Friedman v. General Motors Corp.

No. 74-760

Decided July 23, 1975

Products liability — Defect proved, how — Evidence — Motor vehicle defect.

A defect in a manufactured product existing at the time the product left the manufacturer may be proven by circumstantial evidence.

APPEAL from the Court of Appeals for Cuyahoga County.

On May 8, 1967, Mr. and Mrs. Morton Friedman, their son, Sheldon, and their daughter, Susan, were driving east on Lake Road in Lorain County. Their automobile, a 1966 Oldsmobile Toronado, had been purchased some 17 months previously from A.D. Pelunis Oldsmobile, Inc., Lakewood.

As Mr. Friedman drove through the city of Avon Lake, he observed that his gasoline gauge registered near empty. Accordingly, he pulled into a gasoline station on the north side of the highway, stopped behind a Rambler which was being serviced at the forward pump of the gasoline pump island, and, after waiting for a short period, turned off the ignition. Some minutes later, after the Rambler had been serviced, a gasoline attendant instructed Friedman, by word or gesture, to pull ahead to the forward set of pumps.

As Friedman turned on the ignition key and started the engine, the Toronado moved forward. It "peeled" away from the gasoline pumps, bounced off the Rambler and a telephone pole, careened across the street into a commercial parking lot, and crashed into the steel support posts of a large sign. The front end of the Toronado was heavily damaged. The transmission linkages under the hood were jammed so that the gear selector lever could not be shifted into Neutral, Reverse, or Park. All four occupants of the car sustained injuries.

Thereafter, Friedman, his wife, and his two children filed suit, in the Court of Common Pleas of Cuyahoga County, against General Motors Corporation, manufacturer of the automobile, and A.D. Pelunis Oldsmobile, Inc., which had sold it. The complaint alleges that when Friedman started the automobile at the Sohio station, "the gear shift selector was actually in Drive position, and the engine should not have started. The engine nevertheless did start, and the car leaped forward, and so startled the driver that he could not regain control before the automobile ran wild * * *." The complaint alleges further that the collisions which followed "* * * were directly caused by defective mechanisms in the car sold by the defendants; and by the misrepresentations of the defendants that the car could not be started in Drive position."

The case came to trial in April 1972. Witnesses called by the plaintiffs testified as follows:

Lee Krejci and Ralph Gale, patrolmen for the Avon Lake Police Department, conducted an investigation immediately after the accident. Both were questioned as to prevailing weather conditions, the physical location of the automobiles before and after the accident, and other pertinent data. Krejci testified that neither the garage attendant, nor the driver of the Rambler, mentioned mechanical failure on the part of the Toronado in their accident reports. Krejci admitted that his conclusion as to the cause of the accident, that the gas pedal of the Toronado stuck to the floor, was based solely upon supposition. Gale described the peel marks of the accelerating automobile, their length — 85 feet — and stated that they began at the middle of the gasoline pump island.

A.D. Pelunis, President of A.D. Pelunis Oldsmobile, Inc., testified that the 1966 Toronado was delivered to the Friedmans on December 10, 1965. From that date to the date of the accident, no adjustment was made to the neutral start switch, the gear shift indicator needle, or the transmission linkage. Neither the shift tube itself, the neutral start switch, nor the gear shift indicator, were damaged in the collision. Further, according to Pelunis, no post-accident repairs were made until the automobile had been inspected by representatives of both the plaintiffs and the defendants.

The plaintiffs referred to this part as the neutral safety switch. The manufacturer's designation was neutral start switch. During the course of the trial, the terms were used interchangeably.

Charles E. English, a metallurgist, testified that he examined the damaged Toronado on two occasions. On May 26, 1967, a Pelunis mechanic connected jumper cables from another car to activate the Toronado's electrical circuits. The gear shift indicator on the damaged auto was in Drive position. English turned the ignition key on the ignition lock a number of times. Twice the starter kicked and the car lurched with a forward-backward vibration as the starter engaged. At this time, the engine would not fire and run because of interference by the crushed radiator grill and fan.

On June 19, 1967, English conducted another investigation. The gear shift indicator was still in Drive. By this time, the radiator grill and engine fan had been removed, and the front end raised onto blocks so as to permit front wheel rotation. On the 29th or 30th try, the automobile started. The front wheels started rotating rapidly, accelerating to 30 miles per hour in five seconds. The acceleration of the front wheels was so rapid, according to English, that "* * * in my opinion, if these were on the ground, the car would move forward."

At all times during his two investigations, English testified, the gear shift indicator on the Toronado remained in Drive position, a position from which it could not be dislodged.

