{ "id": 4176724, "name": "CHEYENNE SALEENA STARK, a Minor, CODY BRANDON STARK, a Minor, by their Guardian ad Litem, NICOLE JACOBSEN, Plaintiffs-Appellants v. FORD MOTOR COMPANY, a Delaware Corporation, Defendant-Appellee", "name_abbreviation": "Stark v. Ford Motor Co.", "decision_date": "2010-05-18", "docket_number": "No. COA09-286", "first_page": "1", "last_page": "21", "citations": [ { "type": "official", "cite": "204 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "621 S.E.2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634293 ], "year": 2005, "pin_cites": [ { "page": "28", "parenthetical": "citing Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 24 (1983) (\"We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.\")" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0019-01" ] }, { "cite": "449 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525419 ], "year": 1994, "pin_cites": [ { "page": "665-66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0663-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "parenthetical": "\"To the party for whom judgment is given, costs shall be allowedf.]\"" } ], "opinion_index": 0 }, { "cite": "464 U.S. 16", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193045 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "23", "parenthetical": "\"We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.\"" }, { "page": "24", "parenthetical": "\"We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.\"" } ], "opinion_index": 0, "case_paths": [ "/us/464/0016-01" ] }, { "cite": "174 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350301 ], "year": 2005, "pin_cites": [ { "page": "42-43", "parenthetical": "citing Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 24 (1983" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0030-01" ] }, { "cite": "333 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "our Court taking judicial notice of \"the records of this Court\"" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527450 ], "year": 1985, "pin_cites": [ { "page": "459", "parenthetical": "our Court taking judicial notice of \"the records of this Court\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0453-01" ] }, { "cite": "570 S.E.2d 908", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "\"this [C]ourt may take judicial notice of the public records of other courts within the state judicial system\"" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251514 ], "year": 2002, "pin_cites": [ { "page": "735", "parenthetical": "\"this [C]ourt may take judicial notice of the public records of other courts within the state judicial system\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0730-01" ] }, { "cite": "391 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "222-23" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 489", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525130 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0489-01" ] }, { "cite": "552 S.E.2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "689" }, { "page": "696" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355514 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "207" }, { "page": "218-19" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0203-01" ] }, { "cite": "642 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2007, "pin_cites": [ { "page": "269" }, { "page": "389-90" }, { "page": "271-72" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 381", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8172305 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0381-01" ] }, { "cite": "289 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "625", "parenthetical": "\"An infant under 7 years of age is conclusively presumed to be incapable of contributory negligence.\"" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 706", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523778 ], "year": 1982, "pin_cites": [ { "page": "709", "parenthetical": "\"An infant under 7 years of age is conclusively presumed to be incapable of contributory negligence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0706-01" ] }, { "cite": "133 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "455" }, { "page": "455" } ], "opinion_index": 0 }, { "cite": "260 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575863 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "666" }, { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0663-01" ] }, { "cite": "493 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 13, "year": 1997, "pin_cites": [ { "page": "785" }, { "page": "784" }, { "page": "785", "parenthetical": "internal citations omitted" }, { "page": "783" }, { "page": "784" }, { "page": "783" }, { "page": "784" }, { "page": "785" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652898 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "170" }, { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0166-01" ] }, { "cite": "480 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "637" }, { "page": "637" } ], "opinion_index": 0 }, { "cite": "345 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53986 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "490" }, { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0488-01" ] }, { "cite": "411 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "138", "parenthetical": "internal citations omitted" }, { "page": "138" }, { "page": "138" } ], "opinion_index": 0 }, { "cite": "330 N.C. 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509560 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "322-23", "parenthetical": "internal citations omitted" }, { "page": "322-23" }, { "page": "322-23" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0314-01" ] }, { "cite": "583 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "320" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956450 ], "year": 2003, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0408-01" ] }, { "cite": "623 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634609 ], "year": 2006, "pin_cites": [ { "page": "333" } ], "opinion_index": 1, "case_paths": [ "/se2d/623/0331-01" ] }, { "cite": "628 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635483 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "3", "parenthetical": "citation omitted" }, { "parenthetical": "\"[W]hen the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment.\"" } ], "opinion_index": 1, "case_paths": [ "/se2d/628/0001-01" ] }, { "cite": "172 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255233 ], "year": 1916, "pin_cites": [ { "page": "670-71", "parenthetical": "internal citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/172/0666-01" ] }, { "cite": "480 U.S. 421", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131295 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "442-43", "parenthetical": "citation omitted" }, { "page": "454", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/us/480/0421-01" ] }, { "cite": "8 Mar. 1979", "category": "reporters:state", "reporter": "A.K. Marsh.", "opinion_index": 1 }, { "cite": "360 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789468 ], "year": 2006, "pin_cites": [ { "page": "387", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0384-01" ] }, { "cite": "22 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "576" } ], "opinion_index": 1 }, { "cite": "222 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629768 ], "year": 1942, "pin_cites": [ { "page": "266" } ], "opinion_index": 1, "case_paths": [ "/nc/222/0257-01" ] }, { "cite": "Idaho Code Ann. \u00a7 6-1405", "category": "laws:leg_statute", "reporter": "Idaho Code Ann.", "year": 2004, "pin_cites": [ { "page": "(4)(a)" } ], "opinion_index": 1 }, { "cite": "N.D. Cent. Code \u00a7 28-01.3-03", "category": "laws:leg_statute", "reporter": "N.D. Cent. Code", "year": 2006, "opinion_index": 1 }, { "cite": "Mich. Comp. Laws \u00a7 600.2947", "category": "laws:leg_statute", "reporter": "Mich. Comp. Laws", "year": 2000, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 1 }, { "cite": "894 F.Supp. 1084", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7841979 ], "year": 1995, "pin_cites": [ { "page": "1090", "parenthetical": "\"KRS 411.320 indicates the Kentucky legislature's intent to benefit product manufacturers by precluding their tort liability when their products are modified or altered by someone else.