Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 Whether a statute has been properly interpreted is a legal question, which the appellate court reviews de novo. 365 N.C. 468 Supreme Court of North Carolina. Cheyenne Saleena STARK, a Minor, and Cody Brandon Stark, a Minor, by their Guardian ad Litem, Nicole JACOBSEN v. FORD MOTOR COMPANY, a Delaware Corporation. Cases that cite this headnote [2] Products Liability Seat belts and occupant restraint systems No. 313PA10. | April 13, 2012. Synopsis Background: Products liability action was brought against automobile manufacturer on behalf on child passengers who sustained injuries during automobile accident. The Superior Court, Mecklenburg County, Forrest D. Bridges, J., entered judgment on jury verdict for manufacturer, plus costs. Guardian for passengers appealed, and manufacturer cross-appealed. The Court of Appeals, 204 N.C.App. 1, 693 S.E.2d 253, reversed and remanded in part, based on determination that affirmative defense of alteration or modification of product did not apply because passenger's father who placed shoulder restraint behind passenger's chest was not “party” to litigation. Review was granted. Automobile's seat belt restraint system was modified or altered by “party” other than manufacturer after automobile left manufacturer's control when passenger's father placed shoulder restraint behind passenger's chest, and thus, modification was affirmative defense to products liability action against manufacturer based on allegedly defective seatbelt restraint system, regardless of whether father was party to litigation. West's N.C.G.S.A. § 99B–3. Cases that cite this headnote [3] Hudson, J., filed opinion concurring in part and dissenting in part, in which Timmons-Goodson, J., joined. West Headnotes (7) [1] Appeal and Error Cases Triable in Appellate Court Statutes Undefined terms Statutes Dictionaries Undefined words in a statute are accorded their ordinary meaning, for which the court may look to a dictionary. [Holding:] The Supreme Court, Newby, J., held that modification of shoulder restraint was affirmative defense to products liability action against manufacturer, regardless of whether father was party to litigation. Reversed and remanded. Products Liability Lapse of time or change in condition 2 Cases that cite this headnote [4] Products Liability Lapse of time or change in condition A product manufacturer's affirmative defense to a products liability claim based on the alteration or modification of the product by a “party” other than the manufacturer after the product leaves the manufacturer's control applies not only when the one who modifies or alters the product is a party to the action concerning the product, but also whenever anyone other than the manufacturer or seller modifies or alters the product and the remaining statutory requirements are met. West's N.C.G.S.A. § 99B–3. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 [5] Cases that cite this headnote Attorneys and Law Firms Trial Hearing and determination Wyrick Robbins Yates & Ponton LLP, Raleigh, by K. Edward Greene and Tobias S. Hampson; and Gilbert and Ollanik, P.C., by James L. Gilbert, pro hac vice, for plaintiff-appellees. In considering a motion for directed verdict, the trial court is required to view the evidence in the light most favorable to the nonmoving party and to give the nonmoving party all reasonable inferences from the evidence, resolving all evidentiary conflicts in that party's favor. 1 Cases that cite this headnote [6] Trial Hearing and determination So long as some view of the facts reasonably established by the evidence would support a jury's decision in favor of the defendant, the trial court properly denies a plaintiffs' motion for directed verdict. [7] Kilpatrick Townsend & Stockton LLP, Winston–Salem, by Adam H. Charnes, Richard J. Keshian, and Richard D. Dietz; and Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan L.L.P., Raleigh, by Kirk G. Warner and Christopher R. Kiger, for defendant-appellant. Edward Eldred, Attorney at Law, PLLC, Carrboro, for The Covenant With North Carolina's Children and KidsAndCars.org, amici curiae. Yates, McLamb & Weyher, LLP, Raleigh, by Dan J. McLamb, for National Association of Manufacturers, Chamber of Commerce of the United States of America, American Tort Reform Association, and Property Casualty Insurers Association of America, amici curiae. 3 Cases that cite this headnote Michael W. Patrick, Chapel Hill, for North Carolina Advocates for Justice, amicus curiae. Trial Scintilla of evidence Poyner Spruill LLP, Raleigh, by Steven B. Epstein, for North Carolina Association of Defense Attorneys and North Carolina Chamber, amici curiae. If there is more than a scintilla of evidence supporting the affirmative defense, the trial court's decision denying a plaintiff's motion for directed verdict should be affirmed. 3 Cases that cite this headnote **754 On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, 204 N.C.App. 1, 693 S.E.2d 253 (2010), reversing a judgment dismissing plaintiffs' complaint entered on 15 May 2007 and vacating an order awarding costs to defendant entered on 28 April 2008, both entered by Judge Forrest D. Bridges in Superior Court, Mecklenburg County, and remanding for entry of judgment in favor of Cheyenne Stark and for a trial on the issue of damages. Heard in the Supreme Court on 3 May 2011. I. Beverly Lake Jr., Raleigh, pro se, and for former members of the North Carolina General Assembly H. Parks Helms, Robert B. Jordan, III, I. Beverly Lake Jr., and H. Martin Lancaster, amici curiae. Womble Carlyle Sandridge & Rice, PLLC, Raleigh, by Burley B. Mitchell, Jr., William F. Womble, Jr., James R. Morgan, Jr., and John E. Pueschel, Winston–Salem, for Product Liability Advisory Council, amicus curiae. Opinion NEWBY, Justice. *469 This case presents the question whether the product alteration or modification defense provided to manufacturers and sellers in products liability actions by section 99B–3 of our General Statutes applies only if the one who altered or modified the product is a party to the litigation at the time of trial. 1 By its plain language, section 99B–3 protects manufacturers and sellers from © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 liability for injury proximately caused by a modification or alteration made by anyone else to their product without their consent or instruction. The General Assembly did not limit the use of this defense to those occasions when the one who alters or modifies the product is a party to the action at the time of trial. As the Court of Appeals concluded otherwise, **755 we reverse that decision and remand this case to that court for additional proceedings. Tonya Stark was driving her husband to work and her children to school in a 1998 Ford Taurus on the morning of 28 April 2003. Tonya began that day between 5:00 and 5:30 a.m. by waking up and bathing *470 three of her children. While Tonya was busy with the children, Gordon Stark, her husband, prepared for a day of work. When the Starks were ready to go, Gordon put their sleeping daughter Cheyenne in the rear seat of the Taurus, directly behind the driver's seat, and then he sat in the front passenger seat. Tonya secured their son Cory in the middle rear seat before she got into the driver's seat. Their son Cody seated himself in the rear seat of the Taurus, directly behind Gordon. The plan was to take Gordon to work at Husqvarna, where he needed to arrive between 7:00 and 7:30 a.m., and then travel to Kannapolis to have the children at their school by 8:20 a.m. At some point that morning, Gordon told Tonya that he needed to stop at a convenience store before work. Tonya entered the parking lot of a store at the corner of The Plaza and Eastway in Charlotte, North Carolina. Gordon went into the store to make some purchases, but returned to the car when he realized he did not have his wallet. Gordon told Tonya to take him back home so he could get his wallet and return to complete his purchases before they continued on to work and school. Tonya backed out of her parking space and attempted to leave the convenience store parking lot via a passthrough, which would allow the Starks to return to the house more quickly. She remembered almost immediately, however, that the pass-through had been closed. Tonya then made a U-turn and entered the adjacent parking lot of a Bojangles restaurant. The car began to accelerate rapidly, proceeding through several empty parking spaces. Gordon and Tonya struggled over the steering wheel as the Starks continued through the lot. Their trip came to an abrupt end when the Taurus went up and over a small curbed island containing mulch and monkey grass and then slammed into the concrete base of a light pole while moving at twenty-six miles per hour. At no point during these events did Tonya apply the Taurus's brakes. The Starks suffered numerous injuries in the crash. Gordon looked at his wife immediately after the impact, and he thought she was dead. Cory suffered a cut to his eye area through which his “eyeball” was visible “even though his eye was closed,” as well as a concussion and a neck injury. Gordon shattered his elbow and left wrist and broke his left shoulder. Gordon's doctors informed him that his left hand might need to be amputated due to the severity of the fracture. Cody and Cheyenne had the most serious injuries. Cody experienced a tear in his liver, several superficial tears on the surface of his colon, a hematoma underneath his bowel, and a perforation of his small bowel causing leakage into his stomach. Cody required *471 emergency lifesaving surgery as a result. Cheyenne sustained bruises on her abdomen, an abrasion on her forehead, a tear on the tip of her tongue, and an injury to her spinal cord. Though Cheyenne was able to walk after the crash, her condition deteriorated later that day, and she became paralyzed. Through their Guardian ad Litem, Cheyenne and Cody (plaintiffs) sued Ford Motor Company (Ford) after the crash. Plaintiffs acknowledged that Ford did not cause the wreck, but claimed that the Taurus's seat belt system caused their enhanced, or more serious, injuries. Cody and Cheyenne contended that the seat belts did not fit them properly and did not hold them in place during the incident. They alleged these deficiencies in the design of the Taurus caused Cody's abdominal injuries and Cheyenne's paralysis. Ford asserted that Cody and Cheyenne suffered these injuries because of the seriousness of the collision and a failure to use the Taurus—and specifically its safety equipment—as it was designed and as Ford instructed. Ford contended the Taurus and its seat belt system are reasonably designed and safe when used properly. Plaintiffs presented evidence in support of their claims. They offered testimony from Joseph Burton, M.D., an expert in forensic pathology, biomechanics, and occupant kinematics. He testified that seat belts are designed **756 to “couple” a passenger to a vehicle in a crash, allowing the passenger to slow down with the car. When the passenger and vehicle are slowing together, the passenger can rely in part on the crush zone of the vehicle to absorb energy. In contrast, an unbelted passenger continues to move at the © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 same speed the car was traveling before impact until the passenger hits something that causes him to slow down. In that case the passenger does not get the benefit of the vehicle's crush zone. Dr. Burton stated that a vehicle's seat belt system should couple the