John Isenhath, a service representative of General Motors called as a witness by the plaintiffs, examined the damaged Toronado on August 17 and September 1, 1967. He, too, started the automobile with the gear shift indicator in Drive position. This indicated, according to Isenhath, that the neutral start switch was either in Neutral or Park, regardless of whether such position was reflected on the gear shift indicator. This was true, according to Isenhath, because the only factor which determines whether the ignition key will start the engine is the position of the contacts inside the neutral start switch. If the contacts are in Neutral, even though the transmission gears and gear shift indicator are in Drive, the ignition key will start the car, in which case the front wheels would immediately rotate.

Isenhath was asked:

"Q. All right, so that I have a very clear answer, the adjustments can be made so that the indicator needle is in Drive, the transmission is in Drive, but the neutral safety switch is malaligned, with those conditions so that it allows ignition to take place?

"A. Yes, it could be adjusted that way.

"Q. That could be done, all right, but it is never supposed to be done?

"A. That is correct.

"Q. That is, the factory should make adjustments so this cannot happen, should it not?

"A. That is correct."

Friedman, his wife Selma, and his son Sheldon, each testified as to their past experience in driving the Toronado, and as to their recollection of the accident. None of the Friedmans had ever attempted to start the Toronado with the gear shift indicator in any position other than Park. None had encountered a problem shifting gears, and each stated that the gear shift indicator was always accurate. Both Mr. Friedman and Sheldon stated that, when Friedman started the automobile in the Sohio station, it began to move rapidly immediately upon ignition. Sheldon stated:

"My father turned on the ignition. The car started at an abrupt speed. It was just like taking off with an airplane. We hit the car in front of us. I think we pushed it off to the left. It was like pushing a toy out of your way."

Morton Friedman was questioned extensively as to his actions immediately before the accident. According to his testimony, he believed the automobile was in Park. "I turned my key on the car like I normally do and the car just went off, just like a jet, at such great speed that I felt — I slammed my foot on the brakes and I was hysterical — I mean, in other words, I just got shook up." Friedman was positive and explicit that at no time after he turned the ignition key did he make a change in the position of, or touch, the gear shift lever. Friedman admitted that although he thought he had put his foot on the brake, he could have hit the accelerator at the same time.

Friedman also testified that the Toronado had never been serviced at an independent garage or gasoline station, that only mechanics from Pelunis Oldsmobile had ever worked on it.

During plaintiffs' case-in-chief, their causes of action against A.D. Pelunis Oldsmobile, Inc., were voluntarily dismissed. At the close of plaintiffs' case, a motion by the defendant, General Motors Corp., for a directed verdict was granted. The trial court concluded that "* * * upon the issue of alleged product defect, reasonable minds could come to but one conclusion upon the evidence submitted, that conclusion being adverse to the plaintiffs."

Upon appeal to the Court of Appeals, the judgment of the Court of Common Pleas was reversed. The journal entry filed by the Court of Appeals stated, in part:

"There was considerable testimony as to the condition of the car after the accident. The car was a 1966 Toronado which is a front wheel drive Oldsmobile manufactured by the defendant, General Motors Co. This testimony was to the effect that the front end was damaged and the transmission connecting rods were crushed against the fire wall. The transmission gears are in a case mounted under the hood at the rear of the engine and to the front to fire wall.

"The driver brings about a change in the position of the transmission gears by his movement of the shift lever which is connected with the transmission gears by means of various parts and their linkages.

"The shift indicator needle which is supposed to tell the driver the position of the transmission gears is mounted where it is visible to the driver and it moves in concert with the movement of the shift lever. However, the indicator does not control the transmission gears and it is itself adjustable separately from any adjustment in or change in position of the transmission gears. It is possible for the indicator needle to be so moved that it shows one position although the transmission gears and their connected parts are actually in a different position. The position of the shift indicator needle either after, or even at the time of the occurrence would not be dispositive of the issues presented in this action.

"If a car is properly constructed, including the proper connection, alignment and adjustment of the various parts and electrical contacts, the engine cannot be started by turning the ignition switch unless the transmission gears are themselves in either the Park or Neutral position regardless of what is shown by the shift indicator needle. A `neutral safety switch' is mounted on the steering column whose function is to control the electrical impulses required to be transmitted to the engine before it can be started. This also is adjustable. When this is properly connected, aligned and adjusted, it will permit electrical impulses to be transmitted, upon the turning of the ignition switch, only when the transmission gears are in either * * * [Park] or Neutral. If it permits electrical impulses to be sent to the engine when the transmission gears (regardless of the position shown by the shift indicator needle) are in either the Reverse, Drive, Super, or Low gear or position, the car is defective.

