*1 CASES Argued and Determined

COURT OF APPEALS

OF North Carolina

AT Raleigh CODY BRANDON their CHEYENNE SALEENA STARK, Minor, STARK, Minor, Plaintiffs-Appellants v. FORD MOTOR Guardian ad NICOLE Litem, JACOBSEN, Defendant-Appellee a Delaware Corporation, COMPANY, No. COA09-286

(Filed 2010) 18 May Liability— 1. Products defense — alteration or misuse— seven-year-old child products liability

The defense of alteration or modification years injured by applicable age was not to child under seven capable age negli- because are not a seat belt children prove req- was unable as a matter of law to gence. Defendant foreseeability proximate inherent in the uisite element portion its N.C.G.S. 99B-3 defense. Liability— party

2. Products defense — alteration misuse — to action products liability denying

The trial court erred in a action alter- plaintiffs’ motion for a directed verdict on the defense of where a father who was not a action ation misuse back. alleged placed to have the seatbelt behind the child’s entity that the plain language of N.C.G.S. 99B-3 states responsible for the modification or misuse of the must apply. to the action in order for the defense to be STARK v. FORD MOTOR CO. *2 (2010)] 1 [204 3. Costs— denial of directed verdict reversed — award

costs reversed

An award of costs in favor of defendant was reversed where plaintiff’s the trial court’s denial of motion for directed verdict on products liability defense was reversed. Liability— injured by Products child seatbelt — evidence sufficient presented

Plaintiff sufficient evidence to survive defendant’s summary motions for judgment and directed verdict where a injured by child was her seatbelt in an accident. Plaintiffs offered evidence that tended to show that defendant manufactured a potential which had the injury to cause the and that defendant did designs not use alternative that were available and by products. used defendant in similar Judge concurring WYNN in the result.

Appeal by Plaintiffs judgment May from entered 15 2007 and April by orders entered 28 Judge Forrest D. Bridges Superior Court, County. Mecklenburg Appeals Heard in the Court of November 2009.

Wyrick Robbins & LLP, by Yates Ponton K. Edward Greene and Hampson; Tobias S. Gilbert, Komyatte, Ollanik & PC., by L. Gilbert, Plaintiff's-Appellants. James for Smith, Anderson, Blount, Dorsett, Jemigan, LLP, Mitchell & Kirk G. Christopher Warner and Kiger; R. and Bowman and LLP, by Brooke Robert L. Wise and Sandra Ezell, Giannone Defendant-Appellee. McGEE, Judge.

Cheyenne Cody Saleena Stark (Cheyenne), Brandon Stark Cory (Cody), and Christian Stark (Cory), through their then Guardian Ruby Litem, Squires ad Stark; Stark, and Gordon (Gordon Walter Jr. Stark), complaint filed a April on 2004 against Ford Motor Company (Defendant) alleging, alia, Cheyenne inter suffered a spinal cord caused design defective of the seatbelt she was using during parents’ an accident involving her 1998Ford (the Taurus Taurus) April complaint on 23 2003.The alleged Cody further suf- fered injuries, “severe including abdominal damage spleen.” to his Cory The claims of Gordon Stark and dismissed, were later as dis- cussed below. COURT OF APPEALS

IN THE v. FORD MOTOR CO. STARK Cody passengers in the back seat of Cheyenne were accident, Cheyenne was April the time of the on 23 2003. At Taurus years years Cody nine old. Each was secured old and was five Neither three-point designed Defendant. Taurus seatbelt three-year-old Their Cody sitting in a booster seat. nor was seat. Cory, sitting in the middle of the back sibling, was Taurus. mother, Tonya Stark, driving Cheyenne’s seat. father, Stark, passenger was a the front Cheyenne’s Gordon speed at a Tonya parking the Taurus in a lot operating Stark was suddenly accelerated. twenty-six per hour, when the vehicle miles pole. Taurus, light with a *3 of the and it collided She lost control Cheyenne walk. collision, was dazed but able to Following the later, hospital a short time However, Cheyenne was taken to the after body Cheyenne feeling lost all in her complained leg pain. later she cage. her rib below “[w]illful, engaged in complaint alleged that Defendant

The designing the seatbelts and [w]anton [r]eckless [m]isconduct” physical cogni- and that Defendant’s actions caused the Taurus and Cheyenne Cody. complaint alleged also that injuries and The tive to a defectively designed in that it caused Taurus was engine De- to the collision. acceleration” which led “sudden unintended defective denying negligence and generally an answer fendant filed Tonya were the Stark and Gordon Stark design asserting and that alia, the affirma- any injuries. alleged, also inter Defendant of the Taurus modification or alteration tive defenses of unauthorized warnings instructions or components failure to follow or its and by given Defendant. February summary judgment on 17 for

Defendant filed a motion De- August granting filed an order on 2005. The trial court Cheyenne, cognitive to (1) motion as to: the claim fendant’s unintended acceleration claim on the sudden (2) based personal injury order, trial court also dismissed Taurus. In its Cory. The trial court denied Stark and asserted Gordon claims summary as to the remainder judgment motion for Defendant’s material fact. genuine issues of claims, finding that there remained on 15March Litem), ad filed a motion Jacobsen, (Guardian Nicole ad Litem in the action. as Guardian seeking to be substituted however, granted; to when this motion record is unclear as Cheyenne were as follows: trial, plaintiffs in the action time of at the STARK v. FORD MOTOR CO. Cody Stark, by Litem, Stark and Saleena Brandon their Guardian ad (Plaintiffs). Jacobsen Nicole presented trial, expert testimony injuries

