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$16 Million Award Upheld for Defective Brake Design

By William Vogeler, Esq. | Last updated on

A bag of cattle feed fell on the accelerator of a utility vehicle, causing it to run over Gini Nester and break her neck.

A jury awarded nearly $16 million because the manufacturer knew the parking brake was unsafe and didn't fix it. Textron appealed, but an appeals court affirmed.

Among other problems for the defendant, there was a video -- but not of Nester's accident. The jury saw a video of a similar accident, and that's one reason the defendant appealed in Nester v. Textron, Inc.

Similar Accident

Nester and her husband used a Workhorse utility vehicle on their Texas ranch. One day, she was driving it to herd cattle and carry feed.

When she reached a gate, she set the parking brake and got out. The cattle apparently bumped the utility vehicle, the feed bag fell onto the accelerator, and the vehicle ran over her.

Twelve days later, a utility vehicle with the same pedal design ran over people at a high-school football game after end-zone pylons triggered the cart's accelerator. The video was uploaded to YouTube.

The design problem, according to the trial court, was the emergency brake automatically released when the accelerator was activated. The video problem, according to the defendant, was the judge allowed the jury to see it.


On appeal, Textron argued that the later-occurring incident should not have been used to show notice of the design defect. The Fifth Circuit agreed.

"But the video was nevertheless probative of the existence of a design defect-that is, whether the Workhorse's pedal design was unreasonably dangerous given the magnitude of the risk," the appeals panel said.

The defendant also complained the video was not authenticated by anyone from YouTube or the person who uploaded it. The judges said it was not necessary.

"In fact, a proponent may authenticate with 'circumstantial evidence' of the item's 'distinctive characteristics and the circumstances surrounding its discovery,'" they said.

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