\"" } ], "opinion_index": 1, "case_paths": [ "/f-supp/894/1084-01" ] }, { "cite": "Ky. Rev. Stat. Ann. \u00a7 411.320", "category": "laws:leg_statute", "reporter": "Ky. Rev. Stat. Ann.", "year": 2006, "opinion_index": 1 }, { "cite": "Ind. Code \u00a7 34-20-6-5", "category": "laws:leg_statute", "reporter": "Ind. Code", "pin_cites": [ { "parenthetical": "LexisNexis 2008" } ], "opinion_index": 1 }, { "cite": "239 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "570" } ], "opinion_index": 1 }, { "cite": "293 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566967 ], "year": 1977, "pin_cites": [ { "page": "695" } ], "opinion_index": 1, "case_paths": [ "/nc/293/0688-01" ] }, { "cite": "269 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "300 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560193, 8560231, 8560172, 8560211, 8560154 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/300/0195-03", "/nc/300/0195-05", "/nc/300/0195-02", "/nc/300/0195-04", "/nc/300/0195-01" ] }, { "cite": "262 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "44 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554636 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc-app/44/0615-01" ] }, { "cite": "285 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "303", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "55 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527351 ], "year": 1982, "pin_cites": [ { "page": "385", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc-app/55/0383-01" ] }, { "cite": "192 S.E. 108", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "109" } ], "opinion_index": 1 }, { "cite": "211 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629004 ], "year": 1937, "pin_cites": [ { "page": "727" } ], "opinion_index": 1, "case_paths": [ "/nc/211/0725-01" ] }, { "cite": "15 Mar. 1979", "category": "reporters:state", "reporter": "A.K. Marsh.", "opinion_index": 1 }, { "cite": "261 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "298 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573504, 8573480, 8573435, 8573453 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/298/0570-04", "/nc/298/0570-03", "/nc/298/0570-01", "/nc/298/0570-02" ] }, { "cite": "253 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "329" } ], "opinion_index": 1 }, { "cite": "40 N.C. App. 538", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551662 ], "year": 1979, "pin_cites": [ { "page": "543" } ], "opinion_index": 1, "case_paths": [ "/nc-app/40/0538-01" ] }, { "cite": "175 N.C. App. 410", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352257 ], "year": 2006, "pin_cites": [ { "page": "412" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0410-01" ] }, { "cite": "90 S.E. 948", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "pin_cites": [ { "page": "950", "parenthetical": "internal citation omitted" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1511, "char_count": 48883, "ocr_confidence": 0.737, "pagerank": { "raw": 6.116814631432179e-08, "percentile": 0.3811475109166596 }, "sha256": "4845338c1553e25edd85ce5d535fde034513bc292b10ffdacfbd9277cfbae5ae", "simhash": "1:0a654d709f2df5f0", "word_count": 7953 }, "last_updated": "2023-07-14T20:38:54.150336+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs.", "Judge WYNN concurs in the result with a separate opinion." ], "parties": [ "CHEYENNE SALEENA STARK, a Minor, CODY BRANDON STARK, a Minor, by their Guardian ad Litem, NICOLE JACOBSEN, Plaintiffs-Appellants v. FORD MOTOR COMPANY, a Delaware Corporation, Defendant-Appellee" ], "opinions": [ { "text": "McGEE, Judge.\nCheyenne Saleena Stark (Cheyenne), Cody Brandon Stark (Cody), and Cory Christian Stark (Cory), through their then Guardian ad Litem, Ruby Squires Stark; and Gordon Walter Stark, Jr. (Gordon Stark), filed a complaint on 23 April 2004 against Ford Motor Company (Defendant) alleging, inter alia, that Cheyenne suffered a spinal cord injury caused by a defective design of the seatbelt she was using during an accident involving her parents\u2019 1998 Ford Taurus (the Taurus) on 23 April 2003. The complaint further alleged that Cody suffered \u201csevere abdominal injuries, including damage to his spleen.\u201d The claims of Gordon Stark and Cory were later dismissed, as discussed below.\nCheyenne and Cody were passengers in the back seat of the Taurus on 23 April 2003. At the time of the accident, Cheyenne was five years old and Cody was nine years old. Each was secured in the Taurus by a three-point seatbelt designed by Defendant. Neither Cheyenne nor Cody was sitting in a booster seat. Their three-year-old sibling, Cory, was sitting in the middle of the back seat.\nCheyenne\u2019s mother, Tonya Stark, was driving the Taurus. Cheyenne\u2019s father, Gordon Stark, was a passenger in the front seat. Tonya Stark was operating the Taurus in a parking lot at a speed of twenty-six miles per hour, when the vehicle suddenly accelerated. She lost control of the Taurus, and it collided with a light pole.\nFollowing the collision, Cheyenne was dazed but able to walk. However, after Cheyenne was taken to the hospital a short time later, she complained of leg pain. Cheyenne later lost all feeling in her body below her rib cage.\nThe complaint alleged that Defendant engaged in \u201c[w]illful, [w]anton and [r]eckless [m]isconduct\u201d in designing the seatbelts in the Taurus and that Defendant\u2019s actions caused physical and cognitive injuries to Cheyenne and Cody. The complaint also alleged that the engine in the Taurus was defectively designed in that it caused a \u201csudden unintended acceleration\u201d which led to the collision. Defendant filed an answer generally denying negligence and defective design and asserting that Tonya Stark and Gordon Stark were the cause of any injuries. Defendant also alleged, inter alia, the affirmative defenses of unauthorized modification or alteration of the Taurus or its components and failure to follow instructions or warnings given by Defendant.\nDefendant filed a motion for summary judgment on 17 February 2005. The trial court filed an order on 22 August 2005 granting Defendant\u2019s motion as to: (1) the claim for cognitive injury to Cheyenne, and (2) the claim based on the sudden unintended acceleration of the Taurus. In its order, the trial court also dismissed personal injury claims asserted by Gordon Stark and Cory. The trial court denied Defendant\u2019s motion for summary judgment as to the remainder of claims, finding that there remained genuine issues of material fact.\nNicole Jacobsen, (Guardian ad Litem), filed a motion on 15 March 2005 seeking to be substituted as Guardian ad Litem in the action. The record is unclear as to when this motion was granted; however, at the time of trial, plaintiffs in the action were as follows: Cheyenne Saleena Stark and Cody Brandon Stark, by their Guardian ad Litem, Nicole Jacobsen (Plaintiffs).