Opinion
For Opinion on Hearing see, 75 Cal.Rptr. 652, 451 P.2d 84.
Chester P. Guziel, Woodland Hills, and James H. Davis, Los Angeles, for plaintiffs and appellants.
Booth, Mitchel, Strange & Willian and George C. Mitchel, Los Angeles, for defendant and respondent American Motors Corporation.
Sweeney, Cozy & Foye and Thomas P. Foye, Los Angeles, for defendant and respondent Mission Rambler Co.
HUFSTEDLER, Associate Justice.
The plaintiffs, Mrs. Sandra Elmore and Mrs. Anna Waters, filed separate appeals from judgments dismissing their actions against the defendants, American Motors Corporation ('American') and Mission Rambler Company ('Mission'), after the defendants' motions for nonsuit were granted. The cases were consolidated both for trial and on appeal. The actions grew out of an automobile collision on April 29, 1962.
Mrs. Elmore sought recovery for severe personal injuries which she suffered when her 1962 Rambler went out of control, crossed the center line of the highway, and crashed headon into the Waters automobile. The Rambler was manufactured by American. Mrs. Elmore bought it new from Mission on March 16, 1962.
Mrs. Waters sought damages for her personal injuries and for the wrongful death of her husband. Mr. Waters, who was driving their car, was killed in the accident.
Both plaintiffs alleged that the accident was caused by defects in the Rambler which resulted in Mrs. Elmore's losing control of the car. Adequate facts were stated in the pleadings to invoke their alternative theories of liability: negligence and strict liability in tort. On appeal, only the strict liability theory is pressed.
The cases were tried before a jury. At the conclusion of the plaintiffs' cases-in-chief, the court granted defendants' motions for nonsuit.
Both appeals present the question: Did plaintiffs produce substantial evidence that the collision was proximately caused by a manufacturing defect in the Elmore automobile? Only if that question is answered affirmatively would we reach the question, never before decided in California, which is presented by the Waters appeal: Does strict liability in tort extend to 'bystanders'?
Summary of the Evidence
We summarize the evidence, disregarding all evidence unfavorable to the plaintiffs and resolving all conflicts in the testimony in plaintiffs' favor. Mr. and Mrs. Elmore purchased the 1962 Rambler American station wagon from Mission on March 16, 1962. The car had a standard transmission. It was not equipped with power steering or power brakes. Mrs. Elmore used the automobile to commute to work. She had some minor complaints about the automobile, which she reported to Mission when she took it in for a thousand-mile checkup. After the checkup she noticed that the car was shimmying when she drove it between 60 and 65 miles per hour. Shortly before the accident she noticed the same shimmying while driving at 55 to 60 miles per hour. She intended to take the automobile in for further servicing in the first week of May. She told her husband about the shimmying and asked him to drive the car. He could not detect the shimmying and did not think that it was serious enough to warrant Mrs. Elmore's taking time off from her employment to return the car for servicing. No other testimony was presented concerning the use of the car by Mr. or Mrs. Elmore or anyone else. There was no evidence negativing any change in the condition of the vehicle from the time Mrs. Elmore purchased it until the time of the accident. The Rambler had been driven 2751 miles before the accident.
Mrs. Elmore suffered retrograde amnesia resulting from her injuries, and she was unable to remember anything about the day of the accident.
The accident happened shortly after noon on a bright, clear day. Mrs. Elmore was A highway patrol officer investigating the accident shortly after the collision found skid and gouge marks on the pavement on the northbound lane. About 300 feet from the point of impact appeared a gouge mark extending for a distance of some feet on the pavement. Although there were photographs of the gouge mark, the precise distance covered by the gouge was not stated. Skid marks continued in a northerly direction from the gouge mark for approximately 164 feet. The same officer had patrolled the area about an hour before the accident and did not observe any skid or gouge marks at that time.