At that Plaintiffs design suffered were caused or enhanced defect spool” in using. known as “film the seatbelt she was This defect slack in portion allowed the seatbelt to cause shoulder of the belt Cheyenne’s slip position off shoulder and come to rest in lower body, during on her such that she bent over the seatbelt the accident. spool” resulting by Cheyenne It “film was this movement that Cheyenne’s injuries. Plaintiffs asserted as the cause of Plaintiffs fur- presented may ther prevent evidence that the use of certain devices spool” “film occurring during from accidents retracting or other- any wise restricting excess belt material during collision. The equipped any Taurus was not with of these devices. evidence,

At the close of Plaintiffs’ Defendant moved for grounds present directed verdict on the that Plaintiffs failed evi- “testing any dence of alleged show of their designs alternative have would made the Taurus safer in this crash.” Defendant its renewed directed verdict motion at close of all the evidence. The trial court both denied of Defendant’s motions. presented Cheyenne’s injuries

Defendant trial evidence at improper were caused her Specifically, use of seatbelt. De- *4 Cheyenne asserted wearing fendant was the seatbelt with the portion shoulder behind her argued that, back. Defendant because Cheyenne by was portion not restrained belt, shoulder spool” “film effect not injuries. could have been the of her cause spool” cause, preventative Because “film was not the use of the devices offered Plaintiffs have would made no difference as to Cheyenne’s injuries. Instead, presented Defendant three theories of Cheyenne’s injuries: causation for (1) the itself; (2) accident Cheyenne’s improper use of the wearing seatbelt the shoulder belt back; (3) Cheyenne’s behind her and non-use seat, of a booster con- trary to Defendant’s instructions.

Plaintiffs filed a motion for a directed verdict as to two of Defendant’s affirmative defenses. In their motion, specifi- Plaintiffs cally requested a directed as verdict to Defendant’s affirmative pursuant defenses or “Alteration Modification of Product” to 99B-3, “Adequate Stat. Gen. and Warnings pur- or Instruction” respect suant to N.C. Gen. Stat. 99B-4. With requested to their verdict 99B-3, argued that, directed based on N.C.G.S. § Plaintiffs OF APPEALS

IN THE COURT CO. STARK FORD MOTOR parties to Tonya not Stark and Gordon Stark were because Cheyenne age was a minor under the of seven action, because and years incapable negligence, N.C.G.S. legally and was therefore provide an affirmative defense to Defendant. After § 99B-3 did not Defendant, the court Plaintiffs and trial hearing arguments from Plaintiffs’ motion. denied jury. jury The answered questions to the

The trial court submitted questions, pertinent part, in as follows: those unreasonably Company Motor act 4. Did the Defendant Ford component parts, proxi- Ford Taurus its designing the 1998 mately injury Cheyenne causing to Stark? enhanced Answer: [Yes] issue, 5; you to if you go to then Issue answer answer “Yes” this

[If any issue, “no” this then do not consider further to issues.] enhanced-injuries Cheyenne using Were the to Stark caused contrary any express to the 1998 Ford Taurus a manner adequate warnings which were known or should instructions by the have been known user?

Answer: [No] any you issue, do fur- to this then not consider answer “Yes”

[If issue, you go to issues; if answer “no”to this Issue ther 6.] an injuries to Stark caused 6. Were the enhanced Ford Taurus? of the 1998 alteration modification Answer: [Yes] you “yes’ issue, this then do not consider answer to [sic] [If issue, go Issue issue; you if “no” this then to

further answer 7.] Taurus, product, the jury that Defendant’s further determined injury Cody. The trial proximate of enhanced not the May 2007, on 15 order- judgment entered favor Defendant court Defendant, dismissing nothing from that Plaintiffs recover ing awarding The trial complaint, and costs Defendant. Plaintiffs’ *5 and jurisdiction purposes determining the of costs retained court expert witness fees. judgment notwithstanding ver- filed a motion for

Plaintiffs May The trial alternative, on 24 2007. dict, for a new trial or in the April on 23 denying Plaintiffs’ motion filed an order court STARK v. CO. FORD MOTOR $135,634.74 Defendant filed a motion for costs in the amount of August on 8 on grounds jury of “its successful defense and April 2008, In granted verdict”. an order entered 28 the trial court part Defendant’s $45,717.92. motion but reduced the award to The motion, trial court stated that “after consideration of the affi- davits, parties, arguments counsel, materials submitted of record, other matters that prevailing party of was the [Defendant] should, at trial and that certain costs discretion, [c]ourt’s be awarded to The trial court awarded these costs [Defendant].” “against Plaintiffs and Nicole Jacobsen as Litem, Guardian ad jointly severally].]” appeal

Plaintiffs from the trial judgment May court’s entered 15 2007, the trial denying court’s order judgment Plaintiffs’ motion for notwithstanding trial, or a verdict new and the trial court’s order granting Defendant’s motion for award of costs. Defendant cross- assigns argues error and denying the trial court erred De- summary fendant’s judgment motions for and directed verdict as to inadequate design Plaintiffs’ claims.

