Badorek v. General Motors Corp.

• Decision Date: 01 October 1970
• Citation: 90 Cal.Rptr. 305,12 Cal.App.3d 447
• Court: California Court of Appeals Court of Appeals
• Parties: Carol D. BADOREK, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant. Gary F. DUSTMAN, as Administrator of the Estate of Norman J. Badorek, Deceased, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant. Gary F. DUSTMAN, as Administrator of the Estate of Philip W. Dustman, Deceased, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant. Civ. 12007.

Page 305

90 Cal.Rptr. 305

12 Cal.App.3d 447

Carol D. BADOREK, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant.

Gary F. DUSTMAN, as Administrator of the Estate of Norman J. Badorek, Deceased, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant.

Gary F. DUSTMAN, as Administrator of the Estate of Philip W. Dustman, Deceased, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant.

Civ. 12007.

Court of Appeal, Third District, California.

Oct. 1, 1970.

As Modified on Denial of Rehearing Oct. 28, 1970.

Hearing Granted and Retransferred to Court of Appeal Jan. 14, 1971.

Mento, Buchler & Littlefield, by George K. Littlefield, Theodore H. Morrison, Sacramento, for plaintiffs-respondents.

Downey, Brand, Seymour & Rohwer by John F. Downey, Sacramento, and James Melican, Detroit, Mich., Legal Staff, G. M. C., for defendant-appellant.

PIERCE, Presiding Justice.

This appeal involves three consolidated actions, two for wrongful death and one for personal injuries. All arise from the same series of events following the collision of two automobiles. Plaintiff-respondents are Mrs. Carol Badorek, who sues in her own behalf, and Gary P. Dustman, suing as personal representative of the estates of Norman J. Badorek, deceased, and Philip W. Dustman, deceased. The sole appellant is General Motors Corporation. The only other defendant whom the appeal concerns (although he is not an appellant) is Mathew Rodgers. ¹

A Rambler automobile driven by Mathew Rodgers struck the rear end of a Corvette Sting Ray fastback driven and owned by Philip Dustman. Norman and Carol Badorek, husband and wife, were passengers in the Corvette. (Philip and Carol were brother and sister.) The impact of the two cars caused the fuel tank of the Corvette to rupture. Thereafter, in a resulting gasoline fire, the injury and deaths occurred. Mrs. Badorek lived but received severe facial and body burns. Norman Badorek died of burns at the scene of the accident. Philip Dustman died of his burns a month later.

The theories of the causes of action involved in this appeal were (1) negligence of Rodgers, and (2) strict liability of General Motors arising from defective design of the Corvette, which defect unreasonably increased the risk of harm to the occupants. (An outline of facts below will amplify this preliminary statement.)

General Motors' motion for summary judgment was denied. The case was bifurcated and tried to a jury. A verdict of liability was returned against Rodgers and General Motors. Thereafter the same jury returned a verdict in favor of Mrs. Carol Badorek against the same defendants in the sum of $375,000. Another jury in the death cases returned plaintiffs' verdicts in the amount of $236,152.76 (Norman Badorek) and $40,026.75 (Philip Dustman). Judgment was entered on these verdicts against General Motors whose motion for new trial was denied. It appeals. No appeal was taken by Rodgers. No judgment in the wrongful death actions was entered against Rodgers because of a purported settlement between him and plaintiffs, the validity of which General Motors disputes.

General Motors' appeal raises (essentially) these contentions: (1) that it is not liable for enhanced injuries resulting from defective design in the manufacture of one of its automobiles; (2) that the many procedural errors and alleged acts of misconduct by plaintiffs' counsel and Rodgers' counsel occurring during the approximately five months' (25 volumes of reporter's transcripts) liability trial require reversal; and (3) that error allegedly occurring in the wrongful death actions deprived General Motors of a fair trial. We will hold that the theory upon which liability was assessed against General Motors was a proper one and that substantial evidence supports the verdict and judgment in favor of all plaintiffs, including the damages awarded. Although error occurred during the liability trial, it did not cause a miscarriage of justice and judgment will be affirmed. (Cal.Const., art. VI, § 13.) Similarly, error occurring in the wrongful death actions, although requiring limited judgment modifications, does not necessitate general reversal.

Facts Outlined

The accident happened on that portion of Interstate Highway No. 80, a few miles west of Sacramento, known as the Yolo Causeway, a bridge-like part of a divided, separated highway. We are concerned with the eastbound half, composed of three 12-foot lanes of travel and--on the extreme right--a safety lane eight feet wide. To the south of that is a foot-high curb, a walkway and a substantial waist-high rail. The accident occurred at about 12:15 a. m., Sunday, July 18, 1965. The night was clear; the highway was dry. The fatal accident was preceded by the following sequence of events.

