motors was aware of a defect in its vehicles that could
cause stalling, yet it did not publicly notify any of its purchasers or prospective purchasers of the
problem).
Ford states that when it designed, manufactured, and sold U152 platform vehicles, it had
extensively tested the steering column and transmission, including the BTSI system, on those
vehicles, and knew of no problems with the BTSI at the time it designed, manufactured, or sold
those vehicles. The court agrees that there is insufficient evidence to show that Ford’s design,
manufacture, or sales of vehicles on the U152 platform exhibited wantonness. The Rays do not
seriously challenge this argument.
However, the Rays contend that Ford learned, prior to the time that Meredith Ray was
injured, that there was a safety problem with U152 platform vehicles, and Ford failed to fix this
problem in Meredith Ray’s vehicle (presumably through a recall or similar action). Pl.’s Resp. at
23; Compl. ¶ 33. Ford disputes that the Rays can establish that Ford was “conscious that injury
will likely or probably result from” its omission during this time period.
The Six Sigma Documents, as well as deposition testimony, show that Ford was aware of
BTSI problems on the U152 platform, including the possibility that customers could shift out of
park without stepping on the brake, and that BTSI problems were a large warranty expense for
Ford on U152 platform vehicles. Ford was also aware that this was a safety concern, as its Six
Sigma Documents state that “[t]he BTSI is design [sic] to prevent the customer from shifting out
of Park unless their foot is on the brake . . . .” Pl.’s Ex. D at 13. Mark Taylor, a design engineer
who testified on Ford’s behalf, stated that a faulty BTSI was a safety issue, because a faulty BTSI
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could cause “unintended vehicle movement.” Taylor Dep. at 58:24 - 59:5. Furthermore, because
the Six Sigma Documents were created prior to the date of Meredith Ray’s accident, Ford was
aware of this problem prior to the date that Meredith Ray was injured. Finally, there is no
evidence that Ford warned the Rays of this defect or issued a recall, nor does Ford contend that it
did so.
Ford argues that this evidence is insufficient to meet the state of mind requirement for
wantonness. Ford argues that the Six Sigma Documents do not actually state that customers
were able to shift their vehicles out of park without depressing the brake. Rather, Ford argues
that the Six Sigma Documents state that engineers, while attempting to determine the extent of
the shifting problems, found that one of the potential problems was that it was possible to shift
out of park without depressing the brake. Ford emphasizes this point by noting that there have
only been two claims,3 including the claim in this case, made to Ford by customers with respect
to a BTSI problem. On the other hand, Ford admits that there have been thousands of steering
column warranty repairs, for shifting-related issues, and that the BTSI is a component in the
steering column.
Ford’s argument is problematic. Ford’s argument weighs in Ford’s favor in the sense that
it shows that the BTSI defect was not so obvious that the entire scope of the defect was brought
to Ford’s attention by customers. Instead, Ford had to test the U152 vehicles before it realized
that they could be shifted out of park without depressing the brake. However, the fact that this
problem was not obvious does not absolve Ford, because the fact of the matter is that Ford
actually knew of the problem that the plaintiffs contend caused Meredith Ray’s injuries.
3

It is unclear what Ford means by a “claim.”
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Regardless of whether Ford knew that customers had previously experienced this problem, or
discovered the specific problem through its own testing, Ford admits that it knew, prior to
Meredith Ray’s injury, that there was a problem that could allow U152 platform vehicles to shift
out of park without a customer depressing the brake.
In sum, the court concludes that, reading the evidence before it at this stage of the
proceedings in the light most favorable to the Rays, there is sufficient evidence to make the issue
of wantonness a jury question, and accordingly, summary judgment is due to be DENIED with
respect to this claim. This issue may be revisited at trial by proper motion after the evidence is
presented there.

V. CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment (Doc. #123) is ORDERED
DENIED.

Done this 1st day of June, 2011.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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