Day on Torts
The Kentucky Court of Appeals has ordered in a trial in a products liability case against Nissan for failure to equip at 2002 vehicle to have a rear camera or back-up sensors.
Sandra and Curtis Messerly alleged that the failure of their 2002 Xterra to have either device caused the death of their 19-month old son, who was killed when his mother backed-up the vehicle.
Plaintiffs sued Nissan alleging that the 2002 Xterra was defective and negligently designed because it was not equipped with a rearview camera or back-up sensors. Nissan moved for summary judgment on the ground that the 2002 Xterra was not defective or unreasonably dangerous as a matter of law. Nissan argued that the risk of striking children while backing a vehicle is an obvious, well-understood risk of operating any passenger vehicle and
is inseparable from the product’s inherent characteristics.
The Appellants presented the trial court with evidence that back-up technology, such as sensors and rearview video systems, exists and that Nissan had been developing the technology for years, as demonstrated by Nissan’s press releases related to concept cars. Nissan had equipped some of their Japanese models prior to 2002 with back-up aids.
Nissan also argued that
the Appellants’ evidence was concentrated in two areas: showing that advanced back-up aids were used in some Nissan vehicles marketed outside the United States and statistics showing the number of injuries in backing collisions. Nissan contended that the evidence offered by the Appellants did not raise an issue of material fact because Nissan’s motion for summary judgment did not question the feasibility of back-up aids and that the evidence of backing injuries only served to confirm that the risk was obvious and well understood by consumers. Moreover, the Appellants did not have an expert that would opine that a reasonable manufacturer would have employed the back-up aids in 2002, or that Nissan had violated an industry or governmental standard by not putting back-up aids on the 2002 Xterra.
The trial judge granted Nissan summary judgment. The Plaintiffs raised the following arguments on appeal:
(1) a genuine issue of material fact exists as to whether the design of the Nissan Xterra was unreasonably dangerous and that the trial court erred when it ruled that Nissan was entitled to judgment as a matter of law; (2) Texas federal courts have allowed two similar wrongful death backover cases to be tried by a jury, despite a Texas statute that creates a presumption of non-defectiveness where a vehicle meets government safety standards; and (3) the reasoning of the trial judge in deciding to grant summary judgment in favor of the defendants was inappropriate because the video recordings of court hearings show that the judge made factual findings that were not based on any evidence in the record, that the judge conducted an independent investigation of the blind zone on his own vehicle, and ignored Kentucky law on summary judgment.
The Court of Appeals ruled that a question of fact was present and remanded the case for a trial by jury.
The case is Messerly v. Nissan North America, No. 2010-CA-000717-M (KY Ct. App. Dec. 2, 2011).
My guess is that the Kentucky Supreme Court will take a look at this case.