Two expert witnesses were called. Mr. Snyder, a mechanical engineer and automobile expert, testified that among the parts of an automobile which 'could come loose and go down to the ground' were the spring, spring hangers, driveline, the steering arms, the arm on the ball joint, the Pittman and idler arms. In response to a hypothetical question based upon of the evidence, Mr. Snyder gave his opinion of the cause of the gouge marks: 'Well, a piece of metal of some kind from the subject vehicle came against the roadway and scraped against it or gouged into it hard enough to abrade, gouged the roadway, as shown, in that during the process of gouging the roadway in that manner the metal would act the same as if you had put it against a rather large grindstone and sparks would be thrown off from the gouging of the metal against the roadway. It is an abrasive reaction between the metal and the roadway. Now, that would continue as long as the piece were rammed or jammed into the roadway. * * * [A] piece of metal which is gouging into the pavement is gouging by virtue of the fact that some portion is jamming it into it. Now if it wears a little bit * * * the vehicle passes over that, and then from then on it may just drag lightly, but it won't leave a gouge mark if it is just dragging along. It gouged hard, was forced into the pavement up to the end of the mark, then the mechanics of the situation is that the pressure was relieved at that point by one way or another and there is no further gouge mark.' He said that if any portion of the steering members had become loose enough to touch the pavement, the steering would be very seriously affected if there were not a complete loss of steering control. He further testified that whatever equipment may have come loose would have been in the forward portion of the car. He could not tell which particular part had dropped from the Elmore vehicle. Mr. Snyder did not examine the Rambler at any time.
The second expert witness was Mr. Ausburn, a licensed engineer, who examined the Waters and Elmore vehicles at a wrecking yard after the accident. The front end of the Rambler was heavily damaged: The right front wheel was bent and the tire was flat. The intermediate rod was torn loose from the idler arm. Many of the parts associated with the steering mechanism were bent and displaced.
After the steering mechanism and steering box were removed from the Rambler, Mr. Ausburn examined the steering box, and in it he found foreign 'particles of a piece of plastic impregnated paper tape * * * Mr. Ausburn performed an experiment by cutting a piece of tape from the remainder of the label on the steering shaft and placing it on the top bearing in the gearbox and applying a lever from the steering shaft to measure the amount of force it would take to overcome the resistance from the piece of tape. The experiment indicated to him that a driver would have to exert extra effort in steering the car to overcome the resistance caused by the tape.
In his opinion the 'sparking' was caused by 'a metallic part dropping down from the vehicle.'
He was asked to examine a photograph of the scene of the accident taken shortly after the collision. His attention was drawn to a tube-shaped object on the highway. Ausburn said the object was 'probably the driveshaft from the vehicle.' He did not give an opinion about whether the driveshaft was from the Elmore vehicle. Assuming that a driveshaft fell down and made sparks, the rear of the car would be caused to swerve and to be 'lifted or thrown around.' A driveshaft would not fall off because of 'anything the driver did.' A driveshaft could come loose either because the fastenings were loose or because there was a metal failure. When Mr. Ausburn examined the Rambler, the driveshaft was not attached but was in the rear of the vehicle. If a driveshaft were to fall down, it would cause heavy sparking.
In response to a hypothetical question assuming that there was heavy sparking underneath the Rambler and that immediately thereafter the Rambler went out of control and crossed to the other side of the highway, Mr. Ausburn gave his opinion that the cause of the sparking was, 'an undetermined part dropping down and dragging on the highway.' Normal wear and tear would not account for the falling of a driveshaft in a car driven approximately 2700 miles. Mr. Ausburn's conclusion was that there was 'evidence of mechanical defects in the subject automobile before the crash.'