Directed Verdict ^[1] Plaintiffs first argue that the trial court erred denying their motion for a directed verdict on the issue of alteration. years Because was five old at the collision, time legally incapable Plaintiffs contend she modifying altering under N.C. Gen. Tonya § Stat. 99B-3. Because neither Stark nor Stark was a action, Gordon to this Plaintiffs contend part no misuse or provide modification on their would a defense under argue, N.C.G.S. 99B-3. therefore, Plaintiffs that the trial court should have granted a directed verdict as to Defendant’s N.C.G.S. 99B-3defense as question described number to wit: whether injuries Cheyenne “the enhanced Stark caused an alter [were] ation or modification of agree. the 1998Ford We Taurus[.]”

Our Court reviews trial court’s on a ruling motion for directed County, verdict de novo. Denson App. 408, v. Richmond 159N.C. standard review of directed verdict is whether evi- dence, taken in light most party, favorable the non-moving is sufficient as a jury. matter law to be submitted to the When determining the correctness of the denial for directed verdict judgment notwithstanding verdict, question is whether

IN THE OF APPEALS 7 COURT v. FORD MOTOR CO.

STARK App. (2010)] 1 N.C. [204 jury to sustain a verdict in the

there sufficient evidence present question jury. non-moving party’s favor, or to a for the a judgment notwithstanding the motion for the verdict is Where judgment be entered in accordance with movant’s motion required verdict, has earlier motion for directed this Court sufficiency reviewing use of same standard of evidence both motions. Lilly Co., 314, 322-23, 133, 138 v. Dennis 330 N.C. 411 S.E.2d

Davis omitted). a trial errs in sub- (1991) (internal citations Where court jury, Court has the mitting an affirmative defense to our discretion 488, Cicogna Holder, 490, trial. 345 N.C. to remand for a new However, the issue which was erro- (1997). S.E.2d “[i]f neously verdict, did not the entire there should not submitted affect trial on all issues.” be a new Id. seq., liability govern products

N.C. Gen. Stat. 99B-1 et which §§ Carolina, provide to a actions North defense 99B-3, N.C. Stat. as follows: claim in Gen. of a held liable in

(a) No or seller shall be manufacturer any product liability proximate per- where action death, an alter- injury, damage property or was either sonal than the or modification of the other ation seller, which alteration or modification occurred .manufacturer or or such left the control of such manufacturer after seller unless: or was in accordance with the

(1) The alteration modification specifications or of such manufacturer such instructions or seller; or express with the

(2) The alteration modification made manufacturer or such seller. consent such section, or modification purposes For of this alteration (b) formula, function, or use of the changes design, includes tested, intended originally designed, product from that failure observe routine care manufacturer. It includes ordinary maintenance, wear and tear. but does not include (2009). Stat. 99B-3 Gen. an was a of whether act Our Court has held that a determination analysis proximate injury must an of “foresee- cause of an include Co., ability.” Seegars 128 N.C. Hastings Pratt v. Fence STARK v. FORD MOTOR CO. Because the alteration or modifica- *7 proximate tion of must be a cause of an in order to provide 99B-3, analyze a viable defense under N.C.G.S. we must § foreseeability. Id., of issue 493 at 784. S.E.2d Foreseeability injurious consequence of some of one’s act is an proximate cause, anticipation essential of though element particular consequence required. is not While the usual test is person ordinary “a prudence whether of reasonably could have injurious . .” foreseen . some result from the use unintended of product; where, present case, as in the the actions of a minor issue, foreseeability child are at of test is whether a child of “age, discretion, capacity, similar knowledge, experience” and injurious could have foreseen some result from his or use her of product. Id., (internal 493 S.E.2d at 785 omitted). law, citations of “As a matter years incapable child under 7 of age is negligence.” of v. State Harrington, 663, 666, 260 452, 133 S.E.2d See also Equity Allen v. & Management Corp., App. 706, Investors 56 N.C. 709, 623, (“An years S.E.2d 625 (1982) infant under 7 of age is con- clusively presumed incapable contributory to be of negligence.”) (citation omitted). argue that,

Plaintiffs because years was under seven of age accident, at the time of the she was incapable negligence of was therefore unable “foresee” that modification alteration proximate could be a injury. her agree. of We Hastings, In our Court held that provide § N.C.G.S. 99B-3 did not a defense to a manufacturer on the following eight-year-old facts. An injured child was playing while on gate a fence and constructed Hastings, defendant. 128 N.C. at 493 S.E.2d at 783. plaintiff While the minor hanging gate, was on the another child gate caused the gate rolled, to roll. Id. When the two of the minor plaintiff’s fingers caught were in a amputated. roller and were Id. The plaintiff’s mother, minor as guardian child, ad litem for the a neg- filed ligence against action the gate Id. manufacturer. ar- defendant gued provided N.C.G.S. 99B-3 plaintiff’s a defense to the claim in that the minor child “used the in a fence manner other than as it originally tested, was designed, or intended the manufacturer to be Id. eventually at at S.E.2d 784. The trial court dis- used[.]” plaintiff’s missed the claims. Id. at 493 S.E.2d at 783. APPEALS IN THE COURT OF MOTOR CO. STARK FORD plain- minor allegation the defendant’s of “the Our Court held that ‘by horseplay on the fence contributory negligence engaging tiff’s pro- the defense gate . . . .’ was sufficient to raise and cantilevered at We then cited Id. at vided G.S. § 99B-3[.]” ages applicable to a minor child between the standard of care years proximate cause and held that seven and fourteen “[i]ssues conduct, application are foreseeability, involving of standards ordinarily jury appropriate under instruc- best left for resolution 170,493 S.E.2d at 785. tions from the court.” Id. at principles negligence to the N.C.G.S. apply We the same plaintiff in analysis present case. While the minor 99B-3 us, Cheyenne was Hastings years old, in the case before eight subject years to a different standard of care. As five old and therefore *8 apply, when ana- above, appropriate standard of care to discussed years is that such age, of a child under seven lyzing negligence Harrington, law, incapable negligence. are, as a matter of children Cheyenne Therefore, because was 260 N.C. at 133 S.E.2d at 455. years alteration age alleged at the time of the a child under seven prove unable, law, a matter of to modification, Defendant is as or foreseeability proximate requisite inherent element foreseeability, and portion of its N.C.G.S. 99B-3 defense. Because § in Defendant’s defense as to proximate cause, lacking therefore any inapplicable to alteration or modi- Cheyenne, N.C.G.S. 99B-3is § Cheyenne herself. performed have been alleged fication Party Modifier