passenger to the vehicle with both a shoulder belt that comes over the passenger's shoulder and then goes down “along the rib cage” without covering the “soft parts of [the] abdomen,” and a lap belt that rests over the bones of a passenger's pelvis. Dr. Burton explained to the jury that the seat belt system in the Taurus did not perform in this manner for Cody and Cheyenne. He opined that a defect in the seat belt system allowed excess belt webbing to come off the spool, creating slack in the belt. This slack prevented the Taurus's belt system from coupling Cody and Cheyenne to the vehicle as it should have. The shoulder belt slipped off Cody's and Cheyenne's shoulders. As a result of that slippage Cody sustained *472 bruising from his lap belt over his hips, some type of abrasion “to the right side of his chest” from his shoulder belt, and numerous internal injuries in his abdominal area. Cheyenne suffered a bruise above her navel, a bruise on her lower abdomen from her lap belt, an abrasion on her forehead, a cut on the end of her tongue, and “some changes” in the lumbar area of her spine. Her shoulder belt also acted as a fulcrum, damaging her spinal cord at level T3, which is in her upper back. Dr. Burton informed the jury that he believes that before the crash, both Cody and Cheyenne were properly belted, with their shoulder belts in front of them. He posited that Cheyenne's smaller size may be the reason for her permanent injury. Dr. Burton also testified that the collision was not responsible for Cheyenne's and Cody's enhanced injuries. He explained that plaintiffs' enhanced injuries are not what he would expect from the type of collision in which they were involved. Instead, he characterized their injuries as “mechanical injuries,” which “are caused by ... the way the[ir] bodies are interacting with the structure.” Such injuries, he said, are not related to the speed of the car before impact and may result from a vehicle that is traveling twenty miles per hour or sixty miles per hour when a collision occurs. Ford asserted in response that this was a serious collision in which the Taurus was misused. Joe Kent, Ford's accident reconstruction and accident analysis expert, informed the jury that the impact of the crash was roughly the same as would have been achieved by dropping the Taurus from the fourth floor of a building. Dr. Murray Mackay, Ford's expert in seat belt occupant interaction, biomechanics, injury mechanism, and occupant kinematics, testified that Cheyenne's seat belt system had been modified by placing the shoulder belt behind her back. Cheyenne had no bruising or other markings on her body consistent with the shoulder belt having been in front of her at the time of the collision, though she did have bruises from her lap belt. Dr. Mackay also stated that Cheyenne's seat belt had markings and other characteristics consistent with its being behind her back. Dr. Mackay explained to the jury that, in his opinion, Cheyenne's paralysis resulted from her lap belt compressing her abdomen, which, combined with the absence of a shoulder belt, caused her chest to move toward the floor, which stretched and bent her spinal cord until her chest ultimately came into contact with her thigh. Pamela Oviatt, Ford's expert in vehicle and occupant restraint design performance, also testified that Cheyenne's shoulder belt exhibited markings consistent with its being behind her back at the *473 time of the collision. Ford presented evidence indicating that Cheyenne had on prior occasions placed the shoulder portion of the belt behind her back and that on the date in question, Gordon did the same thing. At the close of evidence plaintiffs argued that Ford's defense under section 99B–3 should not be submitted to the jury, and they sought a directed verdict in their favor on that issue. Plaintiffs asserted that **757 section 99B– 3 allows manufacturers to be relieved of liability only when an alteration or modification by another party to the litigation proximately causes injury. Plaintiffs maintained that because neither Gordon nor Tonya was then a party to the action, Ford could not use this statutory defense to avoid liability for any injury proximately caused by a modification made by either of them. The trial court rejected plaintiffs' argument. At the conclusion of the five week trial, the court instructed the jury on the section 99B–3 defense. The court explained that if it reached this issue, the jury must decide whether the enhanced injuries to Cheyenne Stark [were] proximately caused by an alteration or modification made to the product by someone—were the enhanced injuries to Cheyenne Stark caused by an alteration or a modification of the 1998 Ford product. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 On this issue the burden of proof is on the defendant. This means that the defendant must prove by the greater weight of the evidence four things: First, that the 1998 Ford Taurus was altered or modified. A product has been altered or modified if there has been a change in its design or use from that—if there has been a change in its use from that which was originally designed, tested, or intended by the manufacturer. An alteration—let me say that again. A product has been altered or modified if there has been a change in its use from that originally designed, tested, or intended by the manufacturer. Second, that someone other than the defendant made the alteration or modification after the Ford Taurus left the control of the defendant. Third, that the defendant did not expressly consent to that alteration or modification, or that such alteration or modification was not in accordance with the defendant's instruction and specifications. *474 Fourth, that such alteration or modification was a proximate cause of injuries to Cheyenne Stark. Of course, we are talking about enhanced injuries. You now know what proximate cause is. I have said that several times. It's a cause in which in a natural and continuous sequence produces a person's injury and a cause in which a reasonable and prudent person could have foreseen would probably produce that injury or such similar injurious result. Keep in mind there may be more than one proximate cause of an injury. In this case the defendant Ford contends and the plaintiff denies that there was an alteration or modification of the product after it left the defendant's control; namely, that Gordon and Tanya [sic] failed to properly secure and restrain Cheyenne Stark in the rear seat of the Ford Taurus; that Cheyenne's shoulder strap at the time of this collision was being worn behind her back. The defendant contends that you should find these facts from the evidence, and the plaintiff disagrees that you should do so. Obviously, again, this determination is one of the decisions that you have to make based upon the evidence that has been presented and taking into account all the various rules that I have mentioned to you. So then finally on this Issue Number 6 on which the defendant has the burden of proof, if you find by the greater weight of the evidence that the enhanced injuries to Cheyenne Stark were proximately caused by an alteration or a modification to the Ford Taurus, made by someone other than Ford Motor Company after it left Ford's control and without Ford's consent or not in accordance with Ford's instructions or specifications, then it would be your duty to answer this issue yes, in favor of the defendant. On the other hand, if you fail to so find, it would be your duty to answer this issue no, in favor of the plaintiff. After addressing the jury on the section 99B–3 defense, the trial court finished its instructions and submitted the case to the jury. After three days of deliberation, the jury returned its verdict, finding Ford not liable for the enhanced injuries to Cody and Cheyenne. Plaintiffs were unable to sustain an unreasonable design claim for Cody's belt, but did so with respect to Cheyenne's. **758 Nonetheless, the jury determined that Cheyenne's enhanced injuries were also proximately caused by a modification of the Taurus, which relieved Ford *475 of liability. The trial court entered judgment accordingly and taxed $45,717.92 in costs against plaintiffs and the Guardian ad Litem. After unsuccessfully moving for judgment notwithstanding the verdict, a new trial on the modification defense, and a new trial on all issues, plaintiffs and the Guardian ad Litem appealed from the judgment, the order taxing costs, and the order denying their alternative motions. The Court of Appeals reversed the trial court's judgment, holding among other things that plaintiffs were entitled to a directed verdict on Ford's affirmative defense under section 99B–3. Stark ex rel. Jacobsen v. Ford Motor Co., 204 N.C.App. 1, 12, 15, 693 S.E.2d 253, 260–61 (2010). Disagreeing with the trial court's interpretation, the Court of Appeals reasoned that section 99B–3 gives a manufacturer or seller no defense when the product modifier is not a party to the action at the time of trial. Id. at 12, 693 S.E.2d at 260. The court concluded, inter alia, that because Gordon Stark was not a party to the action at the time of trial, any modification by him could not support the defense in section 99B–3. Id. We allowed © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 defendant's petition for discretionary review. Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 190, 705 S.E.2d 741 (2011). [1] To resolve this appeal we must decide whether the trial court properly interpreted the scope of the defense provided by section 99B–3 of our General Statutes. Plaintiffs assert that the Court of Appeals correctly stated that section 99B–3 affords a defense only when the product modifier is a party to the action at the time of trial. Defendant, on the other hand, contends the trial court properly interpreted this statute, which allows a manufacturer to be relieved of liability when anyone else alters or modifies its product. Whether a statute has been properly interpreted is a legal question, which this Court reviews de novo. In re Ernst & Young, LLP, 363 N.C. 612, 616, 684 S.E.2d 151, 154 (2009) (citations omitted). [2] We begin our analysis by examining the text of the statute. Correll v. Div. of Soc. Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (citation omitted). Section 99B–3 states: (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: *476 (1) The alteration or modification was in accordance with the instructions or specifications of such manufacturer or such seller; or (2) The alteration or modification was made with the express consent of such manufacturer or such seller. (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. N.C.G.S. § 99B–3 (2011). According to its text, the statute shields a manufacturer or seller from liability proximately resulting from changes to a product's “design, formula, function, or use ... from that originally designed, tested, or intended” and other unspecified “alteration[s]” and “modification [s].” Id. § 99B–3(b). Section 99B–3 does not, however, relieve a manufacturer or seller of liability for all alterations and modifications, only some. Id. § 99B–3(a). Whether a manufacturer or seller can avail itself of this statutory defense depends on when and how the modification or alteration occurred and, to a limited extent, on who modified or altered the product. Id. A manufacturer or seller cannot escape liability for injury proximately caused by an alteration or modification done before the point in time at which the product left the manufacturer's or seller's control, regardless of who modified the product and how it was done. Id. Of **759 those alterations or modifications done after the product leaves the manufacturer's or seller's control, the manufacturer or seller cannot use this defense, no matter who modifies the product, if the alteration or modification was done “in accordance with [the manufacturer's or seller's] instructions or specifications,” N.C.G.S. § 99B– 3(a)(1), or with its “express consent,” id. § 99B–3(a)(2). Finally, a manufacturer or seller is not relieved of liability for damage proximately caused by its own modification or alteration; the defense is available only when the modification or alteration “was ... by a party other than the manufacturer or seller.” Id. § 99B–3(a) (emphasis added). [3] Plaintiffs and defendant disagree whether the legislature intended the word “party” in section 99B–3 to have a broad, general meaning or a narrow, technical meaning. The legislature has not defined the word “party” in the statute, see id. § 99B–3, or anywhere else in Chapter 99B of our General Statutes, which addresses products liability actions, see N.C.G.S. §§ 99B–1 to – 11 (2011). Undefined words *477 are accorded their ordinary meaning, for which we may look to a dictionary. Perkins v. Ark. Trucking Servs., Inc., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000) (citations omitted). When not being used in reference to a social event, the noun form of the word “ party” is generally defined as a “person” or “group.” Merriam–Webster's Collegiate Dictionary 848 (10th ed.1999). The word is used to refer, generally, to an “individual” and can also be used to describe, specifically, an individual or individuals who are involved in a contest, organized for political purposes, or taking part in an activity. Id. The only limiting language in the text of the statute pertaining to the legislature's use of the term “party” © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 is the phrase “other than the manufacturer or seller.” N.C.G.S. § 99B–3. That modifying phrase reveals the General Assembly's intent regarding the meaning and scope of the word “party” here. The General Assembly used the term “party” in such a way that it felt it necessary specifically to exclude the manufacturer or seller from the term's broad reach, without regard to whether the manufacturer or seller had been made a party to any litigation by virtue of being sued. Because the status of the manufacturer or seller in regard to a suit is immaterial, this blanket exclusion of the manufacturer or seller from those whose modification or alteration will relieve the manufacturer or seller from liability demonstrates the General Assembly's intent that a “party” under the statute is not limited to a party to the action. In other words, the General Assembly used “party” in such a way that a manufacturer or seller who had not been sued and was not a party to any litigation could nevertheless be a party whose modification or alteration could invoke the defense if the manufacturer or seller had not been specifically excluded. Thus, the limiting language of the statute establishes the intent of the General Assembly that the defense set out in section 99B–3 is available when anyone other than the manufacturer or seller modifies or alters the product. Moreover, the one who modifies or alters the product becomes a “party” as that word is used in section 99B–3 at the time of the modification, before the commencement of any litigation. The text of section 99B–3 focuses on several distinct points in time. The introductory language of the statute is concerned with the time at which the defense of product modification or alteration is used in litigation: “No manufacturer or seller of a product shall be held liable in any product liability action....” Id. § 99B–3(a). The remaining temporal portion of section 99B–3 focuses on the points in time at which the modification *478 and injury occurred: When “a proximate cause of the personal injury ... was ... an alteration or modification ... by a party other than the manufacturer or seller, which ... occurred after the product left the control of such manufacturer or such seller.” Id. The legislature's use of the past tense “was” when referring to the modification by a party illustrates that the one who modifies the product is a “party” as that word is used in section 99B–3 at the time of the modification, before any litigation regarding the subject. This usage, too, indicates that the General Assembly intended that the word “party” have a broad, general meaning, and that the defense found in section 99B–3 be available when anyone other than the **760 seller or manufacturer modifies or alters the product. Accordingly, we conclude that the trial court's interpretation is consistent with the statute's text. The trial court's interpretation of section 99B–3 comports with the long-standing explanation of this statute found in our Pattern Jury Instructions. There are two Pattern Jury Instructions that address section 99B–3: Civil 744.07 and Civil 743.07. The former applies to causes of action arising on or after 1 January 1996, and it was drafted following the only amendment to the statute in its history. See Act of July 29, 1995, ch. 522, sec. 1, 1995 N.C. Sess. Laws 1872, 1873–74. The instruction states in relevant part that this defense applies when “someone other than the defendant made the alteration or modification.” 1 N.C.P.I.—Civ. 744.07 (gen. civ. vol. May 1999) (“Products Liability— Seller's and Manufacturer's Defense of Product Alteration or Modification. N.C.G.S. § 99B–3(a).”). The latter instruction applies to pre–1996 causes of action, and it similarly interprets the defense found in section 99B–3 to be available when “someone other than the defendant made the alteration or modification.” 1 N.C.P.I.—Civ. 743.07 (gen. civ. vol. May 1999) (“Products Liability– Seller's and Manufacturer's Defense of Product Alteration or Modification. N.C.G.S. § 99B–3(a).”). The North Carolina Pattern Jury Instructions are prepared by a committee of ten trial judges appointed by the President of the Conference of Superior Court Judges of North Carolina, 1 N.C.P.I.—Civ. .005 (gen. civ. vol. June 2010), and those instructions are designed to articulate the law plainly and accurately, 1 N.C.P.I.—Civ. .010 (June 1975). While the Pattern Jury Instructions are not binding on this Court, State v. Ward, 364 N.C. 157, 161, 694 S.E.2d 729, 732 (2010), they do express the long-standing, published understanding of this statute, with which the trial court's explanation in this case—the section 99B–3 defense applies when “someone other than the defendant made the alteration or modification”—is consistent. *479 The trial court's interpretation of section 99B– 3 is also consistent with scholarly commentary. Shortly after the statute's enactment, a law review article written by two distinguished members of the bar observed that under section 99B–3, “an alteration or modification by someone other than the manufacturer or seller relieves both parties of liability if (1) the modification or alteration was not done according to instructions or specifications or (2) the modification or alteration was not done with © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 the express consent of the manufacturer or seller.” Charles F. Blanchard & Doug B. Abrams, North Carolina's New Products Liability Act: A Critical Analysis, 16 Wake Forest L.Rev. 171, 175 (1980). More recent commentary is consistent with that initial observation. E.g., John N. Hutson, Jr. & Scott A. Miskimon, North Carolina Contract Law § 16–3–1, at 775 (2001) (“The Products Liability Act provides a defense to product liability actions where a proximate cause of the injury was an alteration or modification of the product by someone other than the manufacturer or seller.”). It is worth noting that during these years of consistent commentary and interpretation, the General Assembly has revisited section 99B–3 only once, in 1995, making just a superficial, nonsubstantive change by adding a serial comma after the word “death.” Ch. 522, sec. 1, 1995 N.C. Sess. Laws at 1873–74. The Court of Appeals' reading of section 99B–3, on the other hand, is not supported by the text of the statute. That court reasoned that, by using the word “party” in the phrase “party other than the manufacturer or seller,” the legislature intended to limit the availability of this defense to cases in which the one who modified or altered the product is a party to the action at the time of trial. Stark, 204 N.C.App. at 12, 693 S.E.2d at 260. If the General Assembly had intended to limit the availability of this defense to the circumstances articulated by the Court of Appeals, it could have done so by inserting the words “to the action” into the statute. A cursory review of other sections of our General Statutes reveals the legislature is familiar with the phrase “party to the action.” See, e.g., N.C.G.S. § 58–2–75(d) (2011) ( “Appeals ... may be taken to the appellate division of the General Court of Justice by any party to the action as in other civil cases.” (emphasis added)). Adopting the Court of Appeals' interpretation would force **761 this Court impermissibly to read into section 99B–3 words the legislature chose not to include in its text. [4] The Court of Appeals' interpretation of section 99B– 3 is contrary to that statute's plain language, so we reverse that court's decision. We hold instead that the defense found in section 99B–3 applies not *480 only when the one who modifies or alters the product is a party to the action concerning the product, but also whenever anyone other than the manufacturer or seller modifies or alters the product and the remaining statutory requirements are met. The Court of Appeals held that Ford could not establish a section 99B–3 defense using Gordon or Tonya Stark as the modifier because they were not parties to the action at the time of trial. Stark, 204 N.C.App. at 10– 12, 693 S.E.2d at 259–60. Because there is no such legal requirement, to resolve the directed verdict inquiry, we must now consider whether there is sufficient evidence, or some factual basis, to support a determination that someone other than Ford modified the Taurus. [5] [6] [7] In this undertaking we must be mindful of the posture of this case and the rules regarding directed verdict. In considering a motion for directed verdict, the trial court in this case was required to view the evidence in the light most favorable to Ford and to give Ford all reasonable inferences from the evidence, resolving all evidentiary conflicts in Ford's favor. See Farmer v. Chaney, 292 N.C. 451, 452–53, 233 S.E.2d 582, 583–84 (1977) (citations omitted); see also Taylor v. Walker, 320 N.C. 729, 733–34, 360 S.E.2d 796, 799 (1987) (citations omitted) (explaining the standard to be used when considering a motion for judgment notwithstanding the verdict, but noting the same standard is applied when ruling on motions for directed verdict). So long as some view of the facts reasonably established by the evidence would support a jury's decision in favor of Ford, the trial court properly denied plaintiffs' motion. Taylor, 320 N.C. at 733–34, 360 S.E.2d at 799 (citation omitted). In other words, if there is more than a scintilla of evidence supporting this affirmative defense, the trial court's decision should be affirmed. See Brinkley v. Nationwide Mut. Ins. Co., 271 N.C. 301, 305–06, 156 S.E.2d 225, 228–29 (1967) (citation omitted). With this deferential standard in mind, we conclude there is sufficient