"It was the claim of the plaintiffs that the subject car was defective when it left the factory in that the `neutral safety switch' was malconnected or maladjusted so that the engine could start upon turning the ignition switch when the transmission gears were in a Drive position. This fact had never come to the attention of the plaintiffs before the occurrence described in the complaint because the engine had always been started when the indicator had shown Park and the transmission gears were in the Park position.

"The defendant denied the contentions of the plaintiffs as to the defective condition of the car and the cause of the action. It contended that there is no evidence from which the jury could find that a defective condition was present in the car.

"There was no direct evidence that the `neutral safety switch' was malconnected or malalignment existed between it and the transmission gears.

"Under the law of Ohio the jury has the right to make any logical and immediate inferences from facts which have been established by the evidence. An inference is a reasonable deduction of fact which logically follows from other facts established by the evidence and which the jury may, but is not required to make.

"The plaintiffs' evidence, if believed, was that the engine started when the transmission gears were in a Drive position. From this testimony the jury had the right to infer that the `neutral safety switch' was either malconnected or malaligned and that the car was, therefore, defective.

"Testimony in the record was that immediately upon the ignition switch being turned on, the engine fired and the car shot forward without the shift lever being moved from the position that it was in when the ignition switch was turned on.

"Testimony was also introduced that the General Motors Co. selected and made the switch settings at the time the car was manufactured and that no changes or adjustments were made in it from the time it left the factory until the occurrence, which is the subject of this action.

"We hold that the jury had the right to infer, if it found the facts to be as testified to by the plaintiffs, that the `neutral safety switch' was either malconnected or malaligned by General Motors when it built the car and that the car was, therefore, defective in a respect which was the proximate cause of injuries to and damages to the plaintiffs.

"The jury was also privileged to find that no such malconnection or malfunction existed and that the car was not defective. Upon such a finding the jury would be obligated to render a verdict for the defendant.

"The trial court, therefore, erred to the substantial prejudice of the plaintiffs in granting the General Motors' motion to dismiss. The judgment of the trial court is, therefore, overruled and the action, therefore, remanded to the trial court for further proceedings according to law."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Messrs. Spangenberg, Shibley, Traci, Lancione Markus, Mr. Craig Spangenberg and Mr. Thomas A. Heffernan, for appellees.

Messrs. Weston, Hurd, Fallon, Sullivan Paisley and Mr. Thomas P. Curran, for appellant.

PAUL W. BROWN, J.

The single issue presented by this appeal is whether the evidence introduced by the plaintiffs was of sufficient quality to overcome the defendant's motion for a directed verdict. The Court of Appeals, having thoroughly examined the entire record, concluded that reasonable minds could differ upon the evidence presented, and reversed the judgment directing a verdict for the defendant. We affirm.

To sustain their allegation against General Motors, the plaintiffs were required to prove that the Oldsmobile Toronado, manufactured and sold by the defendant, was defective; that the defect existed at the time the product left the factory; and that the defect was the direct and proximate cause of the accident and injuries. Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227; State Auto Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151. A defect may be proven by circumstantial evidence, where a preponderance of that evidence establishes that the accident was caused by a defect and not other possibilities, although not all other possibilities need be eliminated. Chrysler, supra, at 156. See Westinghouse Electric Corp. v. Dolly Madison Corp. (1975), 42 Ohio St.2d 122, 125-129.

In our judgment, the evidence presented by the plaintiffs established a prima facie case of defect for which defendant General Motors would be liable.

From the testimony of Pelunis and Morton Friedman, the jury could have found that the linkages and adjustments existing at the time of the accident were the original, factory set, adjustments, and that the defective condition, if the evidence established defect, was a defect created by the manufacturer and not by some third person after delivery.

Based upon the testimony of Morton Friedman, his wife, and his son, the jury might have concluded that the Toronado had always been started in Park, thus affording no opportunity for discovery of the alleged defect. Further, because the gear shift indicator and transmission had always operated properly, the jury might have inferred that when the gear shift indicator registered in Drive after the accident, it accurately reflected the position of the transmission.

From the testimony of eye witnesses to, and participants in, the accident, the jury might have concluded that, when Friedman started the Toronado at the Sohio station, it accelerated immediately upon ignition; that the automobile's transmission was therefore in a forward position: and that the transmission jammed, upon impact, in that same forward position.

From the testimony of English and Isenhath, the jury could have found that, subsequent to the accident, the Toronado started with the gear shift indicator in Drive position. Based upon English's testimony, the jury might have concluded further that, upon ignition, the front wheels accelerated to a speed of 30 miles per hour in five seconds.