\nAt trial, Plaintiffs presented expert testimony that the injuries Cheyenne suffered were caused or enhanced by a design defect known as \u201cfilm spool\u201d in the seatbelt she was using. This defect allowed slack in the seatbelt to cause the shoulder portion of the belt to slip off Cheyenne\u2019s shoulder and come to rest in a position lower on her body, such that she bent over the seatbelt during the accident. It was this \u201cfilm spool\u201d and the resulting movement by Cheyenne that Plaintiffs asserted as the cause of Cheyenne\u2019s injuries. Plaintiffs further presented evidence that the use of certain devices may prevent \u201cfilm spool\u201d from occurring during accidents by retracting or otherwise restricting any excess belt material during a collision. The Taurus was not equipped with any of these devices.\nAt the close of Plaintiffs\u2019 evidence, Defendant moved for a directed verdict on the grounds that Plaintiffs failed to present evidence of \u201ctesting to show that any of their alleged alternative designs would have made the Taurus any safer in this crash.\u201d Defendant renewed its directed verdict motion at the close of all the evidence. The trial court denied both of Defendant\u2019s motions.\nDefendant presented evidence at trial that Cheyenne\u2019s injuries were caused by her improper use of the seatbelt. Specifically, Defendant asserted that Cheyenne was wearing the seatbelt with the shoulder portion behind her back. Defendant argued that, because Cheyenne was not restrained by the shoulder portion of the belt, the \u201cfilm spool\u201d effect could not have been the cause of her injuries. Because \u201cfilm spool\u201d was not a cause, the use of the preventative devices offered by Plaintiffs would have made no difference as to Cheyenne\u2019s injuries. Instead, Defendant presented three theories of causation for Cheyenne\u2019s injuries: (1) the accident itself; (2) Cheyenne\u2019s improper use of the seatbelt by wearing the shoulder belt behind her back; and (3) Cheyenne\u2019s non-use of a booster seat, contrary to Defendant\u2019s instructions.\nPlaintiffs filed a motion for a directed verdict as to two of Defendant\u2019s affirmative defenses. In their motion, Plaintiffs specifically requested a directed verdict as to Defendant\u2019s affirmative defenses of \u201cAlteration or Modification of Product\u201d pursuant to N.C. Gen. Stat. \u00a7 99B-3, and \u201cAdequate Warnings or Instruction\u201d pursuant to N.C. Gen. Stat. \u00a7 99B-4. With respect to their requested directed verdict based on N.C.G.S. \u00a7 99B-3, Plaintiffs argued that, because Tonya Stark and Gordon Stark were not parties to the action, and because Cheyenne was a minor under the age of seven years and was therefore legally incapable of negligence, N.C.G.S. \u00a7 99B-3 did not provide an affirmative defense to Defendant. After hearing arguments from Plaintiffs and Defendant, the trial court denied Plaintiffs\u2019 motion.\nThe trial court submitted questions to the jury. The jury answered those questions, in pertinent part, as follows:\n4. Did the Defendant Ford Motor Company act unreasonably in designing the 1998 Ford Taurus and its component parts, proximately causing enhanced injury to Cheyenne Stark?\nAnswer: [Yes]\n[If you answer \u201cYes\u201d to this issue, then go to Issue 5; if you answer \u201cno\u201d to this issue, then do not consider any further issues.]\n5. Were the enhanced-injuries to Cheyenne Stark caused by using the 1998 Ford Taurus in a manner contrary to any express and adequate instructions or warnings which were known or should have been known by the user?\nAnswer: [No]\n[If you answer \u201cYes\u201d to this issue, then do not consider any further issues; if you answer \u201cno\u201d to this issue, go to Issue 6.]\n6. Were the enhanced injuries to Cheyenne Stark caused by an alteration or modification of the 1998 Ford Taurus?\nAnswer: [Yes]\n[If you answer \u201cyes\u2019 [sic] to this issue, then do not consider any further issue; if you answer \u201cno\u201d to this issue, then go to Issue 7.]\nThe jury further determined that Defendant\u2019s product, the Taurus, was not the proximate cause of enhanced injury to Cody. The trial court entered judgment in favor of Defendant on 15 May 2007, ordering that Plaintiffs recover nothing from Defendant, dismissing Plaintiffs\u2019 complaint, and awarding costs to Defendant. The trial court retained jurisdiction for the purposes of determining costs and expert witness fees.\nPlaintiffs filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial on 24 May 2007. The trial court filed an order denying Plaintiffs\u2019 motion on 23 April 2008.\nDefendant filed a motion for costs in the amount of $135,634.74 on 8 August 2007 on the grounds of \u201cits successful defense and jury verdict\u201d. In an order entered 28 April 2008, the trial court granted Defendant\u2019s motion in part but reduced the award to $45,717.92. The trial court stated that \u201cafter consideration of the motion, affidavits, materials submitted by the parties, arguments of counsel, and other matters of record, that [Defendant] was the prevailing party at trial and that certain costs should, in the [c]ourt\u2019s discretion, be awarded to [Defendant].\u201d The trial court awarded these costs \u201cagainst Plaintiffs and Nicole Jacobsen as Guardian ad Litem, jointly and severally].]\u201d\nPlaintiffs appeal from the trial court\u2019s judgment entered 15 May 2007, the trial court\u2019s order denying Plaintiffs\u2019 motion for judgment notwithstanding the verdict or a new trial, and the trial court\u2019s order granting Defendant\u2019s motion for award of costs. Defendant cross-assigns error and argues that the trial court erred in denying Defendant\u2019s motions for summary judgment and directed verdict as to Plaintiffs\u2019 inadequate design claims.\nDirected Verdict\nPlaintiffs first argue that the trial court erred by denying their motion for a directed verdict on the issue of product alteration. Because Cheyenne was five years old at the time of the collision, Plaintiffs contend she was legally incapable of modifying or altering the product under N.C. Gen. Stat. \u00a7 99B-3. Because neither Tonya Stark nor Gordon Stark was a party to this action, Plaintiffs contend that no misuse or modification on their part would provide a defense under N.C.G.S. \u00a7 99B-3. Plaintiffs argue, therefore, that the trial court should have granted a directed verdict as to Defendant\u2019s \u00a7 N.C.G.S. 99B-3 defense as described injury question number 6, to wit: whether \u201cthe enhanced injuries to Cheyenne Stark [were] caused by an alteration or modification of the 1998 Ford Taurus[.]\u201d We agree.\nOur Court reviews a trial court\u2019s ruling on a motion for directed verdict de novo. Denson v. Richmond County, 159 N.C. App. 408, 411, 583 S.E.2d 318, 320 (2003).\nThe standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury. When determining the correctness of the denial for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party\u2019s favor, or to present a question for the jury. Where the motion for judgment notwithstanding the verdict is a motion that judgment be entered in accordance with the movant\u2019s earlier motion for directed verdict, this Court has required the use of the same standard of sufficiency of evidence in reviewing both motions.\nDavis v. Dennis Lilly Co., 330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991) (internal citations omitted). Where a trial court errs in submitting an affirmative defense to a jury, our Court has the discretion to remand for a new trial. Cicogna v. Holder, 345 N.C. 488, 490, 480 S.E.2d 636, 637 (1997). However, \u201c[i]f the issue which was erroneously submitted did not affect the entire verdict, there should not be a new trial on all issues.\u201d Id.