THE STATE OF SOUTH CAROLINA In The Court of Appeals

Steven Newbern and Claudia Newbern, Appellants,

v.

Ford Motor Company, Respondent.

Appellate Case No. 2016-002209

Appeal From Charleston County J. C. Nicholson, Jr., Circuit Court Judge

Opinion No. 5680 Heard June 4, 2019 – Filed August 21, 2019

AFFIRM ED

William E. Applegate, IV, of Yarborough Applegate, LLC, of Charleston, Kathl een Chewning Barnes, of Barnes Law Firm, LLC, of Hampton, and Stephen E. Van Gaasbeck, of Law Offices of Stephen E. Van Gassbeck, of Helotes TX, for Appellants.

Joseph Kenneth Carter, J r. and Carmelo Barone Sammataro, both of Turner Pa dget Graham & Laney, PA, of Columbia, Bettis Cantelou Rainsford, Jr., of Raymond J. Doumar, P.C., of Augusta GA, and Robert L. Wise, of Bowman & Brooke, LLP, of Richmond VA, for Respondent.

LOCKEMY, C.J.: Steven and Claudia Newber n sued Ford Motor Company alleging strict liab ility and negligence cl aims against Ford be cause of injuries Mr.Newbern suffered when the airbag in their vehicle deployed duri ng an accident. On appeal, the Newberns argue the trial court erred in granting Ford's motion for directed verdict. Finding a lack of evidence in the record to support the Newberns' claims, we affirm.

FACTS

On December 28, 2012, the Newber ns were involved in an accident with another vehicle driven by Stephen McGee. Claudia Newbern was diving th e couple's 2009 Ford Focus and Steven Newbern wa s riding in the passenger seat when McGee's vehicle hit the right front passe nger side of the Newberns' Foc us. The Newberns' driver and passenger airbags de ployed during the accident. Mr. Newbern suffered severe injuries to his face and eye resulting in loss of his ri ght eye. The Newberns filed suit against Ford in May 2013 claiming these injuries wer e the result of a defective airbag system. The Ne wberns claim Ford should be hel d responsible under strict liability and negligence theories.

During the trial before a jury , the Newberns called Ramaniyam K rishnaswami, a Ford employee, as an adverse witn ess to testify as to the desig n of the airbag sensing system. At the close of the Newberns' case, Ford moved for a directed verdict arguing the Newberns did not prove the existence of a design defect and did not present expert testimony on the defectiveness of the design or a feasible alternative design. The next day, September 16, 2016, the tria l court granted Ford's motion. The Newberns filed a mo tion for a new trial, which the trial court denied. This appeal followed.

STANDARD OF REVIEW

When ruling on a motion for dir ected verdict, "the trial court is required to view the evidence and the inferences that reasonably can be drawn th erefrom in the light most favorable to the party opp osing the motions and to deny th e motions where either the evidence yields more than one inference or its infer ence is in doubt." Law v. S.C. Dep't of Corr. , 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006). The appellate court applies the same standard in reviewing the tria l court's grant or denial of a motion for directed verdict. Allegro, Inc. v. Scully , 418 S.C. 24, 32, 791 S.E.2d 140, 144 (2016). "An appellate court will reverse the t rial court's grant of a directed verdict when any eviden ce supports the party opposing the directed verdict." Graves v. Horry-Georgetown Tech. Coll. , 391 S.C. 1, 7, 704 S.E.2d 350, 354 (Ct. App. 2010).LAW/ANALYSIS

The Newberns claim the airbags in their 2009 Ford Focus deploye d when they should not have due to a defectiv ely designed airbag system. T he Newberns brought this cause of action under the crashworthiness doctrine . As explained by our supreme court in Donze v. General Motors, LLC , 420 S.C. 8, 19, 800 S.E.2d 479, 485 (2017), the underlying pre mise of the crashworthiness doctrine is that "manufacturers are only liable fo r enhanced damages caused by a design defect when the defect does not cause the initial collision . . . ." "Liability for a design defect may be based on negligen ce, strict liability or warranty ." Priest v. Brown

, 302 S.C. 405, 411, 396 S.E.2d 638, 641 (Ct. App. 1990). The Newberns alleged strict liability and negligence as the bases of their claims.

Under South Carolina law, in order to recover in a products lia bility action, a plaintiff must prove: "(1) he w as injured by the product; (2) the injury occurred because the product was in a defective condition, unreasonably dangerous to the user; and (3) that the product a t the time of the accident was in essentially the same condition as when it left the hands of the defendant." Bragg v. Hi-Ranger, Inc.