evidence in the record from which the jury could have concluded that Gordon Stark modified the vehicle. He testified that he placed Cheyenne in the Taurus on the morning of the accident. Gordon explained that Cheyenne was asleep when he put her in the vehicle and that he was the one who buckled her seat belt that morning. When Gordon placed Cheyenne in the Taurus, he observed that the seat belt was “way too big” for her and that it fell across her head and neck area. Gordon informed the jury that Cheyenne's shoulder belt was behind her after the collision. Ford's experts opined that the shoulder portion of Cheyenne's seat belt was behind her back during the collision as well. From this evidence the jury could properly *481 conclude that Gordon Stark, despite his recollection to the contrary, placed the © 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 shoulder portion of Cheyenne's seat belt behind her back after buckling her in, perhaps in an attempt to prevent the belt from falling uncomfortably across her head and disturbing her sleep. The trial court's decision on plaintiffs' motion for directed verdict, as well as the jury's verdict and the trial court's judgment applying section 99B–3 to relieve Ford of liability for the injury proximately caused by the design of its product, can therefore be sustained on the basis of this evidence, and we need not consider evidence of other potential modifications or modifiers. In sum, we reverse the decision of the Court of Appeals that the defense found in section 99B–3 of our General Statutes is available only when the product modifier is a party to the action at the time of trial. The plain language of section 99B–3 says that this defense may be used when anyone other than the manufacturer or seller modifies the product, so long as the remaining requirements of that section are met. There was sufficient evidence presented in this five week trial from which the jury could conclude that Gordon Stark modified the Taurus. Having resolved this case on that issue, we need not consider the remaining issues presented by the parties to this Court, and any discussion **762 of them would be obiter dictum. Accordingly, we express no opinion regarding other aspects of the Court of Appeals decision on the propriety of incorporating child negligence principles into the provisions of Chapter 99B, the party status of Gordon and Tonya Stark at the time of trial, and the validity of conducting a trial in this case solely on the issue of damages. This case is remanded to the Court of Appeals for additional proceedings consistent with this opinion. REVERSED AND REMANDED. Justice HUDSON concurring in part and dissenting in part. I concur with the majority's holding that the use of the word “party” in N.C.G.S. § 99B–3(a) does not limit that defense to alterations or modifications by parties to the lawsuit. Because I disagree with the majority's decision to address additional issues, and particularly the majority's assertion that, from the evidence presented, the jury could properly conclude that Gordon Stark modified the Taurus by placing the seat belt behind Cheyenne, I respectfully dissent from the majority's ultimate holding. I would instead reverse the Court of Appeals' decision on the availability of the section 99B–3 defense without reaching any additional issues, and remand for consideration of those issues. *482 First and foremost, I believe the majority here improperly engaged in the sufficiency of the evidence analysis found near the end of the opinion. In its opinion the Court of Appeals held that Gordon Stark was not a “party” under section 99B–3; therefore, that court did not analyze the evidence regarding modification by Gordon Stark. The entire discussion of this matter in the Court of Appeals' opinion is as follows: Plaintiff next addresses Defendant's 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 “a party” to the action, as required by N.C. Gen.Stat. § 99B–3. N.C.G.S. § 99B–3 provides in pertinent part that: 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.... N.C.G.S. § 99B–3 (emphasis added). Defendant argues that the trial court's judgment, based on the jury's 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' motion for directed verdict, Defendant argued at trial that “[m]ore importantly, what is the specific evidence in this case about who used Cheyenne Stark's belt; Gordon Stark. He put her in that belt on that day. He is the one who affixed her to this vehicle. He's the one who used the product.” Plaintiffs argue that N.C.G.S. § 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. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 9 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 At the time of trial, neither Tonya Stark nor Gordon Stark were parties to the action. .... *483 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. § 99B–3 defense as to such an alleged modification. .... In light of our holding, we need not address Plaintiffs' arguments concerning judgment notwithstanding the verdict, entry of judgment, or motion for a new trial. Stark ex rel. Jacobsen v. Ford Motor Co., 204 N.C.App. 1, 9–10, 12–13, 693 S.E.2d 253, 258–59, 260–61 (2010). **763 It is the practice of this Court to reach only those issues passed upon by the Court of Appeals and to remand for consideration of any issues beyond those necessary for our decision. See, e.g., N.C.R.App. P. 16(a) (stating that “[r]eview by the Supreme Court after a determination by the Court of Appeals ... is to determine whether there is error of law in the decision of the Court of Appeals”); Va. Elec. & Power Co. v. Tillett, 316 N.C. 73, 76, 340 S.E.2d 62, 64–65 (1986) (“Giving proper deference to the Court of Appeals, we decline to address the remaining issues raised by the parties but not addressed by that court in its opinion in this case. Instead, we remand the case to the Court of Appeals so that it may address those issues initially on appeal and prior to their being decided by this Court.”). In my view, the majority incorrectly identifies our task here: after reversing the Court of Appeals' decision on section 99B–3, the majority states that “to resolve the directed verdict inquiry, we must now consider whether there is sufficient evidence, or some factual basis, to support a determination that someone other than Ford modified the Taurus.” Contrary to this assertion, it is not our task to “resolve the directed verdict inquiry,” which by its nature requires weighing of evidence and drawing of inferences. Rather, we need only review the decision below for error of law, as required by Rule 16(a). Because the Court of Appeals did not assess in any way the sufficiency of the evidence of Gordon Stark as modifier, that issue is not properly before this Court. The only error of law shown in the decision below relates to the interpretation of section 99B–3, and the majority here reverses the Court of Appeals' interpretation of the word “party” in that section. It should have done no more than so holding and remanding for the Court of Appeals to consider the evidence. Because I would remand upon deciding that the Court of Appeals misinterpreted section 99B–3, I dissent to the extent that the majority's opinion goes beyond that point. *484 The Court of Appeals first, and now the majority here, resolve this case only on Issues I and II as presented in plaintiffs' brief to the Court of Appeals. Because of its resolution of Issues I and II, the Court of Appeals did not reach issues III or IV, which argued alternative grounds for relief, or Issue V regarding costs. None of the latter three issues were presented to this Court, and as such, they have not yet been addressed by any court. Accordingly, I would specifically hold that on remand, the Court of Appeals should address these remaining issues. Our proper role, in my opinion, is to ask the Court of Appeals to review the sufficiency of the evidence whether Gordon Stark modified the Taurus before we undertake that matter. Nonetheless, because the majority decided to engage in that analysis—incorrectly, in my view, holding the evidence sufficient—I include the following discussion of why I conclude the opposite. It is undisputed that Ford bears the burden of proof on its affirmative defense under N.C.G.S. § 99B–3. “In the case of an affirmative defense ... a motion for directed verdict is properly granted against the defendant where the defendant fails to present more than a scintilla of evidence in support of each element of his defense.” Snead v. Holloman, 101 N.C.App. 462, 464, 400 S.E.2d 91, 92 (1991) (citations omitted). On the other hand, we are reviewing the denial of a directed verdict sought by plaintiffs; therefore, “[defendant's] evidence must be taken as true and all the evidence must be considered in the light most favorable to the [defendant], giving him the benefit of every reasonable inference to be drawn therefrom.” Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977) (citations omitted). We also “must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by [defendant].” Morgan v. Great Atl. & Pac. Tea Co., 266 N.C. 221, 222–23, 145 S.E.2d 877, 879 (1966). “But, when the evidence is so considered, it must © 2017 Thomson Reuters. No claim to original U.S. Government Works. 10 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 do more than raise a suspicion, conjecture, guess, surmise, or speculation as to the pertinent facts in order to justify its submission to the jury.” Jenrette Transp. Co. v. Atl. Fire Ins. Co., 236 N.C. 534, 539, 73 S.E.2d 481, 485 (1952) (citing **764 Denny v. Snow, 199 N.C. 773, 774, 155 S.E. 874, 874 (1930) (per curiam)). common law principles associated with proximate cause. See Ridge Cmty. Investors, Inc. v. Berry, 293 N.C. 688, 695, 239 S.E.2d 566, 570 (1977) (noting that “[i]n interpreting statutes .... it is always presumed that the Legislature acted with full knowledge of prior and existing law”) (citations omitted). With these standards in mind, I now examine the evidence. Both sides presented expert testimony on the design of the seat belt and the injuries to the children. Based on their evaluations of the injuries and the condition of the seat belts after the accident, defendant's *485 experts testified that the shoulder belt must have been behind Cheyenne's back at the time of the accident. Taking this evidence as true, Manganello, 291 N.C. at 670, 231 S.E.2d at 680, I must assume that the shoulder belt was, in fact, behind Cheyenne at the time of the accident. Because N.C.G.S. § 99B–3 does not on its face accord any significance to the identity of the party that alters or modifies the product, except that the party be someone “other than the manufacturer or seller,” N.C.G.S. § 99B–3(a) (2011), that showing alone would ordinarily survive directed verdict against the section 99B–3 defense. Present here, however, are special circumstances which require us to evaluate precisely how or by whose hand the shoulder belt came to be behind Cheyenne. Specifically, because Cheyenne was only five years old, I conclude, as the Court of Appeals did, that she was incapable as a matter of law of altering or modifying the Taurus within the meaning of the statutory defense. As a result, the defense is only available to Ford if it can show that someone other than Cheyenne modified or altered the Taurus. As the Court of Appeals properly discussed, under the common law, “[f]oreseeability of some injurious consequence of one's act is an essential element of proximate cause, though anticipation of the particular consequence is not required.” Hastings ex rel. Pratt v. Seegars Fence Co., 128 N.C.App. 166, 170, 493 S.E.2d 782, 785 (1997) (citing *486 Sutton v. Duke, 277 N.C. 94, 107, 176 S.E.2d 161, 168–69 (1970)). This Court in Walston v. Greene held that a child under seven years of age is incapable of negligence as a matter of law “because a child under 7 years of age lacks the discretion, judgment and mental capacity to discern and appreciate circumstances of danger that threaten its safety.” 