Finally, the record clearly established that the Toronado could not have started unless the contacts in the neutral start switch were in Neutral or Park position. Even though the transmission gears and gear shift indicator were in Drive, if the contacts in the neutral start switch were in Neutral or Park, the ignition key would start the automobile, and the front wheels would immediately rotate. In light of other facts presented, this possibility approaches probability.

Because the trial court granted the defendant's motion for a directed verdict, we must construe the evidence most strongly in favor of the plaintiffs, so as to determine if reasonable minds could differ. From the evidence heretofore summarized, we believe the jury might reasonably have concluded that the defendant was guilty of manufacturing a defective automobile, which directly and proximately caused the accident. For that reason, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O'NEILL, C.J., HERBERT, CORRIGAN, CELEBREZZE and W. BROWN, JJ., concur.

STERN, J., dissenting.

The essential questions in this case are whether plaintiffs introduced sufficient credible evidence from which it could be inferred that a defect existed in the alignment of the transmission and the neutral safety switch, and whether that defect existed at the time the automobile left the hands of the defendant. The plaintiffs' evidence, simplified, is basically that the 17-month-old car, which had previously exhibited no malfunction, behaved in an unusual manner which contributed to an accident; that no servicing had apparently been done on the transmission or the ignition before the accident; and that after the accident the car behaved in an unusual manner, in that it could be started, and perhaps run, when the transmission was jammed and the pointer indicated that it was in Drive. No direct physical evidence was presented that any part was defective, and, in fact, there was evidence that the safety switch itself was properly aligned and that the transmission worked properly as indicated. The plaintiffs' case is that from this evidence one can infer a defect in the car, in that the car could be started in Drive, and that this defect existed at the time of manufacture.

In products liability cases, proof that a defect existed is often difficult and complex. Frequently the product in dispute will have been destroyed, beyond any possibility of analysis, or be so complex that a plaintiff would have a greater difficulty in determining the presence of a defect than would the manufacturer. In most cases, proof of the defect must necessarily be by circumstantial evidence and inference. No general rule can adequately apply to the wide range of such cases, each involving a different mixture of fact and inference, but fundamental to any such case is that some defect must be proved. As Prosser states, in Strict Liability to the Consumer in California, 18 Hastings L.J. 9, 52-54:

"The mere fact of an accident, as where an automobile goes into the ditch, does not make out a case that the product was defective; nor does the fact that it is found in a defective condition after the event, when it appears equally likely that it was caused by the accident itself. The addition of other facts, tending to show that the defect existed before the accident, may make out a case, and so may expert testimony. So likewise may proof that other similar products made by the defendant met with similar misfortunes, or the elimination of other causes by satisfactory evidence. In addition, there are some accidents, as where a beverage bottle explodes or even breaks while it is being handled normally, as to which there is human experience that they do not ordinarily occur without a defect. As in cases of res ipsa loquitur, the experience will give rise to the inference, and it may be sufficient to sustain the plaintiff's burden of proof."

Although plaintiff's evidence may be sufficient to permit an inference that something was wrong with the car, that alone is not sufficient to establish a defect, except perhaps in cases, analogous to res ipsa loquitur, in which ordinary human experience tells us that the event could not happen without a defect. The instant case is not such a case, for driver error, failure of some part, accidental or unwitting damage to the car, and other possibilities do provide other explanations. See Gast v. Sears (1974), 39 Ohio St.2d 29, 313 N.E.2d 831. In this case, the fact that something went wrong is not sufficient to support an inference that a defect caused the accident.

The particular defect that plaintiff alleges is that the indicator and the transmission gear linkages were both malaligned in a similar fashion, relative to the neutral start switch, so that the car as manufactured could start in Drive rather than, as intended, only in Park and Neutral. There are various ways in which that particular fact could be proved, by means of several types of evidence. Keeton, Manufacturer's Liability: The Meaning of Defect in the Manufacture and Design of Products, 20 Syracuse L. Rev. 559, for example, suggests five ways by which the particular fact could be proved. (See, also, Rheingold, Proof of Defect in Product Liability Cases, 38 Tenn. L. Rev. 325.)

(1) Plaintiff might introduce evidence by an expert based upon an examination of the product in question following the happening of the damaging event. Expert evidence would be direct evidence of an identifiable defect. In the instant case, two expert witnesses testified, and neither was able to point out an identifiable defect. Both testified that the car could be started in an indicated Drive position, but neither identified a cause for that based upon their examination. The only explanation, offered by one of the experts, was that the pointer was probably damaged.

