Opinion
E039003
5-22-2007
JIMMIE MELTON et al., Plaintiffs and Appellants, v. MARTEN TRANSPORT, LTD., Defendant and Respondent; GREAT AMERICAN INSURANCE COMPANY, Intervener and Appellant.
Schneider Law Offices, Calvin C. Schneider III and Ron W. Townsend for Plaintiffs, Intervener and Appellants. Best Best & Krieger, Douglas S. Phillips, Kira L. Klatchko; Higgins Harris Sherman & Rohr and John J. Higgins for Defendant and Respondent.
NOT TO BE PUBLISHED
This is an appeal from a judgment of nonsuit. Because we find substantial evidence which would have supported a verdict for the plaintiffs, we will reverse the judgment.
PROCEDURAL HISTORY
Plaintiffs Jimmie Melton and Julia Hernandez Melton filed an action for damages for injuries and property damage they sustained when Mrs. Melton lost control of their Freightliner tractor truck. The original complaint alleged only strict products liability. Plaintiffs first amended complaint added a second cause of action for negligence. Plaintiffs insurer, Great American Insurance Company, filed a complaint in intervention. A settlement was reached as to the products liability cause of action. The negligence cause of action was tried to a jury. Marten Transport, Ltd. (hereafter sometimes Marten) was the sole defendant. After plaintiffs rested, subject to the admission of exhibits, Marten made an oral motion for nonsuit. After argument, the court granted the motion. Judgment was entered for Marten, and plaintiffs filed a timely notice of appeal.
FACTS
In accordance with the standard of review, discussed below, we set forth the facts in the light most favorable to plaintiffs.
On December 21, 2001, Jimmie and Julia Melton leased for purchase a used Freightliner tractor truck from Marten Transport, Ltd. to begin their own business as owner-operator truck drivers. Both had previously been employed by Marten as truck drivers. Unbeknownst to the Meltons, however, the truck had been returned to Marten by its previous owner, Kim Mitchell, as a lemon.
Like the Meltons, Mitchell entered into a lease-purchase agreement with Marten. For the sake of simplicity, we refer to the transaction as a purchase and to Mitchell as the owner.
Mitchell had purchased the truck new from Marten on December 7, 2000. Mitchell had numerous problems with the truck, including multiple brake system problems — including brake failures and the brakes smoking and catching fire — as well as excessive front-end vibration, uneven wear on the right front steer tire, pulling to the right, multiple oil and fluid leaks, faulty sensors and slack adjusters, transmission problems, a sticking clutch assembly, fuel system malfunctions, air conditioning and heating failures, low engine power, multiple electrical failures and the complete internal collapse of the muffler, which almost resulted in asphyxiation. After only 40,000 miles, the right front steer tire had excessive wear on its outside edge. Although Mitchell repeatedly requested that Marten arrange for front-end service on the truck, Marten did not authorize the service until the truck had approximately 70,000 miles on it. At that point, a truck alignment shop reported that the trucks front end was severely out of alignment. The alignment problem was not the result of an accident but developed gradually.
The tires on a similar truck Mitchell later drove lasted 170,000 miles.
The front-end vibration problem persisted after the alignment was done, and Mitchell continued to have other problems with the truck as well. In addition to the constant vibration, the steering pulled to the right, the truck continued to suffer low engine power, and the brakes would continually stick, smoke and/or catch fire.
On September 25, 2001, Mitchell took the truck back to Marten and told them he was returning it under the "lemon law." Mitchell and his wife, who had also driven the truck, gave Martens manager of owner-operators, Richard Wyttenbach, and its chief operating officer, Robert Smith, copies of all of the trucks service records and a detailed written description and chronology of all the problems they had had with the truck. Marten took the truck back.
The truck sat idle at Martens facility until the Meltons took possession of it on December 21, 2001. Wyttenbach told the Meltons that the truck had been returned by the previous owner because of problems, but he said that the problems were with the driver and not with the truck. Wyttenbach assured the Meltons that the truck had been thoroughly inspected and that it was in good working condition. They were not given any service records and were not told of the trucks actual history.
The Meltons set off with a load that evening. Mr. Melton drove first while Mrs. Melton slept. He noticed that the truck had a slight pull and needed to be checked for alignment. Mrs. Melton took over driving several hours later. Mr. Melton warned her that the truck felt "loose" and told her to be careful. She noticed that the truck vibrated and pulled slightly to the right as well. Mrs. Melton was rested and alert as she drove, and road and weather conditions were good. About 4:00 a.m., as she was driving at 60 to 65 miles an hour on a straight portion of Interstate 35, Mrs. Melton heard a loud "clang" from under the front of the truck. She had not hit or run over anything. Immediately after the "clang," the steering wheel jerked out of her hands and the truck quickly swerved to the left and into the center median. Mrs. Melton was not able to regain control, and the truck overturned on its right side and came to rest in the median.
