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Hyundai Motor Company v. Ferayorni2/19/2003
ON MOTIONS FOR REHEARING, REHEARING EN BANC, AND CLARIFICATION
This cause is before us on appellee's motions for rehearing, rehearing en banc, and clarification. We deny the motion for rehearing en banc, but grant the motion for rehearing. Accordingly, we withdraw our former opinion of December 11, 2002 and substitute the following in lieu thereof.
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").
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.
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, a human factors psychologist and Estate's expert in warnings, testified that substantial scientific literature had developed the various criteria by which warnings and labels could be evaluated. He then explained that he evaluated Hyundai's owner's manual and visor warnings against those criteria. He did not, however, run any experiments or use any focus groups to test reactions to the warnings because he felt it unnecessary due to the warnings' inadequacies.
Cunitz testified that the criteria used to evaluate warnings came from scientific literature that experimental psychologists have studied for several years. The criteria were as follows:
1. Ability to attract attention - a warning should use signal words like "danger" or "caution" and use colors like red or black and white;
2. Right time and place - evaluates whether the warning is located where it will be easily seen;
3. Ability to motivate - measures whether the warning gives sufficient and truthful information about what could go wrong if the warning is ignored;
4. Instruct to avoid harm - evaluates whether the warning provides adequate instructions as to how to avoid harm; and
5. Ability to be understood - measures whether the warning was drawn using simple ter
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