RON PERRY CHEVROLET-PONTIAC- OLDSMOBILE-GMC TRUCK, INC. and CENTURY AUTO SALES, INC., D/B/A RON PERRY'S CENTURY AUTO MALL v. DEANNA SETSER
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RENDERED: August 27, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002198-MR
RON PERRY CHEVROLET-PONTIACOLDSMOBILE-GMC TRUCK, INC. and
CENTURY AUTO SALES, INC., D/B/A
RON PERRY'S CENTURY AUTO MALL
APPELLANTS
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 00-CI-00241
v.
DEANNA SETSER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
EMBERTON, SENIOR JUDGE:
Ron Perry Chevrolet-Pontiac-Oldsmobile-
GMC Truck, Inc., and Century Auto Sales d/b/a Ron Perry’s
Century Auto Mall, appeal from a judgment entered following a
jury verdict finding that the appellants negligently repaired
the brake system on an automobile owned by Deanna Setser.
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Appellants allege that the trial court erroneously admitted
expert testimony; that the damage award was excessive and not
supported by the evidence; and that insurance was improperly
brought to the jury’s attention.
We affirm.
In February 1999, Setser purchased a 1999 Dodge
Stratus from Perry.
In April 1999, Perry did a routine service
on the automobile, and in May 1999, she again brought the
automobile in for an oil change and tire rotation.
After the
May service, she noticed a vibration when applying the brake.
On May 19, 1999, she returned the automobile to Perry’s and was
told the service department was full.
She returned on May 21,
1999, and at that time a mechanic drove the automobile and
determined there was a problem with the brakes.
The brakes were
worked on, and on the following day, Saturday, she again noticed
the vibration in the brakes.
On Monday, after phoning Perry’s
and informing them of the continued problem, she drove her
children to the bus stop and was proceeding to Perry’s when her
brakes failed resulting in a violent collision.
Dr. Ottfried Hahn testified that the brake problem
occurred after the tire rotation, and that it was caused by
Perry’s mechanics over-torquing the lug nuts, causing the rotors
to warp.
He further testified that after brake work on an
automobile, it should be test driven.
Appellants’ expert, Dr.
Thomas Eaton, testified that he found no defect in the brake
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system on the automobile and no defect in the brake rotors.
Three mechanics also testified, two of whom previously worked
for Perry’s.
Kenneth Moore testified that when he worked at
Perry’s it was routine to test drive a repaired vehicle.
Elwood
Jobe, also a former Perry employee, serviced Setser’s automobile
but could not recall otherwise working on the automobile or test
driving it after the brake repair.
Donald Morrison, also a
mechanic, testified that it is his practice to test drive a
vehicle after brake repair.
All agreed with Dr. Hahn that
improper torquing can cause brake damage.
At the time of the accident, Setser, who was thirtytwo years old, was wearing her seatbelt.
She testified that as
a result of the accident she was knocked unconscious and
suffered a cracked sternum, broken clavicle, broken ribs and
brain damage.
blackouts.
She continues to have pain, dizziness, nausea and
She also suffers from depression.
Although Setser
had a prior electrocution injury that caused headaches, there
was medical testimony that since her automobile accident, her
symptoms have increased in frequency, duration, and severity.
In addition to these medical problems resulting from the
accident, Setser’s right collarbone is permanently deformed as a
result of the injuries.
The jury found the appellants were negligent and
awarded Setser $1,507,139.31; $30,951.85 for past medicals,
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$476,187.46 for future medicals, $500,000 for past pain and
suffering, and $500,000 for future pain and suffering.
Appellants contend that Dr. Hahn failed to establish
that the lug nuts were improperly torqued and that warped rotors
caused the brakes to fail.
In Briner v. General Motors
Corporation,2 a claim was made that a dealership had negligently
repaired a steering mechanism.
The court held that the
dealership was entitled to a directed verdict:
To justify a finding of liability on
Universal’s part would require a jury to
first infer a breakdown in the steering
mechanism attributable to a defect.
Secondly it would be required to further
infer that, had Universal made different
inspections and tests it would have
discovered and corrected the condition which
ultimately caused plaintiff’s car to veer to
the left. This is piling inference upon
inference, which leads to speculation. As
said in Sutton’s Adm’r v. Louisville & N.R.