[2] Plaintiff next addresses Defendant’s argument that Gordon Stark Cheyenne by improperly placing Tonya modified the seatbelt or Stark argue back. Plaintiffs shoulder belt behind her in the seat with the because neither Cheyenne entitled to a directed verdict was still action, required Tonya party” “a to the as Stark was Gordon Stark nor Gen. Stat. 99B-3. § provides pertinent part that: in N.C.G.S. 99B-3 any be held liable or seller of a shall No manufacturer personal proximate cause of the where a action property was either an alteration injury, death, damage manufac- by party other than the modification after the or modification occurred seller, which alteration turer or . . . seller. manufacturer or such product left the control of such added). (emphasis N.C.G.S. 99B-3 IN THE COURT OF APPEALS

STARK v. FORD MOTOR CO. argues Defendant that the trial judgment, court’s based on the jury’s verdict, supported by evidence that Gordon Stark misused Cheyenne the rear putting seatbelt in the backseat buckling her seatbelt with the shoulder belt behind her Defending back. against verdict, Plaintiffs’ motion for directed argued Defendant at trial importantly, specific what is the evidence in “[m]ore this Cheyenne case belt; about who used put Stark’s Gordon Stark. He her day. in that belt on that He is the one who affixed her to this vehicle. He’s the product.” one who used the argue Plaintiffs that N.C.G.S. inapplicable § 99B-3is alleged per- alterations or modifications Tonya formed either Stark or Gordon Stark in placing the seatbelt improperly, Tonya because neither Stark nor Gordon party Stark is a to this action. trial,

At the time of Tonya neither Stark nor Gordon Stark parties were to the Stark, action. Gordon originally plaintiff, a named personal injury had his claims August dismissed on 22 2006when the trial granted court summary Defendant’s motion for judgment. Defendant filed motion for third-party leave to file a complaint against Tonya Stark third-party and Gordon Stark as defendants on 21 August 2006. Defendant’s granted motion was in an order filed 27 October that, with the condition “if the third defendants are unable to obtain prepare counsel who can participate for and the trial scheduled for October . . then . the third action shall be SEVEREDfrom the instant action and tried at a later date.” third-party Defendant did not complaint file naming as third- *9 party Tonya defendants Stark and January Gordon Stark until 2007. trial, At the time parties of the were as follows: Cody, by guardian their litem, ad Jacobsen, Nicole plaintiffs, as and Ford Company Motor as defendant. rely

Plaintiffs on application three cases involving the of N.G.C.S. 99B-3, contending § that cases, all three was, the ‘modifier’ “[i]n may been, party-defendant have a in suit, the and the cases do not by address non-party modification a as a defense.” These cases are: Edmondson v. L-P Co., Inc., Gas App. 381, 182N.C. 642 Macclesfield S.E.2d (2007);Phillips 265 v. Management, Restaurant App. 146N.C. 203, 552 S.E.2d (2001); 686 Shaw, and Rich v. App. 489, 98 N.C. 391 S.E.2d 220 Phillips, Wenote that in plaintiff the named three in defendants their action: a restaurant management company, Taco Corp., Bell and a employee. restaurant Phillips, App. 207, 146N.C. at 552 plaintiff S.E.2d at 689. pursue The sought to a claim under Chapter 99B, and we held precluded that he was from pursuing this 11 THE APPEALS

IN COURT OF v. FORD MOTOR CO. STARK App. N.C. 1 a by product, the fast food grounds 99B-3on the that § claim N.C.G.S. produced by management company and Taco Bell and item, was spit defendant-employee Phillips, into it. modified when the was App. 218-19, Therefore, at the modifier at 552 S.E.2d 696. Phillips party was a the action. plaintiff against action

Likewise, Edmondson, filed an performed a company that the manufacturer of a heater and a both at 182 N.C. repair” on that heater. at “negligent ruling the manufacturer upheld Our Court the trial court’s that by grounds defense that protected the N.C.G.S. 99B-3 on was liquified petroleum improperly use with had modified for heater been 389-90,642 at it control. Id. at S.E.2d gas after left the manufacturer’s the modifier opinion is unclear on the issue whether 271-72. requesting filed a action, but Plaintiffs motion was a judicial portion the defendant manufacturer’s take notice of a we as referring Court in Edmondson to modifier brief filed with our following judicial of the grantWe that motion and take notice party. man subject was . . . and heater sold left statement: “the [defendant plaintiff’s] possession, was at but before it installed [the ufacturer’s] repair residence, company] so that it modified defendant was [the Liquified instead of Natural (L-P) be with Petroleum Gas it could used App. 730, 735, 570 S.E.2d Cooper, 153N.C. See Whitmire Gas.” may judicial public (“this n.4 take notice (2002) [C]ourt judicial system”) (citation of other courts within state records Benfield, App. 453, S.E.2d 76 N.C. omitted); see also State v. taking judicial of “the records (our n.1 notice (1985) Court Therefore, was also Court”). the modifier in Edmonson this the action. this Court did not address whether

