Opinion
Nos. 4D00-643, 4D00-980.
Opinion filed April 25, 2001.
Consolidated appeals treated as appeal and cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Leonard L. Stafford, Judge; L.T. Case No. 91-18632 02.
Affirmed in part, Reversed in part and Remanded for further proceedings.
Francis M. McDonald of Carlton, Fields, Ward, Emmanuel, Smith Cutler, P.A., Orlando; Cabaniss, Conroy McDonald, LLP, Orlando (withdrawn after filing brief); Leslie G. Landau and Robert A. Brundage of McCutchen, Doyle, Brown Enersen, LLP, San Francisco, California; for appellants/cross-appellees.
Thomas D. Lardin of Thomas D. Lardin, PA, Fort Lauderdale, for appellee/cross-appellant.
Hyundai Motor Company ("Hyundai") appeals after a jury entered a $6,500,000 verdict against it, which was later reduced to $3,000,000 on remittitur, on a wrongful death suit brought by Anthony Ferayorni, the personal representative of the estate ("Estate") of his 17-year old daughter, Paulette Ferayorni ("Paulette"). We reverse.
This case is before us for the second time. Estate originally initiated this action after Paulette was killed in a car accident on January 26, 1991. Ferayorni v. Hyundai Motor Co., 711 So.2d 1167, 1168 (Fla. 4th DCA 1998) ("Ferayorni I"). The accident occurred when her vehicle, a 1990 Hyundai Excel ("Excel"), was struck by another vehicle. It is undisputed that Paulette was not properly utilizing her seatbelt at the time of the accident. The Excel's seatbelt system consisted of a "manual" lap belt and a "passive" shoulder belt; however, Paulette was not wearing the lap belt, and she was wearing the shoulder harness under her arm, rather than over her shoulder. It is also undisputed that the cause of death was internal injuries caused by the pressure from the under-arm use of the seatbelt upon impact.
A "manual" seatbelt must be applied by the occupant, while a "passive" seatbelt is one which automatically moves into place around the occupant. Ferayorni I, 711 So.2d at 1173 n. 1.
At the first trial, Estate's theory of the case was that Hyundai was aware that smaller drivers experience "neck-cutting" from the shoulder harness and that some respond by wearing the shoulder harness under their arms. It raised various claims against Hyundai, including that the seatbelt mechanism was defectively designed and that Hyundai negligently failed to warn of the risk of improperly utilizing the seatbelt. After a week-long trial, the jury returned a verdict of no liability. On appeal, this court remanded for a new trial only on Estate's claim of strict liability failure to warn, due to improper jury instructions, but held that Estate was not entitled to a retrial on its other claims including negligent failure to warn. Id. at 1173.
The subsequent trial centered around Hyundai's three seatbelt warnings: two located on the visors and one located in the owner's manual. Dr. Robert Cunitz, Estate's expert on warnings, testified that substantial scientific literature had developed the various criteria by which warnings and labels can be evaluated. After analyzing Hyundai's three warnings against those criteria, Cunitz concluded that the warnings were all inadequate.Cunitz, however, believed the seat belt system had a design defect that induced passengers, specifically including Paulette, to wear the belt under the arm. He, therefore, made many comments, to which Hyundai objected, implying that the Excel's design was unsafe.
At the conclusion of trial, the jury found in favor of Estate and awarded $3,120,000 compensatory damages to Paulette's father and $3,380,000 to her mother for past and future pain and suffering. After a final judgment was entered based on the jury's verdict, the trial court denied Hyundai's post-trial motions dealing with liability, but granted Hyundai's motion for remittitur, reducing the total damage award to $3,000,000 for both parents, less set-offs. This timely appeal follows.
Hyundai initially argues that the trial court erred by not instructing the jury at the close of trial that the belt-design was previously adjudged safe by the jury in Ferayorni I. In support of this argument, Hyundai points out that even though Estate was not permitted to re-litigate the belt design, Cunitz made numerous comments implying that the Excel was designed unsafe. For example, the following exchange occurred during his testimony:
Q. Under your rationale, Hyundai, to not have been subject to your criticism, would have to put some kind of sticker or label all over that dashboard to satisfy your rationale of warning about safety-critical matters, correct?