Sufficiency of the Evidence to Withstand Nonsuit
'A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 260-261, 37 Cal.Rptr. 896, 898, 391 P.2d 168, 170, quoting Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049.) An injured plaintiff must not be beguiled by the simplicity of that statement into believing that strict liability proves itself. Mrs. Elmore would not have established a prima facie case by proving that she bought the Rambler from Mission, it was manufactured by American, there was a defect in the automobile, and while she was driving it, she an accident in which she suffered injury. She must also prove: (1) there were one or more defects in the Rambler at the time it left the hands of Mission (e. g., Vandermark v. Ford Motor Co., supra, 61 Cal.2d at p. 261, 37 Cal.Rptr. 896, 391 P.2d 168; Escola v. Coca-Cola Bottling Co. (1944) 24 Cal.2d 453, 468, 150 P.2d 436, 444 (Justice Traynor's concurring opinion: 'The manufacturer's liability should, of course, be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market.'); Erickson v. Sears, Roebuck & Co. (1966) 240 Cal.App.2d 793, 798, 50 Cal.Rptr. 143; Jakubowski v. Minnesota Mining and Manufacturing (1964) 42 N.J. 177, 182-185, 199 A.2d 826, Henningsen v. Bloomfield Motors, Inc.
Shramek v. General Motors Corp., Chevrolet M. Div. Swain v. Boeing Airplane Co. Greenman v. Yuba Power Products, Inc., Vandermark v. Ford Motor Co., Seely v. White Motor Co. Greening v. General Air-Conditioning Corp.There was some evidence introduced about three different defects in the Rambler-shimmying, the dragging of 'a big hunk of metal,' and foreign particles in the gearbox.
The shimmying evidence merits only momentary attention. Mrs. Elmore testified that the automobile shimmied when she was driving at speeds over 55 miles per hour. There was no evidence that the shimmying had anything to do with her losing control of the automobile. The little evidence on the subject is to the contrary. The evidence was uncontradicted that Mrs. Elmore was driving about 45 miles per hour shortly before and at the time she lost control of the automobile. Therefore, she had not reached the speed at which the shimmying started. None of the expert testimony was directed to the shimmying.
There was evidence that shortly before the accident Mr. Hendley saw a series of sparks underneath the Rambler 'like something fell, * * * like something in front was dragging, * * * like a big hunk of metal suddenly hitting the ground.' From this evidence an inference would arise that there was a defective part in the front of the Rambler at the time Mrs. Elmore lost control of the car. A large hunk of metal does not fall off of an automobile unless there is something wrong with it. That evidence, however, does not support any inference about what caused the defect, who caused the defect, when the defect was caused, or what particular part was defective. The evidence was far short of proving that the part which fell was the driveshaft of the Rambler. Upon looking at a photograph of the scene of the accident, taken shortly after the collision, Mr. Ausburn said that an object appearing on the highway in the photograph was probably a driveshaft, but he could not tell from the photograph whose driveshaft it was. Some time after the accident when Mr. Ausburn examined the Rambler, he observed that the driveshaft was detached and was in the rear of the vehicle. He did not inspect the driveshaft itself. The driveshaft was not offered in evidence. Mr. Ausburn did not say whether the driveshaft of the Waters vehicle was intact.
The defendants argue that there was no substantial evidence that a defect existed in the Rambler without proof specifically identifying the part that fell. A plaintiff's proof that a specific part was defective is obviously helpful to the plaintiff's case, but it is not essential if the existence of a defect is proved by other circumstantial evidence. For example, in Henningsen v. Bloomfield Motors, Inc., supra, 32 N.J. 358, 161 A.2d 69, the plaintiff's husband bought a new car from the defendant on May 9, 1955. The car was driven 468 miles. It had never been serviced, and there were no mishaps until the plaintiff had an accident on May 19. The car had been driven on short trips over paved roads. Moments before the accident the plaintiff heard a noise under the hood like something cracking. The steering wheel spun in her hands, the car veered
Even though the evidence in this case was sufficient to support an inference that there was a defect in a large metal part of the Elmore automobile at the time of the accident, there was no evidence which would support an inference that a part was defective at the time the Rambler left Mission's control. '[I]n the absence of direct evidence that the product is defective because of a manufacturing flaw or inadequate design or other evidence which would permit an inference that a dangerous condition existed prior to sale, it is necessary to negate other causes of the failure of the product for which the defendant would not be responsible, in order to make it reasonable to infer that a defective condition existed at the time defendant had control.' Jakubowski v. Minnesota Mining and Manufacturing, supra, 42 N.J. at pp. 182-186, 199 A.2d at pp. 829-830. Proof that some part of an automobile or other mechanical device broke, disintegrated, or exploded during normal use does not establish a prima facie case that there existed a defect in that product at the time it left a defendant's control. (Shramek v. General Motors Corp., Chevrolet M. Div., supra, 69 Ill.App.2d 72, 216 N.E.2d 244; United States Rubber Co. v. Bauer (8 Cir. 1963) 319 F.2d 463; McNamara v. American Motors Corp. (5 Cir. 1957) 247 F.2d 445; Prosser, 'The Fall of the Citadel,' supra, 50 Minn.L.Rev. at pp. 843-845; Emroch, 'Pleading and Proof in a Strict Products Liability Case' [1966] Ins.L.J. 581, 588-590; Keeton, 'Products Liability--Problems Pertaining to Proof of Negligence' (1965) 19 Sw.L.J. 26, 36-37.)