Defendant counters that cases party to action in of the three cited was a “modifier” require does not Plaintiffs, “the defense because 99B-3] [N.C.G.S. rely, the Rich, upon which Plaintiffs Wenote the third case it.” performed whether the modification opinion unclear However, the Rich, App. 489, 391 S.E.2d 220. not. 98 N.C. party or See not in Rich did concerning application defense argument party. Id., requirement See that the modifier be turn, here, as on the appears This to have 492, 391 at 222-23. issue at S.E.2d Defendant contends previously our Courts. not been determined *10 “is concerned § under N.C.G.S. 99B-3 the enumerated defense properly some- product was and whether only with used whether product.” or altered misused ‘other than the manufacturer’ one STARK v. FORD MOTOR CO. argument plain language

Defendant’s overlooks the statute. provide The statute not does defense where “someone ‘other than product],]” the manufacturer’ altered or as misused Defendant Rather, provides party contends. N.C.G.S. 99B-3 a defense § where “a other than the manufacturer or seller” causes the alteration modi- or (emphasis added). § fication. N.C.G.S. 99B-3 To “party” the extent that Defendant contends the use of the term unclear, in N.C.G.S. is 99B-1, § 99B-3 we note that in N.C. Gen. Stat. § provides Chapter which 99B, definitions terms used in “Claimant],]” “Manufacturer],]” terms and “Seller” are using defined phrases person “a entity],]” person or other “a entity],]” or “any entity],]” respectively. individual N.C. Gen. Stat. 99B-1 § Assembly Had apply the General intended N.C.G.S. 99B-3to § any person, entity, to individual or it would have used such terms. See County, App. 30, Fabrikant v. Currituck 42-43, 19, 28 (2005) (citing States, Russello v. United 464 U.S. L. Ed. 2d 24 (1983) (“We concluding refrain from here that the dif- fering language in the two subsections has meaning the same in each. presume We not simple would to ascribe this difference to a mistake draftsmanship.”)). Instead, us, in the statute before the General Assembly “party,” independent used the term legal signifi- which has “party” cance. We note part is defined as who takes in a “]o]ne .... against transaction brought].]” whom a lawsuit is [or] [o]ne Dictionary (9th Black’s Law Therefore, plain 1231-32 ed. 2009). language of entity N.C.G.S. responsible § 99B-3states that the for the modification or alteration of the must be to the action in order apply. for the defense to Because Defendant asserts that the performed by modification was Stark, Gordon who is not a case, the action in this Defendant is unable to an establish N.C.G.S. 99B-3defense as to an alleged § such modification. above,

As discussed proper directed verdict is when the evi- dence, light viewed in the most favorable to non-moving party, insufficient, of law, question as a matter jury. submit the to the Davis, 322-23, 330 N.C. at 411 S.E.2d at 138. Because Defendant is unable, law, support as matter an N.C.G.S. 99B-3 defense as Cheyenne, Tonya Stark, to either Stark, or Gordon Plaintiffs are en- titled to a directed verdict as to Defendant’s N.C.G.S.§ 99B-3defense. Wetherefore trial denying reverse the court’s order Plaintiffs’ motion for directed verdict as to Defendant’s N.C.G.S. 99B-3defense.

In light holding, of our we need not arguments address Plaintiffs’ concerning judgment notwithstanding verdict, entry of judgment, *11 THE APPEALS

IN COURT OF

STARK v. FORD MOTOR CO. App. (2010)]

[204 jury that Defendant or motion for a new trial. Because the found unreasonably and its com- designing in the 1998Ford Taurus “act[ed] Cheyenne parts, proximately ponent causing enhanced entry Stark,” and remand for of judgment we reverse the trial court’s a trial on the issue of judgment favor of Stark and for Cicogna, at damages. 345 N.C. at 480 S.E.2d

Costs costs ^[3] Plaintiffs next against Guardian ad Litem argue that the trial individually. court erred in Because we reverse awarding court judgment, awarding the trial court’s we vacate the trial court’s order (2009) (“To costs in favor of Defendant. See N.C. Gen. Stat. 6-1 § judgment given, allowedf.]”). for whom is costs shall be Cross-Assignments Error Defendant’s ^[4] summary judgment Defendant argues that the and directed verdict. We trial court erred by denying disagree. its motions As dis above, proper evidence, cussed a directed verdict is when the viewed light non-moving party, most favorable to the is insufficient as question jury. Davis, a matter of law to submit the to the 330 N.C. at 322-23, Summary proper where, taking judgment 411 S.E.2d at 138. non-moving party, the light the evidence in the most favorable to the law. Davis v. moving judgment is entitled to as a matter of 663, 665-66, Pines, 116 N.C. Town Southern argues that North Defendant cites N.C. Gen. Stat. 99B-6 liability requires show, alia, inter act Plaintiffs to Carolina’s “adopt ‘safer, practical, feasible, and other- that Defendant failed to prevented design’ that would have wise reasonable alternative injuries, design was ‘so [Cheyenne’s] the Taurus’s minimized that] [or facts, person, aware of the relevant unreasonable that a reasonable ” design.’ this Defendant would not use or consume a testimony specifically expert regarding alterna- argues that Plaintiffs’ support” because designs methodologically-sound tive “lacked However, experts support their conclusions. testing cited to no authority support that Plaintiffs’ Defendant cites no its contention testimony insufficient, expert witness of this evidence was nor that required a directed verdict. “testing” nature in order to withstand part: provides pertinent N.C. Gen. Stat. 99B-6 any prod- shall be held liable (a) No manufacturer of inadequate design or formulation of the uct action for the

