Metropolitan News-Enterprise


Thursday, August 4, 2011


Page 1


C.A. Rules Consumer Expectation Test Not Met in SUV Rollover


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeal has rejected a challenge by the family of an Orange County attorney killed in a 2003 SUV roll-over accident to a judgment entered in favor of the Ford Motor Company.

Div. Two, in a July 5 decision by Justice Douglas P. Miller ordered published yesterday, said Omeedeh Mansur’s family had not presented sufficient evidence to have San Bernardino Superior Court Judge Keith D. Davis submit the case to the jury with an instruction on the consumer expectations test of design defect.

Miller explained the test is reserved for cases in which the everyday experience of the products’ users permits a conclusion that the product’s design violated minimum safety assumptions, and expert witnesses cannot be used to demonstrate what an ordinary consumer should expect. 

Based on Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, Miller said, the quantum of proof necessary to establish a design defect for a product within the common experience of ordinary consumers requires a plaintiff to provide “evidence concerning (1) his or her use of the product; (2) the circumstances surrounding the injury; and (3) the objective features of the product which are relevant to an evaluation of its safety.”

Trial Evidence

At trial, Mansur’s family presented marketing evidence related to the Explorer, which indicated that people viewed sport utility vehicles as “the station wagon of the 90s,”  and thought Explorers provided a greater sense of safety and security, due to the ride height, greater visibility, mass of the vehicle, and sense of control. 

Mansur’s husband testified that he and Mansur had purchased a 1996 Ford Explorer from Drew Ford, in La Mesa, Calif.,  after the birth of their second child in 2001.

When the Mansurs took possession of their Explorer, Mansur’s husband said he read the owner’s manual and saw a warning the SUV was not designed “for cornering at speeds as high as passenger cars.” He said he saw a similar warning on the sun visor over the driver’s seat.

Up until the day of the accident, over approximately 100,000 miles of driving, Mansur’s husband said the Explorer worked “great.”

The accident took place while Mansur’s husband was driving the family to their home in Tustin from the Ontario airport. Mansur rode in the front passenger seat and the couple’s two children, aged two-and-a-half and four-and-a-half, rode in the rear.

All four family members were wearing their seatbelts, he said, and the weather was sunny and clear. Traffic was light as he drove southbound on Interstate 15, at approximately 50 to 60 miles per hour.

Evasive Maneuver

Mansur’s husband said he then saw a white car spinning out of control in the traffic lanes ahead, so he steered to the left, hoping to avoid the car. As he did so, and lightly applied the brakes, he lost control of the SUV.

The Explorer moved to the left, towards the center median, and then rolled over three and one-half times. As the vehicle rolled, the roof above the passenger seat buckled, and crushed in approximately 11.75 inches.

When the paramedics arrived, Mansur was unresponsive inside the Explorer, suspended upside down, restrained by her seatbelt. Her neck was extended and her head was back, so that her forehead was touching the ceiling of the vehicle. 

 Mansur suffered a scalp laceration, multiple rib fractures, lung contusions, clavicle fractures, and an arm fracture. She died approximately two hours after arriving at the emergency room due to blunt force injury, as a result of the rollover incident. 

Her husband and the children sustained some injuries as well, but all survived.

Miller concluded this trial record provided enough details for a jury to understand Mansur’s use of the Explorer and the circumstances of the accident, but not the third area necessary to support a verdict based upon the consumer expectations test—the objective features of the vehicle relevant to an evaluation of its safety. Accordingly, he said, the trial court was not required to instruct the jury on this theory of liability.

Objective Features

The evidence presented, Miller reasoned, “does not show the vehicle’s objective features in such a way that a jury could understand why the roof crushed in on Omeedeh.”

  He said the evidence “provides proof that the Explorer may have been viewed as a family vehicle,” but “[t]he fact the Explorer may be a family vehicle does not mean it will never suffer damage in an accident, or that it will never rollover.”  The warnings regarding the handling of SUVS was “evidence the vehicle handles differently than a passenger car,” but this “does not equate with evidence the roof and restraint system are designed to handle a rollover,” Miller said.

Absent any “pertinent non-expert testimony related to the features of the Explorer, which would allow a trier of fact to evaluate the safety of the roof and restraint system,” the justice said, there was not enough evidence to support a theory of liability for alleged defects in these aspects of the SUV under the consumer expectation test.

 Justices Art W. McKinster and Carol D. Codrington joined Miller in his decision.

Counsel for the Mansur family were Brian J. Panish and Adam K. Shea of Panish Shea & Boyle; Robert A. Buccola, Steven M. Campora, and Jason Siegel of Dreyer Babich Buccola Wood; and C. Tab Turner of Turner & Associates.

Troy Booher and Richard A. Derevan of Snell & Wilmer represented Ford.

The case is Mansur v. Ford Motor Company, 11 S.O.S. 4264.


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