Stuck Throttle On Ford Explorer Leads To Rollover And A $6.2 Million Recovery From A $10.6 Million Verdict

On November 10, 2000, Rebekah Zakrocki, then 22, drove to the Garden State Parkway in a used 1997 Ford Explorer she had bought from Freehold Ford a year and a half earlier. Heading north in the middle lane at about 65 miles per hour, she came up on a much slower car. She took her foot off the gas, kept closing, and when she was roughly a car length and a half back she put her foot on the accelerator again. It was stuck. She had to step on it about twice before it came free, and when it did the pedal went to the floor and the Explorer surged forward hard enough to push her back into her seat. She steered left to avoid the car ahead, lost control, and the SUV rolled over.

Zakrocki woke up in the hospital. Her reconstructive surgeon, Christopher Godek, found what he called a 'near complete' amputation of her right arm at the wrist, the hand held on by little more than a ridge of skin on the back. Blood flow had to be restored within three to four hours or the hand would die, and Godek put the odds at about one in fifty. He rebuilt the artery with a bypass and vein grafts from her leg, removed dead bone, which left the arm shorter, closed the wound with skin grafts, and stabilized the wrist with an external fixator. The hand survived, but she had also suffered a total brachial plexus injury: the nerve network linking the spinal cord to the arm was torn. By trial, an occupational therapist testified that she had no real function in the arm and was completely paralyzed in it apart from some elbow flexion. She was missing a finger on the right hand, wore a prosthetic one, and had stopped working.

Zakrocki sued Ford Motor Company and Freehold Ford, the dealership that sold her the vehicle. At trial, evidence showed Ford had known since the late 1990s that sludge could build up on the Explorer's throttle plate and make it stick, that it had identified 48,935 warranty claims for throttle sticking in 1997 model-year Explorers presented between October 1998 and May 1999, that federal regulators opened a defect investigation in January 1999 after finding the throttle warranty claim rate many times Ford's average, and that Ford had a program to replace the throttle body at no cost. Freehold Ford had serviced Zakrocki's Explorer twice for unrelated repairs without ever telling her about the throttle problem or the free replacement.

On April 12, 2007, after about a month of trial before Judge Jamie Happas, the jury sided with Zakrocki on the throttle defect and on both defendants' failure to warn, but rejected her separate rollover-defect claim. Jurors apportioned fault at 50 percent to Ford, 22 percent to Freehold Ford and 28 percent to Zakrocki for how she drove, then awarded her $10,626,479.89: $8 million for pain, suffering and permanent disability, and $2,626,479.89 for past and future medical expenses and lost wages. The jury then cut that award by $2 million because she had not been wearing her seatbelt, leaving $8,626,479.89. New Jersey's comparative negligence statute diminishes a plaintiff's recovery by her own share of the fault, so the 28 percent assigned to Zakrocki left her $6,211,065.52 of that figure. In a separate phase before the same jury, both defendants were found liable for punitive damages, assessed at $42,050.

Ford and Freehold Ford moved for a new trial, arguing that plaintiff's counsel had prejudiced the jury, and for judgment on the punitive claim. Judge Happas denied the new trial motions, holding that her curative instructions had been enough, and denied Ford's motion on punitive damages while granting Freehold's, leaving the $42,050 punitive award against Ford alone. Both sides appealed, the defendants challenging the compensatory verdict, the engineering expert and the punitive award, and Zakrocki cross-appealing that the punitive figure was too low.

The Appellate Division affirmed on every point and dismissed both the appeal and the cross-appeal on July 29, 2009, holding that the $8 million pain and suffering award was supported by the record and did not shock the court's conscience. The New Jersey Supreme Court denied certification and Zakrocki's cross-petition on November 20, 2009. Barry R. Eichen, then of Eichen, Levinson & Crutchlow, a predecessor of Eichen Crutchlow Zaslow, LLP, is named in the opinion as counsel of record for Zakrocki and argued the case for her in the Appellate Division; the firm reports that he also tried it.