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Eltiste v. Ford Motor Co.6/28/2005
Opinion Vote: AFFIRMED.
Norton, J., and Baker, J., concur.
Opinion:
Hal Eltiste ("Mr. Eltiste"), Frances Eltiste ("Mrs. Eltiste"), Rebecca Bremer, and Leah Eltiste ("plaintiffs") appeal from the judgment of the trial court following jury verdicts in favor of defendant Ford Motor Company ("Ford") on plaintiffs' personal injury action. Plaintiffs contend that the trial court erred in admitting a report of the Office of Defect Investigation ("ODI") of the National Highway Traffic Safety Administration ("NHTSA") and in preventing plaintiffs from impeaching that report ("2000 ODI report"). Plaintiffs also assert that the trial court erred in limiting the discussion of their experts concerning documents from Ford to a verbatim reading of the documents. Plaintiffs further allege that the trial court erred in permitting Ford to amend its answer to assert the affirmative defense of lack of seat belt usage and in permitting Ford to introduce seat belt evidence relating to the issue of causation.
Viewed in the light most favorable to the judgment, the evidence is as follows. On May 22, 1994, a clear, sunny day, plaintiffs were riding in a 1991 Ford Aerostar van on Nebraska Highway 67, traveling approximately 60 miles per hour with the cruise control engaged. The driver of the Aerostar, Mr. Eltiste, tried to slow the vehicle down as it approached an intersection of another highway. Instead, the vehicle accelerated and went over an embankment, injuring several of the plaintiffs.
Prior to the accident of May 22, 1994, Mrs. Eltiste had experienced unexpected acceleration while driving the Aerostar with the cruise control engaged, which had resulted in the vehicle striking a tree. The Aerostar was inspected at a Ford dealership in Nebraska, Heritage Ford, Inc., but apparently no work was done on the cruise control. After the body of the car was repaired at a body shop, the vehicle was returned to the Eltistes several weeks prior to the May 22nd accident.
Plaintiffs filed suit against Ford, and asserted multiple causes of action including: strict liability -- product defect; strict liability -- failure to warn; breach of implied warranty; negligent manufacture, design, or failure to warn; negligence; failure to recall or retrofit defective design and/or manufacture; fraudulent concealment; and loss of consortium. Approximately two weeks prior to trial, Ford moved to amend its answer to include specifically the affirmative defense that the plaintiffs failed to mitigate damages by not using their seat belts. In its motion seeking leave to amend, Ford stated that it did not believe that the amendment was necessary, but " ut of an abundance of caution," wanted to make the amendation. The trial court granted this motion and denied plaintiffs' motions in limine regarding the seat belt issue. Ford also filed an omnibus motion in limine, which included a request that the trial court preclude testimony by plaintiffs' experts that would interpret Ford documents as evidence of Ford's knowledge, intent, or state of mind. At in camera proceedings the trial court sustained Ford's omnibus motion in limine.
Several of the plaintiffs testified at trial regarding the accident of May 22, 1994. Mr. Eltiste testified that he had the cruise control engaged at the time of the accident and tried to disengage it by tapping on the brakes, but to no avail. He further stated that when he pumped the brakes, the Aerostar accelerated even faster, and his other efforts to slow down were to no avail. Mrs. Eltiste testified about the May 22nd accident and about the previous incident of sudden acceleration. Several witnesses testified about similar incidents that they experi
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