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IN THE SUPREME COURT OF NORTH CAROLINA
No. 313PA10
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
FILED 13 APRIL 2012
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.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and Tobias
S. Hampson; and Gilbert and Ollanik, P.C., by James L. Gilbert, pro
hac vice, for plaintiff-appellees.
Kilpatrick Townsend & Stockton LLP, by Adam H. Charnes, Richard J.
Keshian, and Richard D. Dietz; and Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan L.L.P., by Kirk G. Warner and Christopher R.
Kiger, for defendant-appellant.
Edward Eldred, Attorney at Law, PLLC, for The Covenant  With North
Carolina’s Children and KidsAndCars.org, amici curiae.
Yates,  McLamb  &  Weyher,  LLP,  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.




STARK EX REL. JACOBSEN V. FORD MOTOR CO.
Opinion of the Court
Michael W. Patrick, for North Carolina Advocates for Justice, amicus
curiae.
Poyner  Spruill  LLP,  by  Steven  B.  Epstein,  for  North  Carolina
Association of Defense Attorneys and North Carolina Chamber, amici
curiae.
I.  Beverly  Lake  Jr.,  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, by Burley B. Mitchell, Jr.,
William F. Womble, Jr., James R. Morgan, Jr., and John E. Pueschel,
for Product Liability Advisory Council, amicus curiae.
NEWBY, Justice.
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 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
1 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.
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Opinion of the Court
concluded otherwise, 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 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 pass-through, which would allow the Starks to
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Opinion of the Court
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 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
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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 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 same speed the car was traveling before impact
until the passenger hits something that causes him to slow down.   In that case the
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STARK EX REL. JACOBSEN V. FORD MOTOR CO.
Opinion of the Court
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 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.
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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
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Opinion of the Court
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  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 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
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Opinion of the Court
Cheyenne Stark caused by an alteration or a modification
of the 1998 Ford product.
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.
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
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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.   Nonetheless, the jury determined that Cheyenne‟s enhanced
injuries  were  also  proximately  caused  by  a  modification  of  the  Taurus,  which
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relieved Ford 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 defendant‟s petition for discretionary review.   Stark ex rel. Jacobsen v. Ford
Motor Co., 365 N.C. 74, 705 S.E.2d 741 (2011).
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
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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).
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:
(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.
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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 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).
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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 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” 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
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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 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.
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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 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.
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STARK EX REL. JACOBSEN V. FORD MOTOR CO.
Opinion of the Court
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.
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  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.
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STARK EX REL. JACOBSEN V. FORD MOTOR CO.
Opinion of the Court
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 this
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STARK EX REL. JACOBSEN V. FORD MOTOR CO.
Opinion of the Court
Court impermissibly to read into section 99B-3 words the legislature chose not to
include in its text.
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 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.
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)
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STARK EX REL. JACOBSEN V. FORD MOTOR CO.
Opinion of the Court
(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
conclude that Gordon Stark, despite his recollection to the contrary, placed the
shoulder portion of Cheyenne‟s seat belt behind her back after buckling her in,
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STARK EX REL. JACOBSEN V. FORD MOTOR CO.
Opinion of the Court
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 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.
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STARK EX REL. JACOBSEN V. FORD MOTOR CO.
Opinion of the Court
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.
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
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
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.
At the time of trial, neither Tonya Stark nor
Gordon Stark were parties to the action.
Because Defendant asserts that the modification was
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
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).
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,
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
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.
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.
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
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 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.”
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
Jenrette Transp. Co. v. Atl. Fire Ins. Co.,  236 N.C.  534,  539,  73 S.E.2d  481,  485
(1952)  (citing Denny v. Snow,  199 N.C.  773,  774,  155 S.E.  874,  874  (1930)  (per
curiam)).
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 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.
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
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  (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 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).
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 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
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
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.
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, 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
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
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 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 her seat and noticed
that the belt was “way too big” for her; roughly five or ten minutes later3 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
2 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.
3 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.
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
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
4 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).
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STARK V. FORD MOTOR CO.
HUDSON, J., concurring in part and dissenting in part
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 that court to consider all
remaining  issues,  including  the  sufficiency  of  the  evidence  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.
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