\nN.C. Gen. Stat. \u00a7\u00a7 99B-1 et seq., which govern products liability actions in North Carolina, provide a defense to a products liability claim in N.C. Gen. Stat. \u00a7 99B-3, as follows:\n(a) No manufacturer or seller of a product shall be held liable in any product liability action where a proximate cause of the personal injury, death, or damage to property was either an alteration or modification of the product by a party other than the .manufacturer or seller, which alteration or modification occurred after the product left the control of such manufacturer or such seller unless:\n(1) The alteration or modification was in accordance with the instructions or specifications of such manufacturer or such seller; or\n(2) The alteration or modification was made with the express consent of such manufacturer or such seller.\n(b) For the purposes of this section, alteration or modification includes changes in the design, formula, function, or use of the product from that originally designed, tested, or intended by the manufacturer. It includes failure to observe routine care and maintenance, but does not include ordinary wear and tear.\nN.C. Gen. Stat. \u00a7 99B-3 (2009).\nOur Court has held that a determination of whether an act was a proximate cause of an injury must include an analysis of \u201cforeseeability.\u201d Hastings for Pratt v. Seegars Fence Co., 128 N.C. App. 166, 170, 493 S.E.2d 782, 785 (1997). Because the alteration or modification of a product must be a proximate cause of an injury in order to provide a viable defense under N.C.G.S. \u00a7 99B-3, we must analyze the issue of foreseeability. Id., 493 S.E.2d at 784.\nForeseeability of some injurious consequence of one\u2019s act is an essential element of proximate cause, though anticipation of the particular consequence is not required. While the usual test is whether \u201ca person of ordinary prudence could have reasonably foreseen . . .\u201d some injurious result from the unintended use of the product; where, as in the present case, the actions of a minor child are at issue, the test of foreseeability is whether a child of similar \u201cage, capacity, discretion, knowledge, and experience\u201d could have foreseen some injurious result from his or her use of the product.\nId., 493 S.E.2d at 785 (internal citations omitted). \u201cAs a matter of law, a child under 7 years of age is incapable of negligence.\u201d State v. Harrington, 260 N.C. 663, 666, 133 S.E.2d 452, 455 (1963). See also Allen v. Equity & Investors Management Corp., 56 N.C. App. 706, 709, 289 S.E.2d 623, 625 (1982) (\u201cAn infant under 7 years of age is conclusively presumed to be incapable of contributory negligence.\u201d) (citation omitted).\nPlaintiffs argue that, because Cheyenne was under seven years of age at the time of the accident, she was incapable of negligence and was therefore unable to \u201cforesee\u201d that any modification or alteration could be a proximate cause of her injury. We agree.\nIn Hastings, our Court held that N.C.G.S. \u00a7 99B-3 did not provide a defense to a manufacturer on the following facts. An eight-year-old child was injured while playing on a fence and gate constructed by the defendant. Hastings, 128 N.C. App. at 167, 493 S.E.2d at 783. While the minor plaintiff was hanging on the gate, another child caused the gate to roll. Id. When the gate rolled, two of the minor plaintiff\u2019s fingers were caught in a roller and were amputated. Id. The minor plaintiff\u2019s mother, as guardian ad litem for the child, filed a negligence action against the gate manufacturer. Id. The defendant argued that N.C.G.S. \u00a7 99B-3 provided a defense to the plaintiff\u2019s claim in that the minor child \u201cused the fence in a manner other than as it was originally designed, tested, or intended by the manufacturer to be used[.]\u201d Id. at 169, 493 S.E.2d at 784. The trial court eventually dismissed the plaintiff\u2019s claims. Id. at 168, 493 S.E.2d at 783.\nOur Court held that the defendant\u2019s allegation of \u201cthe minor plaintiff\u2019s contributory negligence \u2018by engaging in horseplay on the fence and cantilevered gate . . . .\u2019 was sufficient to raise the defense provided by G.S. \u00a7 99B-3[.]\u201d Id. at 169, 493 S.E.2d at 784. We then cited the standard of care applicable to a minor child between the ages of seven and fourteen years and held that \u201c[i]ssues of proximate cause and foreseeability, involving application of standards of conduct, are ordinarily best left for resolution by a jury under appropriate instructions from the court.\u201d Id. at 170, 493 S.E.2d at 785.\nWe apply the same principles of negligence to the N.C.G.S. \u00a7 99B-3 analysis in the present case. While the minor plaintiff in Hastings was eight years old, in the case before us, Cheyenne was five years old and therefore subject to a different standard of care. As discussed above, the appropriate standard of care to apply, when analyzing the negligence of a child under seven years of age, is that such children are, as a matter of law, incapable of negligence. Harrington, 260 N.C. at 666, 133 S.E.2d at 455. Therefore, because Cheyenne was a child under seven years of age at the time of the alleged alteration or modification, Defendant is unable, as a matter of law, to prove the requisite element of foreseeability inherent in the proximate cause portion of its N.C.G.S. \u00a7 99B-3 defense. Because foreseeability, and therefore proximate cause, is lacking in Defendant\u2019s defense as to Cheyenne, N.C.G.S. \u00a7 99B-3 is inapplicable to any alteration or modification alleged to have been performed by Cheyenne herself.\nParty Modifier\nPlaintiff next addresses Defendant\u2019s argument that Gordon Stark or Tonya Stark modified the seatbelt by improperly placing Cheyenne in the seat with the shoulder belt behind her back. Plaintiffs argue that Cheyenne was still entitled to a directed verdict because neither Gordon Stark nor Tonya Stark was \u201ca party\u201d to the action, as required by N.C. Gen. Stat. \u00a7 99B-3.\nN.C.G.S. \u00a7 99B-3 provides in pertinent part that:\nNo manufacturer or seller of a product shall be held liable in any product liability action where a proximate cause of the personal injury, death, or damage to property was either an alteration or modification of the product by a party other than the manufacturer or seller, which alteration or modification occurred after the product left the control of such manufacturer or such seller. . . .\nN.C.G.S. \u00a7 99B-3 (emphasis added).\nDefendant argues that the trial court\u2019s judgment, based on the jury\u2019s verdict, was supported by evidence that Gordon Stark misused the rear seatbelt by putting Cheyenne in the backseat and buckling her seatbelt with the shoulder belt behind her back. Defending against Plaintiffs\u2019 motion for directed verdict, Defendant argued at trial that \u201c[m]ore importantly, what is the specific evidence in this case about who used Cheyenne Stark\u2019s belt; Gordon Stark. He put her in that belt on that day. He is the one who affixed her to this vehicle. He\u2019s the one who used the product.\u201d Plaintiffs argue that N.C.G.S. \u00a7 99B-3 is inapplicable to any alleged alterations or modifications performed by either Tonya Stark or Gordon Stark in placing Cheyenne in the seatbelt improperly, because neither Tonya Stark nor Gordon Stark is a party to this action.\nAt the time of trial, neither Tonya Stark nor Gordon Stark were parties to the action. Gordon Stark, originally a named plaintiff, had his personal injury claims dismissed on 22 August 2006 when the trial court granted Defendant\u2019s motion for summary judgment. Defendant filed a motion for leave to file a third-party complaint against Tonya Stark and Gordon Stark as third-party defendants on 21 August 2006. Defendant\u2019s motion was granted in an order filed 27 October 2006, with the condition that, \u201cif the third party defendants are unable to obtain counsel who can prepare for and participate in the trial scheduled for October 30, 2006, then . . . the third party action shall be SEVERED from the instant action and tried at a later date.