Zaccone v. Ford Motor Company
Filing
110
ORDER granting #86 Defendant Ford Motor Company's Motion for Final Summary Judgment and Amended Motion for Final Summary Judgment #92. (2)The Clerk is DIRECTED to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 4/17/2017. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRANK ANTHONY ZACCONE,
Plaintiff,
v.
Case No: 2:15-cv-287-FtM-38CM
FORD MOTOR COMPANY,
Defendant.
/
OPINION AND ORDER1
This matter comes before the Court on Defendant Ford Motor Company’s Motion
for Final Summary Judgment (Doc. 86) and Amended Motion for Final Summary
Judgment (Doc. 92). Plaintiff Frank Anthony Zaccone, appearing pro se, filed responses
in opposition to both motions. (Doc. 96; Doc. 102). For the following reasons, the Court
grants Ford’s motions.
BACKGROUND
This is a product liability case. Zaccone sues Ford for an allegedly defective airbag
system, roof structure, and rollover prevention/protection system in his late-wife’s 2006
Ford Escape.
1
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It all started on May 6, 2013, when Zaccone and his wife, Judy Hanna, embarked
on a cross-country road trip.2 Zaccone began the day around sunrise to prepare for the
trip. He packed suitcases, mowed the lawn, cleaned the house, and stopped at the bank.
He also loaded the Escape, which Hanna bought new seven years earlier, for the trip.
Finishing around noon, Hanna and Zaccone popped a bottle of champagne to celebrate
their seven-year wedding anniversary. After a couple of glasses each, Zaccone drank a
can or two of beer and Hanna drank a glass or two of wine. (Doc. 86-5 at 20, 73:1074:22).
Around five o’clock Zaccone and Hanna started their trip – Zaccone drove and
Hanna rode in the front passenger seat.
The couple stopped in Miami, where Zaccone drank about two glasses of Kahlua
with milk and Hanna drank about two glasses of wine. (Doc. 86-5 at 23, 81:24-82:22).
From there, Zaccone drove west to Naples, Florida. Zaccone and Hanna stopped again
in Naples for “a couple of drinks.” (Doc. 86-5 at 23, 84:1-23). The couple then continued
driving north until they reached Punta Gorda, Florida around 8:15 p.m. where everything
turned for the worse.
According to Zaccone, he and Hanna were fighting because he wanted to find a
hotel for the night, but Hanna wanted to continuing travel north on Interstate 75 – to
Tampa. (Doc. 86-5 at 24, 86:20-88:17). Hanna was allegedly “screaming” at Zaccone
not to get off the highway. (Doc. 86-5 at 24, 88:7-10, 89:15-18). Having “a real bad
feeling,” Zaccone said to his wife, “I really don’t like the way this is going, Judy, I think
we’re going to turn around and go back home.” (Doc. 86-5 at 24, 89:15-24).
2
The facts leading up to the car accident are based on Zaccone’s deposition testimony
and are viewed in a light most favorable to him. See Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991).
2
Zaccone eventually made a U-turn through the highway’s grassy median to head
home. (Doc. 86-5 at 24-25, 89:25-90:16). The U-turn placed the Escape in the left lane
of the southbound traffic. As Zaccone was accelerating, another car passed the Escape
on the right. He eventually caught up to that other car. (Doc. 86-5 at 25, 90:20-94:12).
At some point either immediately before or after the U-turn, Zaccone suggested to
his wife that they “ought to like just separate for a while.” (Doc. 86-5 at 29, 107:24108:11).
According to Zaccone, Hanna was displeased with his comment about
separating and/or his decision to return home – so she grabbed the steering wheel and
jerked it left.
(Doc. 86-5 at 26, 94:12-95:4, 107:9-108:16, 110:16-112:5).
Zaccone
steered the car to the right then the left in an attempt to keep the car on the road. (Doc.
86-5 at 26, 95:4-96:8). But this caused the Escape to fishtail at 74 and 82 miles per hour.
(Doc. 86-5 at 26, 95:4-97:3; Doc. 86-6 at 11). Zaccone attempted to correct and slow
down the Escape to no avail – he lost control.
