Virginia Supreme Court Makes Bad Failure to Warn Law

In Funkhouser v. Ford Motor, the Virginia Supreme Court upheld a products liability wrongful death suit against Ford arising from an electrical fire in the Ford Windstar.


The facts in this one are just plain awful. Three-year-old twins were playing in their parents’ 2001 Ford Windstar. The engine was off and the keys were not in the ignition. As a parent, you really do feel pretty safe in that situation with three-year-old’s because the cars are made to be kid-proof on that level. A fire erupted in the passenger compartment of the van. One child suffered significant burns and died later that day.

In August 2007, the administrator of Emily’s estate filed a wrongful death lawsuit against Ford alleging a design defect in the electrical connector behind the dashboard caused the fire. However, after Ford was granted a motion to exclude evidence of other Windstar fires, the lawsuit was dismissed. But the family refiled the wrongful death lawsuit against Ford, alleging negligence and breach of implied warranty. The lawsuit claimed that Ford failed to adequately warn consumers about the fire hazards in Windstar vans when they are parked with the engine off and no key in the ignition.

Plaintiff filed a wrongful death product liability lawsuit against Ford, contending that Ford did not properly warn consumers about the fire hazard in Windstar vans when they are parked with the engine off and no key in the ignition.

Evidence that Ford Knew

Plaintiff wanted to introduce evidence of seven other similar fires in the wrongful death lawsuit. The point being that since Ford knew of the problem, whatever the cause might be, it should tell consumers. Because other Ford Windstar fires that happened before this tragedy show Ford was aware or should have been aware of the danger of electrical fires in the dashboard of the Windstar vans when the engine was off and the keys were not in the ignition. Ford countered that the plaintiff did not prove that the causes of these other fires were substantially similar to the cause of the subject fire.

The trial court kept the evidence out and plaintiffs apparently got an immediate appeal.

Court’s Holding

The court reviewed the admissibility of the evidence of the other seven Windstar fires and found that the proper standard of review was abuse of discretion.

To establish that a manufacturer has knowledge or reason to know of the danger in a failure to warn case, a plaintiff must prove that the manufacturer: (1) knows or has reason to know that the product is or is likely to be dangerous for the intended use, (2) has no reason to believe that the intended users will realize its dangerous condition, and (3) fails to exercise reasonable care to inform them of its dangerous condition or the facts that make it likely to be dangerous.

The court found that wrongful death plaintiffs could only show that the seven other fires occurred under substantially the same circumstances, but could not show that the fires were caused by the same or similar defects. So the court surmised that the trial court did not err in excluding the evidence of the other fires because plaintiff could not definitively prove the specific defect that caused the fire in his case or the defects that caused the fires in the other Windstar vans.  I mean, that would be almost impossible to do, you would have to prove that case within your case, right?

The court rejected plaintiff’s argument that the requirement of substantial similarity carried the day for plaintiffs.  Substantial similarity  consists of two prongs (1) the substantially same circumstances prong and (2) the causation prong.   The court held that a manufacturer is not an insurer of its product’s safety and that evidence of other similar accidents or occurrences is only admissible to show that the defendant had notice and actual knowledge of a defective condition if the prior accidents or occurrences happened under substantially the same circumstances and were caused by the same or similar defects and dangers as those in issue. The court emphasized that removing the defect requirement from the causation prong would allow a plaintiff to attribute notice and actual knowledge to a manufacturer based on the mere existence of a generalized danger, without any requirement for the danger to be attributable to the manufacturer.


Three justices dissented arguing that at least some of the fire were substantially similar enough to make the plaintiff’s point: Ford failed to warn of the danger of key-off electrical dashboard fires when it knew from prior fires that it could be an issue.

Not surprisingly, I agree. The majority analysis works better for a negligent design case. But for failure to warn, the details of the fires become less important and the critical issue is “Are there fires?”

You can find the Virginia Supreme Court’s opinion here.

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