Kourouvacilis v. General Motors Corp.

Citation575 N.E.2d 734,410 Mass. 706
PartiesDiane KOUROUVACILIS v. GENERAL MOTORS CORPORATION et al. 1
Decision Date23 July 1991
CourtUnited States State Supreme Judicial Court of Massachusetts

Louis Kerlinsky, Springfield, for plaintiff.

John W. Gibbons, Boston, for General Motors Corp.

Thomas J. Donoghue, Springfield, for Avis Rent-A-Car.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

This is the plaintiff's appeal from a judgment dismissing in its entirety the plaintiff's complaint asserting claims against two defendants based on numerous theories of product liability. In six counts, the complaint alleges the liability of General Motors Corporation (General Motors) based on breach of warranty, negligence (two counts), deceit, violation of G.L. c. 93A, § 2 (1990 ed.), and violation of G.L. c. 231, § 85J (1990 ed.). In four other counts, the plaintiff asserts the liability of Avis Rent-A-Car (Avis) for breach of warranty, negligence and violation of both c. 93A, § 2, and c. 231, § 85J. The several allegations arise out of the plaintiff's purchase of a 1979 Monte Carlo sedan automobile from Avis in 1979, which vehicle, a General Motors product, caught fire and was destroyed in 1985. The fire is alleged to have been due to a manufacturing or design defect in the vehicle's electrical system. The plaintiff asserts that, as a result, she sustained personal injury and loss of the automobile.

A judge in the Superior Court allowed General Motors's motion to dismiss the count alleging its violation of c. 231, § 85J, for failure to state a claim. Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Following discovery, another judge allowed Avis's motion for summary judgment on the counts alleging Avis's negligence and its violation of c. 93A, § 2, and c. 231, § 85J. Those counts, too, were dismissed. At that point the only remaining count against Avis asserted breach of warranty. Subsequently, a third judge allowed motions for summary judgment in both defendants' favor with respect to the remaining counts. The judge explained his reasoning in a memorandum accompanying his decision and order. The plaintiff appealed, and we transferred the case from the Appeals Court here on our own initiative. We now affirm the judgment entered in the Superior Court.

General Laws. c. 231, § 85J (1990 ed.), provides, "Whoever, by deceit or fraud, sells personal property shall be liable in tort to a purchaser in treble the amount of damages sustained by him." Section 85J "creates a cause of action for a purchaser of personal property against the seller of that property." Margaret Hall Found. v. Atlantic Fin. Management, Inc., 572 F.Supp. 1475, 1483 (D.Mass.1983). A purchaser-seller relationship between the plaintiff and the defendant is necessary. Id. No such relationship between the plaintiff and General Motors is alleged in this case. Rather, the complaint alleges that the plaintiff purchased the automobile from Avis. Therefore, the judge correctly ruled that the complaint failed to state a cause of action under c. 231, § 85J, against General Motors.

With respect to the remaining counts, all of which were dismissed on summary judgment, the plaintiff would be unable to prevail against either defendant at trial without proving that the alleged defect in the wiring was present when that defendant last had possession of the vehicle. Smith v. Ariens Co., 375 Mass. 620, 626, 377 N.E.2d 954 (1978). See Fernandes v. Union Bookbinding Co., 400 Mass. 27, 37-38, 507 N.E.2d 728 (1987); Cocco v. Deluxe Sys., Inc., 25 Mass.App.Ct. 151, 153-154, 516 N.E.2d 1171 (1987); Walsh v. Atamian Motors, Inc., 10 Mass.App.Ct. 828, 829, 406 N.E.2d 733 (1980). The defendants propounded interrogatories to the plaintiff inquiring, among other things, about the testimony by which, and the identity of expert witnesses by whom, the plaintiff expected to sustain that burden of proof. Initially, the plaintiff's answers were unresponsive. Finally, in supplemental and further answers, the plaintiff stated her intention to call "Walter Grez" and "Lt. Colburn, Fire Marshall" as experts "to testify that the cause of the fire was defective wiring present at the time the car was manufactured." Along with her answers, the plaintiff submitted a copy of a report, issued by the Springfield fire department and purportedly made out by "E. Colburn Lieut.," which indicates that the fire was caused by an "unspecified short circuit" involving "electrical failure" and igniting "electrical wire." No other anticipated testimony or witness was revealed.

