Balian v. General Motors

• Decision Date: 20 October 1972
• Citation: 296 A.2d 317,121 N.J.Super. 118
• Parties: Arthur BALIAN, et al., Plaintiffs-Appellants, v. GENERAL MOTORS, etc, and Gary Allen Chevrolet, etc., Defendants-Respondents, and Lou Weishupt, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 118

121 N.J.Super. 118

296 A.2d 317

Arthur BALIAN, et al., Plaintiffs-Appellants, v. GENERAL MOTORS, etc, and Gary Allen Chevrolet, etc Defendants-Respondents and Lou Weishupt, Defendant.

Superior Court of New Jersey Appellate Division.

Argued April 10, 1972.

Decided June 1, 1972.

Rehearing Denied Oct. 20, 1972.

[296 A.2d 318] Howard M. Kaplan, Monsey, for appellants (Alan R. Kaplan Englewood, attorney).

Carroll A. Morley, Jersey City, for respondent General Motors Corp. (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys; William J. Cleary, Jr., Jersey City, on the brief).

Allen C. Mathias, Newark, for respondent Gary-Allen Chevrolet Co. (Stevens & Mathias, Newark, attorneys; Frank Fink, Newark, of counsel and on the brief).

Before Judges SULLIVAN, LEONARD and CARTON.

The opinion of the court was delivered by

CARTON, J.A.D.

This is a product liability case. Plaintiff Louise Balian and other members of her family sustained injuries when a 1965 Chevrolet Impala she was driving on the New York Thruway veered off the side of the road and struck a pole.

There is no real dispute as to the pertinent facts. Plaintiff, Arthur Balian, purchased the 1965 Chevrolet Impala new on December 4, 1964. At various times between that date and the occurrence of the accident the car was serviced by the dealer, who also made repairs and adjustments pursuant to the driver's manual supplied by the manufacturer. Three days before the accident and prior to a planned trip to Montreal, the owner had the automobile's brakes relined, the car tuned up and greased and a tire replaced.

On July 31, 1967 plaintiffs left their home in Teaneck, New Jersey, picked up another passenger in New Milford, drove to Route 17, and then proceeded to the New York State Thruway. Plaintiff, Louise Balian, who had received her New Jersey driver's license about two months before, was driving.

They had traveled about ten miles on the Thruway when the accident occurred. According to plaintiffs' proofs, at that time the car was going about 50--55 miles per hour. The occupants of the car heard a 'bang,' 'clang' or some other noise coming from under the front of the car. It was described as sounding like metal was striking metal. At this point the driver lost her ability to control the car. Despite her attempt to turn the steering wheel and direct the car in another direction, it headed towards the shoulder of the road, striking a metal pole supporting an overhead sign.

Immediately after the accident Trooper McDonnell of the New York State Police arrived on the scene. After questioning plaintiff, he lifted the hood and examined the steering mechanism. His examination revealed that a rivet was missing from the steering coupler and the fibrous wafer separating the two parts of the coupler was torn.

The steering coupler connects two sections of the steering column. It consists of metal flanges located on the ends of the steering column sections which face each other. The flanges are separated by a fibrous wafer. One of the metal flanges is attached to the wafer by two metal nuts and bolts. The corresponding flange attached to the opposite section of the column is connected to the same wafer by two rivets. The function of the coupler is to hold the two parts of the streering column together while allowing sufficient flexibility to absorb road shock.

Plaintiffs brought this action against defendant General Motors Corporation and others, claiming that the accident resulted from displacement of a rivet in the steering coupler, which in turn tore the fibrous wafer, making the car unsteerable and causing the driver to lose control.

The jury returned a verdict in favor of defendants. We are concerned here only with plaintiffs' appeal from the judgment in favor of defendant General Motors, the manufacturer of the automobile.

The trial, although a lengthy one, was limited as to liability only and devoted largely to technical testimony of expert witnesses concerning the design and function of the coupler and related parts of the automobile steering mechanism, whether it was defectively designed, and whether the defective condition resulted from the accident.

Plaintiffs' expert expressed the opinion that the coupler was improperly designed. Defendant's expert denied this. In the latter's opinion, the damage to the coupler was attributable to the impact of the accident. Furthermore, he contended that the accident could not have happened in the manner indicated by plaintiffs' expert.