A. Not necessarily, sir. They have the option of designing a safer vehicle and obviating and eliminating the need for warnings.
We disagree with Hyundai that its proposed instruction was the proper cure for the problems created by Cunitz's testimony because it would have been too confusing for the jury. However, the trial court should, on re-trial, instruct Cunitz, out of the presence of the jury, to refrain from making any comments relating to the belt design and to limit his testimony to strict liability failure to warn. The court should also emphasize that non-compliance could result in sanctions, including placing Cunitz in contempt and having his testimony stricken.
Hyundai next argues that the trial court erred by allowing Cunitz to offer an opinion on the adequacy of Hyundai's warnings without first holding a Frye hearing. We agree. Psychological conclusions which are partly based on scientific principles, studies and tests, and not solely on general experience, must pass the Frye "general acceptance" test. See Hadden v. State, 690 So.2d 573, 576 (Fla. 1997). This test requires that before expert testimony deduced from a novel scientific principle or discovery is introduced, the principle or discovery "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Flanagan v. State, 625 So.2d 827, 828 (Fla. 1993) (citing Frye, 293 F. at 1014).
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
We note that Hyundai preserved this issue with a proper objection.
In this case, Cunitz's opinions as to the adequacy of Hyundai's warnings were based, in part, on general psychological research, literature, and studies pertaining to warnings and labels. There was, however, no showing that those works were generally accepted in the scientific community. Because Cunitz's opinions were based on scientific literature, and not entirely on his own training and experiences, we hold that the trial court erred by admitting his testimony without first conducting a Frye hearing to establish the reliability of the scientific works upon which he relied. See Hadden, 690 So.2d at 580-81.
Last, we hold that the trial court erred by refusing to instruct the jury on the comparative negligence of the non-party, accident-causing driver and include that driver on the verdict form. Florida's comparative negligence statute, section 768.81, applies in strict liability cases. Standard Havens Prods. v. Benitez, 648 So.2d 1192, 1197 (Fla. 1994). It requires that fault be apportioned among all responsible entities who may have contributed to an accident, even though not all of them have been joined as defendants. Fabre v. Marin, 623 So.2d 1182, 1185 (Fla. 1993), receded from on other grounds, Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So.2d 249 (Fla. 1995). In this case, although the trial court knew from presiding over the first trial that the accident-causing driver was drunk, Hyundai presented evidence in the second trial only that the driver was negligent. Consequently, the trial court here should have included that driver on the verdict form. See Kidron, Inc. v. Carmona, 665 So.2d 289, 292 (Fla. 3d DCA 1995).
Section 768.81 provides,
(3) APPORTIONMENT OF DAMAGES-In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability. . . .
(4) APPLICABILITY —
(a) This section applies to negligence cases. For purposes of this section, "negligence cases" includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability. . . .
§§ 768.81(3), (4)(a), Fla. Stat.
In reaching this decision, we note that the trial court relied uponNash v. General Motors Corp., 734 So.2d 437 (Fla. 3d DCA), review granted, 749 So.2d 502 (Fla. 1999). In Nash, the estate of a deceased driver brought a products liability action against an automobile manufacturer after the driver was killed in a collision, alleging strict liability for a seatbelt design defect. Because the third district determined that drunk driving was an intentional tort, it held that the trial court erred by placing the non-party drunk driver on the same verdict form as the defendant. Id. at 440-41.
We, however, disagree with Nash. Although the act of driving while drunk qualifies as an intentional act, causing an accident while driving drunk is not as a matter of law an intentional tort. We, therefore, certify conflict with Nash on this point and instruct the trial court that it should, on re-trial, and upon request, place the accident-causing driver on the verdict form even if Hyundai submits evidence that she drove while drunk.
In all other respects, we affirm and, therefore, render moot the cross-appeal.
Klein and Shahood, JJ., Concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.