247 N.C. 693, 696, 102 S.E.2d 124, 126 (1958) (citations omitted). In other words, a child under seven years of age cannot, as a matter of law, determine the foreseeable consequences of her actions in the analysis of proximate cause. The Court of Appeals analyzed this issue properly and concluded that Cheyenne was “unable to ‘foresee’ that any modification or alteration could be a proximate cause of her injury.” Stark, 204 N.C.App. at 8, 693 S.E.2d at 258. Even if Cheyenne altered or modified the Taurus by her use of the shoulder belt, her actions cannot, as a matter of law, be considered the proximate cause of her own injury. Therefore, the defense in N.C.G.S. § 99B–3 is only available to Ford if it provides sufficient evidence that someone other than Cheyenne modified or altered the belt. While the text of the statute does not generally require that the modifying or altering party be identified, the statute does specifically use the phrase “proximate cause.” It is a long-standing rule of construction that “when a statute makes use of a word, the meaning of which was well ascertained at common law, the word will be understood in the sense it was at common law.” Smithdeal v. Wilkerson, 100 N.C. 66, 67, 100 N.C. 52, 53, 6 S.E. 71, 71 (1888) (citing Kitchen v. Tyson, 7 N.C. 232, 233, 7 N.C. [3 Mur.] 314, 315 (1819); accord Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 59, 31 S.Ct. 502, 515, 55 L.Ed. 619 (1911) (stating that “where words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense”)). As such, unless otherwise stated, the statute incorporates Addressing that issue, the majority here summarizes some of the evidence and concludes that “[f]rom this evidence the jury could properly conclude that Gordon Stark, despite his recollection to the contrary, **765 placed the shoulder portion of Cheyenne's seat belt behind her back after buckling her in.” The problem with this conclusion is that the testimony does not support it. The evidence shows that Gordon buckled Cheyenne into the seat belt. Gordon testified that she was asleep when he buckled her in. He also testified that the belt was “way too big” for her and fell across her head and neck area. 2 Under the directed verdict review standard, we must ignore the obvious inference from Gordon's testimony © 2017 Thomson Reuters. No claim to original U.S. Government Works. 11 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 that, because the belt was “right under her head/neck area,” it had to be in front of her. See Morgan, 266 N.C. at 222–23, 145 S.E.2d at 879. We also must ignore Tonya Stark's testimony that she confirmed that the children's seat belts were properly worn before the car moved. See id. Last, as discussed earlier, we accept as true evidence from defendant's experts that the belt was behind Cheyenne at the time of the accident. Thus, we are left with the following “facts” under the directed verdict standard of review: Gordon buckled a sleeping Cheyenne into *487 her seat and noticed that the belt was “way too big” for her; roughly five or ten minutes later 3 the belt was behind her at the moment of the accident. Based on careful review of the transcripts, I conclude there is no testimony or other evidence whatsoever as to what, if anything, happened to the shoulder belt in the intervening time period. In light of this lack of evidence, then, there are at least three possible scenarios consistent with the evidence: 1) Gordon put the belt behind Cheyenne; 2) Cheyenne moved the belt behind her, either voluntarily after waking up or involuntarily while sleeping in the moving car; or 3) Cheyenne slipped out from under the belt while sleeping because it was too big. There is absolutely no evidence on which a jury could choose among these three options. “A resort to a choice of possibilities is guesswork.” Powell v. Cross, 263 N.C. 764, 768, 140 S.E.2d 393, 397 (1965) (citations omitted). 4 Thus, even “when the evidence shown in the record of [a] case on appeal is taken in the light most favorable to [defendants], and giving to them the benefit of every reasonable inference therefrom, the case ... is left in a state of uncertainty and rests upon possibility.” Wall v. Trogdon, 249 N.C. 747, 752, 107 S.E.2d 757, 761 (1959). “A verdict or finding in favor of one having the burden of proof will not be upheld if the evidence upon which it rests raises no more than mere conjecture, guess, surmise, or speculation.” Jenrette Transp. Co., 236 N.C. at 539–40, 73 S.E.2d at 485. The evidence as presented by defendant raises no more than “a suspicion, conjecture, guess, surmise, or speculation” that Gordon Stark modified or altered the seat belt. Id. Because defendant Ford bore the burden of proving the affirmative defense, I conclude it failed to carry that burden, even with the inherent advantages of the directed verdict standard of review. I concur that the Court of Appeals erred in its interpretation of the use of the word “party” in N.C.G.S. § 99B–3. I would remand for *488 that court to consider all remaining issues, including the sufficiency of the evidence **766 that Gordon Stark modified the Taurus. Nevertheless, because the majority improperly reaches that question, and because the evidence fails to establish the section 99B–3 defense as to Gordon Stark as modifier, I respectfully dissent. Justice TIMMONS–GOODSON joins in this opinion concurring in part and dissenting in part. All Citations 365 N.C. 468, 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 Footnotes 1 2 3 4 While other issues were raised by the parties and passed upon by the Court of Appeals, our resolution of this question obviates the need to address them. The majority speculates that “perhaps” he moved the belt behind her “in an attempt to prevent the belt from falling uncomfortably across her head and disturbing her sleep.” Such pure speculation has no place in the legal analysis here. That the evidence provides a possible reason why Gordon might have wanted to move the belt does not lead to a reasonable inference that he did move the belt. As to the time elapsed between Gordon buckling Cheyenne into the seat and the moment of the accident, we only have testimony that the trip from the house to the store was “three to five minutes” and that Gordon had gone into the store and come back out. We can reasonably infer that the accident occurred approximately five or ten minutes after Gordon buckled Cheyenne in. The Court in Powell further stated that “[t]he sufficiency of the evidence in law to go to the jury does not depend upon the doctrine of chances. However confidently one in his own affairs may base his judgment on mere probability as to a proposition of fact and as a basis for the judgment of the court, he must adduce evidence of other than a majority of chances that the fact to be proved does exist. It must be more than sufficient for mere guess and must be such as tends to actual proof.” 263 N.C. at 768, 140 S.E.2d at 397 (citations omitted). © 2017 Thomson Reuters. No claim to original U.S. Government Works. 12 Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012) 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 13 Jones v Star Credit Corp., 59 Misc.2d 189 (1969) 298 N.Y.S.2d 264, 6 UCC Rep.Serv. 76 KeyCite Yellow Flag - Negative Treatment Distinguished by Whirlpool Corp. v. Grigoleit Co., W.D.Mich., August 31, 2011 59 Misc.2d 189, 298 N.Y.S.2d 264, 6 UCC Rep.Serv. 76 Clifton Jones et al., Plaintiffs, v. Star Credit Corp., Defendant Supreme Court, Special Term, Nassau County, March 18, 1969 CITE TITLE AS: Jones v Star Credit Corp. HEADNOTES Sales unconscionable sale sale of $300 freezer for $1,439.69 on time, unconscionable; contract is reformed to amount already paid, $619.88. ([1]) Plaintiffs purchased, for home use, a freezer unit, which had a maximum retail value of about $300, on time for an agreed total of $1,439.69. Plaintiffs are welfare recipients and grossly unequal to the salesmen. The whole contract was unconscionable (Uniform Commercial Code, § 2-302). Plaintiffs have already paid a total of $619.88. They are granted judgment reforming the contract so as to total $619.88. APPEARANCES OF COUNSEL Nager & Korobow for plaintiffs. Keilson & Keilson for defendant. *190 OPINION OF THE COURT Sol Wachtler, J. On August 31, 1965 the plaintiffs, who are welfare recipients, agreed to purchase a home freezer unit for $900 as the result of a visit from a salesman representing Your Shop At Home Service, Inc. With the addition of the time credit charges, credit life insurance, credit property insurance, and sales tax, the purchase price totaled $1,234.80. Thus far the plaintiffs have paid $619.88 toward their purchase. The defendant claims that with various added credit charges paid for an extension of time there is a balance of $819.81 still due from the plaintiffs. The uncontroverted proof at the trial established that the freezer unit, when purchased, had a maximum retail value of approximately $300. The question is whether this transaction and the resulting contract could be considered unconscionable within the meaning of section 2-302 of the Uniform Commercial Code which provides in part: “(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. “(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.” (L. 1962, ch. 553, eff. Sept. 27, 1964.) There was a time when the shield of caveat emptor would protect the most unscrupulous in the marketplace -- a time when the law, in granting parties unbridled latitude to make their own contracts, allowed exploitive and callous practices which shocked the conscience of both legislative bodies and the courts. The effort to eliminate these practices has continued to pose a difficult problem. On the one hand it is necessary to recognize the importance of preserving the integrity of agreements and the fundamental right of parties to deal, trade, bargain, and contract. On the other hand there is the concern for the uneducated and often illiterate individual who is the victim of gross inequality of bargaining power, usually the poorest members of the community. Concern for the protection of these consumers against overreaching by the small but hardy breed of merchants who would prey on them is not novel. The dangers of inequality of bargaining power were vaguely recognized in the early English common law when Lord Hardwicke wrote of a fraud, which *191 “may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses and not under delusion would make”. The English authorities on this subject were discussed in © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Jones v Star Credit Corp., 59 Misc.2d 189 (1969) 298 N.Y.S.2d 264, 6 UCC Rep.Serv. 76 Hume v. United States (132 U.S. 406, 411 [1889]) where the United States Supreme Court characterized (p. 413) these as “cases in which one party took advantage of the other's ignorance of arithmetic to impose upon him, and the fraud was apparent from the face of the contracts.” The law is beginning to fight back against those who once took advantage of the poor and illiterate without risk of either exposure or interference. From the