\u201d Defendant did not file a third-party complaint naming as third-party defendants Tonya Stark and Gordon Stark until January 2007. At the time of trial, the parties were as follows: Cheyenne and Cody, by their guardian ad litem, Nicole Jacobsen, as plaintiffs, and Ford Motor Company as defendant.\nPlaintiffs rely on three cases involving the application of N.G.C.S. \u00a7 99B-3, contending that \u201c[i]n all three cases, the \u2018modifier\u2019 was, or may have been, a party-defendant in the suit, and the cases do not address modification by a non-party as a defense.\u201d These cases are: Edmondson v. Macclesfield L-P Gas Co., Inc., 182 N.C. App. 381, 642 S.E.2d 265 (2007); Phillips v. Restaurant Management, 146 N.C. App. 203, 552 S.E.2d 686 (2001); and Rich v. Shaw, 98 N.C. App. 489, 391 S.E.2d 220 (1990). We note that in Phillips, the plaintiff named three defendants in their action: a restaurant management company, Taco Bell Corp., and a restaurant employee. Phillips, 146 N.C. App. at 207, 552 S.E.2d at 689. The plaintiff sought to pursue a claim under Chapter 99B, and we held that he was precluded from pursuing this claim by N.C.G.S. \u00a7 99B-3 on the grounds that the product, a fast food item, was produced by the management company and Taco Bell and was modified when the defendant-employee spit into it. Phillips, 146 N.C. App. at 218-19, 552 S.E.2d at 696. Therefore, the modifier in Phillips was a party to the action.\nLikewise, in Edmondson, the plaintiff filed an action against both the manufacturer of a heater and a company that performed a \u201cnegligent repair\u201d on that heater. 182 N.C. App. at 386, 642 S.E.2d at 269. Our Court upheld the trial court\u2019s ruling that the manufacturer was protected by the N.C.G.S. \u00a7 99B-3 defense on grounds that the heater had been improperly modified for use with liquified petroleum gas after it left the manufacturer\u2019s control. Id. at 389-90, 642 S.E.2d at 271-72. The opinion is unclear on the issue of whether the modifier was a party to the action, but Plaintiffs filed a motion requesting that we take judicial notice of a portion of the defendant manufacturer\u2019s brief filed with our Court in Edmondson referring to the modifier as a party. We grant that motion and take judicial notice of the following statement: \u201cthe subject heater was sold . . . and left [defendant manufacturer\u2019s] possession, but before it was installed at [the plaintiff\u2019s] residence, it was modified by [the defendant repair company] so that it could be used with Liquified Petroleum (L-P) Gas instead of Natural Gas.\u201d See Whitmire v. Cooper, 153 N.C. App. 730, 735, 570 S.E.2d 908, 911 n.4 (2002) (\u201cthis [C]ourt may take judicial notice of the public records of other courts within the state judicial system\u201d) (citation omitted); see also State v. Benfield, 76 N.C. App. 453, 459, 333 S.E.2d 753, 757 n.1 (1985) (our Court taking judicial notice of \u201cthe records of this Court\u201d). Therefore, the modifier in Edmonson was also a party to the action.\nDefendant counters that this Court did not address whether the \u201cmodifier\u201d was a party to the action in any of the three cases cited by Plaintiffs, because \u201cthe [N.C.G.S. \u00a7 99B-3] defense does not require it.\u201d We note that in Rich, the third case upon which Plaintiffs rely, the opinion is unclear whether the modification was performed by a party or not. See Rich, 98 N.C. App. 489, 391 S.E.2d 220. However, the argument concerning the application of the defense in Rich did not turn, as here, on the requirement that the modifier be a party. See Id., 98 N.C. App. at 492, 391 S.E.2d at 222-23. This issue appears to have not been previously determined by our Courts. Defendant contends that the defense enumerated under N.C.G.S. \u00a7 99B-3 \u201cis concerned only with whether the product was used properly and whether someone \u2018other than the manufacturer\u2019 altered or misused the product.\u201d\nDefendant\u2019s argument overlooks the plain language of the statute. The statute does not provide a defense where \u201csomeone \u2018other than the manufacturer\u2019 altered or misused the product],]\u201d as Defendant contends. Rather, N.C.G.S. \u00a7 99B-3 provides a defense where \u201ca party other than the manufacturer or seller\u201d causes the alteration or modification. N.C.G.S. \u00a7 99B-3 (emphasis added).\nTo the extent that Defendant contends the use of the term \u201cparty\u201d in N.C.G.S. \u00a7 99B-3 is unclear, we note that in N.C. Gen. Stat. \u00a7 99B-1, which provides the definitions for terms used in Chapter 99B, the terms \u201cClaimant],]\u201d \u201cManufacturer],]\u201d and \u201cSeller\u201d are defined using the phrases \u201ca person or other entity],]\u201d \u201ca person or entity],]\u201d and \u201cany individual or entity],]\u201d respectively. N.C. Gen. Stat. \u00a7 99B-1 (2009). Had the General Assembly intended N.C.G.S. \u00a7 99B-3 to apply to any person, individual or entity, it would have used such terms. See Fabrikant v. Currituck County, 174 N.C. App. 30, 42-43, 621 S.E.2d 19, 28 (2005) (citing Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 24 (1983) (\u201cWe refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.\u201d)). Instead, in the statute before us, the General Assembly used the term \u201cparty,\u201d which has independent legal significance. We note that \u201cparty\u201d is defined as \u201c]o]ne who takes part in a transaction .... [or] [o]ne by or against whom a lawsuit is brought].]\u201d Black\u2019s Law Dictionary 1231-32 (9th ed. 2009). Therefore, the plain language of N.C.G.S. \u00a7 99B-3 states that the entity responsible for the modification or alteration of the product must be a party to the action in order for the defense to apply. Because Defendant asserts that the modification was performed by Gordon Stark, who is not a party to the action in this case, Defendant is unable to establish an N.C.G.S. \u00a7 99B-3 defense as to such an alleged modification.\nAs discussed above, a directed verdict is proper when the evidence, viewed in the light most favorable to the non-moving party, is insufficient, as a matter of law, to submit the question to the jury. Davis, 330 N.C. at 322-23, 411 S.E.2d at 138. Because Defendant is unable, as a matter of law, to support an N.C.G.S. \u00a7 99B-3 defense as to either Cheyenne, Tonya Stark, or Gordon Stark, Plaintiffs are entitled to a directed verdict as to Defendant\u2019s N.C.G.S. \u00a7 99B-3 defense. We therefore reverse the trial court\u2019s order denying Plaintiffs\u2019 motion for directed verdict as to Defendant\u2019s N.C.G.S. \u00a7 99B-3 defense.\nIn light of our holding, we need not address Plaintiffs\u2019 arguments concerning judgment notwithstanding the verdict, entry of judgment, or motion for a new trial. Because the jury found that Defendant \u201cact[ed] unreasonably in designing the 1998 Ford Taurus and its component parts, proximately causing enhanced injury to Cheyenne Stark,\u201d we reverse the trial court\u2019s judgment and remand for entry of judgment in favor of Cheyenne Stark and for a trial on the issue of damages. Cicogna, 345 N.C. at 490, 480 S.E.2d at 637.\nCosts\nPlaintiffs next argue that the trial court erred in awarding court costs against the Guardian ad Litem individually. Because we reverse the trial court\u2019s judgment, we vacate the trial court\u2019s order awarding costs in favor of Defendant. See N.C. Gen. Stat. \u00a7 6-1 (2009) (\u201cTo the party for whom judgment is given, costs shall be allowedf.]