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Customer Complaints Not Enough to Infer a Product Defect

An End to the Debate on the Insurability of Punitive Damages in Texas is on the Horizon

Enforcement of Forum Selection Clauses Gains Wobbly Foothold in the State of Texas

Texas Court Clarifies Application of Statute of Repose

Texas Insurance Law: New Developments in the Selection of Defense Counsel

No Indemnification for Manufacturer from Component-Part Manufacturer Without Evidence of a Defective Part

Did You Know? Airline Baggage Liability Limit Increased

The Sport Pilot and Light-Sport Aircraft Regulations

Upcoming Aviation Events



Customer Complaints Not Enough to Infer a Product Defect

Recently, the Texas Supreme Court in the case of Nissan Motor Co., Ltd. v. Armstrong, 145 S.W.3d 131 (Tex. 2004), confirmed prior rulings which found that product defects must be proved and can not be simply inferred from a large number of complaints. In 1986, Marian Armstrong’s parents bought a 300ZX Nissan and transferred it to her five or six years later with more than 90,000 miles on the odometer. On a rainy day in October, 1992, immediately after resigning from her job, Armstrong got into her car and shifted into reverse. After she “barely touched” the accelerator, the car “took off ” backwards and hit a brick building, though she was pressing the brake pedal as hard as she could. When she shifted into drive and again “barely touched” the accelerator, the car “shot forward” and struck a telephone pole, again despite application of the brakes. The Armstrongs had the car repaired, and about six months later another unintended acceleration occurred when a family friend was driving the car. A service writer at a shop specializing in ZX cars told Armstrong’s father, over the telephone and without seeing the car, that the throttle cable might have been jammed by either a small rubber “boot” designed to keep dust out of the accelerator mechanism, or a white liner around the throttle cable. Armstrong’s father cut off both and discarded them. LINDA PARRISH

Two years before the Armstrongs bought their car, the National Highway Traffic Safety Administration (NHSTA) received a number of complaints of unintended acceleration of 280ZX and 300ZX cars. NHSTA opened an investigation, as it had done with similar complaints involving many

other vehicles. In its Closing Report, NHTSA made the following findings:

[T]est and vehicle inspection results showed that the tested and inspected vehicles did not exhibit any condition that would cause the vehicle to accelerate at a high rate on its own, and the tested vehicles with the wide open throttle condition can be controlled by applying the brakes.

During the course of this inspection, no safety-related defect has been detected.

Armstrong sued Nissan for products liability, negligence, gross negligence, breach of warranty, fraud, negligent misrepresentations and violations of the Texas Deceptive Trade Practices-Consumer Protection Act. In support of her claim that the throttle was defective, Armstrong presented expert

Product defects must be proved; they cannot simply be inferred from a large number of complaints. If the rule were otherwise, product claims would be become a self-fulfilling prophecy – the more that are made, the more likely all must be true.

testimony from a mechanical engineer, factual testimony from four other owners who had experienced unintended acceleration in 300ZX cars, 16 written reports of unintended accelerations, and Nissan’s database of 757 consumer complaints. Nissan objected unsuccessfully to most of this evidence on grounds of hearsay, relevance and incompetence. The jury returned a verdict favorable to Armstrong. The trial court rendered judgment on the jury’s findings of design, manufacturing and marking defects, negligence and gross negligence.

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Aviation FlyerTM is published periodically by the law firm of Jackson Walker L.L.P. to inform readers of recent developments in labor and employment law and related areas. It is not intended nor should it be used as a substitute for legal advice or opinion, which can be rendered only when related to specific fact situations.

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© 2005 Jackson Walker L.L.P.

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