Virginia Supreme Court Decision Follows Public Policy Group's Amicus Brief Reasoning in Rollover Case

Supreme Court of Virginia

In a lawsuit alleging a ragtop convertible automobile should have protected occupants during a rollover incident, the Virginia Supreme Court agreed with an amicus brief filed by Shook's Public Policy Group arguing that purchasers of ragtop convertibles could not reasonably expect the car to provide rollover protection. Victor Schwartz and Phil Goldberg filed the brief on behalf of the Alliance of Automobile Manufacturers and the Association of Global Automakers.

A woman was driving her Mazda Miata with the soft top latched into its closed-top configuration when she was forced to veer off the two-lane highway, causing the car to roll. She sued Mazda to recover for her injuries, alleging the car was unreasonably dangerous for its ordinary use because it foreseeably would not provide protection to occupants during a rollover. After hearing expert testimony asserting that the latches should have provided such protection, the jury awarded the plaintiff $20 million.

Schwartz and Goldberg's brief urged the court to hold that drivers of ragtop convertibles cannot reasonably expect rollover protection from the cars. "The Federal Motor Vehicle Safety Standard, which sets roof crush resistance standards for vehicles, specifically exempts ragtop convertibles," the brief argues. "Without the frame of a hardtop roof, the essential structure for such protection is missing. This is a known trade-off inherent to ragtop convertibles."

The brief further argued against the trial court's decision to allow expert testimony stating that the latches connecting the roof to the windshield were meant to provide rollover protection. "By admitting inappropriate expert testimony, the trial court imposed an impossible duty on manufacturers of ragtop convertibles: design a ragtop roof that provides rollover protection. Again, not even Plaintiff’s expert offered a means by which a ragtop convertible could have provided such protection."

In its decision, the court followed much of Schwartz and Goldberg's reasoning. "The absence of a permanent roof structure necessarily diminishes the level of occupant rollover protection," the court stated. "Not only is this characteristic of a convertible 'readily discernible to any one using the vehicle,' it is 'the unique feature of the vehicle.'"

"In short, we believe that imposing a duty upon manufacturers of convertible soft tops to provide occupant rollover protection defies both 'common sense' and 'good policy,'" the court held. "There are no safety standards in existence, promulgated either by the government or the automotive industry, that require convertible soft tops, including their latching mechanisms, to provide occupant rollover protection."

The court further found the plaintiff's expert testimony to be inadmissible, holding that the expert's opinions lacked an adequate factual foundation. "In fact, [the expert] testified that permanent roof structure systems (those without latches) could be, and have been, crushed in rollover accidents," the court noted. "There was simply no basis for his assumption that the front end of the roof structure would not have collapsed during the rollover crash if the latches had remained connected."

Holiday Motor Corp. v. Walters, No. 150391 (Va. 2016).

Shook’s National Amicus Practice publishes a State Supreme Court Watch bi-weekly, tracking cases decided and granted review in many state supreme courts around the country on a wide variety of business and liability related issues. To sign up to receive the State Supreme Court Watch, contact Phil Goldberg at