Wrongful death suit permitted against dealership that misrepresented model year of car

Law Reporter, Apr 2000

Hunt v. Killeen Imports Inc., No. 03-99-00093-CV, 1999 WL 1201689 (Tex. App. Dec. 16, 1999).

The Texas Court of Appeals held that a wrongful death suit is permissible against a car dealership whose misrepresentation of a car's model year led a customer to erroneously believe the car was equipped with an air bag.

Here, Jones purchased a car from a dealership. The dealer misrepresented the model year and, consequently, Jones believed she was purchasing a model that was equipped with an air bag. Later, Jones was killed in an accident while driving the car. Jones's mother sued the dealership, individually and on behalf of her estate, alleging negligence, fraud, and misrepresentation, among other claims. The trial court granted defendant summary judgment.

Reversing, the court noted that the main issue was whether there was proximate causation between defendant's misrepresentation and Jones's death. The elements of proximate cause are (1) cause in fact and (2) foreseeability. The test for cause in fact is whether an act or omission was a substantial factor in bringing about an injury that would not otherwise have occurred. Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by defendant's negligent act or omission.

Here, the court concluded that cause in fact was present. Jones's decision to purchase the car was influenced by the misrepresentation and she consequently believed the car was equipped with an air bag. Further, according to testimony from a forensic pathologist, the lack of an air bag was a substantial factor in bringing about Jones's death. Therefore, the court found, there was enough evidence to establish a causal connection between defendant's misrepresentation and Jones's death.

Moreover, the element of foreseeability was satisfied. The dealership knew that the car it sold to Jones was not equipped with an air bag and that air bags are an important safety feature designed to protect against injuries such as those suffered by Jones. Thus, driving without an air bag poses a foreseeable risk that a person of ordinary intelligence can anticipate, the court concluded.

Accordingly, the court remanded.

Plaintiffs'' Counsel *John R- Francis, Temple, Tex.