The Escape rolled clockwise side-over-side at least three times for 300 feet and
landed on its tires in the median. (Doc. 86-5 at 27, 100:10-101:15; Doc. 86-6 at 6, 33).
The Escape had two front airbags, neither of which deployed during the rollover. It did
not have side-impact or side curtain airbags. (Doc. 86-3 at ¶ 4). Although Zaccone and
Hanna were wearing seatbelts, only Zaccone survived the accident. He suffered rib
fractures, ear laceration, and lung bruising. (Doc. 86 at ¶ 5).
Zaccone now brings this suit against Ford, claiming the Escape’s airbag system,
roof structure, and rollover protection system were defective. (Doc. 90). His causes of
action are negligence, strict liability manufacturing defect, strict liability design defect,
3
strict liability failure to warn, and negligent failure to warn. (Doc. 90). Ford now moves
for summary judgment.3 (Doc. 86; Doc. 92).
STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he 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). A
fact is material if it “might affect the outcome of the suit under the governing law[.]”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is genuinely
in dispute “if the [record] evidence is such that a reasonable jury could return a verdict for
the non-moving party.” Id. When deciding a motion for summary judgment, the court
views all evidence and draws all reasonable inferences in the non-moving party’s favor.
See Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010); Shotz v. City of Plantation,
Fla., 344 F.3d 1161, 1164 (11th Cir. 2003) (citation omitted).
The moving party bears the initial burden of showing that there are no genuine
disputes of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991). This burden is satisfied by “identifying those portions of
‘the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party
meets its burden, “the nonmoving party [must] go beyond the pleadings and by h[is] own
3
After Ford filed its first motion for summary judgment (Doc. 86), Zaccone filed, with the
Court’s leave, a Fourth Amended Complaint (Doc. 81). Ford then filed an amended
motion for summary judgment. (Doc. 92). The Court considers both motions, as well as
Zaccone’s responses.
4
affidavits, or by depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324
(internal quotations omitted). The non-moving party “may not rest upon mere allegations
or denials of his pleading, but must set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 248; see also Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 584-86 (1986) (stating the non-movant “must do more
than simply show that there is some metaphysical doubt as to the material facts”).
Moreover, summary judgment should be granted “against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322;
see also Walker v. Yamaha Motor Co., Ltd., No.6:13-cv-1546-ORL-37GJK, 2016 WL
7325518, at *11 (M.D. Fla. Feb. 16, 2016) (stating “[a]s to issues for which the non-movant
would bear the burden of proof at trial, the movant has two options: (1) the movant may
simply point out an absence of evidence to support the nonmoving party’s case; or (2) the
movant may provide affirmative evidence demonstrating that the nonmoving party will be
unable to prove its case at trial” (internal quotations and citations omitted)). This makes
sense because “there can be ‘no genuine issue as to any material fact,’ since a complete
failure of proof concerning an essential element of the non-moving party’s case
necessarily renders all other facts immaterial.” Id. at 322-23. Finally, the Court is mindful
that Zaccone is incarcerated4 and proceeding pro se in this case. See generally Erickson
4
Although tangential to this case, a jury found Zaccone guilty of driving under the
influence manslaughter in connection with the subject car accident. (Doc. 32).
5
v. Pardus, 477 U.S. 242, 94 (2007) (stating, in part, that “[a] document filed pro se is to
be liberally construed”).
DISCUSSION
Zaccone claims that Ford is strictly liable and negligent for (1) defectively designing
and manufacturing the Escape’s airbag sensors, roof structure, and rollover
prevention/protection system; and (2) failing to warn of these alleged defects. (Doc. 90).
Ford argues, however, that Zaccone has no evidence of negligence or a defective
product, and thus it is entitled to summary judgment.
Products can suffer three types of defects: design, manufacturing, and inadequate
warning. See Jennings v. BIC Corp., 181 F.3d 1250, 1255 (11th Cir. 1999). An entity
can be liable for each type of defect under theories of strict liability and negligence. Both
theories share the common elements of a defective product and causation. See O’Bryan
v. Ford Motor Co., 18 F. Supp. 3d 1361, 1366-67 (S.D. Fla. 2014) (“For claims in
negligence and strict liability, a plaintiff must prove that the product was defective . . .