The defendants did not support their motions for summary judgment with affidavits or other materials showing that the fire was not caused by wiring that was defective when the plaintiff took possession of the vehicle from Avis. Instead, the defendants supported their motions by the sworn deposition of Walter Grzebien, the owner of Grez Automotive, and an affidavit of Lieutenant Eugene Colburn, a firefighter employed by the Springfield fire department at the time of the fire.

In his deposition, given in July, 1989, approximately four years after the fire, Grzebien testified that he had first met the plaintiff about two months prior to giving the deposition. At that time, the plaintiff came into Grez Automotive and asked him about some work she said Grez Automotive had done on her automobile following a 1982 or 1983 collision in which the vehicle had been involved. Grzebien testified that he had no memory of working on the vehicle. He also testified that the plaintiff told him that her automobile had burned and she wanted to find out what caused the fire. During the deposition, the following exchange between defense counsel and Grzebien occurred:

Q.: "As you sit here today do you have any recollection of the condition of her car which was a 1979 Chevrolet Monte Carlo ... ?

A.: "No."

. . . . .

Q.: "Have you been retained by [the plaintiff] or her lawyer as an expert witness in this case?

A.: "No.

Q.: "Do you have any knowledge as to what caused the fire?

A.: "No, I don't.

Q.: "Did you tell [the plaintiff] that you had no knowledge about what caused the fire?

A.: "Yes, I did."

. . . . .

Q.: "You have no idea what caused the fire, if anything?

A.: "No.

Q.: "You have not been retained as a witness by [the plaintiff]?

A.: "No.

Q.: "Has [the plaintiff] mention[ed] her lawyer or has her lawyer ever contacted you?

A.: "No, he has not.

Q.: "Did [the plaintiff] tell you at any time that you were going to be an expert witness on her behalf?

A.: "No, she didn't.

Q.: "Do you consider yourself to be an expert witness in this case?

A.: "No, I don't."

In his affidavit, Colburn stated that he was a firefighter employed by the Springfield fire department holding the rank of lieutenant, that he had never been a fire marshal, and that he was the officer in charge of the truck that responded to the fire involving the plaintiff's motor vehicle and he prepared the official incident report. In that report, he said, he "listed unspecified short circuit under 'Form of Heat of Ignition,' electrical wire under 'Form of Material Ignited' and electrical failure under 'Ignition Factor.' However, those were purely guesses on my part because I did not examine the vehicle to determine the cause of the fire. I do not know what caused the fire. I have no knowledge or information with regard to the condition of the vehicle before the fire and I have absolutely no information or knowledge about any alleged defect in the vehicle or that anything about the vehicle caused the fire." In addition, Colburn swore that he had told the plaintiff all those things.

The plaintiff's only timely response to Grzebien's deposition and Colburn's affidavit was her own affidavit denying that Colburn had told her he was "guessing" when he completed and filed his report. In addition, the plaintiff attached to her affidavit a document that she characterized as "[a] copy of the sworn statement of Mr. Grzebien" purporting to state Grzebien's opinion that the fire was caused by defective wiring which was present when the automobile was manufactured. The motion judge properly refused to consider Grzebien's alleged statement because it was not in affidavit form. See O'Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976). Also, three days after the motion hearing, the plaintiff filed a duplicate of the alleged Grzebien statement, this time purportedly signed by Grzebien under the pains and penalties of perjury. The judge disregarded that document as well for the reason that it was filed late. The judge's action in that regard was proper. Rule 56(c) of the Massachusetts Rules of Civil Procedure, 365 Mass. 824 (1974), provides that a party resisting summary judgment "prior to [not three days after] the day of hearing may serve opposing affidavits." See LoCicero v. Hartford Ins. Group, 25 Mass.App.Ct. 339, 341 n. 2, 518 N.E.2d 530 (1988).

In arriving at the conclusion that the defendants were entitled to summary judgment, the motion judge reasoned as follows: "In moving for summary judgment, the defendants have the burden of affirmatively demonstrating that there is no genuine issue of fact on every relevant issue raised by the pleadings." Mathers v. Midland-Ross Corp., 403 Mass. 688, 690, 532 N.E.2d 46 (1989). The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial. Id. at 323, 106 S.Ct. at 2552. I rule that the defendants have met their burden by submission of the affidavit of Lt. Colburn and the sworn deposition testimony of Mr. Grzebien. In effect, they have affirmatively demonstrated the complete failure of proof...

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