The main basis of plaintiffs' appeal is that the trial court, over objection, improperly admitted into evidence motion pictures taken during the couse of the trial. These pictures showed the operation of a 1965 Impala in a test at defendant's proving grounds. The film was made at the direction of defendant's expert for the purpose of confirming his contention Resolution of the issue involved requires a more detailed examination of the expert testimony.

expressed in his testimony that the automobile was still steerable even if the rivet was missing and the wafer torn. Thus he maintained the accident could not have occurred in the manner described by plaintiff's expert.

In November 1967, at plaintiffs' request, a Mr. Daniel Fivehouse, an automotive and front-end expert, examined the car. He testified that the rivet described by Trooper McDonnell was missing at that time and that the fibrous wafer was torn. He said that the two parts of the steering coupler were no longer symmetrical. He was of the opinion that when the fibrous wafer was torn and the rivet missing there would be no steering control.

Plaintiffs also produced Huxley Madeheim, an expert in mechanical engineering and in the design and function of the steering coupler. He expressed the opinion that a rivet holding the steering coupler came out, causing the flanges to lose contact and symmetry. The car then became unsteerable, resulting in the driver loosing control. It was his opinion that this condition had existed prior to and not as a result of the force of the car striking the pole. This witness, a full professor of engineering at City University of New York, was also of the opinion that the coupler was improperly designed for the reason that it should have been made with four nuts and bolts rather than two nuts and bolts and two rivets, and that had the coupler been so constructed the accident would not have occurred.

Charles Spalding, an expert engineer in the field of steering apparatus and employed in a division of General Motors which manufactures steering gear and other accessories for automobiles, was the only witness called by defendant General Motors. He described in considerable detail the function and operation of the coupler in the automobile, using numerous drawings and designs for this purpose. Defendant also produced for inspection by the court and jury a replica of the steering coupler said to be the type used Spalding expressed the opinion that the coupler which he had helped design was properly designed. He believed that the damage found by Trooper McDonnell and the witness Fivehouse resulted solely from the force of the impact. He stated that such a condition did not cause and could not cause the car to go out of control and that the automobile would be steerable without the missing rivet and with the wafer torn. He also described the first of the two tests conducted at defendant's proving grounds during the course of the trial. He stated that during the test he drove a 1965 Impala under conditions allegedly comparable to those at the time of the accident. He made this test for the purpose of demonstrating the correctness of his contention that notwithstanding the absence of the rivet in the coupler and the existence of the torn fibrous wafer the automobile was steerable. He stated that he was, in fact, able to drive the car without any loss of steering ability. He further testified that motion pictures were taken of this test.

in 1965 Impalas. The actual coupler involved in the accident was not produced in court.

The judge and counsel viewed the movie in chambers. The court ultimately ruled that such motion pictures were inadmissible because defendant had failed to establish that the conditions were comparable. The court then instructed the jury to disregard all testimony concerning the preparation of the experiment and the motion picture taken of it.

This ruling was made while defendant's expert Spalding was still on the witness stand. At the point when the court recessed for the weekend, cross-examination of this witness had been almost completed. Over that weekend Spalding and defendant's trial attorney again went to defendant's proving grounds at Detroit, Michigan and conducted another test of a 1965 Impala. When the court reconvened the following Monday, cross-examination of Spalding was interrupted and he was permitted to describe the second test conducted on the previous Saturday. He repeated his testimony that the automobile was maneuverable although the We are confronted here with three evidential concepts: the admissibility of motion pictures; the admissibility of evidence of experiments; and the admissibility of motion pictures of experiments.

rivet was missing and the wafer torn. Ruling that defendant had remedied the deficiencies present in the previous test, the court decided that the conditions were comparable. Therefore the court held that the second set of motion pictures could properly be shown to the jury for consideration in determining the issue of defendant's liability. The motion pictures of that test were then exhibited to the jury.

It is well settled that relevant motion pictures are generally admissible if properly authenticated. See 62 A.L.R.2d 686, 688 (1958) where the cases are collected. Although no New Jersey case has articulated the basis or requirements for their admissibility, the courts of this State have on numerous occasions...