[because i]n general, proof of a defect determines a breach of a duty under a negligence
theory and the presence of an unreasonably dangerous condition under a strict liability
theory.”); Cassisi v. Maytag Co., 393 So. 2d 1140, 1143 (Fla. 1st DCA 1981) (stating, “to
prevail on negligence or strict liability claims, a plaintiff must show that a defect was
present in the product, it caused the injuries complained of, and it existed at the time the
manufacturer parted possession with the product”). Here, Ford contests both common
elements, arguing that Zaccone has no evidence to show that the Escape was defective
6
at the time of the accident, and that any alleged defect or associated failure to warn was
the proximate cause of his injuries.5 (Doc. 90 at 8). The Court agrees.
The record is devoid of evidence of any defect. Zaccone has no expert evidence
to support his allegations, even though the Court twice extended the expert disclosure
and discovery deadlines to accommodate his pro se status and incarceration. (Doc. 80;
Doc. 88); see also Savage v. Danek Med., Inc., 31 F. Supp. 2d 980, 983 (M.D. Fla. 1999)
(“A defect must be proven by expert testimony” (citing Worsham v. A.H. Robins Co., 734
F.2d 676, 687 n.8 (11th Cir. 1984) (“expert testimony is often required to establish
defective design of a product”) (other citation omitted)). And, although the Escape has
been in Ford’s possession for nearly one year, no expert has inspected the car on
Zaccone’s behalf.
(Doc. 56 (ordering Ford to preserve and maintain the Escape
throughout the pendency of this litigation)). At most, Zaccone points to photographs of
the Escape post-accident and opines that there was a sufficient near-frontal collision to
trip the airbag sensors. But Zaccone is not qualified to make that determination. He also
cannot rely on the mere non-deployment of the Escape’s front airbags and the occurrence
of the rollover crash to establish a defect. See, e.g., Husky Indust., Inc. v. Black, 434 So.
2d 988, 995 n.8 (Fla. 4th DCA 1983) (stating “[t]he mere showing” that product exploded
was not sufficient to prove that the product was defective).
5
Because Ford only contests the common elements, the Court will limit its inquiry
accordingly. “Generally, however, a plaintiff asserting a products liability claim must also
establish the distinct elements under the distinct theory – each of which has its own
standard.” Walker, 2016 WL 7325518, at *12.
7
Zaccone’s answers to interrogatories (Doc. 86-2 at 5-6) and deposition testimony
fare no better in offering support to his defective product allegations. For instance,
Zaccone testified,
A
Q
A
Q
A
But this is how – what perpetuated this [case] to begin with is I’m
almost sure [my former attorney in Boca] told me that he was either
getting somebody, or maybe he talked over the phone, and he
described the situation and they said oh, it was probably the sensors.
He may have called somebody.
Okay, but you don’t know?
No.
All right, and you have no information yourself about an engineer
coming and inspecting the vehicle.
No, ma’am.
(Doc. 86-5 at 48, 183:3-14). He also testified to the Escape “driving fine” on the night of
the accident and that nothing with the Escape precipitated the rollover sequence. (Doc.
86-5 at 110:16-111:12).
In sum, Zaccone falls short of showing a defect in the Escape at the time of the
accident. See Jespen v. Lornamead, Inc., No. 8:12-cv-1811, 2013 WL 5944189, at *1
(M.D. Fla. Nov. 6, 2013) (granting defendant summary judgment because plaintiff
produced no admissible scientific or medical evidence to support his allegations of
negligence or product liability); see also Anderson, 477 U.S. at 252 (stating “[t]he mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient”
to defeat summary judgment); Celotex, 477 U.S. at 322. He simply has no competent
evidence to prove his theory of a defect. But even if he could clear that hurdle, he has no
evidence (medical or otherwise) that the alleged defects or a failure to warn caused his
injuries.
8
To the extent Zaccone argues that he is entitled to the inference of a defect, that
avenue is not available. (Doc. 96). Under Florida law,6 a defect and causation may be
inferred from evidence that the product malfunctioned during normal operation. See
Cassisi, 396 So. 2d at 1148. The inference is most applicable “in cases where the product
in question was so badly damaged by a malfunction that it makes it impossible for the
plaintiff to point to the exact citation that caused the accident with specificity.” O’Bryan,
18 F. Supp. 3d at 1369 (citation omitted). That is not the case here because the Escape
was neither destroyed in the crash nor unavailable for inspection. And, as explained
above, there is no indication that the Escape was defective, let alone malfunctioned. In
fact, the record suggests the opposite.