STARK v. FORD MOTOR CO. proves unless the claimant that at the time of manu- its unreasonably facture the manufacturer acted in designing or for- mulating product, proximate that this conduct was a *12 damages proves the harm for which sought, are and also one of following: the

(1) product At the time manufacturer, the left the control of the unreasonably adopt the manufacturer safer, practical, failed to feasible, and design otherwise reasonable alternative or formula- reasonably tion that could then adopted have been and that prevented substantially would have reduced the risk of harm substantially impairing usefulness, without practicality, desirability product.

(2) At the time the manufacturer, left the control of the design or formulation of the was so unreasonable that a person, reasonable facts, aware of the relevant would not use or design. consume of this (b) In determining whether the manufacturer acted unreason- ably (a) section, under subsection of this the factors to be con- include, sidered shall to, but are not limited following: (1) magnitude The nature and of the risks of harm associated design with the or formulation in light of the intended and reasonably uses, modifications, foreseeable or alterations of product. (6) technical, economic, practical feasibility of using an design alternative or formulation at the time of manufacture. (7) any The nature and magnitude of foreseeable risks associ- ated with design the alternative or formulation.

N.C. Gen. Stat. § 99B-6

Plaintiffs counter pointing weight out the of evidence offered supported at trial that presented, their claims. Plaintiffs alia, inter testimony Joseph Dr. Burton, pathologist. forensic Dr. Burton that, testified based on the damage vehicle, to the he would have expected passengers injuries, to suffer “catastrophic but not injury Maybe just .... a broken wrist.” Dr. Burton further testified paralyzed from the accident because her shoulder snug belt was not it[,]” and had “slack in causing “snap- the belt to injury.” the chest her to have this load[] IN COURT OF APPEALS THE MOTOR CO. STARK FORD (20X0)] by Cheyenne injuries suffered Dr. Burton further testified that spool” spool.” “film process called “film When were the result of to extend occurs, webbing material in a seatbelt continues excess to move. The spool the material is secured ceases after which may prevent spool” occurring “film from dur- use of certain devices restricting, excess belt retracting, or otherwise ing accidents though devices were during a He testified that these material crash. fact, were, used was manufactured available when Taurus its outside of the United by Defendant in certain of sold States, present in the Taurus involved none of these devices was Cheyenne’s injuries. that caused the collision when viewed in the that, offered evidence Plaintiffs therefore man- Plaintiffs, most tended show Defendant light favorable to potential suf- product which had to cause the ufactured a by Cheyenne. designs available Though there were alternative fered *13 products, in similar the time which were used Defendant at designs. did include these alternative product Plaintiffs not used presented sufficient evidence to survive We hold that Plaintiffs summary judgment and directed verdict. Defendant’s motions for are therefore overruled. cross-assignments Defendant’s of error part, part, and in vacated in remanded. Reversed Judge BRYANTconcurs. separate opinion. in with a

Judge WYNNconcurs the result concurring result. WYNN,Judge judicial guides our emphasize that restraint separately

I write liability codified interpretation of the affirmative defense to defense”). Here, language (“the in N.C.G.S. 99B-3 modification law as writ- duty-bound to follow the is clear and we are of the statute majority following the Nonetheless, I with the while concur ten. statutory lan- statute, I so mindful that the language of the do clear negligence, principles of appears general inconsistent with guage the intent states, possibly even in all other modification defenses legislature our itself. are based on Plaintiff’s claims begin, To it warrants mention that Taurus. It is design of the Ford alleged negligence in Defendant’s plaintiff can- principle negligence cases that the a well-established STARK v. FORD MOTOR CO. prevail clearly appears

not it from the evidence that the “[w]hen injury complained independently proximately produced of was act, neglect, or wrongful default of an agency outside responsible person.” Sink, 725, third v. 727, Smith 211 N.C. 192 S.E. 108, It “responsible person” does not if matter third is party action; a to the what person’s matters is that the actions consti intervening negligence insulating liability. tute from defendant judice The fact that case is liability sub action should not, more, intervening without mean negligence only given is legal person proximately effect when the who plaintiff’s caused Indeed, to the suit. this Court has stated that an “[i]n injuries action to recover for resulting from the negligence of man ufacturer, plaintiff present must evidence which tends to show manufactured defendant was at defective the time it plant, and that negligent design defendant was in its left defendant’s product, materials, assembly of the in its selection of process, in its inspection product.” Jolley its v. Corp., General Motors 383, 55 N.C. 285 S.E.2d (1982) (emphasis added) (citing Ward, App. 615, Cockerham 44 N.C. disc. denied, rev. 300 N.C. 269 S.E.2d 622 (1980)). corollary common sense is that when a is modified

after plant” “the time it left defendant’s the defendant is insulated negligent design, regardless from claims of whether modifier is Indeed, to the action. first subject at blush it illogical seems injuries a manufacturer to resulting prod- from a modified potentially quite initially uct placed different from that into the solely stream grounds of commerce on the that the had modifier not joined However, been in the action. interpreting statutes,... it is “[i]n *14 always presumed that Legislature the acted with knowledge full prior existing Investors, law.” Berry, 688, 695, Inc. v. 293 N.C. Thus, S.E.2d 570 (1977). light in of the fact that N.C.G.S. 99B-3 § directly product addresses the affirmative defense of modification in products liability actions, I concede that language the therein must control this Court’s decision.