In Jakubowski, plaintiff was injured when an abrasive disc broke in use and struck him. The plaintiff produced no evidence describing the prior use of the disc. The disc was not produced, and it had not been examined to see what caused it to break. The court affirmed a judgment of nonsuit in favor of the defendant.
In proving that a defect existed at the time a product left control of a defendant, it is incumbent upon a plaintiff to introduce evidence from which a jury could find that the thing was more probably than not defective when it was sold. It is not enough to prove that it was as probable that the product was defective when it left a defendant's control as it was that a defect developed thereafter. (E. g., United States Rubber Co. v. Bauer, supra, 319 F.2d at pp. 465, 468; McNamara v. American Motors Corp., supra, 247 F.2d at p. 449.)
The evidence was also insufficient to establish prima facie that a defective part caused the automobile to go out of Mrs. Elmore's control. Here again, it is not enough, simply to prove that there was a defect. A plaintiff must eliminate his own improper conduct as an equally probable cause of the accident. The evidence shows no more than that it was equally probable that Mrs. Elmore lost control of her automobile when she attempted to overtake the vehicle in front of her, heard a car honk to pass her, and cut back into her own lane. (E. g., Courtois v. General Motors Corp. (1962) 37 N.J. 525, 182 A.2d 545; LeBlanc v. Ford Motor Co., supra, 346 Mass. at pp. 230-231, 191 N.E.2d at p. 305; Henningsen v. Bloomfield Motors, Inc., supra, 32 N.J. The third defective condition upon which there was some evidence concerned the foreign particles in the gearbox of the Rambler. The evidence was adequate to support an inference that the gearbox was defective because gearboxes normally do not contain minute particles of metal or bits of plastic tape. The record, however, is completely barren of any evidence which would support an inference that the foreign matter was in the gearbox at the time the Elmores bought the car. The gearbox was not offered in evidence. There was no testimony about how the particles could have found their way into the gearbox.
The only evidence concerning the effect of foreign matter in the gearbox upon Mrs. Elmore's ability to control the car was Mr. Ausburn's opinion, based upon an experiment made after the automobile had been partially dismantled, indicating to him that some unidentified amount of extra effort, in addition to the amount of effort needed to steer the car normally, would have been necessary to overcome resistance caused by the tape. The evidence was too frail to support an inference that Mrs. Elmore's loss of control of the automobile was caused by some greater exertion which she might have had to make in order to overcome such resistance. To carry a chain of inferences from the flimsy premise supplied by the expert's opinion, following his inconclusive experiment to a conclusion that Mrs. Elmore's loss of control of the car was caused by a piece of tape in the gearbox is to convert a plain guess into a probable inference. There was no evidence of any kind that the minute metal particles in the gearbox had anything to do with the ability to steer the vehicle.
The conclusion follows that the trial court properly granted the nonsuit. We, therefore, do not reach the second question presented on the appeal concerning an extension of strict liability to Mrs. Waters, a bystander.
The judgments are affirmed.
KAUS, P. J., and AISO, J. pro tem. , concur.
Assigned by Chairman of the Judicial Council.