Alan Moore, an accident reconstruction expert hired by Ford, prepared a Vehicle
Accident Reconstruction Report (Doc. 86-6) in this case.7 Moore opined that there were
“[n]o mechanical or electronic defects” in the Escape at the time of the accident. (Doc.
86-6 at 12). He even concluded that the front airbags were not expected to deploy in the
accident because there was no front crash. (Doc. 86-3 at 5, 10). He stated, “[f]rontal
airbags are designed to deploy in certain impacts that produce a sufficient forward
deceleration, associated with crush damage to the front of the vehicle. No frontal crush
damage was observed on the Ford, and no source of front-to-rear impact force was
found.” (Doc. 86-6 at 11). He also noted, “[n]o evidence was found to indicate that the
airbag system performed improperly.” (Doc. 86-6 at 11). To reach these findings and
6
Because the Court’s subject matter jurisdiction is based on diversity of citizenship,
Florida law governs the merits of Zaccone’s claims. See Erie R.R. Co. v. Tompkins, 304
U.S. 64, 78 (1938).
7 Zaccone moved to strike Moore’s report on grounds of bias. The Court, in a separate
order, denied that motion.
9
conclusions, Moore inspected the Escape; reviewed Zaccone’s Third Amended
Complaint, deposition testimony and discovery responses; reviewed the Florida Highway
Patrol’s photographs, measurements, and diagram of the accident; and reviewed design
and engineering information related to the Ford Escape, the owner’s manual for the Ford
Escape, and Zaccone’s allegations. (Doc. 86-3). Against this evidence, Zaccone is not
entitled to an inference that the Escape was defective.
Even if Zaccone had the Cassisi inference, that “only obviates [his] need to prove
a defect; [he] still bears the burden to show that the defect caused his injuries.” Rink v.
Cheminova, Inc., 400 F.3d 1286, 1295 (11th Cir. 2005). But Zaccone testified that he has
no medical evidence that the alleged defects caused his injuries:
Q
A
Q
A
Q
A
Did any physician talk to you about how your injuries occurred?
No.
Did any of the physicians talk to you about whether an airbag would
have made a difference for any of your injuries?
No.
And has any physician ever told you that an airbag would have made
a difference for any of your injures?
No.
(Doc. 86-5 at 37, 140:20-141:5). At bottom, Zaccone is unable to show that had the front
airbags deployed, his injuries would have not occurred or would have been lessened.
One last point on the undisputed evidence – the Escape only had front airbags,
and not the optional side airbags and curtain airbags that deploy in certain rollover
accidents. (Doc. 86-6 at 5-11). And the Escape’s user manual addresses the airbag
supplemental restraint system (“SRS”):
The airbag SRS is designed to activate when the vehicle sustains a
longitudinal deceleration sufficient to cause the airbag sensors to close an
electrical circuit that initiates airbag inflation. The fact that the airbags did
not inflate in a collision does not mean that something is wrong with the
system. Rather, it means the forces were not sufficient enough to cause
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activation. Front airbags are designed to inflate in frontal and near-frontal
collisions, not rollover, side-impact, or rear-impacts unless the collision
causes sufficient longitudinal deceleration.
(Doc. 96-2). Although not dispositive on its own, this evidence further shows that Zaccone
will be unable to prove his case at trial.
In conclusion, Zaccone has neither shown any defect in the Escape nor produced
competent evidence of how that alleged defect, and any associated failure to warn,
proximately caused his injuries.
The Court, therefore, finds that Ford is entitled to
summary judgment.
Accordingly, it is now
ORDERED:
(1) Defendant Ford Motor Company’s Motion for Final Summary Judgment (Doc.
86) and Amended Motion for Final Summary Judgment (Doc. 92) are
GRANTED.
(2) The Clerk is DIRECTED to enter judgment accordingly, terminate any pending
motions and deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida this 17th day of April, 2017.
Copies: All Parties of Record
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