, 319 S.C. 531, 539, 462 S.E.2d 321 , 326 (Ct. App. 1995). If the product liability action is based on strict liability when a design defect is all eged, "the plaintiff must prove the product, as designed, w as in an unreasonably dangerou s or defective condition. The focus here is on the condition of the product, without regard to the action of the seller or manufacturer." Id. at 540, 462 S.E.2d at 326 (citations omitted). S ee also S.C. Code Ann. § 15-73-10 (20 05) (imposing lia bility on seller for defective products). In Branham v. Ford Motor Company , 390 S.C. 203, 220, 701 S.E.2d 5, 14 (2010), our supre me court adopted the risk-uti lity test as the exclusive test in products liability design cases. Under the r isk-utility test, a product is "unreasonably dangerous and defective if the danger associated with the use of the product outweighs the utility of the product." Bragg , 319 S.C. at 543, 462 S.E.2d at 328. In order to s atisfy this test, the plaintiff must present proof of a feasible alternative design that would have made the product sa fer. Miranda C. v. Nissan Motor Co. , 402 S.C. 577, 591, 741 S.E. 2d 34, 42 (Ct. App. 2013).

If the design defect claim is brought under a negligence theory , the plaintiff bears the additional burden of demonstr ating the defendant "failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault." Bragg , 319 S.C. at 539, 462 S.E.2d at 326.

At trial and on appeal, Ford argued the Newberns failed to prov ide evidence of the design defect and under the required risk-utility test, the New berns failed toprovide evidence of a safer alte rnative design. During the tri al, the Newberns did not call their own automotive de sign expert. Instead, the Newb erns called Krishnaswami, who Ford designated as its representative and air bag design expert prior to the trial, to prove both negligent design and strict l iability.

Krishnaswami began working for Ford in 1993 and at the time of the trial, Ford employed him as a design analysis engineer, but he was not involved in the design of the 2009 Ford Focus. Krishnasw ami testified as to Ford's design process. He explained Ford performs hundreds of crash tests during the desi gn of a new car. Ford uses the crash test data to determine how to calibrate and where to put the airbag sensors, which tell the vehicle's restraint system it ha s been in a crash and whether an airbag should deploy . Krishnaswami testified to the jury that Ford purchases its sensors from Bosc h. Ford sends Bosch requirements for the sensors based on the crash tests it perfo rmed. The Newberns asked Krishnaswami about a specific crash test, 15978, which they purport and Krishnaswami agreed is the most similar to the Newbern's cr ash. Based on this crash test, Krishnaswami testified that if the passenger is wearing a seatbelt, the airb ag should be suppressed

–

meaning not deployed. The ca libration report for this crash also indicates no airbag deployment. Ford sent t his information to Bosch. Howev er, Bosch's calibration resulted in deployment for this type of crash. Kri shnaswami acknowledged, "[Bosch] did not - - they were not able to achieve the initial targets . . . ."

Krishnaswami also conceded airbags can cause injuries, includin g eye injuries. He acknowledged no one wants to hav e an airbag deploy when it is n ot necessary. Lastly, Krishnaswami testified as follows while being examined by the Newberns' counsel:

Q. Would it be unreasonably dangerous to provide a person with a system that will deploy airbags when they are not needed?

A. Yes. It depends on the occupant kinematics.

The Newberns assert Krishnaswami' s testimony along with the sup porting calibration report provide eviden ce of a design defect because the airbag deployed when Ford's own data indicated that it should not deploy. We d isagree.

Krishnaswami's testimony centered on Ford's design process. Kr ishnaswami did not offer testimony opining on the dangerousness or defectivene ss of the 2009 Focus's airbag system. Krishnasw ami explained the requirements Ford sent toBosch were "initial targets," ra ther than requirements. If the targets sent to Bosch are not met, then Ford studies t hose targets and determines whe ther it can accept the calibration. Krishnaswami acknowledged design changes coul d be made if the calibration does not mee t the target, but he advised the calibr ation has to take into account many crash modes. Kris hnaswami stated the crash modes are interconnected. The calibration in one crash mode can affect t he airbag's performance in another crash mode . Krishnaswami explained as follows:

The thing is if you delay the airbag for a certain crash mode you may end up delayi ng for other modes too. That's why the system has to be optimized. Then we go back and study is it okay or is it absolutely okay to deploy an airbag in this cras h mode based on the studies and tests and then we can accept it.

