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 olds because the cars are made to be kid proof on that level. A fire erupted in the passenger compartment of the van. One of the twins suffered third degree burns and died.

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.

Plaintiff wanted to introduce evidence of seven other similar fires. The point being that since Ford knew of the problem, whatever the cause might be, it should tell consumers. Ford countered that 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. The trial court affirmed. Three justices dissented arguing that at least some of the fire were substantially similar enough to make 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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