United States District Court, W.D. Virginia, Roanoke Division
CLARENCE EDWARD WHITAKER, on behalf of himself and as Administrator of the Estate of Shannon Marie Whitaker, deceased, Plaintiff,
HYUNDAI MOTOR COMPANY, et al., Defendants.
Michael F. Urbanski Chief United States District Judge.
Clarence Edward Whitaker ("Whitaker") filed his
Motion in Limine No. 3 Precluding the Defendants from making
Reference to, or Inferring in any way, that Shannon Whitaker
was Negligent, Contributorily Negligent, or Contributed to
her Own Fatal Injury or Death, ECF No. 161, and Motion in
Limine No. 9 Precluding the Defendants from Asserting the
Defense of "Unforeseeable Misuse" of the Vehicle,
ECF No. 167, on January 25, 2019. Defendants Hyundai Motor
Company and Hyundai Motor America, Inc.
("Defendants") responded to both motions in a
single brief on February 1, 2019. ECF No. 192. For the
reasons stated below, Whitaker's Motion in Limine No. 3
is GRANTED and Whitaker's Motion in
Limine No. 9 is DENIED.
Virginia common law, "wrongful death claimants may
recover for breach of implied warranty of merchantability by
establishing: (1) the goods were unreasonably dangerous
either for the use to which they would ordinarily be put or
for some other reasonably foreseeable purpose; and (2) the
unreasonably dangerous condition existed when the goods left
the defendant's hands." Butier v. Navistar
Intern. Transp. Corp., 809 F.Supp 1202, 1205-06 (W.D.
Va. 1991) (citing Bly v. Otis Elevator, 713 F.2d
1040, 1043 (4th Or. 1983)). A plaintiff cannot recover,
however, against a manufacturer for breach of the implied
warranty when the plaintiff was injured through unforeseeable
misuse of the product. Wood v. Bass Pro Shops. Inc.,
250 Va. 397, 301, 462 S.E.2d 101, 103 (1994) "While a
manufacturer may not be held liable for every misuse of its
product, it may be held liable for a foreseeable misuse of an
unreasonably dangerous product." Jeld-Wen, Inc. v.
Gamble by Gamble, 256 Va. 144, 147, 501 S.E.2d 393, 396
law may preempt state law in three ways: (1) express
preemption; (2) field preemption; and (3) conflict
preemption. H&R Block Eastern Enterprises, Inc. v.
Raskin, 591 F.3d 718, 723 (4th Cir. 2010). A conflict
preemption claim requires a conflict between a federal law or
regulation and a state law or regulation. Chi. & N.W.
Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311,
317 (1981). The court "should not seek out
conflicts...where none clearly exists." College Loan
Corp. v. SLM Corporation, a Delaware Corp., 396 F.3d
588, 598 (4th Cir. 2005). Conflict preemption applies only
when the state law stands as an "obstacle to the
accomplishment of a significant federal regulatory
objective." Geier v. American Honda Motor Co.,
529 U.S. 861, 886 (2000).
argues that, since the only claim remaining is breach of the
implied warranty of merchantability, Defendants cannot be
permitted to present evidence of Mrs. Whitaker's
contributory negligence. Furthermore, Whitaker argues that
Defendants are precluded from arguing that Mrs.
Whitaker's actions constituted unforeseeable misuse by
Federal Motor Vehicle Safety Standard No. 114 (FMVSS 114),
which mandates that all motor vehicles manufactured in the
United States must have a starting system that prevents key
removal unless the transmission or gear selection control is
locked in "park" or becomes locked in
"park" as a direct result of key removal. Whitaker
argues that by passing this standard, Congress recognized the
foreseeability of a driver attempting to remove the key from
the ignition of a motor vehicle when that motor vehicle is in
a position other than park. Further, the Virginia common law
defense of unforeseeable misuse, if applied here, would
"add a condition to a manufacturer's duty to comply
with FMVSS 114, which would be based on whether a particular
manufacturer could 'foresee' the type of occurrence
the law was enacted to prevent." ECF No. 167, at 3.