He added,

[Y]ou cannot look at one crash test in isolation and that's what I was trying to say . What you do in one crash affects other crashes because t he system is tied together. One crash mode is not independent of another crash mode. The signal pattern, even though it varies, it is very important to bring all the data together and look as [sic] a system as a whole. And that's why we would deploy in some modes where the initial target was not to deploy to begin with.

Ford accepted what it found to be the optimal calibration as Fo rd was satisfied with the overall target. Krishnaswami described the calibration acc epted by Ford as "good." Krishnaswami's testimony does not indicate that the re straint system was defective. To the contrary, his testimony serves to explain ho w Ford came to the calibration it adopted for the 2 009 Focus. In our review of Kr ishnaswami's testimony, in addition to the record as a whole, we did not fin d any evidence to support the Newberns' allegations that the airbag system was un reasonably dangerous or defective.

In addition, we do not find eviden ce of an alternative design t hat would have made the airbag system sa fer as required by Branham

. See Branham , 390 S.C. at 225, 701 S.E.2d at 16 ("[I]n a product liability design defect actio n, the plaintiff must present evidence of a reasonable alternative design. The plain tiff will be requiredto point to a design flaw in the product and show how his alter native design would have prevented the product from being unreasonably dangerous.")

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Krishnaswami testified that if Ford found the exceptions in th e calibration report unacceptable, Ford could move the position of the sensor, add r einforcement to the crash path, or increase the cras h threshold. The Newberns rely on this testimony to support a claim of a feasible a lternative design. However, Kri shnaswami did not offer any testimony as to how emp loying these alternatives woul d have made the airbag system safer or otherwise satisfied a risk-utility analysis. Furthermore, his testimony indicates that because the crash modes are interconne cted—redesigning the sensing could result in an ai rbag not deploying when Ford determined it should deploy. Therefore, modifications to the airbag system could re sult in a more dangerous product rather than a less dangerous product.

After reviewing the record, and more specifically Krishnaswami's testimony, we fail to find evidence of both de fective design and a feasibly a lternative design that would have made the airbag syste m safer. Therefore, the trial court did not err in granting Ford's motion for a dir ected verdict on the strict lia bility cause of action.

The Newberns also alleged Ford is liable due to its negligent d esign of the airbag system. However, the Newberns failed to present evidence of Fo rd's failure to exercise due care.

The Newberns assert Ford's devia tion from its own internal policies demonstrates its deviation from the standard o f care. They cite to Ford's haste in getting the Focus into production as the reason Ford was willing to make ex ceptions in the sensor calibration. Several Sout h Carolina cases support the N ewberns' position that deviation from a company's own policies is relevant to show the company deviated from the standard of care. See Madison ex rel. Bry ant v. Babcock Ctr.,
Inc. , 371 S.C. 123, 140, 638 S.E.2d 650 , 659 (2006) ("The standard of care in a given case may be established and defined by the common law, st atutes, administrative regulations, industry standards, or a defendant' s own policies and guidelines."); Peterson v. Nat'l R. R. Passenger Corp. , 365 S.C. 391, 397, 618 S.E.2d 903, 906 (2005) ("Although fe deral regulations provide t he standard of care, Respondents' deviation from their own internal policies i s, nevertheless, admissible as evidence that Respon dents deviated from that stan dard of care.").

The record provides little eviden ce of Ford's actual policies. The Newberns did not offer any experts to testify that Ford violated any policies or breached any standard of care. While Krishnaswami stat ed modifications are possible, he did not testify about a Ford policy requiring modifications when it did not mee t the initial targets.Moreover, the Newberns did not offer any evidence as to how For d violated its policies in the design of the 200 9 Ford Focus. Therefore, the trial court correctly granted Ford's motion for a dir ected verdict on the Newberns' negligence cause of action. 1

CONCLUSION

Based on our review of the record, and more specifically Krishn aswami's testimony, we are unable to find any evidence in the record to support a finding that the airbag system in the Ne wberns' Ford Focus was unreasonably dangerous and defective to the point that the use of the product outweigh s its utility. Therefore, the trial court corr ectly granted the directed verdi ct and its order is

AFFIRMED.

SHORT and MCDONALD, JJ., concur.

1 Ford also argued the lack of expert testimony as an additional ground for its motion for directed verdict. Specifically, Ford argued that ex pert testimony is required to prove defective design, citing to our supreme court 's decision in Watson

v. Ford Motor Company , 389 S.C. 434, 445, 699 S.E. 2d 169, 175 (2010). In light of our disposition of the case, it is not necessary to address this issue. See Futch v. McAllister Towing of Georgetown, Inc. , 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not address remaining i ssues when disposition of a prior issue is dispositive).