William Myhre, a retired police officer and current truck driver, was traveling in the opposite direction on Interstate 35 when he saw the Meltons truck make a sudden, abrupt turn to the left, as though a tire had blown out. Seeing the truck overturn, he pulled over and ran to the accident site with a flashlight. He saw that the right front steer tire and components had completely detached from the truck. The front tire was still inflated and did not appear to be damaged. All of the trucks tires were inflated.
Mr. Melton was ejected from the truck and landed approximately 150 feet north of the vehicles point of rest. Mrs. Melton remained in the drivers seat, hanging from her seatbelt. She managed to extricate herself and to get out of the truck through a large hole in the back cabin. They were transported by ambulance to a local hospital. Both suffered serious injuries and required surgery. They incurred large medical bills and lost a substantial amount of income. Mrs. Meltons injuries resulted in partial permanent disability.
Fred Cady, an expert in accident reconstruction, testified that the accident was caused by mechanical failure in the front suspension, specifically the fracturing of the kingpin in the right front wheel assembly. He testified that the physical evidence was consistent with Mrs. Meltons description of the accident and was not consistent with Martens theory that Mrs. Melton feel asleep or was inattentive or with Martens theory that the force of the accident broke the kingpin.
A kingpin is a thick steel rod which locks into a hole in the axle and fastens the wheel assembly and tire onto the truck. The wheel pivots around the kingpin during turning movements. The kingpin should be held rigid within the axle. The kingpin in the right front wheel assembly of the Meltons truck sustained two fractures, one located near the upper end of the axle hole and one in the lower part. John Brynildson, a metallurgist, testified that the lower fracture was consistent with metal fatigue. He testified that it was a progressive fracture, i.e., one which would have occurred over a period of time rather than suddenly. It would progress "until it reaches a point where the remaining cross section is not sufficient to withstand the load that its carrying." In contrast, the upper fracture was consistent with a sudden fracture. It resulted from the reduction in strength caused by the original fatigue fracture. Eventually, the kingpin "just couldnt take that load anymore and it snapped." Brynildson testified that he determined with "a reasonable degree of scientific certainty" that the lower fracture existed and had fully separated before the accident.
The Meltons expert on truck mechanics, Gregory Barnett, opined that the kingpin broke due to metal fatigue resulting from the fact that the hole in the axle which housed the kingpin was too large, causing the kingpin to be loose and to continually wobble and "fret." A kingpin should be tightly lodged in the axle and should not move beyond five-thousandths of an inch. The size of the kingpin hole in the right axle indicated that the kingpin would have been moving far more than five-thousandths of an inch, while the kingpin in the left axle remained rigid. Barnett testified that if Martens mechanics had performed a proper inspection of the kingpins before the truck was sold to the Meltons, they would "in all likelihood" have recognized that the right front kingpin was loose beyond industry standards and would have replaced it. According to industry standards, he testified, "[I]f its loose to the point where you can feel it, it needs replacement." Replacement of a kingpin costs about $100.
Barnett testified that kingpins should be inspected at least every 20,000 miles for looseness and a kingpin inspection should be part of every maintenance inspection. Such an inspection was all the more necessary in this case because of the trucks history of steering and suspension problems. A loose kingpin causes vibration and misalignment of the steering wheel as well as excessive tire wear. The alignment records indicated that when the truck was serviced at 70,175 miles, the right front tire had sustained abnormal and excessive wear on its outside edge, yet the alignment scope indicated that that the tire had a negative camber. However, a negative camber should have caused excessive wear on the inside edge. And, the service performed at the alignment shop did not correct the vibration and pulling problems Mitchell experienced. However, although Martens mechanics had performed a preventative maintenance inspection of the truck on December 5, 2001, about two weeks before the Meltons took possession of the truck, they did not inspect the front suspension, except visually. The only effective method for inspecting the kingpins is to lift the front end of the truck off the ground and attempt to move the wheel along a vertical plane using a tire bar wedged in the wheel assembly. Martens mechanics did not inspect the kingpins using a tire bar. They were not given the trucks service and repair history and were unaware of the problems the trucks previous owner had experienced.
The truck had approximately 126,000 miles on it when Mitchell turned it in. Thus, the problem with the kingpin had existed for at least 56,000 miles before the Meltons took possession of the truck.
The truck had remained parked at Martens facility from the time Mitchell returned it until the Meltons took possession. The Meltons had driven the truck only about 400 miles when the accident occurred.