respond first by saying that misuse and contributory
negligence are related concepts, as "negligence"
and "warranty" are "close together,
indistinguishable in some respects..." ECF No. 192, at
6. See Evans v. NACCO Materials Handling Grp., Inc.,
295 Va. 235, 246, 810 S.E.2d 462, 469 (2018) (observing that
both negligence and breach of warranty require a showing of
whether a product is unreasonably dangerous). Thus, conduct
that amounts to contributory negligence can also be termed
misuse. To Whitaker's preemption argument, Defendants
argue that conflict preemption does not apply here, as FMVSS
114 requires designers of automatic transmission passenger
cars and SUVs to design their vehicles to have an interlock,
and a jury finding that Mrs. Whitaker misused the vehicle by
getting out of it with the vehicle on and in drive, not
setting the parking brake, or running after the vehicle after
it began to roll will not frustrate the regulation. By this
response, Defendants seem to indicate that they will not
argue that it is unforeseeable that a person might attempt to
remove a key from the ignition without first placing the car
court notes initially that it has already precluded
Defendants from presenting evidence on several issues
pertaining to Mrs. Whitaker's history and behavior.
Defendants are barred from presenting evidence of Mrs.
Whitaker's prior medical conditions and medications; they
are likewise barred from referring to any prior incident of
reckless driving. Evidence on these issues, which Defendant
argued showed Mrs. Whitaker's role in the accident, was
precluded partially because it went more to contributory
negligence than unforeseeable misuse. To this extent,
Whitaker's Motion in Limine No. 3 is
are not, however, barred from presenting evidence of what
caused the accident. This includes how Mrs. Whitaker removed
the key from the ignition, what gear the car was in, and what
actions she took after the car began to roll. As Defendants
point out, there is some overlap between the legal concepts
of contributory negligence and unforeseeable misuse. While
specific issues have already been excluded, whether a
particular showing falls into contributory negligence or
unforeseeable misuse might occasionally have to be determined
on a case-by-case basis, during trial.
argues that the court has already ruled that Mrs.
Whitaker's actions were foreseeable in its October 10,
2018 Memorandum Opinion. This opinion, however, addressed
Defendants' motion for summary judgment. ECF No. 112. The
court held that, given FMVSS 114 and the purpose of the
solenoid, a jury could find that Mrs. Whitaker's alleged
misuse of the vehicle was foreseeable to Defendants.
Id. at 17. This is not the same as holding that
Defendants are precluded from discussing the entire issue of
foreseeability. That Congress passed a statute requiring that
a car's "starting system.. .must prevent key
removal..., unless the transmission or gear selection control
is locked in 'park' or becomes locked in
'park' as a direct result of key removal" is
certainly very persuasive evidence of the foreseeability of
someone attempting to remove a key from the ignition without
first placing the car in "park." 49 C.F.R. §
571.114 at SF.2.1. Defendants' response, however, seems
to indicate that they will not attempt to argue otherwise.
ECF No. 192, at 8. Defendants instead focus on the other
aspects of Mrs. Whitaker's actions on August 24, 2015.
Defendants are correct in that FMVSS 114 only "requires
designers of automatic transmission passenger cars and SUVs
to design their vehicles to have an interlock."
Id. Argument regarding the foreseeability of other
aspects of her behavior, like not setting the parking brake
or pursuing the vehicle when it began to roll, are not
addressed by FMVSS 114's requirement.
alternative, Whitaker argues that all evidence so far has
shown that removing the key from the ignition before putting
a car in "park" is foreseeable, but absent a
finding that there is no disagreement of material fact on
this issue, only a jury can determine whether Mrs.
Whitaker's use of the vehicle on August 24, 2015 was
Motion in Limine #3 is GRANTED. Defendants
may not assert contributory negligence as an affirmative
defense. Motion in Limine #9 is DENIED.
Defendants may present evidence regarding the ...