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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
FORD MOTOR COMPANY, a Delaware Corporation.
Cases that cite this headnote
Products Liability
Seat belts and occupant restraint systems
No. 313PA10.
April 13, 2012.
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
Hudson, J., filed opinion concurring in part and dissenting
in part, in which Timmons-Goodson, J., joined.
West Headnotes (7)
Appeal and Error
Cases Triable in Appellate Court
Undefined terms
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
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.
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
Cases that cite this headnote
Attorneys and Law Firms
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
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
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.
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, 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.
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.
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.
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
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.
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
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.
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
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
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.

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