By David Yucht, J.D.
Despite a statute of limitations that would not expire for over a decade, a court-ordered joinder had compelled a six-year-old accident survivor to file suit, undergo an independent medical examination against his parents’ wishes, expend money on litigation expenses, and pay a portion of a bus company’s litigation costs.
A state appeals panel in Kentucky reversed a court-ordered joinder of a six-year-old survivor of a school bus accident. The appellate court also ruled that the trial court erred in directing a verdict in favor of the bus manufacturer in a case filed by the victims of the school bus crash. The court ruled that the victims had provided proof at trial that the design of the bus as to crash worthiness was defective and that the manufacturer failed to warn about this defect even though it had reason to know that this defect existed (Jones v. IC Bus, LLC, October 9, 2020, Dixon, D.).
A school bus driver left the roadway, overcorrected, and careened off the road, causing the bus to turn on its side and strike a large tree. The impact collapsed the roof nearly to the floor in a v-shape, crushing and killing two of its preschool occupants and injuring several others. The victims sued the bus driver for negligence and the bus manufacturer, IC Bus, LLC, for various claims including strict liability, failure to warn of inherent dangers, and negligence. Approximately 18 months later, based upon a motion filed by the bus driver, one of the children who survived the crash (the surviving child) was ordered, over his objection, to join the case and file a complaint. Prior to trial, all defendants settled, other than IC Bus. At the end of the two-and-a-half-week trial, the jury returned a verdict for the manufacturer. The trial court ordered that the families who sued, including the surviving child, pay IC Bus’s costs. The surviving child appealed his compelled joinder. All the victims appealed the trial court’s denial of their motions for a new trial and for judgment notwithstanding the verdict.
Joinder. In a case of first impression, the appellate court ruled that the trial court erred by joining the surviving child as a party to this action and by ordering him to file an intervening complaint. Kentucky Court Rule 19.01 permits joinder of additional parties to a lawsuit under certain limited circumstances. If the party sought to be joined refuses, the court may order joinder as a defendant or "involuntary plaintiff." Joinder may be ordered if, in the party’s absence, the other parties cannot be granted complete relief or if the party to be joined asserts an interest in the case which would leave another party "subject to a substantial risk of incurring" multiple, or inconsistent, obligations.
Here, the trial court ordered the surviving child to file a complaint but failed to identify its basis for compelling joinder. The child complied but continued to dispute his joinder throughout the litigation. Although the bus driver possibly might have faced multiple lawsuits if the surviving child subsequently filed suit, this was not a legitimate rationale under the rule to compel joinder. Moreover, the initiation of several tort actions by different individuals based on the same incident does not make "all complaining parties necessary to each other’s action." A party is not "necessary" to a litigation unless he or she has "rights which must be ascertained and settled before the rights of the parties to the suit can be determined." Here, no one argued that the surviving child’s right to pursue a tort claim later would be affected by his failure to join the instant case. Moreover, he could not be viewed as a necessary party. Consequently, there was no legal basis for mandating his joinder.
In addition, even were the surviving child a necessary party requiring joinder, the trial court exceeded its authority by requiring that he file suit. The rule itself clearly places limitations on the capacity in which one may be joined. Although a party may be joined as a defendant or "involuntary plaintiff," nothing in the rule allowed the trial judge to order the joined party to file a complaint. Finally, the appellate court noted that the child was four years old at the time of the accident, and only six when the court ordered him to file suit. The statute of limitations is specifically tolled until one year after a child reaches the age of majority. The appellate court opined that "the trial court ran roughshod over those considerations in favor of the defendant’s—and its own—convenience." As a result of his joinder, the boy, who was significantly traumatized by the accident, was forced, against his parents’ wishes, to undergo an independent medical examination, forced to expend money on litigation expenses, and ultimately ordered to pay a portion of the bus company’s costs.
Design defect—crash worthiness. The appellate court ruled that the trial court erred in granting a directed verdict on the issue of crash worthiness based on the bus roof’s design. To sustain a design defect claim based on a theory of crash worthiness, an accident victim must prove the existence of a "practical alternative safer design" and demonstrate that less harm would have been caused if the safer alternative design had been used. The testimony of the victims’ design experts, including the testimony that it would have taken only a small additional amount of metal to make a big difference as far as safety, created a factual question concerning whether there was an alternative feasible bus roof design. Additionally, the testimony of other experts concerning the extent of injuries sustained had the feasible design alternative been used also was sufficient to survive a directed verdict. However, the bus manufacturer did not have to produce its own expert testimony in support of its position that there was no defect in the design. Consequently, neither side was entitled to judgment based on the law. The matter was remanded for a new trial on the design defect issue.
As to jury instructions, the appellate court agreed with the crash victims’ claim that use of the word "increasing" as related to the injuries they suffered was prejudicial because it required the jury to find that they were already injured or would have been injured even if a feasible alternative design had been used.
Failure to warn. The appellate court also ruled that the trial court erred in granting a directed verdict on the issue of failure to warn. IC Bus made no effort to warn the purchaser or users of the bus at issue here. Warnings are required after manufacture if the manufacturer becomes aware of, or should be aware of, a dangerous or defective condition with its product. The key evidence here in support of the failure to warn claims involved patent submission documents in support of roll over protection designs for school buses. These documents, submitted in 2008 by an employee of Navistar, the parent company of IC Bus, demonstrated that IC Bus had actual knowledge that "school bus rollovers are the single deadliest type of injury" and that federal motor vehicle safety standards did "not provide adequate roll over protection to the occupants" of school buses. Navistar’s patent was for a system to improve safety in the event of rollovers. This evidence tended to show that IC Bus was aware of a defective condition concerning its roof design and should have warned the end users. Conversely, however, the evidence presented did not conclusively prove that IC Bus knew, or should have known, that it had manufactured an unreasonably dangerous school bus. Neither party was entitled to judgment as a matter of law. Thus, the matter was remanded on the failure to warn claim.
The case is No. 2018-CA-1440-MR.
Attorneys: Marcus S. Carey (Law Offices of Marcus S. Carey) for Brayden Michael Jones. Elaine M. Stoll (Ulmer & Berne LLP) for IC Bus, LLC.
Companies: IC Bus, LLC
MainStory: TopStory DesignManufacturingNews WarningsNews JurisdictionNews SofLReposeNews DamagesNews EvidentiaryNews ExpertEvidenceNews MotorVehiclesNews KentuckyNews GCNNews
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