JAMES LOUIS ROBERTSON Et Al v. TOYOTA MOTOR CORPORATION Et AlJAMES LOUIS ROBERTSON Et Al v. TOYOTA MOTOR CORPORATION Et Al
Charles Robertson died in his sleep from carbon monoxide (“CO“) poisoning, with contributing toxic effects from his consumption of fentanyl and methadone, after he left his 2015 Lexus GS 350 running in the attached garage below his apartment. Robertson‘s father, individually and as the administrator of Robertson‘s estate (the “estate“), sued Mid-America Apartments and its property manager (“MAA“), as well as Toyota Motor Corp. and others involved in the manufacture, distribution, and sale of the vehicle (“Toyota“). The estate claimed, among other things, that MAA was negligent in failing to install a CO detector/alarm in Robertson‘s residence and
MAA moved for summary judgment and Toyota moved for partial summary judgment. The trial court granted MAA‘s motion and denied Toyota‘s. The trial court also excluded the testimony of three of the estate‘s expert witnesses, and allowed the expert testimony of another estate expert.
The parties filed cross-appeals, which are consolidated for our review. In Case No. A26A0988, the estate argues that the trial court erred in granting MAA‘s motion for summary judgment and in excluding the testimony of three of its expert witnesses. In Case No. A26A0989, Toyota argues that the trial court erred in denying its motion for partial summary judgment1 and in refusing to exclude the testimony of one of the estate‘s experts. For the reasons that follow, we affirm in Case No. A26A0988 and we affirm in part and reverse in part in Case No. A26A0989.
Case No. A26A0988
“We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” Usry v. City of Sandersville, 374 Ga. App. 439 (913 SE2d 72) (2025). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]”
Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.
“Under
It is undisputed that MAA was an out-of-possession landlord and that Robertson was a tenant at MAA Gardens under a written lease, the validity of which has not been contested. In its complaint, the estate asserted that MAA owed Robertson “a duty to maintain the property in a reasonably careful manner and to protect its occupants from unreasonable risk of harm[,]” and that MAA was negligent in failing to install a CO alarm.
MAA moved for summary judgment, arguing that under
The estate‘s appellate brief does not directly address the trial court‘s finding that it never alleged a failure to repair. Although we review an appeal from the grant or denial of a motion for summary judgment de novo, Usry, 374 Ga. App. at 439, we still must evaluate whether an argument was preserved for review. See OVIP, Inc., v. Blockbuster Textiles, LLC, 289 Ga. App. 276, 278(1) (656 SE2d 907) (2008) (finding, in appeal from grant of summary judgment, that this Court will not consider issues presented for the first time on appeal).
Here, as noted above, the complaint alleges only a failure to maintain the premises. In Gainey v. Smacky‘s Invs., Inc., 287 Ga. App. 529 (652 SE2d 167) (2007), this Court determined that an out-of-possession landlord‘s duty under
Pertinently, our Supreme Court has viewed a claim similar to the estate‘s as a maintenance issue, rather than a repair issue. In Martin, a tenant‘s guest dove into a swimming pool at a rental property, hit his head, and drowned. 271 Ga. at 121. Analogous to the lack of a CO detector in the instant case, the swimming pool lacked depth markers. Id. The Martin Court examined the landlord‘s statutory duty to repair, noting,
it is not alleged, and is not shown in the record, that the swimming pool ever was in a state of disrepair. A repair contemplates an existing structure which has become imperfect, and means to supply in the original structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be.
The estate points to Thompson v. Crownover, 259 Ga. 126, 129(4) (381 SE2d 283) (1989), a plurality opinion of the Supreme Court which found that a jury question existed regarding whether landlords failed to exercise reasonable care “to repair” a
public policy of this [S]tate supports the position advanced by The Restatement of Law Second, Property, § 17.6 which follows: A landlord should be subject to liability for physical harm caused to the tenant ... by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of: (1) an implied warranty of habitability; or (2) a duty created by statute or administrative regulation.
Id. at 129(3) (punctuation omitted; emphasis added).
The estate contends that the lack of a CO monitor was a “dangerous condition” that existed before Robertson took possession of the apartment, rendering it “unfit for residential purposes” regardless of whether any code violation existed.4 This is essentially an implied warranty of habitability argument.