One expert was the company witness called by the plaintiffs. The second was a metallurgist called by plaintiffs, who was not, however, qualified as an expert in automotive mechanics.

(2) There may simply be evidence of a damaging event occurring in the course of or following use of a product, whether by the testimony of the user or otherwise. This may be sufficient in the case where, as a matter of common knowledge, a defect is the probable cause. As already indicated, the instant case is not one involving such common knowledge.

(3) A plaintiff may produce both evidence of a damaging event occurring in the course of or following the use of a product and expert evidence that the most likely probable cause was attributable to a defect in the product being used at the time.

In the instant case, the only expert who was qualified to state such an opinion, the company expert called as a witness by the plaintiff, was not asked to state whether a defect was the probable cause, and in fact made clear in his testimony that he believed it probable that there was no defect and that the apparent starting of the car in Drive was probably caused by damage from the accident to the indicator. He stated only that it was possible for various components to be malaligned as plaintiffs' theory required.

(4) In addition to evidence of an accident and the probable cause of such accident, evidence could be introduced to negate the existence of "probable causes" not attributable to the maker.

This type of evidence was not introduced in the instant case, except with respect to the issue of maintenance on the car in the 17 months after delivery.

(5) In some cases, the physical evidence of the actual condition of the product after the accident would be such that a layman could infer that it was defective.

No such physical evidence was introduced in the instant case.

All of these forms of proof relate to whether, after something has gone wrong, that event can properly be attributed to a defect. The facts of the individual case will be crucial in determining whether such an influence is permissible. In State Auto Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151, 304 N.E.2d 891, for example, a new one-half ton pickup truck had been used for 77 days; the brakes failed because of a loss of brake fluid from a hole, with fibers blown outward, in a brake line which was original equipment and had not been tampered with; and the actual brake hose was unavailable, due to no fault of the plaintiff. The issue in that case was specifically whether the hole was caused by a defect or by an accidental impact of some kind, and the circumstances of that case were held sufficient to raise a jury issue. As the court stated, at page 161:

"Obviously, the most exact method of ascertaining a defect in the hose would be to subject the hose to scientific tests, under pressures applicable in an ordinary breaking situation. In the absence of any direct evidence that the hose introduced by appellee Chrysler Corporation is the hose in question, this cannot be done."

In the instant case, the most exact method of determining whether there was in fact a malalignment of the transmission parts would have been actual examination of those parts, which were under the control of plaintiffs for several months after the accident. The examination actually made was incomplete. No identifiable defect was found; nor was the testimony of the mechanics who repaired the automobile offered. Failing such examination, even by a non-expert, plaintiffs could have introduced expert testimony that the probable cause of the accident was a defect. This was not done, and the expert testimony was only to the effect that a malalignment was possible, but, according to one expert, was not probable. The sum of the evidence is thus only that something unusual happened in the car, and that a possible explanation of that happening is a defect. I believe plaintiffs could have and should have done more in order to make a case for the jury, for the essential link of actual proof, between the accident and any possible explanation, is missing.

The same difficulty arises with regard to the issue of whether the claimed defect existed at the time the car left the hands of the defendant. Plaintiffs introduced evidence that the transmission had not been serviced or tampered with, and that the family's method of starting the car could have permitted a defect to remain undiscovered. But this, again, is only evidence of the possibility of a defect. Here, the car was 17 months old, there was no expert testimony that the claimed defect was one which would probably have existed at the time the car was manufactured, and common experience does not permit any such inference. In tracing the defect in the product into the hands of the defendant, "* * * [t]here is first of all the question of lapse of time and long continued use. This in itself will never prevent recovery where there is satisfactory proof of an original defect; but where there is no such definite evidence, and it is only a matter of inference from the fact that something broke or gave way, the continued use usually prevents the inference that more probably than not the product was defective when it was sold. The seller certainly does not undertake to provide a product that will never wear out." Prosser, supra, at 54. In the instant case, plaintiffs' negative evidence indicates the possibility that the claimed defect could have existed at the time of manufacture; but this possibility remains only a theory, for there is a lack of any positive evidence which would overcome the inference arising from the long-continued use of the car.

At the center of plaintiffs' case, which is made up of evidence of an unusual event and a possible explanation thereof, there should be some positive proof that the possible malalignment was something more than a theory. Such proof was not presented and remains a matter of speculation. For that reason, I agree with the trial judge that plaintiffs failed to submit sufficient evidence from which it could be inferred that a defect existed in the Friedman car at the time it left the hands of the defendant.