\u201d).\nDefendant\u2019s Cross-Assignments of Error\nDefendant argues that the trial court erred by denying its motions for summary judgment and directed verdict. We disagree. As discussed above, a directed verdict is proper when the evidence, viewed in the light most favorable to the non-moving party, is insufficient as a matter of law to submit the question to the jury. Davis, 330 N.C. at 322-23, 411 S.E.2d at 138. Summary judgment is proper where, taking the evidence in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Davis v. Town of Southern Pines, 116 N.C. App. 663, 665-66, 449 S.E.2d 240, 242 (1994).\nDefendant cites N.C. Gen. Stat. \u00a7 99B-6 and argues that North Carolina\u2019s products liability act requires Plaintiffs to show, inter alia, that Defendant failed to \u201cadopt a \u2018safer, practical, feasible, and otherwise reasonable alternative design\u2019 that would have prevented or minimized [Cheyenne\u2019s] injuries, [or that] the Taurus\u2019s design was \u2018so unreasonable that a reasonable person, aware of the relevant facts, would not use or consume a product of this design.\u2019 \u201d Defendant specifically argues that Plaintiffs\u2019 expert testimony regarding alternative designs \u201clacked any methodologically-sound support\u201d because the experts cited to no testing to support their conclusions. However, Defendant cites no authority to support its contention that Plaintiffs\u2019 evidence was insufficient, nor that expert witness testimony of this nature required \u201ctesting\u201d in order to withstand a directed verdict.\nN.C. Gen. Stat. \u00a7 99B-6 provides in pertinent part:\n(a) No manufacturer of a product shall be held liable in any product liability action for the inadequate design or formulation of the product unless the claimant proves that at the time of its manufacture the manufacturer acted unreasonably in designing or formulating the product, that this conduct was a proximate cause of the harm for which damages are sought, and also proves one of the following:\n(1) At the time the product left the control of the manufacturer, the manufacturer unreasonably failed to adopt a safer, practical, feasible, and otherwise reasonable alternative design or formulation that could then have been reasonably adopted and that would have prevented or substantially reduced the risk of harm without substantially impairing the usefulness, practicality, or desirability of the product.\n(2) At the time the product left the control of the manufacturer, the design or formulation of the product was so unreasonable that a reasonable person, aware of the relevant facts, would not use or consume a product of this design.\n(b) In determining whether the manufacturer acted unreasonably under subsection (a) of this section, the factors to be considered shall include, but are not limited to, the following:\n(1) The nature and magnitude of the risks of harm associated with the design or formulation in light of the intended and reasonably foreseeable uses, modifications, or alterations of the product.\n(6) The technical, economic, and practical feasibility of using an alternative design or formulation at the time of manufacture.\n(7) The nature and magnitude of any foreseeable risks associated with the alternative design or formulation.\nN.C. Gen. Stat. \u00a7 99B-6 (2009).\nPlaintiffs counter by pointing out the weight of evidence offered at trial that supported their claims. Plaintiffs presented, inter alia, the testimony of Dr. Joseph Burton, a forensic pathologist. Dr. Burton testified that, based on the damage to the vehicle, he would have expected the passengers to suffer injuries, but not \u201ccatastrophic injury .... Maybe just a broken wrist.\u201d Dr. Burton further testified that Cheyenne was paralyzed from the accident because her shoulder belt was not snug and had \u201cslack in it[,]\u201d causing the belt to \u201csnap-load[] the chest for her to have this injury.\u201d\nDr. Burton further testified that the injuries suffered by Cheyenne were the result of a process called \u201cfilm spool.\u201d When \u201cfilm spool\u201d occurs, excess webbing material in a seatbelt continues to extend after the spool to which the material is secured ceases to move. The use of certain devices may prevent \u201cfilm spool\u201d from occurring during accidents by retracting, or otherwise restricting, any excess belt material during a crash. He testified that though these devices were available when the Taurus was manufactured and were, in fact, used by Defendant in certain of its products sold outside of the United States, none of these devices was present in the Taurus involved in the collision that caused Cheyenne\u2019s injuries.\nPlaintiffs therefore offered evidence that, when viewed in the light most favorable to Plaintiffs, tended to show that Defendant manufactured a product which had the potential to cause the injury suffered by Cheyenne. Though there were alternative designs available at the time which were used by Defendant in similar products, the product used by Plaintiffs did not include these alternative designs. We hold that Plaintiffs presented sufficient evidence to survive Defendant\u2019s motions for summary judgment and directed verdict. Defendant\u2019s cross-assignments of error are therefore overruled.\nReversed in part, vacated in part, and remanded.\nJudge BRYANT concurs.\nJudge WYNN concurs in the result with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "WYNN, Judge\nconcurring in the result.\nI write separately to emphasize that judicial restraint guides our interpretation of the affirmative defense to product liability codified in N.C.G.S. \u00a7 99B-3 (\u201cthe modification defense\u201d). Here, the language of the statute is clear and we are duty-bound to follow the law as written. Nonetheless, while I concur with the majority in following the clear language of the statute, I do so mindful that the statutory language appears inconsistent with general principles of negligence, modification defenses in all other states, and possibly even the intent of our legislature itself.\nTo begin, it warrants mention that Plaintiff\u2019s claims are based on Defendant\u2019s alleged negligence in the design of the Ford Taurus. It is a well-established principle in negligence cases that the plaintiff cannot prevail \u201c[w]hen it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person.\u201d Smith v. Sink, 211 N.C. 725, 727, 192 S.E. 108, 109 (1937). It does not matter if the \u201cresponsible third person\u201d is a party to the action; what matters is that the person\u2019s actions constitute intervening negligence insulating the defendant from liability. The fact that the case sub judice is a products liability action should not, without more, mean that intervening negligence is only given legal effect when the person who proximately caused the plaintiff\u2019s injury is a party to the suit. Indeed, this Court has stated that \u201c[i]n an action to recover for injuries resulting from the negligence of a manufacturer, plaintiff must present evidence which tends to show that the product manufactured by defendant was defective at the time it left defendant\u2019s plant, and that defendant was negligent in its design of the product, in its selection of materials, in its assembly process, or in its inspection of the product.\u201d Jolley v. General Motors Corp., 55 N.C. App. 383, 385, 285 S.E.2d 301, 303 (1982) (emphasis added) (citing Cockerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, disc. rev. denied, 300 N.C. 195, 269 S.E.2d 622 (1980)).