The estate draws its implied warranty of habitability argument from Thompson, and bases this argument on
2. Relevant to its claims against MAA, the estate argues that the trial court erred in excluding the expert opinion of J. P. Gingras, a forensic accountant who prepared damages calculations related to Robertson‘s lost wages, benefits, and
3. Relevant to the enumerations involving Toyota, which will be discussed further in Case No. A26A0989, infra, the estate argues that the trial court erred in excluding the testimony of its expert witness, Peter Leiss, an automotive mechanical engineer whose testimony addressed CO exposure risk and remediation related to the Toyota Smart Key System, a push-button ignition with a key fob that was installed in Robertson‘s 2015 Lexus GS. We find no error in the trial court‘s exclusion of this expert‘s testimony.
We review a trial court‘s ruling on a motion to exclude expert testimony for an abuse of discretion. Miller v. Golden Peanut Co., 317 Ga. 22, 30(2) (891 SE2d 776) (2023).
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise, if: (1) The expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based upon sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.
“Rule 702(b) requires a trial court to sit as a gatekeeper and assess the reliability of proposed expert testimony, applying the principles identified in Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (113 SCt 2786, 125 LE2d 469) (1993), and its progeny.” Sterigenics US, LLC v. Mutz, 377 Ga. App. 624, 626(1) (923 SE2d 176) (2025) (punctuation omitted).8 Our Supreme Court has determined that
[r]eliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert‘s range of experience and training. There are many different kinds of experts and many different kinds of expertise, and it follows that the test of reliability is a flexible one, the specific factors neither necessarily nor exclusively applying to all experts in every case.
Nat‘l Emergency Med. Servs., Inc. v. Smith, 368 Ga. App. 18, 23-24(1) (889 SE2d 162) (2023). The estate bore the burden of establishing the reliability of Leiss’ expert testimony. Id. at 24(1).
The trial court, however, excluded Leiss’ proffered opinions, finding, “Leiss appears to have limited knowledge of the facts of this case and there are gaps in his knowledge of important facts and data that are specific to this case.” Specifically, the trial court found that although Leiss reviewed other incidents alleging deaths and injuries involving Toyota vehicles with push-button ignitions, he did not explain how he tested his hypothesis to support his conclusions in any meaningful way.
The estate first argues that the trial court‘s findings of fact and discussion of legal issues in its order are insufficient. The estate, however, cites to no legal authority
According to the estate, Leiss would have opined that Toyota could have foreseen the risk of CO poisoning from a driver inadvertently leaving the engine running after exiting the vehicle, that the Smart Key System design was unsafe and defective because it did not include an automatic shut-off feature, and that an automatic shut-off feature was technologically and economically feasible in the 2015 Lexus.
The record citations the estate provides show that (i) although Leiss did not examine Robertson‘s vehicle, he spoke to and reviewed the notes, photos, and videos
While the estate is correct that Leiss’ reliance on his assistant‘s examination of Robertson‘s vehicle is not necessarily a bar to the admission of his expert testimony, see Rainbow Real Invs. v. Red Oak Village Condo. Ass‘n, 376 Ga. App. 458, 473(3)(a)(ii) (919 SE2d 487) (2025) (“[O]ur law is clear that an expert may base his opinion on personal knowledge as well as on facts or data supplied by others.“);
Here, the estate has provided no information to this Court regarding Leiss’ methodology in assessing the design at issue. Indeed, the trial court‘s order specifically noted Toyota‘s contention that Leiss’ design defect opinion was based on insufficient facts and data and an unreliable methodology, and the court found that
Leiss also opined on the feasibility of Toyota replacing the Smart Key System with an automatic shut-off feature. The estate argues that this part of his opinion was based on “myriad facts and data[,]” specifically, that at least two Ford vehicles from the same model year as Robertson‘s Lexus had an automatic shut-off feature, that a 2013 GM vehicle had been recalled and retrofitted with such a feature, and that Toyota added a shut-off feature to some 2020 Lexus models simply by updating the software on the existing Smart Key System hardware. The estate does not show, however, that Leiss conducted any analysis regarding how the other manufacturer‘s vehicles that were examined compared to the 2015 Lexus in terms of the feasibility of installing or retrofitting the Lexus with automatic shut-off features, nor, as noted above, did the estate show that Leiss conducted any testing to see how or if this would
Finally, although Leiss deposed that this type of alteration would have been economically and technically feasible, when asked for the basis of his opinion, he did not offer a definitive answer for how Toyota specifically (as opposed to other automakers), could have done this in the 2015 model at issue here given that certain security features prevented such a change in part of the Lexus technology, nor has the estate directed us to any specific testimony or evidence regarding cost feasibility. See Banks v. Ici Ams., Inc., 264 Ga. 732, 736(1) n. 6 (450 SE2d 671) (1994) (recognizing that alternative safe design factors include the ability of the manufacturer to eliminate the dangers without making the product too expensive).