Nonetheless, it is troubling statutory that strict adherence to the language regarding represents modification defense so dramatic a departure from the view held all other regarding legal states product liability effect of modification on the of manufacturers. While recognize number other states liability defense to such when product modified, been only has none limit apply the defense to when performed by party modification litigation. OF APPEALS

IN THE COURT v. FORD MOTOR CO. STARK a defense explicitly allow for statutes in other states Some of the prod- or seller modifies anyone than the manufacturer when other liability products provides in a example, Indiana a defense uct. For after, “by any person or altered is modified action when . . . .” Ind. Code delivery or consumer product’s to the initial user Kentucky Similarly, in a modification (LexisNexis 2008). 34-20-6-5 § liability applies alterations or modifications products “to defense to with entity, except those made accordance person or made Ky. by the manufacturer.” specifications or instructions furnished v. Louis (West 2006); see also Smith Ann. 411.320 § Rev. Stat. Ky. 411.320 F.Supp. 1084, (W.D. 1995) (“KRS Co., 894 Berkman product manu- Kentucky intent to benefit legislature’s indicates liability products their are their tort when precluding facturers else.”). modified or altered someone identity of the modifier. fail even mention the

Other statutes in a is not liable manufacturer or seller Michigan, In “[a] product un- by an alteration of the liability for harm caused action reasonably Comp. Laws foreseeable.” Mich. alteration was less the defense Dakota, In the modification 600.2947(1) (2000). North § subsequent to or modification “occurred applies when the alteration to the initial user or consumer.” by manufacturer or seller the sale (2006). N.D. Code 28-01.3-03 § Cent. provide a modification which

Finally, there are state statutes responsible for is not manufacturer/seller long as as the defense type of defines the example, the Idaho statute For the modification. products in a to a defense giving rise alteration or modification entity person other when a or liability that which “occurs action as construction, or formula design, changes the than the seller instructions that warnings removes or product, changes Ann. product.” Idaho Code displayed on the accompanied or were 6-1405(4)(a) in states other products statutes sum, reviewing In after language under our appears the clear Carolina, it than North unique legal borders a 99B-3, creates within our statute, N.C.G.S. liability. However, recognize I respect to regime with jurisdictions, while decisions from other the fact that respect “[t]he statute, not control- are provisions of our helpful construing placed upon a statute similar interpretation is the ling; neither Co., 222 Stanley Hyman-Michaels ours, binding on this Court.” *15 570, 22 576 257, 266, S.E.2d N.C.

STARK v. FORD MOTOR CO. principle respect language I also the the of a statute “[w]hen duty ambiguity, give is clear and without it is the this Court of to statute, judicial plain meaning effect to the of the of construction legislative required.” Servs., intent is not Diaz v. Division Soc. 1, (2006) (citation omitted). Here, agree 628 S.E.2d 3 I majority “party” with legislature’s the use of the word renders of the I language unambiguous. statute clear further note that language “ambiguous,” even if proof were there is no definitive history Assembly legislative N.C.G.S. 99B-3that the General apply contrary meaning “party.” intended to a to word id. See (“[W]hen language ambiguous, of a statute is this Court will de- purpose termine legislature the statute and the intent of the enactment.”). its January 1979,

On 29 Bill Senate 189 was introduced in the N.C. bill, attempt Senate. which first legislative This was the in that ses- pass products liability reform, sion to stated: product any No manufacturer or seller of shall be held liable product injury, action where contributing of the damage property death or was (a) either an alteration or mod- product product ification of the which occurred after the left the seller, product control of manufacturer or a use (b) in a originally manner for which the designed, was not manufactured, recommended warranted. Assem., Reg.

S.B. Gen. (N.C. 1979). Notably, Sess. this ini- tial conception of the modification defense on the focused time when place (i.e. modification took after the left the control of the identity manufacturer) rather than the of the modifier. day

On the Bill introduced, same that Senate 189 was House Bill February was introduced with language. the exact same On 28 joint public hearing of the considering committees Senate Bill 189 and House Bill proposed 235 met discuss legislation. public joint hearing There was no mention at this about limiting the modification defense to parties modifiers that were liability action.