commonlaw doctrine of intrinsic fraud we have, over the years, developed common and statutory law which tells not only the buyer but also the seller to beware. This body of laws recognizes the importance of a free enterprise system but at the same time will provide the legal armor to protect and safeguard the prospective victim from the harshness of an unconscionable contract. Section 2-302 of the Uniform Commercial Code enacts the moral sense of the community into the law of commercial transactions. It authorizes the court to find, as a matter of law, that a contract or a clause of a contract was “unconscionable at the time it was made”, and upon so finding the court may refuse to enforce the contract, excise the objectionable clause or limit the application of the clause to avoid an unconscionable result. “The principle”, states the Official Comment to this section, “is one of the prevention of oppression and unfair surprise”. It permits a court to accomplish directly what heretofore was often accomplished by construction of language, manipulations of fluid rules of contract law and determinations based upon a presumed public policy. There is no reason to doubt, moreover, that this section is intended to encompass the price term of an agreement. In addition to the fact that it has already been so applied (Matter of State of New York v. ITM, Inc., 52 Misc 2d 39; Frostifresh Corp. v. Reynoso, 52 Misc 2d 26, revd. 54 Misc 2d 119; American Home Improvement v. MacIver, 105 N.H. 435), the statutory language itself makes it clear that not only a clause of the contract, but the contract in toto, may be found unconscionable as a matter of law. Indeed, no other provision of an agreement more intimately touches upon the question of unconscionability than does the term regarding price. Fraud, in the instant case, is not present; nor is it necessary under the statute. The question which presents itself is whether or not, under the circumstances of this case, the sale of a freezer unit having a retail value of $300 for $900 ($1,439.69 including *192 credit charges and $18 sales tax) is unconscionable as a matter of law. The court believes it is. Concededly, deciding the issue is substantially easier than explaining it. No doubt, the mathematical disparity between $300, which presumably includes a reasonable profit margin, and $900, which is exorbitant on its face, carries the greatest weight. Credit charges alone exceed by more than $100 the retail value of the freezer. These alone, may be sufficient to sustain the decision. Yet, a caveat is warranted lest we reduce the import of section 2-302 solely to a mathematical ratio formula. It may, at times, be that; yet it may also be much more. The very limited financial resources of the purchaser, known to the sellers at the time of the sale, is entitled to weight in the balance. Indeed, the value disparity itself leads inevitably to the felt conclusion that knowing advantage was taken of the plaintiffs. In addition, the meaningfulness of choice essential to the making of a contract can be negated by a gross inequality of bargaining power. (Williams v. WalkerThomas Furniture Co., 350 F. 2d 445.) There is no question about the necessity and even the desirability of installment sales and the extension of credit. Indeed, there are many, including welfare recipients, who would be deprived of even the most basic conveniences without the use of these devices. Similarly, the retail merchant selling on installment or extending credit is expected to establish a pricing factor which will afford a degree of protection commensurate with the risk of selling to those who might be default prone. However, neither of these accepted premises can clothe the sale of this freezer with respectability. Support for the court's conclusion will be found in a number of other cases already decided. In American Home Improvement v. MacIver (supra) the Supreme Court of New Hampshire held that a contract to install windows, a door and paint, for the price of $2,568.60, of which $809.60 constituted interest and carrying charges and $800 was a salesman's commission was unconscionable as a matter of law. In Matter of State of New York v. ITM, Inc. (supra) a deceptive and fraudulent scheme was involved, but standing alone, the court held that the sale of a vacuum cleaner, among other things, costing the defendant $140 and sold by it for $749 cash or $920.52 on time purchase was unconscionable as a matter of law. Finally, in Frostifresh Corp. v. Reynoso (supra) the sale of © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Jones v Star Credit Corp., 59 Misc.2d 189 (1969) 298 N.Y.S.2d 264, 6 UCC Rep.Serv. 76 a refrigerator costing the seller $348 for $900 plus credit charges of $245.88 was unconscionable as a matter of law. *193 One final point remains. The defendant argues that the contract of June 15, 1966, upon which this suit is based, constitutes a financing agreement and not a sales contract. To support its position, it points to the typed words “Refinance of Freezer A/C #6766 and Food A/C #56788” on the agreement and to a letter signed by the plaintiffs requesting refinance of the same items. The request for “refinancing” is typed on the defendant's letterhead. The quoted refinance statement is typed on a form agreement entitled “Star Credit Corporation -- Retail Instalment Contract”. It is signed by the defendant as “seller” and by the purchasers as “buyer”. Above the signature of the buyers, they acknowledge “receipt of an executed copy of this Retail Instalment Contract”. The June 15, 1966 contract by defendant is on exactly the same form as the End of Document original contract of August 31, 1965. The original, too, is entitled “Star Credit Corporation -- Retail Instalment Contract”. It is signed, however, by “Your Shop At Home Service, Inc.” Printed beneath the signatures is the legend “Duplicate for Star”. In substance and effect, the agreement of June 25, 1966 constitutes a novation and replacement of the earlier agreement. It is, in all respects, as it reads, a “Retail Instalment Contract”. Having already paid more than $600 toward the purchase of this $300 freezer unit, it is apparent that the defendant has already been amply compensated. In accordance with the statute, the application of the payment provision should be limited to amounts already paid by the plaintiffs and the contract be reformed and amended by changing the payments called for therein to equal the amount of payment actually so paid by the plaintiffs. Copr. (C) 2017, Secretary of State, State of New York © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 BRIEF FORMAT Your name: Date: NAME OF CASE: Facts: Relevant facts of case. This section should be between 5 and 7 sentences. Issue: The question presented by the case. Holding: For which party did the court rule? Rule of Law: One sentence that states the general principle of law, i.e., “Accountants are not liable to third parties if they were unaware of the existence of a business relationship.” OR “The police are prohibited from conducting warrantless searches of your home.” The Rule of Law should not be phrased in terms of the parties to a particular case. Incorrect: “The South Orange Police had no right to search Mark Smith's home for drugs, therefore, the court ruled in favor of Mr. Smith.” This type of statement is appropriate for the “Holding” section of the Brief. Reasoning: From where did the court derive its reasoning? Another case? The U.S. Constitution? This section should be between 3 and 5 sentences. BRIEFS MUST BE SUBMITTED ON THE DATE ASSIGNED FOR COMPLETION. GENERALLY, THEY SHOULD BE ONE, TYPE-WRITTEN PAGE. Paraphrase and condense the cases in your own style. Spelling and grammar count. Any deviation from the above format results in a lower grade. Please, proofread your work! Very important! Taylor v. Baseball Club of Seattle, L.P., 132 Wash.App. 32 (2006) 130 P.3d 835 Spectators and other non-participants, injuries to KeyCite Yellow Flag - Negative Treatment Distinguished by O'Neill v. City of Port Orchard, Wash.App. Div. 2, June 28, 2016 A sport spectator's assumption of risk and a defendant sports team's duty of care are discerned under the doctrine of primary assumption of risk. 132 Wash.App. 32 Court of Appeals of Washington, Division 1. 1 Cases that cite this headnote Delinda Middleton TAYLOR, formerly known as Delinda Middleton, an individual, Appellant, v. The BASEBALL CLUB OF SEATTLE, L.P., a Washington corporation, also doing business as Baseball of Seattle, Inc., a related Washington corporation, Respondent, Washington Baseball Stadium Public Facilities District, a quasi-governmental entity; Jose Mesa and Mirla Mesa, individually and/or the marital community composed thereof; and Freddy Garcia, an individual, Defendants. [2] Negligence Elements in general Negligence Primary assumption of risk The doctrine of assumption of the risk serves as a complete bar to recovery when an injury results from a risk inherent in the activity in which the plaintiff was engaged; implied primary assumption of risk arises where a plaintiff has impliedly consented, often in advance of any negligence by defendant, to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks. No. 55803–0–I. | Feb. 27, 2006. | Publication Ordered March 22, 2006. Synopsis Background: Spectator at baseball game who was injured by ball errantly thrown into stands during team's pregame warm-up brought negligence action against team. The Superior Court, King County, Mary Yu, J., granted team summary judgment. Spectator appealed. 3 Cases that cite this headnote [3] Negligence Primary assumption of risk Under implied primary assumption of risk, defendant must show that plaintiff had full subjective understanding of the specific risk, both its nature and presence, and that he or she voluntarily chose to encounter the risk. [Holding:] The Court of Appeals, Dwyer, J., held that implied primary assumption of risk barred spectator's action. 5 Cases that cite this headnote [4] Affirmed. Negligence Existence as Defense Negligence Relation to contributory negligence Negligence Primary assumption of risk West Headnotes (7) [1] Public Amusement and Entertainment Unlike contributory negligence, where the standard applied is that of a reasonable person of ordinary prudence, implied primary assumption of risk applies a subjective © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Taylor v. Baseball Club of Seattle, L.P., 132 Wash.App. 32 (2006) 130 P.3d 835 [5] standard, one specific to the plaintiff and his or her situation. Attorneys and Law Firms Cases that cite this headnote **836 Bradford James Fulton, Carter & Fulton PS, Everett, WA, for for Appellant. Negligence Primary assumption of risk Thomas Charles Stratton, Eklund Rockey Stratton PS, Seattle, WA, for Respondent. For determining the applicability of implied primary assumption of risk, the question is whether the plaintiff, at the time of decision, actually and subjectively knew all facts that a reasonable person in the defendant's shoes would know and disclose. 3 Cases that cite this headnote [6] Public Amusement and Entertainment Spectators and other non-participants, injuries to Implied primary assumption of risk barred negligence action against baseball team by spectator who was injured by ball errantly thrown into stands by pitchers engaged in “long toss” during team's pregame warmup; warm-up was necessary and inherent part of game, circumstances did not constitute unusual danger, and spectator's familiarity with baseball made risk of injury foreseeable even if no one associated with team had ever seen anyone hit by overthrown ball during long toss. 6 Cases that cite this headnote [7] Evidence Due care and proper conduct in general Professional baseball pitching coach was qualified to testify as expert on athletes' preparation for games in negligence action against baseball team brought by spectator who was injured by ball errantly thrown into stands by pitchers engaged in “long toss” during team's pregame warm-up. ER 702. 