Dearie v. Ford Motor Co., 90-CA-828

Citation583 So.2d 28
Decision Date05 June 1991
Docket NumberNo. 90-CA-828,90-CA-828
PartiesHugh George DEARIE, Jr. v. FORD MOTOR COMPANY and Lamarque Ford, Inc. 583 So.2d 28
CourtCourt of Appeal of Louisiana (US)

Edward J. Norton, Jr., New Orleans, for plaintiff-appellant.

Pulaski, Gieger & Laborde, Robert W. Maxwell, New Orleans, and Gary L. Hayden, Ford Motor Co., Office of the General Counsel, Dearborn, Mich., for defendants-appellees.

Before GRISBAUM and WICKER, JJ., and FINK, J. Pro Tem.

ELORA C. FINK, Judge Pro Tem.

In June 1986 Hugh Dearie suffered severe personal injuries when he was dragged and run over by a 1974 Ford Maverick automobile that started forward as he was attempting to climb into the driver's seat. He sued the manufacturer (Ford Motor Company) and the dealer from which his daughter bought the vehicle as a used car in 1979 (Lamarque Ford, Inc.), alleging the car's transmission had moved from neutral gear to "drive" on its own and was inherently defective. Some three years into the litigation, the defendants filed a motion for summary judgment, asserting there were no material issues of fact because the plaintiff had failed to disclose any defect or to present supporting evidence during discovery.

Under a prior ruling by the trial court on a motion to dismiss for alleged insufficiency of the plaintiff's answers to the defendants' requests for admissions, the plaintiff was to be limited to the following evidence:

The plaintiff had not retained an expert witness and the car itself was not available for testing because his daughter sold it for scrap shortly after the accident. The only witnesses he listed in his answers to interrogatories and requests for admissions were himself, his daughter and several persons who saw the accident happen. His daughter had stated in her deposition that the car had begun having transmission problems several months prior to the accident, that it would not move forward in "Drive" until it had warmed up for several minutes, and that the pointer on the gear shift lever did not point directly to the letters for the various gear stages, but rather pointed in between them.

The plaintiff testified that his habit when using the car was to put it in neutral gear and allow it to warm up for a few minutes prior to trying to drive it. He testified he had followed this practice on the day of the accident, leaving the car in the driveway in "neutral" while he went into the house to answer the telephone, and that when he returned to the car and tried to get into the driver's seat, the car began moving forward down the driveway without his having moved the gearshift. The car dragged him, partially in and partially out, down the driveway until it crashed into a tree and stopped. His other witnesses testified in their depositions that they had seen the accident but no one had looked at the transmission indicator to see what gear the car was in.

The trial court granted summary judgment, from which the plaintiff has appealed. He contends that a defect may be inferred from the circumstances of the accident and that there is a genuine question of material fact as to whether this was an inherent defect.

The defendants argue summary judgment was proper because the vehicle was 12 years old, had been driven over 100,000 miles, there had never been a recall of the vehicle for transmission problems and the defendant has no way to examine it to determine the cause of the accident. (The offending automobile was sold for scrap by the plaintiff's daughter shortly after the accident; thus, it is not available for testing or examination by experts.)

Further, the defendants contend, the plaintiff will be unable to prove that the defect was in the car when it left the manufacturer because the plaintiff is limited to presenting the evidence and the witnesses disclosed in his responses to the defendants' requests for admissions, which answers the defendants argue do not prove a manufacturing defect. The defendants assert summary judgment is appropriate because the plaintiff cannot carry his burden of proof.

Although it may appear unlikely from the documents considered that one party can prevail, summary judgment cannot be granted once the court detects the existence of a disputed material fact. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788 (La.App. 3 Cir.1988), writ denied 525 So.2d 1048 and 525 So.2d 1049.

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  • 95-2288 La.App. 4 Cir. 1/19/96, Patterson v. Al Copeland Enterprises, Inc.
    • United States
    • Court of Appeal of Louisiana — District of US
    • January 19, 1996
    ...This is true no matter how small the chances of the party opposing the motion to ultimately prevail appear to be. Dearie v. Ford Motor Co., 583 So.2d 28 (La.App. 5 Cir.), writ denied 588 So.2d 1117 (La.1991). It is not the function of the trial court on a motion for summary judgment to dete......
  • 95-2351 La.App. 4 Cir. 4/3/96, Gills v. Brown
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 3, 1996
    ...This is true no matter how small the chances of the party opposing the motion to ultimately prevail appear to be. Dearie v. Ford Motor Co., 583 So.2d 28 (La.App. 5 Cir.), writ denied 588 So.2d 1117 (La.1991). It [95-2351 La.App. 4 Cir. 3] is not the function of the trial court on a motion f......
  • 95-1638 La.App. 4 Cir. 9/18/96, Rapp v. City of New Orleans
    • United States
    • Court of Appeal of Louisiana — District of US
    • September 18, 1996
    ...This is true no matter how small the chances of the party opposing the motion to ultimately prevail appear to be. Dearie v. Ford Motor Co., 583 So.2d 28 (La.App. 5 Cir.), writ denied 588 So.2d 1117 It is not the function of the trial court on a motion for summary judgment to determine or ev......
  • 95-1731 La.App. 4 Cir. 1/19/96, Jeffers v. Thorpe
    • United States
    • Court of Appeal of Louisiana — District of US
    • January 19, 1996
    ...This is true no matter how small the chances of the party opposing the motion to ultimately prevail appear to be. Dearie v. Ford Motor Co., 583 So.2d 28 (La.App. 5 Cir.), writ denied 588 So.2d 1117 (La.1991). It is not the function of the trial court on a motion for summary judgment to dete......
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