LEGAL ANALYSIS
Standard and Scope of Review
A defendant is entitled to a nonsuit only if the trial court determines that, as a matter of law, the plaintiffs evidence is insufficient to permit the jury to find in his favor. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541, citing Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) In determining the sufficiency of the evidence, the trial court must not weigh the evidence or consider the credibility of witnesses. Instead, it must interpret all of the evidence most favorably to the plaintiffs case and most strongly against the defendant, and it must resolve all presumptions, inferences, conflicts, and doubts in favor of the plaintiff. (Saunders v. Taylor, supra, at p. 1541.) In an appeal from a judgment of nonsuit, the reviewing court independently reviews the evidence and applies the same rules which apply in the trial court. (Id. at pp. 1541-1542.)
In this case, the trial court granted the nonsuit motion based on its conclusion that the evidence failed to establish that the break in the kingpin occurred "before a time when Defendant Marten was under a duty to inspect the tractor for a worn or damaged front suspension or for a broken kingpin." This was not, however, the ground on which the motion was made. For purposes of the nonsuit motion, Marten stipulated to "negligence," presumably meaning that it had breached a duty to inspect the kingpins before selling the truck to the Meltons. It explicitly based its motion solely on the contention that there was insufficient evidence of causation. First, it argued that there was no evidence that if its mechanics had performed a proper inspection on December 5, 2001, they would have discovered that the kingpin was broken because there was no evidence that the kingpin was broken as of that date. Second, Marten argued that there was no evidence that the broken kingpin caused Mrs. Melton to lose control of the vehicle. Only the grounds specified in support of the motion for nonsuit should be considered by the appellate court. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839; Lawless v. Calaway (1944) 24 Cal.2d 81, 93-94.) We therefore examine only the evidence pertaining to causation.
Plaintiffs Presented Substantial Evidence of Causation
First, we address Martens argument that there is no substantial evidence that the accident was caused by the failure of the kingpin. The Meltons accident reconstruction expert, Fred Cady, testified unequivocally that the accident occurred because the kingpin broke, causing Mrs. Melton to lose control of the truck. He testified that the physical evidence was not consistent with Martens theory that Mrs. Melton fell asleep or was inattentive while driving, and that it was not consistent with Martens theory that the kingpin was broken by the force of the accident. The testimony of a single witness, if believed by the trier of fact, constitutes substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) With one exception not applicable here, the determination of the credibility of an expert witness and the weight to be accorded to his or her testimony, like that of any other witness, is exclusively within the purview of the jury. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632-633.) Thus, Cadys testimony is unquestionably substantial evidence that the accident was caused by the failure of the kingpin.
Marten next contends that there was no substantial evidence that the kingpin was cracked when its mechanics inspected the truck on December 5, 2001, or that a proper inspection would have revealed the defect if it did exist. We disagree. Plaintiffs expert metallurgist testified with "a reasonable degree of scientific certainty" that the lower fracture in the kingpin existed before the Meltons took possession of the truck. The lower fracture was caused by metal fatigue which, in his opinion, could not have occurred between the date of the inspection and the date of accident: "[B]ased on the fracture pattern, [it is] way more probable than not [that the fracture existed before the Meltons took possession of the truck] . . . because you dont get fatigue failure in that short of [sic] time period." This opinion was based on the physical evidence and the scientific probabilities, and not, as Marten asserts, on mere speculation. In addition, the Meltons expert on truck mechanics testified that the condition which caused the metal fatigue, i.e., that the hole in the axle which housed the kingpin was too large, causing the kingpin to be loose and to continually wobble and "fret," had existed since "early on in life [of the truck]" and at least since the truck was serviced for alignment problems at 70,000 miles. He testified that if the mechanics had performed the proper inspection, i.e., using a tire bar, "in all likelihood" they would have recognized that the right kingpin was loose beyond industry standard tolerances. According to industry standards, he testified, "[I]f its loose to the point where you can feel it, it needs replacement." This testimony is substantial evidence that the defect existed and could have been detected if a proper inspection had been performed.
Marten argues that no witness testified with sufficient certainty to support the inference that a proper inspection would have disclosed the problem which ultimately caused the kingpin to fail. However, a plaintiff is not required to prove causation beyond all doubt. Rather, the plaintiffs burden is to "`introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result." (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205.) Only if "`the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced" is the defendant entitled to judgment as a matter of law. (Id. at pp. 1205-1206.) Here, plaintiffs experts based their conclusions on the physical evidence and on engineering, mechanical and scientific principles. Their conclusions were expressed at the very least as being more probable than not. Their evidence was thus not speculative or conjectural, and based on their evidence, the probabilities were not "`at best evenly balanced." (Id. at p. 1205.)
A defendants breach of its duty to exercise reasonable care is a cause in fact if it was a "substantial factor" in bringing about the plaintiffs harm. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)
DISPOSITION
The judgment is reversed and the cause remanded for a new trial. Costs on appeal are awarded to plaintiffs Julia Hernandez Melton and Jimmie Melton.
We concur:
RICHLI, J.
MILLER, J.