\nThe common sense corollary is that when a product is modified after \u201cthe time it left defendant\u2019s plant\u201d the defendant is insulated from claims of negligent design, regardless of whether the modifier is a party to the action. Indeed, at first blush it seems illogical to subject a manufacturer to liability for injuries resulting from a modified product potentially quite different from that initially placed into the stream of commerce solely on the grounds that the modifier had not been joined in the action. However, \u201c[i]n interpreting statutes,... it is always presumed that the Legislature acted with full knowledge of prior and existing law.\u201d Investors, Inc. v. Berry, 293 N.C. 688, 695, 239 S.E.2d 566, 570 (1977). Thus, in light of the fact that N.C.G.S. \u00a7 99B-3 directly addresses the affirmative defense of product modification in products liability actions, I concede that the language therein must control this Court\u2019s decision.\nNonetheless, it is troubling that strict adherence to the statutory language regarding modification defense represents so dramatic a departure from the view held in all other states regarding the legal effect of product modification on the liability of manufacturers. While a number of other states recognize a defense to such liability when the product has been modified, none limit the defense to apply only when modification was performed by a party to the litigation.\nSome of the statutes in other states explicitly allow for a defense when anyone other than the manufacturer or seller modifies the product. For example, Indiana provides a defense in a products liability action when the product is modified or altered \u201cby any person after, the product\u2019s delivery to the initial user or consumer . . . .\u201d Ind. Code \u00a7 34-20-6-5 (LexisNexis 2008). Similarly, in Kentucky a modification defense to products liability applies \u201cto alterations or modifications made by any person or entity, except those made in accordance with specifications or instructions furnished by the manufacturer.\u201d Ky. Rev. Stat. Ann. \u00a7 411.320 (West 2006); see also Smith v. Louis Berkman Co., 894 F.Supp. 1084, 1090 (W.D. Ky. 1995) (\u201cKRS 411.320 indicates the Kentucky legislature\u2019s intent to benefit product manufacturers by precluding their tort liability when their products are modified or altered by someone else.\u201d).\nOther statutes fail to even mention the identity of the modifier. In Michigan, \u201c[a] manufacturer or seller is not liable in a product liability action for harm caused by an alteration of the product unless the alteration was reasonably foreseeable.\u201d Mich. Comp. Laws \u00a7 600.2947(1) (2000). In North Dakota, the modification defense applies when the alteration or modification \u201coccurred subsequent to the sale by the manufacturer or seller to the initial user or consumer.\u201d N.D. Cent. Code \u00a7 28-01.3-03 (2006).\nFinally, there are state statutes which provide a modification defense as long as the manufacturer/seller is not responsible for the modification. For example, the Idaho statute defines the type of alteration or modification giving rise to a defense in a products liability action as that which \u201coccurs when a person or entity other than the product seller changes the design, construction, or formula of the product, or changes or removes warnings or instructions that accompanied or were displayed on the product.\u201d Idaho Code Ann. \u00a7 6-1405(4)(a) (2004).\nIn sum, after reviewing products liability statutes in states other than North Carolina, it appears that the clear language under our statute, N.C.G.S. \u00a7 99B-3, creates within our borders a unique legal regime with respect to products liability. However, I recognize and respect the fact that \u201c[t]he decisions from other jurisdictions, while helpful in construing the provisions of our statute, are not controlling; neither is the interpretation placed upon a statute similar to ours, binding on this Court.\u201d Stanley v. Hyman-Michaels Co., 222 N.C. 257, 266, 22 S.E.2d 570, 576 (1942).\nI also respect the principle that \u201c[w]hen the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required.\u201d Diaz v. Division of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006) (citation omitted). Here, I agree with the majority that the legislature\u2019s use of the word \u201cparty\u201d renders the language of the statute clear and unambiguous. I further note that even if the language were \u201cambiguous,\u201d there is no definitive proof in the legislative history of N.C.G.S. \u00a7 99B-3 that the General Assembly intended to apply a contrary meaning to the word \u201cparty.\u201d See id. (\u201c[W]hen the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment.\u201d).\nOn 29 January 1979, Senate Bill 189 was introduced in the N.C. Senate. This bill, which was the first attempt in that legislative session to pass products liability reform, stated:\nNo manufacturer or seller of a product shall be held liable in any product liability action where a contributing cause of the injury, death or damage to property was either (a) an alteration or modification of the product which occurred after the product left the control of the manufacturer or seller, or (b) a use of the product in a manner for which the product was not originally designed, manufactured, recommended or warranted.\nS.B. 189, 1979 Gen. Assem., Reg. Sess. (N.C. 1979). Notably, this initial conception of the modification defense focused on the time when modification took place (i.e. after the product left the control of the manufacturer) rather than the identity of the modifier.\nOn the same day that Senate Bill 189 was introduced, House Bill 235 was introduced with the exact same language. On 28 February 1979, a joint public hearing of the committees considering Senate Bill 189 and House Bill 235 met to discuss the proposed legislation. There was no mention at this joint public hearing about limiting the modification defense to modifiers that were parties in the products liability action.\nIndeed, the first reference to the identity of the modifiers was added on 8 March 1979 when Senate Bill 189 was amended to read\nNo manufacturer or seller of a product shall be held liable in any product liability action where a contributing cause of the injury, death or damage to property was either (a) an alteration or modification of the product which occurred after the product left the control of such manufacturer or such seller if the alteration or modification was not done by the manufacturer or seller, or (b) a use of the product in a manner for which the product was not originally designed, manufactured, recommended or warranted.\nS.B. 189, 1979 Gen. Assem., Reg. Sess. (N.C. 1979) (as amended 8 Mar. 1979) (emphasis added). This amendment limited the defense to modifications made by someone other than the manufacturer or seller, but again did not indicate that the modifier must be a party to the case.\nOn 30 March 1979, Representative Martin Lancaster introduced House Bill 993 as a proposed alternative to Senate Bill 189. House Bill 993 was, according to Rep. Lancaster, the Uniform Products Liability Bill prepared by the U.S. Department of Commerce. Rep. Lancaster stated \u201c[t]he Senate Bill provides that the manufacturer or seller of a product is not liable when the injury is the result of an alteration or modification of the product which occurred after the product left their hands. My Bill will provide that same protection.\u201d Hearing on H.R. 993 Before H. Judiciary II Comm., 1979 Gen. Assem., Reg. Sess. (N.C. 1979) (statement of Rep. Martin Lancaster, Member, Judiciary II Comm.). Again, there was no indication that the availability of such protection depended on whether the modifier was a party to the case.