Given the apparent lack of factual specificity in Leiss’ opinion and the lack of evidence of the methodology undergirding his opinions, we cannot say the trial court abused its discretion in excluding Leiss’ testimony. See United States v. Gayden, 977 F3d 1146, 1153(II)(C) (11th Cir. 2020) (finding that appellate courts review the denial
Case No. A26A0989
After the estate filed its appeal in Case No. A26A0988, Toyota filed a cross appeal in Case No. A26A0989. In the orders appealed from in Case No. A26A0989, the trial court denied Toyota‘s motion for partial summary judgment on the issue of punitive damages, and denied Toyota‘s motion to exclude the expert testimony of one of the estate‘s expert witnesses.
3. Toyota argues that the trial court erred in denying its motion to exclude certain opinions from one of the estate‘s experts, William Vigilante, a human factors expert focused on making products and environments safer.
As outlined above, we review the trial court‘s decision to admit expert witness testimony for an abuse of discretion, Miller, 317 Ga. at 30(2), and the estate, as the
(a) As an initial matter, Toyota contends that the trial court erred because it “was invited to employ an incorrect standard to review the reliability” of the expert testimony. A mere “invitation” by one party or another asking a trial court to employ an incorrect standard does not amount to trial court error; trial court error occurs when a trial court takes an action that is erroneous.
Specifically, Toyota argues that the trial court erred “if the trial court contemplated” an outdated standard, that is, cases which predate the 2013 Evidence Code and which provide that the standard for assessing the admissibility of an expert‘s opinion is not whether the opinion is speculative, but whether it is “wholly” so. See, e. g., Layfield v. Dep‘t of Transp., 280 Ga. 848, 850(1) (632 SE2d 135) (2006). We note that this Supreme Court case has not been overruled and that the trial court‘s order found, without elaboration, that Vigilante‘s testimony was based upon sufficient facts and data, that his opinions were the product of reliable principles and methods, and
(b) Toyota‘s substantive contention of error is three-fold. It argues that the trial court should have excluded Vigilante‘s opinions on certain issues because (i) his standard of care analysis is unreliable, (ii) he failed to test his alternative warnings system properly, and (iii) his quantification of the risks of Toyota‘s warning system via the National Safety Council‘s [“NSC“] risk ranking system is unreliable.
(i) Toyota argues that although Vigilante “claimed” he tested Toyota‘s actions against the standard of care for a reasonably prudent product manufacturer and its responsibility to identify, assess, and mitigate hazards related to the danger posed by inadvertent exposure to CO from keyless ignition vehicles, Vigilante testified that he had not been asked to identify any other manufacturers for the 2015 model year that met this standard of care for implementing “an effective warning system.” It only argues — without clearly articulating why — that Vigilante‘s inability to discuss other manufacturers’ compliance or lack thereof with the standard of care rendered his opinion regarding Toyota‘s compliance unreliable. See Vatave v. Canopy Workforce Solutions, 372 Ga. App. 233, 236(1) n. 3 (904 SE2d 43) (2024)
(ii) Toyota next contends that Vigilante failed to test his proposed alternative warnings system properly because he did not test it with a representative sample of the target population, even though his own writings and other industry literature recommend that this be done.
Vigilante deposed, however, that Toyota had produced its own studies on audible warnings using human subjects, and that in addition to these, he also relied on standards and human factors guidelines for the design of audible and visual warning systems. According to Toyota, this means that Vigilante failed to satisfy Daubert, citing Kumho Tire Co., Ltd. v. Carmichael, 526 US 137, 152(II)(B) (119 SCt 1167, 143 LE2d 238) (1999), for the proposition that, to ensure the reliability and relevancy of expert testimony, the expert must “employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Although Toyota appears to be correct that Vigilante did not conduct his own studies using humans, it fails to explain why such studies were necessary to the reliability of his testimony in light of the fact that Vigilante noted that Toyota had its own study
Although Toyota concedes that “human subject testing may not always be required of every expert,” it argues that such testing was necessary in this instance. The automaker, however, fails to articulate why it was necessary here other than to reiterate that because Vigilante did not run such a test, his rigor fell below that required in his field. In other words, Toyota never presents an argument regarding why this lack of testing rendered Vigilante‘s opinion substantively unreliable. The estate contends that Vigilante‘s testimony had other indicia of reliability, including other types of testing of, for example, the decibel level of the warning beeps on Robertson‘s Lexus versus the ambient noise of the running engine; examination of data in light of industry standards; and various methods of testing his hypotheses. Vigilante also deposed that he tested the subject vehicle‘s warning system against the standard of care for the design and development of audible and visual warnings. See
(iii) Finally, Toyota argues that Vigilante‘s opinion is unreliable because he used the NSC‘s hazard ranking system to quantify the risks associated with Toyota‘s warning system.
