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Kelly Franklin, Individually and On Behalf of P.P., A Minor; John Franklin; and P.P., A Minor v. Enterprise Rent-A-Car Co. of Cincinnati and Kentucky; Ean Trust; and Ean Holdings

March 4, 2013



This matter is before the Court on a motion by Defendants, Enterprise Rent-A-Car Company, EAN Trust, and EAN Holdings, LLC, for summary judgment [DN 52]; on a motion by Plaintiffs, Kelly Franklin, John Franklin, and Patrick Peebles to exclude non-party experts by General Motors [DN 54]; and on a motion by Defendants to exclude the testimony of Plaintiffs' expert Gary W. Duncan [DN 58]. Fully briefed, these matters are ripe for decision.


Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party is required to do more than simply show there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The rule requires the non-moving party to present specific facts showing that a genuine factual issue exists by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence . . . of a genuine dispute[.]" Fed. R. Civ. P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. It is against this standard the Court reviews the following facts.


In April of 2009, Plaintiff Kelly Franklin rented a 2009 Chevrolet Impala equipped with dual frontal airbags from Enterprise Rent-A-Car. At the time of the accident, the mileage of the vehicle was 13,567. On April 30, 2009, Plaintiff alleges that she was driving the 2009 Chevrolet Impala with her son, Plaintiff Patrick Peebles located in the right-front passenger seat, and two rear seat passengers. Plaintiffs aver that all the occupants in the vehicle were using their safety belts.*fn1

Plaintiffs allege that she lost control of the Impala during a rainstorm while trying to avoid striking an oncoming vehicle and exited the roadway. The Impala traveled off-road for 33 feet, striking an earth embankment, a fence post, and a guide wire for a utility pole before coming to rest. The front airbags did not deploy.

As a result of the injuries sustained, on April 30, 2010, Plaintiffs filed a design defect case against Defendants. Plaintiffs allege that the Enterprise Rent-A-Car is strictly liable for the damages to the Plaintiffs in renting the 2009 Chevrolet automobile to the Kelly Franklin in a defective and unsafe condition. (Complaint at ¶ 6.) Plaintiffs claim that the front airbags should have deployed in the collision and that both front safety belts failed to function properly. Specifically, Plaintiffs assert that the "2009 Chevrolet automobile on April 30, 2009 was unsafe and defective in that the Plaintiff, Kelly Franklin's seatbelt did not work and the airbag did not work and she was severely injured when her chest hit the steering wheel that has caused an aortic injury and other permanent injuries to her." (Id. at ¶11.) Plaintiff further claims that Patrick Peebles was permanently injured because of the unsafe and defective condition of the 2009 Impala "when his seatbelt did not work properly and the airbag did not work." (Id. at ¶10.) Plaintiffs assert that "Enterprise Rent a Car is the lessor and owner of the car and is liable for the injuries and damages." (Id. at ¶11.) Franklin claims that she sustained a traumatic brain injury, an aortic root enlargement, and an L3 fracture in the collision. Peebles claims that he sustained a ligament tear in his right knee in the crash and has ongoing headaches as a result of striking the windshield. John Franklin filed a claim for loss of consortium. Defendants now move for summary judgment on Plaintiffs' design defect claim.


Plaintiffs allege a crashworthiness or enhanced injury design defect claim. Plaintiffs claim that a defect in the 2009 Chevrolet Impala caused injuries over and above those which would have been expected in the collision absent the defect. In a crashworthiness case, "[t]he claim, in essence, is that the design of the vehicle failed to reasonably protect the occupant in a collision." Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 41 (Ky. 2004). Under Kentucky law, the elements of a prima facie crashworthiness claim are: "(1) an alternative safer design, practical under the circumstances; (2) proof of what injuries, if any, would have resulted had the alternative, safer design been used; and (3) some method of establishing the extent of enhanced injuries attributable to the defective design." Id. (citing Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241, 250 (2nd Cir.1981); Huddell v. Levin, 537 F.2d 726, 737--38 (3rd Cir.1976)). Here, Defendants have shown that there is no genuine dispute as to any material fact and that Plaintiffs cannot satisfy their burden with respect to a prima facie case of crashworthiness related to the design of the Impala.

A. Alternative Feasible Design

Plaintiffs have offered no proof of an alternative feasible design for either the frontal airbag sensing system or the driver's frontal safety belt system. In order to prove a product is "unreasonably dangerous" as designed, a plaintiff is required to produce competent evidence "of a feasible alternative design" that would have prevented the injury. Cummins v. BIC USA, Inc., 835 F. Supp.2d 322, 326 (W.D. Ky. 2011)(citing Toyota Motor Corp., 136 S.W.3d at 42). See also Hopkins v. Ford Motor Co., 2011 WL 5525454, *3 (W.D. Ky. Nov. 14, 2011)(noting that federal district courts in Kentucky have extended the reasonable alternative requirement to all design defect products liability claims).*fn2 Plaintiffs' expert, Gary Duncan, testified during his September 25, 2012, deposition, that he had not developed any alternative design for the front safety belts or for the airbag sensing system in the 2009 Impala. (Gary Duncan Dep. at 26-27.) "[T]he onus is on Plaintiffs to provide expert testimony setting forth 'competent evidence of some practicable, feasible, safer, alternative design.'" Estate of Bigham v. DaimlerChrysler Corp., 462 F. Supp. 2d 766, 773 (E.D. Ky. 2006).

Duncan opined that the frontal airbag system was defective because the airbags did not deploy in response to a vertical impact. In his deposition, Duncan conceded that the frontal airbags in the 2009 Chevrolet Impala are designed to deploy in response to a longitudinal change in velocity and that the 9.9 mph longitudinal change of velocity that he calculated is less than the 12 to 16 mile-per-hour deployment thresholds for the 2009 Chevrolet Impala. Duncan testified that as far as he knows, the 2009 Chevrolet Impala complied with the applicable Federal Motor Vehicle Safety Standards. (Duncan Dep. at 99-100, 113). Further, Duncan testified that he was not aware of another automobile or truck that had such an airbag sensing system. (Id. at 104-105). Further, as noted above, he did not provide competent evidence of some practicable, feasible, safer, alternative design. Estate of Bigham, 462 F. Supp. at 773.

For these reasons, the Court finds that Plaintiffs have failed to meet their burden of proving the existence of a feasible alternative design of either the airbag ...

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