Indeed, identity the first reference to the modifiers was added on 8 March 1979 Bill when Senate amended to read

No manufacturer or seller of shall be held liable in product liability action a contributing injury, where cause of the damage property death or was either (a) an alteration or mod- *16 19 APPEALS IN THE COURT OF v. STARK FORD MOTOR CO. (2010)] 1

[204 product the product after the left of the which occurred ification or or seller the alteration control of such manufacturer such if seller, (b) or was or not done manufacturer modification product a was not product in manner for which use of the manufactured, or warranted. designed, recommended originally 8 Assem., (N.C. 1979) (as amended 189, Reg. 1979 Gen. Sess. S.B. added). limited the defense (emphasis This amendment 1979) Mar. than the manufacturer made someone other modifications seller, modifier must be again did not indicate that the but the case.1 1979, Representative Martin Lancaster introduced

On March Bill proposed to Senate Bill 189.House Bill 993 as a alternative House Liability Rep. Lancaster, Uniform Products was, according to Department Rep. of Commerce. Lancaster prepared Bill the U.S. of a provides that manufacturer or seller Senate Bill stated “[t]he of an alteration or product is not liable when the result product product which after the left modification of the occurred provide protection.” Hearing on My Bill will that same their hands. Comm., Assem., Reg. Judiciary H. II 1979 Gen. H.R. 993 Before Lancaster, Member, Rep. 1979) (statement of Martin (N.C. Sess. avail- Judiciary Comm.). there no indication that the Again, II was depended was a ability protection on whether modifier of such party to the case. legislation was the first draft of

House Bill 993 “party” did as follows: the word but it so to include not liable for harm that would not have A seller shall be his was altered modified but for the fact that occurred a third unless: with was in accordance (1) the or modification alteration specifications; product seller’s instructions or express with the was made (2) the alteration or modification product seller; or of the consent was result of conduct that

(3) or modification the alteration reasonably anticipated by seller. have should been added). Assem., 1979) (emphasis 993, Reg. (N.C. Sess. H.R. 1979Gen. amendment, subsequent adopted clarified that on March A proximate apply must have been the modification the modification defense Assem., 1979) (as injury. Reg. (N.C. amended 15 Sess. S.B. 1979 Gen. 1979). Mar. CO.

STARK FORD MOTOR products liability proposed concerning (House The three bills Bill special Bill 189) House and Senate Bill were referred to a study Judiciary II subcommittee House Committee. The sub- proposed committee drafted Committee and this substitute House given report. bill Substitute a favorable This House Committee *17 “by party bill one substitute is the first that introduced the other Ultimately, than the manufacturer seller” language. language this was retained in N.C.G.S. 99B-3.

My why research reveals no indication as to the members of the study special Judiciary subcommittee of the House II Committee language chose to add to disconcerting light the statute. This is previous all the fact that of the versions of the modification defense protection seem to envision broad for modifiers whose modified, regardless party were of whether the modifier was a to the suit, long as as the modification occurred after left However, statutory manufacturer’s control. basic rules of construc- legislature tion dictate that our does not intend sub silentio to enact statutory replaced language that it has phrases. with other words or Cardoza-Fonseca, 421, 442-43, See INS v. 480 434, U.S. 94 L. Ed. 2d (citation omitted). 454 (1987)

Furthermore, Assembly presumed “the General is to have acted advisedly a knowledge and with meaning language of the ... and it assumed, will be permissible, never if other conclusion is that it Loven, has done vain and . .” thing 666, foolish . . Bank v. 172 N.C. 670-71, 948, S.E. (1916) (internal 950 omitted). Therefore, citation we are to language constrained hold that the of the modification availability defense as written limits its to situations in which the party modifier is a litigation. query

It is worthwhile to whether the burden legislature’s of the “parties” limitation the modification defense to could have been mitigated adding Tonya parties and Gordon Stark as new in this permit case. The North Carolina Rules of CivilProcedure a defending party implead a new may “who is or be liable to him for all or part plaintiff’s against of the 1A-1, claim him.” Gen. N.C. Stat. Rule 14(a) (2009). such, impleader As Rule 14 third-party allows when the may defendant original be liable to the defendant for contribution or Spearman indemnification. Cty. v. Pender Bd. Educ., 175 N.C. 412, (2006). Furthermore, 623 S.E.2d is not “[i]t necessary third-party that the previously defendant’s be Maxwell, App. 538, 543, determined.” Rouse 40 N.C.

329, appeal dismissed, 261 S.E.2d 124

MIDRIFF v. COMPTON Indeed, case, in the instant granted Defendant was leave to file a third-party complaint seeking or, alternative, indemnification Tonya contribution from granted Gordon Stark. The trial court subsequently third-party this motion and ordered the severance of the principal suit from the action to delaying avoid the trial in the latter. ultimately Although this severance rendered the modification defense Defendant, argue appeal unavailable to Defendant did not on that the error, severance was and as such that issue is not before the Court. conclusion, In language clear, because the of the statute is I agree application with its If in legislature this case. fact the apply intended the modification defense to when the modifier is not products liability action, to the it can revisit the issue and written, however, subject amend the statute. language As only plain ordinary interpretation, comports its which with that majority. *18 Plaintiff-Appellant

AUDREY ANNE v. JOHN MICHAEL COMPTON, MIDKIFF, Defendant-Appellee

No. COA09-254 (Filed 2010) 18 May Appeal interlocutory appeal

1. and Error— order and — dis- covery physician-patient privilege right — — substantial ordinarily

Although discovery subject orders are not to im- appeal, plaintiff’s mediate right claim affected a substantial immediately appealable plaintiff because was ordered to dis- protected by physician- close matters she asserted were patient privilege. Discovery— compel physi- motion —medical records — cian-patient privilege

(cid:127) personal The trial court did not abuse its discretion in a injuries arising case out of an automobile accident granting discovery. compel impliedly defendant’s motion to Plaintiff physician-patient waived her privilege as to medical records causally historically pain body “great related to her mind.”

Judge separate opinion. concurring STEELMAN in result in