\nHouse Bill 993 was the first draft of products liability legislation to include the word \u201cparty\u201d but it did so as follows:\nA product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless:\n(1) the alteration or modification was in accordance with the product seller\u2019s instructions or specifications;\n(2) the alteration or modification was made with the express consent of the product seller; or\n(3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller.\nH.R. 993, 1979 Gen. Assem., Reg. Sess. (N.C. 1979) (emphasis added).\nThe three proposed bills concerning products liability (House Bill 235, House Bill 993, and Senate Bill 189) were referred to a special study subcommittee of the House Judiciary II Committee. The subcommittee drafted a proposed Committee substitute and this House Substitute bill was given a favorable report. This House Committee substitute bill is the first one that introduced the \u201cby a party other than the manufacturer or seller\u201d language. Ultimately, this language was retained in N.C.G.S. \u00a7 99B-3.\nMy research reveals no indication as to why the members of the special study subcommittee of the House Judiciary II Committee chose to add language to the statute. This is disconcerting in light of the fact that all of the previous versions of the modification defense seem to envision broad protection for modifiers whose products were modified, regardless of whether the modifier was a party to the suit, as long as the modification occurred after the product left the manufacturer\u2019s control. However, basic rules of statutory construction dictate that our legislature does not intend sub silentio to enact statutory language that it has replaced with other words or phrases. See INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43, 94 L. Ed. 2d 434, 454 (1987) (citation omitted).\nFurthermore, \u201cthe General Assembly is presumed to have acted advisedly and with a knowledge of the meaning of language ... and it will never be assumed, if any other conclusion is permissible, that it has done a vain and foolish thing . . . .\u201d Bank v. Loven, 172 N.C. 666, 670-71, 90 S.E. 948, 950 (1916) (internal citation omitted). Therefore, we are constrained to hold that the language of the modification defense as written limits its availability to situations in which the modifier is a party to the litigation.\nIt is worthwhile to query whether the burden of the legislature\u2019s limitation of the modification defense to \u201cparties\u201d could have been mitigated by adding Tonya and Gordon Stark as new parties in this case. The North Carolina Rules of Civil Procedure permit a defending party to implead a new party \u201cwho is or may be liable to him for all or part of the plaintiff\u2019s claim against him.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 14(a) (2009). As such, Rule 14 allows impleader when the third-party defendant may be liable to the original defendant for contribution or indemnification. Spearman v. Pender Cty. Bd. of Educ., 175 N.C. App. 410, 412, 623 S.E.2d 331, 333 (2006). Furthermore, \u201c[i]t is not necessary that the third-party defendant\u2019s liability be previously determined.\u201d Rouse v. Maxwell, 40 N.C. App. 538, 543, 253 S.E.2d 326, 329, appeal dismissed, 298 N.C. 570, 261 S.E.2d 124 (1979).\nIndeed, in the instant case, Defendant was granted leave to file a third-party complaint seeking indemnification or, in the alternative, contribution from Tonya and Gordon Stark. The trial court granted this motion and subsequently ordered the severance of the third-party suit from the principal action to avoid delaying the trial in the latter. Although this severance ultimately rendered the modification defense unavailable to Defendant, Defendant did not argue on appeal that the severance was error, and as such that issue is not before the Court.\nIn conclusion, because the language of the statute is clear, I agree with its application in this case. If in fact the legislature intended the modification defense to apply when the modifier is not a party to the products liability action, it can revisit the issue and amend the statute. As written, however, the language is subject to only its plain and ordinary interpretation, which comports with that of the majority.\n. A subsequent amendment, adopted on 15 March 1979, clarified that for the modification defense to apply the modification must have been a proximate cause of the injury. S.B. 189, 1979 Gen. Assem., Reg. Sess. (N.C. 1979) (as amended 15 Mar. 1979).", "type": "concurrence", "author": "WYNN, Judge" } ], "attorneys": [ "Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson; and Gilbert, Ollanik & Komyatte, PC., by James L. Gilbert, for Plaintiff's-Appellants.", "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, LLP, by Kirk G. Warner and Christopher R. Kiger; and Bowman and Brooke LLP, by Robert L. Wise and Sandra Giannone Ezell, for Defendant-Appellee." ], "corrections": "", "head_matter": "CHEYENNE SALEENA STARK, a Minor, CODY BRANDON STARK, a Minor, by their Guardian ad Litem, NICOLE JACOBSEN, Plaintiffs-Appellants v. FORD MOTOR COMPANY, a Delaware Corporation, Defendant-Appellee\nNo. COA09-286\n(Filed 18 May 2010)\n1. Products Liability\u2014 defense \u2014 alteration or misuse\u2014 seven-year-old child\nThe products liability defense of alteration or modification was not applicable to a child under seven years of age injured by a seat belt because children that age are not capable of negligence. Defendant was unable as a matter of law to prove the requisite element of foreseeability inherent in the proximate cause portion of its N.C.G.S. \u00a7 99B-3 defense.\n2. Products Liability\u2014 defense \u2014 alteration or misuse \u2014 party to action\nThe trial court erred in a products liability action by denying plaintiffs\u2019 motion for a directed verdict on the defense of alteration or misuse where a father who was not a party to the action was alleged to have placed the seatbelt behind the child\u2019s back. The plain language of N.C.G.S. \u00a7 99B-3 states that the entity responsible for the modification or misuse of the product must be a party to the action in order for the defense to apply.\n3. Costs\u2014 denial of directed verdict reversed \u2014 award of costs reversed\nAn award of costs in favor of defendant was reversed where the trial court\u2019s denial of plaintiff\u2019s motion for directed verdict on a products liability defense was reversed.\n4. Products Liability\u2014 child injured by seatbelt \u2014 evidence sufficient\nPlaintiff presented sufficient evidence to survive defendant\u2019s motions for summary judgment and directed verdict where a child was injured by her seatbelt in an accident. Plaintiffs offered evidence that tended to show that defendant manufactured a product which had the potential to cause the injury and that defendant did not use alternative designs that were available and used by defendant in similar products.\nJudge WYNN concurring in the result.\nAppeal by Plaintiffs from judgment entered 15 May 2007 and orders entered 28 April 2008 by Judge Forrest D. Bridges in Superior Court, Mecklenburg County. Heard in the Court of Appeals 3 November 2009.\nWyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias S. Hampson; and Gilbert, Ollanik & Komyatte, PC., by James L. Gilbert, for Plaintiff's-Appellants.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, LLP, by Kirk G. Warner and Christopher R. Kiger; and Bowman and Brooke LLP, by Robert L. Wise and Sandra Giannone Ezell, for Defendant-Appellee." }, "file_name": "0001-01", "first_page_order": 25, "last_page_order": 45 }