1 Cases that cite this headnote Opinion DWYER, J. *34 ¶ 1 During warm-up before a Seattle Mariners game, a pitcher accidentally threw a ball past his teammate into the stands, injuring Delinda Middleton Taylor. The trial court properly dismissed Taylor's negligence claim against the Mariners under the doctrine of implied primary assumption of risk. The court also properly admitted expert testimony from the Mariners' pitching coach. We affirm. FACTS ¶ 2 On July 23, 2000, Delinda Middleton (now, Delinda Middleton Taylor) went to a Mariners game at Safeco Field with her then-boyfriend, Glen Taylor, and her minor sons, Gavin and Jordan. Their seats were in section 114, along *35 the right field foul line and four rows up from the field. They arrived more than an hour before the game began to see the players warm up and to get their autographs. As they walked to their seats, Taylor saw that players were practicing nearby. Mariners pitcher Freddy Garcia was standing in front of section 114 on or about the right field line facing center field. He was throwing a ball back and forth with José Mesa, who stood in right center field approximately 120 feet away. As Taylor stood in front of her seat, she looked away from the field and a ball thrown by Mesa got past Garcia and struck Taylor in the face, causing serious injuries. ¶ 3 Taylor sued the Seattle Mariners, José Mesa, Mirla Mesa, and Freddy Garcia, asserting that they were liable for the allegedly negligent warm-up throw. 1 ¶ 4 The Mariners moved for summary judgment, claiming that (1) their duty to protect spectators from balls entering the **837 stands was satisfied by providing a protective screen behind home plate, and (2) Taylor was familiar with © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Taylor v. Baseball Club of Seattle, L.P., 132 Wash.App. 32 (2006) 130 P.3d 835 baseball and the inherent risk of balls entering the stands, and therefore assumed the risk of her injury. ¶ 5 With respect to their assumption of risk defense, the Mariners relied on the following facts. Taylor was a Mariners fan; she had gone to one game at the Kingdome, and she watched their games on television. Taylor knew professional ballplayers do not always catch the ball and that the ball could leave the field during a game. Also, Taylor's son Gavin played baseball for approximately six years and her son Jordan played for seven years. She went to almost all of their games, during which she saw balls enter the stands. ¶ 6 The Mariners' pitching coach Bryan Price testified that the pitchers warm up by playing “long toss,” during which they throw the ball back and forth at increasing distances, with one standing on or near a foul line and the other in center field. Price stated that this method is *36 followed to avoid other players who are warming up, including the visiting team, and minimize the possibility that a player could be hit by an errant throw. Price further claimed that this warm-up procedure, though unwritten, is customary to the sport and followed at every baseball level, from Little League to the Major Leagues. ¶ 7 Taylor argued that summary judgment for the Mariners should not be granted because she was not aware that her circumstances posed any risk of injury. She claimed she did not know how players warmed up and never thought about the possibility of a ball entering the stands and hurting someone during a warmup. Taylor further argued that the Mariners' warm-up method was negligent, contending that they should have a formal policy prohibiting pitchers from practicing near the stands. ¶ 8 The trial court granted the Mariners' motion and dismissed Taylor's claims. Taylor appeals. DISCUSSION ¶ 9 Taylor contends that the trial court erred in dismissing her claims against the Mariners on summary judgment. Specifically, she argues that there are issues of material fact regarding whether the Mariners' warm-up method was negligent and whether she assumed the risk of being injured by an errant throw. I. Standard of Review ¶ 10 In reviewing an order granting summary judgment, an appellate court engages in the same inquiry as the trial court. Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996); Mountain Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Nivens v. *37 7–11 Hoagy's Corner, 133 Wash.2d 192, 197–98, 943 P.2d 286 (1997). The court must make all inferences and resolve all ambiguities in favor of the nonmoving party. Degel, 129 Wash.2d at 48, 914 P.2d 728. The motion should be granted only if, from all the evidence, a reasonable person could reach but one conclusion. Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 350, 588 P.2d 1346 (1979). II. Implied Primary Assumption of Risk ¶ 11 Throughout the United States, for many decades, courts have required baseball stadiums to screen some seats—generally those behind home plate—to provide protection to spectators who choose it. See, e.g., Edling v. Kansas City Baseball & Exhibition Co., 181 Mo.App. 327, 168 S.W. 908 (1914); see also Crane v. Kansas City Baseball & Exhibition Co., 168 Mo.App. 301, 304, 153 S.W. 1076 (1913). In Washington, the law has long been that baseball stadiums have a duty to screen some seats and, as a corollary, a spectator who takes a seat in the unscreened portion of a stadium assumes the risk of being struck by a baseball. See Leek v. Tacoma Baseball Club, Inc., 38 Wash.2d 362, 229 P.2d 329 (1951). **838 [1] [2] ¶ 12 A sport spectator's assumption of risk and a defendant sports team's duty of care are accordingly discerned under the doctrine of primary assumption of risk. The doctrine serves as a complete bar to recovery when an injury results from a risk inherent in the activity in which the plaintiff was engaged: “Implied primary assumption of risk arises where a plaintiff has impliedly consented (often in advance of any negligence by defendant) to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks.” Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 497, 834 P.2d 6 (1992). The Court in Scott further explained: © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Taylor v. Baseball Club of Seattle, L.P., 132 Wash.App. 32 (2006) 130 P.3d 835 One who participates in sports “assumes the risks” which are inherent in the sport. To the extent a plaintiff is injured as a result of a risk inherent in the sport, the defendant has no duty and there is no negligence. Therefore, that type of assumption *38 acts as a complete bar to recovery. The doctrine of primary implied assumption of the risk can perhaps more accurately be described as a way to define a defendant's duty. Scott, 119 Wash.2d at 498, 834 P.2d 6 (footnote omitted). ¶ 15 First, Taylor fails to articulate any cognizable reason for us to find that the warm-up portion of the event is not encompassed within the spectator's implied primary assumption of risk. No Washington case explicitly states that warm-ups are a necessary and inherent part of the *39 sports event. However, it is undisputed that the warm-up is part of the sport, that spectators such as Taylor purposely attend that portion of the event, and that the Mariners permit ticket-holders to view the warm-up. ¶ 16 Therefore, we reject Taylor's attempt to delineate between portions of the event and assign varying standards of care to the defendant. Instead, we adopt the reasoning of Dalton v. Jones, 260 Ga.App. 791, 581 S.E.2d 360 (2003), which held that warm-ups are integral to the game of baseball and that a spectator assumes the risk of being struck by a baseball during warm-ups: [3] [4] [5] ¶ 13 Under this implied primary assumption of risk, defendant must show that plaintiff had full Whether the ball was thrown or tossed during an inning subjective understanding of the specific risk, both its of play or between innings lacks legal significance nature and presence, and that he or she voluntarily because, as the trial court noted, “this throw occurred chose to encounter the risk. Brown v. Stevens Pass, Inc., during a time which was necessary to the playing of the 97 Wash.App. 519, 523, 984 P.2d 448 (1999) (citing game, during which time the Plaintiff has assumed the Kirk v. Washington State Univ., 109 Wash.2d 448, 453, risk of injury from bats, balls, and other missiles.” 746 P.2d 285 (1987); see also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 68 at 487 Dalton, 260 Ga.App. 791 at 793, 581 S.E.2d 360. See (5th ed.1984)). Unlike contributory negligence, where also Zeitz v. Cooperstown Baseball Centennial, Inc., 31 the standard applied is that of a “reasonable person of Misc.2d 142, 29 N.Y.S.2d 56 (1941). We find the fact ordinary prudence,” implied primary assumption of risk that Taylor was injured during warm-up is not legally applies a subjective standard, one specific to the plaintiff significant because that portion of the event is necessarily and his or her situation. Home v. N. Kitsap Sch. Dist., incident to the game. 92 Wash.App. 709, 720, 965 P.2d 1112 (1998); Keeton, § 68. The question is “[w]hether a plaintiff ..., at the time **839 ¶ 17 The second element of Taylor's argument is of decision, actually and subjectively knew all facts that a that there are issues of fact regarding whether she suffered reasonable person in the defendant's shoes would know an “unusual injury.” She relies on Jones v. Three Rivers and disclose.” Erie v. White, 92 Wash.App. 297, 303, 966 Management Corp., 483 Pa. 75, 394 A.2d 546 (1978), P.2d 342 (1998). Maytnier v. Rush, 80 Ill.App.2d 336, 225 N.E.2d 83 (1967), and Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925), to support the proposition that the III. Errant Throws Into the Stands are an Inherent Risk Mariners violated the duty of care by leading Taylor into of Baseball “unusual danger.” [6] ¶ 14 The questions presented here are as follows: (1) did the warm-up activities occur outside of the sporting ¶ 18 However, these cases do not support Taylor's event for which Taylor impliedly assumed the risks argument. Eno and Maytnier simply stand for the inherent in baseball; (2) is it unusual for a ball to enter the proposition that there may be liability when the baseball stands due to an errant throw; and (3) was the errant throw activity or the location of the baseball activity is unusual, foreseeable and avoidable by Taylor, given her familiarity not when it is unusual that a person is injured. See Eno, 147 with the game? N.E. at 89 (when, between games of a doubleheader, ball batted from *40 unusual location into unscreened seats struck plaintiff, there was a question of fact whether the © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Taylor v. Baseball Club of Seattle, L.P., 132 Wash.App. 32 (2006) 130 P.3d 835 plaintiff was aware of the particular danger); Maytnier, 80 Ill.App.2d 336, 225 N.E.2d 83 (where plaintiff was struck and injured by a ball that was not in play in the game, but was thrown from the bullpen to his left while his attentions were focused on the ball actually in play in the game to his right, court could not say defendant did not breach its duty as a matter of law). Jones is also inapposite because the plaintiff there was on an internal walkway, not