Toyota contends that Vigilante‘s opinions applying the NSC ranking in the instant case are rendered unreliable because when he used components of the NSC system, he did so while working at IBM, which involved different issues than
Even assuming that Vigilante has never published using the NSC ranking system in the contexts at issue, Toyota cites no legal authority showing that an expert must publish on the specific topic about which he is to testify in order for his opinion to be admissible. As Daubert recognized, “The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.” 509 US at 594(II)(C) (emphasis added). Accord Butler v. Union Carbide Corp., 310 Ga. App. 21, 34-35(Appendix) (712 SE2d 537) (2011). Publication “is not a sine qua non of admissibility; it does not necessarily correlate with reliability[.]” Daubert, 509 US at 593(II)(C).
(iv) As to the factors outlined above in Division 3(b)(i), (ii), and (iii), which Toyota argues render Vigilante‘s specified opinions unreliable, based upon the authority in Kumho Tire, 526 US at 158(III), Daubert, 509 US at 594(II)(C), and Brady, 287 Ga. App. at 307(1), we find no abuse of the trial court‘s discretion in its decision to admit Vigilante‘s expert opinions. See Gayden, 977 F3d at 1153(II)(C) (recognizing that when reviewing the denial of a Daubert motion, appellate courts place “a thumb and a finger or two” on the trial court‘s side of the scale) (punctuation omitted).
4. Toyota contends that the trial court erred in denying its motion for partial summary judgment on the estate‘s punitive damages claims because, since the estate withdrew its claim for pain and suffering, such damages are not available for the remaining wrongful death claim. We agree.
Punitive damages are not available in wrongful death actions because Georgia courts recognize that a “double penalty” would result if recovery for both the full
The estate counters that, despite this Supreme Court precedent — which it argues should be overturned — it can bootstrap a punitive damages claim to its still extant claims for pecuniary damages for Robertson‘s funeral and ante mortem expenses. In support, the estate cites Woodbury v. Whitmire, 246 Ga. 349 (271 SE2d 491) (1980), which provides
[w]here a plaintiff pleads and proves actual pecuniary loss for which he or she seeks compensatory damages, and the tort complained of is of such an aggravated nature to warrant a charge on punitive damages, it is permissible for the jury to award both compensatory damages for the injury done and additional or punitive damages to either compensate for
wounded feelings or to deter the defendant from similar, wrongful conduct.
Id. at 350-51(3) (citation omitted). Woodbury, however, is not a wrongful death case. The estate also argues that funeral expenses have become “a true survival action” as they are viewed as debts incurred by the deceased that survive that person‘s death. Here, however, any claims for funeral and ante mortem expenses would have “grow[n] out of [Robertson‘s] wrongful death[,]” and, as such, would not be eligible for punitive damages. See Gay v. Piggly Wiggly S., 183 Ga. App. 175, 180(2) (358 SE2d 468) (1987) (emphasis omitted) (finding that where such expenses are derived from the wrongful death,
This refusal to permit double recovery is consistent with Engle, which the estate contends should be overturned. Engle is a nearly 100-year-old Supreme Court case holding that a wife suing for the homicide of her husband may not recover punitive or
In sum, in Case No. A26A0988, we affirm the trial court‘s grant of summary judgment to MAA, and we affirm its exclusion of the testimony of expert witness Leiss. In Case No. A26A0989, we affirm the trial court‘s denial of Toyota‘s motion to exclude some of the testimony of expert witness Vigilante, and we reverse the denial of Toyota‘s motion for partial summary judgment on the issue of punitive damages.
Judgment affirmed in Case No. A26A0988; judgment affirmed in part and reversed in part in Case No. A26A0989. Barnes, P. J., and Markle, J., concurs.