726 S.E.2d 302
Va.2012Background
- Emily Funkhouser died in 2006 from a fire in a parked 2001 Ford Windstar with the engine off and no key in the ignition.
- Funkhouser (administrator) sues Ford for negligence and breach of implied warranties, alleging a key-off dash-fire risk Ford knew or should have warned about.
- Ford contends the Windstar fires were not caused by the same defect or circumstances and may have been occupants’ or external causes.
- Funkhouser designated expert Schulz to testify that fire originated in the instrument panel area and that Windstars (1999–2003) were likely dangerous for key-off fires, signaling notice to Ford.
- The circuit court granted Ford’s motion in limine to exclude evidence of seven other Windstar fires as not showing the same defect; summary judgment followed on stipulation; on appeal, the court largely reversed, allowing four fires (Mulkey, Tirone, Carf, Roth) to be admissible but excluding Arencibia, Bryan, Pell; experts may rely on admissible information per statute.
- Dissent by Justice Powell would affirm the trial court on substantial similarity requiring same or similar defects and dangers, arguing the record fails to prove identical defects across fires and that the majority overgeneralizes the similarity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of other Windstar fires to prove notice in failure-to-warn claim | Fires occurred under substantially similar circumstances and involved same dangers. | Fires do not share the same or similar defects/dangers; insufficient specificity. | Four fires admissible to prove notice; three fires inadmissible as not showing same/similar defect. |
| Scope of admissibility for expert testimony relying on other fires | Experts may rely on prior fires to establish industry standards and notice. | Admissible fires may not be used as predicates for direct testimony unless properly admissible; reliance allowed only if data is of a type normally relied upon. | Experts may rely on admissible information under 8.01-401.1; inadmissible fires cannot be used as predicates in direct testimony. |
| Legal standard for substantial similarity (notice) in Virginia products liability | Notice is established if prior incidents were under substantially similar circumstances and caused by same/similar defects/dangers. | Requires both substantially similar circumstances and same/similar defects/dangers; strict specificity required. | Majority adopts the substantial similarity framework; majority applies it to admit Mulkey, Tirone, Carf, Roth but exclude Arencibia, Bryan, Pell. |
| Effect on summary judgment given evidentiary rulings | Failing to admit fires prevents proving failure to warn; errors require reversal. | Summary judgment proper based on agreed order and exclusion of certain fires. | Reversed and remanded for consistent proceedings in light of evidentiary rulings. |
Key Cases Cited
- Jones v. Ford Motor Co., 263 Va. 237 (2002) (admissibility of other incidents to prove notice under substantial similarity)
- Lupica, 237 Va. 516 (1989) (same or similar defects/dangers required for notice; substantial similarity test)
- Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128 (1992) (substantial similarity tied to notice of dangerous product)
- Roll `R' Way Rinks, Inc. v. Smith, 218 Va. 321 (1977) (notice evidence; cautionary instruction for limited purpose)
- Featherall v. Firestone Tire & Rubber Co., 219 Va. 949 (1979) (duty to warn; reason to know vs should know distinction)
- Morgen Industries, Inc. v. Vaughan, 252 Va. 60 (1996) (unreasonably dangerous product; warning duties)