David Ramey, driving in the center lane of travel (called E-2), temporarily lost control of his car when he sought to avoid an object (part of an ironing board) lying in his path. ² After he regained control of his automobile it was stopped in the left driving lane (called E-3).

Phillip Carlson, following Ramey's car, observed the latter's trouble. He brought his vehicle to a stop behind Ramey's car. He then proceeded west on foot to remove the road hazard.

At approximately the same time truck driver Hosford appeared on the scene, parked his truck and trailer in the safety lane and set out flares to warn oncoming traffic. Before Carlson returned Ramey was able to move his car across the highway to the safety lane where flares were put around. It was parked about 40 to 50 feet ahead (east) of Hosford's truck. Carlson's car was still parked in the fast left lane (E-3) at this time.

The Corvette driven by Philip Dustman next arrived. It was being driven in the center lane (E-2). It slowed down when Dustman observed the flares, persons and vehicles described.

The car last to arrive was the Rambler driven by Rodgers. He too was driving in the center lane. The front of the Rambler struck the rear of the Corvette which was propelled forward and which veered obliquely across the outside driving lane, thence struck and ran along the foot-high curb of the safety lane, until it came to a stop.

Almost immediately after the wheels of the Covette struck the curb the vehicle burst into flames. Eyewitness and other testimony appears to be overwhelming that flames were first seen in the rear of the passenger compartment.

Mrs. Badorek had been seated on the console between the two bucket seats of the Corvette but primarily on the passenger side. Almost immediately after the car came to a stop her husband, Norman Badorek, occupying the passenger seat, left the car through the right door and she followed. Mrs. Badorek's brother, Philip Dustman, had some difficulty removing his seat belt and thus left the car (through the left door) seconds later.

This is one of those rare accidents actually observed by the highway patrolmen who thereafter investigated it. Officers Dahler and Jones were driving west on the north sector of the causeway, 40 feet north of the south sector, at a point approaching, and thence passing, the point of impact. Both saw the flares which had been placed by truck driver Hosford. They radioed for fire equipment. At the nearest available turning point they returned to the scene, where they rendered aid, questioned witnesses and took measurements. Officer Jones saw the Rambler 'sliding into the rear' of the Corvette. He saw the collision clearly. He estimated the speed of the Corvette at that point at from 20 to 25 miles per hour and that of the Rambler at from 40 to 45 miles per hour, i. e., a relative speed of from 15 to 25 miles per hour.

Mrs. Carol Badorek was a witness at the liability trial. Also substantial portions of a deposition given by her were read. She was brought from a state of drowsiness when she heard her brother, Phil Dustman, the driver of the Corvette, state there was apparently an accident ahead. Dustman slowed the Corvette down rapidly. Mrs. Badorek noticed the flares. As they were going by these flares all of a sudden her brother cried out, 'My Cod, we are going to get hit.' They did get hit and everything happened very fast after that. She described the force of the impact as a 'hard jolt.' It could not have been too severe since it only made her sit up straight. She (inferentially unequipped with any safety belt) did not even strike the instrument panel, nor was her neck or head thrown back, and she suffered no significant head, neck or other injuries (except the burns).

In her narration of subsequent events she described hearing a 'boom or something that sounded like an explosion.' She felt heat. She noted that her husband had already escaped through the right door of the car. With Dustman still in the car, apparently unable to undo his seat belt immediately, she also escaped through the right door and ran towards the rear because she heard people's voices coming from that direction. '* * * I just ran as fast as I could.' To reach the people she ran through a fire already started at the rear of the Corvette. She did not then realize that she was already on fire, but she testified that she saw Dustman leave the car and said '[H]e was on fire.' Witness Ramey testified that Mrs. Badorek was on fire when she got out of the car. ³ Carol Badorek ran back towards the Ramey vehicle, parked several hundred feet to the rear of the burning Corvette. There Mrs. Ramey put a blanket around her and extinguished the flames. That was not, however, until she had received facial and body burns, injuries which the same jury evaluated at $375,000.

Although it was the theory of General Motors that there was no gasoline (or vapor) in the passenger compartment, it was not explained how driver Phil Dustman became enveloped in flames which according to Hosford completely consumed all of his clothing. We have noted the testimony of both Ramey and Carol...