in an unscreened seating section, when she was struck by a ball during batting practice. The court concluded there was an issue of fact regarding her assumption of the risk because the particular stadium design contained a walkway that was not associated with the way baseball is played or viewed. Jones, 394 A.2d at 551. ¶ 19 Here, there is no evidence that the circumstances leading to Taylor's injury constituted an unusual danger. It is undisputed that it is the normal, every-day practice at all levels of baseball for pitchers to warm up in the manner that led to this incident. The risk of injuries such as Taylor's are within the normal comprehension of a spectator who is familiar with the game. Indeed, the possibility of an errant ball entering the stands is part of the game's attraction for many spectators. ¶ 20 The third element of Taylor's claim is whether the risk of injury would be foreseeable to a reasonable person with Taylor's familiarity with baseball. The record contains substantial evidence regarding Taylor's familiarity with the game. She attended many of her sons' baseball games, she witnessed balls entering the stands, she had watched Mariners' games both at the Kingdome and on television, and she knew that there was no screen protecting her seats, which were close to the field. In fact, as she walked to her seat she saw the players warming up and was excited about being in an unscreened area where her party might get autographs from the players and catch balls. *41 ¶ 21 Taylor nonetheless contends that she could not possibly expect that an overthrow could occur because no one associated with the Mariners had ever seen someone hit by an overthrown ball during long toss. The fact that no one has been injured simply shows that long toss does not pose an unreasonable risk. It does not support Taylor's contention that she did not assume the risk of an overthrow. Accordingly, Taylor assumed the risk of a ball entering the stands. ¶ 22 Taylor also claims she could not be expected to avoid an errant throw because there was more than one ball in play on the field. But this element has no bearing on Taylor's case because she did not allege that she was distracted by any action on the field. In fact, she said that she had turned her attention away from the field and toward the seats when she was struck. A reasonable person in Taylor's position would realize that, if she is standing behind players who are throwing a ball back and forth, there is a possibility a ball might not be caught, and that an uncaught ball might injure her if she does not pay attention. [7] ¶ 23 Finally, Taylor assigns error to the trial court's admission of Coach Price's testimony as that of an expert under ER 702. 2 Because Price, a professional baseball **840 pitching coach, is highly qualified to address why and how the athletes prepare for games, his testimony was properly admitted. ¶ 24 Affirmed. WE CONCUR: BECKER and AGID, JJ. All Citations 132 Wash.App. 32, 130 P.3d 835 Footnotes 1 2 Taylor voluntarily dismissed her claims against Jose Mesa, Mirla Mesa, Freddy Garcia, and the Washington Baseball Stadium Public Facilities District. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” ER 702. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) 105 S.Ct. 2174, 85 L.Ed.2d 528, 53 USLW 4541 treated as a petition for writ of certiorari, which would be granted. 28 U.S.C.A. § 1254(2). KeyCite Yellow Flag - Negative Treatment Disagreement Recognized by TXU Energy Retail Co., LP v. Emanuel Medical Center, Inc., N.D.Tex., May 28, 2003 105 S.Ct. 2174 Supreme Court of the United States 3 Cases that cite this headnote [2] BURGER KING CORPORATION, Appellant v. Parties cannot stipulate to a particular construction of state law, and thereby obtain jurisdiction over appeal to Supreme Court, where state law might, in fact, be in harmony with the Federal Constitution; Supreme Court's jurisdiction is properly invoked only where a Court of Appeals has squarely held that the statute is unconstitutional on its face or as applied and jurisdiction does not lie if the decision might rest on other grounds. 28 U.S.C.A. § 1254(2). John RUDZEWICZ. No. 83–2097. | Argued Jan. 8, 1985. | Decided May 20, 1985. Franchisor brought action against franchisee alleging breach of franchise obligations and trademark infringement. The United States District Court for the Southern District of Florida entered judgment in favor of franchisor and franchisee appealed. The Court of Appeals for the Eleventh Circuit, 724 F.2d 1505,reversed and denied rehearing, 729 F.2d 1468. The Supreme Court, Justice Brennan, held that: (1) where it was not clear that Court of Appeals had found Florida long-arm statute unconstitutional as applied, Supreme Court did not have jurisdiction over appeal; (2) jurisdictional statement would be treated as petition for writ of certiorari; and (3) exercise of long-arm jurisdiction over Michigan franchisee in Florida did not offend due process. Federal Courts Particular Cases, Contexts, and Questions 16 Cases that cite this headnote [3] Constitutional Law Non-residents in general Due process clause protects an individual's liberty in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations; although the protection operates to restrict state power, it is ultimately a function of the individual liberty interest preserved by the due process clause rather than a function of federalism concern. U.S.C.A. Const.Amend. 14. Reversed and remanded. Justice Stevens dissented and filed an opinion in which Justice White joined. 494 Cases that cite this headnote West Headnotes (27) [1] Federal Courts Proceedings to Obtain Review Where it was unclear whether Court of Appeals actually held statute unconstitutional as applied to the circumstances of the case, jurisdiction did not properly lie in the Supreme Court by appeal and appeal would be dismissed, with the jurisdictional statement [4] Federal Courts Purpose, intent, and foreseeability; purposeful availment Federal Courts Related contacts and activities; specific jurisdiction Where forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, fair-warning requirement is satisfied if the © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) 105 S.Ct. 2174, 85 L.Ed.2d 528, 53 USLW 4541 defendant has purposefully directed his activities at residence of the forum and the litigation results from injuries that arise out of or relate to those activities. forum for redressing injuries inflicted by outof-state actors and, where those individuals purposefully derive benefit from their interstate activities, it may be unfair to allow them to escape having to account in other states for the consequences that arise proximately from such activities and, for those reasons, forum may legitimately exercise personal jurisdiction over a nonresident who purposefully directs activities toward forum residents. 2724 Cases that cite this headnote [5] Constitutional Law Consent; forum-selection clauses Contracts Agreement as to place of bringing suit; forum selection clauses Where forum selection provisions have been obtained through freely negotiated agreements and are not unreasonable and unjust, their enforcement does not offend due process. U.S.C.A. Const.Amend. 14. 1069 Cases that cite this headnote [9] Constitutional touchstone in long-arm jurisdiction cases is whether the defendant purposefully established minimum contacts in the forum state. 273 Cases that cite this headnote [6] Federal Courts Manufacture, Distribution, and Sale of Products Publisher who distributes magazines in a distant state may fairly be held accountable in that forum for damages resulting therefrom an allegedly defamatory story. 2931 Cases that cite this headnote [10] Foreseeability of causing injury in another state is not a sufficient benchmark for exercising personal jurisdiction; foreseeability which is critical to due process analysis is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there. Federal Courts Unrelated contacts and activities; general jurisdiction Parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities. 339 Cases that cite this headnote [8] Federal Courts Purpose, intent, and foreseeability; purposeful availment State generally has a manifest interest in providing its residents with a convenient Constitutional Law Non-residents in general Federal Courts Purpose, intent, and foreseeability; purposeful availment 11 Cases that cite this headnote [7] Federal Courts Purpose, intent, and foreseeability; purposeful availment 998 Cases that cite this headnote [11] Federal Courts Purpose, intent, and foreseeability; purposeful availment Purposeful availment requirement for longarm jurisdiction insures that defendant will not be haled into a jurisdiction solely as the result of random, fortuitous, or attenuated © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) 105 S.Ct. 2174, 85 L.Ed.2d 528, 53 USLW 4541 contacts or the unilateral activity of another party or a third person. Once it has been decided that a defendant has purposefully established minimum contacts with the forum state, the contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice. 3246 Cases that cite this headnote [12] Federal Courts Nature, number, frequency, and extent of contacts and activities Jurisdiction is proper where the contacts of the defendant proximately result from actions by the defendant himself which create a substantial connection with the forum. 4262 Cases that cite this headnote [17] Where defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. 721 Cases that cite this headnote [13] Federal Courts Nature, number, frequency, and extent of contacts and activities So long as it creates a substantial connection with the forum, even a single act can support jurisdiction. 1487 Cases that cite this headnote [18] 242 Cases that cite this headnote [14] 127 Cases that cite this headnote [19] 765 Cases that cite this headnote [15] So long as a commercial actor's efforts are purposefully directed toward residents of another state, absence of physical contacts cannot defeat personal jurisdiction there. [16] Constitutional Law Non-residents in general Federal Courts Nature, number, frequency, and extent of contacts and activities Individual's contact with an out-of-state party cannot alone automatically establish sufficient minimum contacts in the other party's home forum to permit exercise of jurisdiction in that forum. Federal Courts Commercial Contacts and Activities; Contracts and Transactions 287 Cases that cite this headnote Courts Construction and application of particular rules Jurisdictional rules may not be employed in such a way as to make litigation so gravely difficult and inconvenient that a party is unfairly at a severe disadvantage in comparison to his opponent. Federal Courts Business contacts and activities; transacting or doing business When defendant has availed himself of the privilege of conducting business in a forum, jurisdiction cannot be avoided merely because the defendant did not physically enter the forum state. Federal Courts Weight and sufficiency 370 Cases that cite this headnote [20] Federal Courts Contract disputes Parties' negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) 105 S.Ct. 2174, 85 L.Ed.2d 528, 53 USLW 4541 dealing, must be evaluated in determining whether the defendant has purposefully established minimum contacts with the forum. the country; absent compelling consideration, defendant who has purposefully derived commercial benefit from his affiliations in a forum may...
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