Co., 168 Ky. 81, 181 S.W. 938, 940 (1916):
. . . it is held that conjecture
affords no sound basis for a
verdict. It is not sufficient,
therefore, to present a number of
circumstances about which one
might theorize as to the cause of
the accident. Where it is sought
to base an inference on a certain
alleged fact, the fact itself must
be clearly established. If the
existence of such a fact depend on
a prior inference, no subsequent
inference can legitimately be
based upon it.3
2
Ky., 461 S.W.2d 99 (1970).
3
Id. at 101-102.
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The cause of an accident cannot be based on an inference of a
certain alleged fact.
The fact itself must be clearly
established.4
Here, although Dr. Hahn did not actually measure the
torque, his opinion was based on his observation of Chrysler’s
own inspection of the damaged vehicle.
At that time he observed
that the lug nuts on the front wheels were significantly
difficult to remove.
Dr. Hahn testified that there were four
leading causes of difficulty in removing lug nuts: dirt, rust, a
collision, and torquing.
He eliminated the first three and
concluded that over-torquing was the cause.
There was,
therefore, not a complete absence of proof as to the reasonable
probability that the lug nuts were over torqued.5
Additionally, the jury instructions were submitted
without objection and placed the duty on the appellants to use
ordinary care both in repairing and inspection of the brake
system.
Thus, it is possible that the jury did not find that
the lug nuts were over-torqued, but that the appellants breached
their duty of care when they failed to test drive the vehicle.
We disagree with appellants that the trial court
should have excluded Dr. Hahn’s testimony because he was not
4
Sutton’s Adm’r v. Louisville & N.R. Co., 168 Ky. 81, 181 S.W. 938 (1916).
5
Prater Creek Processing Co. v. McClanahan, Ky. App., 741 S.W.2d 278 (1987).
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permitted to testify in Goodyear Tire & Rubber Co. v. Thompson,6
concerning “bolting systems” because his theory was not
demonstrated to be reliable.
When examining the admissibility
of an expert’s testimony the court may consider:
(1) whether a theory or technique can be
and has been tested; (2) whether the theory
or technique has been subjected to peer
review and publication; (3) whether, with
respect to a particular technique, there is
a high known or potential rate of error and
whether there are standards controlling the
technique’s operation; and (4) whether the
theory or technique enjoys general
acceptance within the relevant scientific,
technical, or other specialized community.7
Whether to admit or exclude expert testimony is within the sound
discretion of the trial court.8
Dr. Hahn’s opinion in this case, that over-torquing
can cause brake failure, was confirmed by the testimony of
mechanics and he produced extensive literature on the subject.
We find no error.
We do not believe that the damages for past pain and
suffering and future pain and suffering are excessive.
stated in Stanley v. Caldwell:9
We have many times written that no rule
can be laid down by which damages for pain
6
Ky., 11 S.W.3d 575 (2000).
7
Goodyear, supra, at 578-579.
8
Id. at 577.
9
Ky., 274 S.W.2d 383, 385 (1955).
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As
and suffering in a personal injury case may
be accurately measured. At best, what is
fair and right can only be left up to the
judgment and discretion of the jury and this
Court will not interfere with the verdict
they render unless the assessment of damages
was influenced by passion and prejudice, or
it is so unreasonable as to appear at first
blush disproportionate to the injuries
sustained.
The injuries to Setser, a woman in her early thirties,
are severe requiring daily injections and medications.
There is
medical testimony that within a reasonable degree of medical
probability, her injuries are permanent.
The award of past and
future medical expenses was based on a proper instruction and
the evidence supports the verdict.10
Finally, Dr. Hahn, when talking about the salvage of
Setser’s automobile, mentioned that he took a photograph because
“insurance companies grab cars.”
and the court agreed.
Appellant’s counsel objected
No further mention of insurance was made.
There was no motion for a mistrial or other corrective action by
the court.
Any error was not preserved.
The judgment of the circuit court is affirmed.
10
See Southard v. Hancock, Ky. App., 689 S.W.2d 616 (1985).
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ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Anthony P. Tokarz
BOWLES RICE McDAVID GRAFF &
LOVE LLP
Charleston, West Virginia
Bruce W. MacDonald
McBRAYER, McGINNIS, LESLIE &
KIRKLAND
Greenup, Kentucky
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