Barry v. Manglass

• Decision Date: 23 December 1981
• Parties: , 432 N.E.2d 125 Jo A. BARRY, an Infant, by Richard J. Barry, Her Parent and Natural Guardian, et al., Respondents, v. Gary A. MANGLASS et al., Defendants, and General Motors Corporation, Appellant. Robert J. McELROY et al., Respondents, v. GENERAL MOTORS CORPORATION, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 423

447 N.Y.S.2d 423

55 N.Y.2d 803, 432 N.E.2d 125

Jo A. BARRY, an Infant, by Richard J. Barry, Her Parent and Natural Guardian, et al., Respondents, v. Gary A. MANGLASS et al., Defendants, and General Motors Corporation, Appellant.

Robert J. McELROY et al., Respondents, v. GENERAL MOTORS CORPORATION, Appellant.

Court of Appeals of New York.

Dec. 23, 1981.

Roy L. Reardon, New York City, Otis M. Smith, Detroit, Mich., James P. Barrett and Nicholas M. Cannella, New York City, for appellant.

Ralph S. Joseph, New City, and Harry A. Fox, Stony Point, for Jo Anne Barry and another, respondents.

Richard Narducci and Clarence A. Baracks, New City, for Robert J. McElroy and others, respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The issue here is whether jury verdicts finding defendant General Motors Corp. liable to plaintiffs on negligence causes of action but not liable on strict liability claims were inconsistent. Given the manner in which the case was presented to the jury, it cannot be said that there was an inconsistency.

This action arose out of an accident that occurred on January 8, 1972 in Rockland County. Gary Manglass, driving alone in a Chevrolet Nova owned by his wife, Janice, made a left turn at a high rate of speed. His car began to weave and struck another car head-on. The crash injured Manglass and the occupants of the other car, Beverly and Margo McElroy and Joanna and Jo Anne Barry. Ultimately, a jury found defendants Manglass and GM liable to the Barrys and McElroys on the negligence causes of action, but found GM not strictly liable. On the negligence claims, the jury apportioned fault 35% to Gary Manglass and 65% to GM. The jury also found against GM for the value of the Nova on Janice Manglass' negligence and breach of warranty claims.

Before the jury was discharged, GM argued that the verdicts on the strict products liability and negligence causes of action were inconsistent. Inasmuch as an inconsistency exists only when a verdict on one claim necessarily negates an element of another cause of action, it is necessary to examine the trial court's charge (cf. People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617). The court here instructed the jury that to find GM liable on the strict products liability claims, it must find not only that the Nova's left engine mount was defective, but that the Nova was not being misused at the time of the accident. The charge on the negligence causes of action did not impose this requirement of an absence of misuse. Inasmuch as no exception or further request to charge was made with respect to these instructions, they became the law of the case and the alleged inconsistency must be examined in that light (see Passantino v. Consolidated Edison Co. of N. Y., 54 N.Y.2d 840, 444 N.Y.S.2d 59, 428 N.E.2d 391). A finding by the jury that Gary Manglass misused the Nova in making the high-speed turn would account for the differing verdicts on the negligence and strict products liability causes of action, and the verdicts were therefore not inconsistent. It should be emphasized that because of the absence of an exception or further request with respect to this aspect of the trial court's charge, this court has no occasion to address the correctness of the instructions as a general statement of the law. The requirement of a timely exception is not merely a technicality. Its function "is to give the court and the opposing party the opportunity to correct an error in the conduct of the trial" (Delaney v. Philhern Realty Holding Corp., 280 N.Y. 461, 467, 21 N.E.2d 507; see 4 Weinstein-Korn-Miller, N.Y.Civ.Prac. par. 4017.06). Thus, we do not decide whether negligent use may constitute misuse of a product barring recovery for strict products liability.

GM also contends that the verdict for Janice Manglass on her breach of warranty claim was inconsistent with the verdicts on the strict products liability causes of action. GM first raised this claim, however, in connection with a posttrial motion for a new trial. ^* By failing to raise this inconsistency before the jury was discharged, GM afforded the trial court no opportunity to correct the claimed error or, on the attorney's application, to retain the jury for a reasonable time, in light of the complexities involved, to allow counsel to study the problem and more clearly articulate his objection. This inconsistency could have been called to the court's attention, either when the initial verdicts were rendered or when the jury later returned with its decision on the apportionment of fault between Manglass and GM. If the inconsistency had been raised, the trial court could have taken corrective action before the jury was discharged, such as resubmitting the matter to the jury. Because the issue was not raised until long after any steps could have been taken by the trial court to cure the inconsistency, it cannot serve as a predicate for a reversal by this court.

FUCHSBERG, Judge (dissenting).

While I share the majority's opinion that the parties were bound by the legal instructions in which they acquiesced, we part company on the issue of GM's preservation of the inconsistency inherent in the complex of verdicts as they were reported by the jury.

The verdicts eventuated from an automobile accident which occurred in a 50-mile per hour zone of a two-lane highway in Ramapo, Rockland County, when, as some of the testimony later was to develop, a Chevrolet Nova, of General Motors Corporation (GM) manufacture, made an unexpected left turn at approximately 55 to 60 miles per hour into the path of opposing traffic. There it crashed with great force into a station wagon registered in the name of Robert McElroy and then operated by his wife, Beverly. At the time, the Nova, owned by Janice E. Manglass, was being driven by her husband, Gary A. Manglass. Mr. Manglass was alone in the car.

A series of lawsuits followed. One, for personal injuries sustained by Joanna Barry and her daughter, Jo Anne, passengers in the McElroy vehicle, was commenced on negligence and strict products liability theories against GM, and against the Manglasses and the McElroys in negligence alone; Richard J. Barry, as husband of Joanna and father of Jo Anne, joined derivative loss of services causes. ¹ Actions for their injuries were also initiated by Beverly McElroy and her daughter Margo, who also was a passenger; husband and father Robert here too joined derivative causes, as well as one for the destruction of his station wagon; their cases, brought on like liability theories, named GM and the Manglasses alone. Finally, Gary Manglass, for his personal injuries, and Janice, for the damage to the Nova, sued GM, their actions sounding in negligence and breach of warranty, express and implied.

In essence, the thrust of all the claims against GM was that the Nova's motor mounts, whose function is to fasten the engine to the frame of a motor vehicle, were so defectively designed that one of them separated, thus causing the engine to lift, the accelerator to jam and its driver to be deprived of control. During the battle between experts which later was to dominate the trial, GM's position, inter alia, was that, whatever its experience with these motor mounts in other circumstances, ² in this instance the separation was a consequence rather than a cause of the collision. In any event, by then, all the actions had been joined for trial, of which there now have been two.

The first of these resulted in general verdicts for the Barrys and the McElroys for sums totaling $850,000 and $19,000, respectively. However, the ensuing judgments, which ran against GM and the Manglasses, were short-lived. Vacated by the Appellate Division for trial errors whose details are not pertinent here, the cases were remanded for retrial of the liability and apportionment issues (55 A.D.2d 1, 398 N.Y.S.2d 870). It is from the second trial that the present appeal emanates. Again, the jury rendered verdicts for the Barrys and the McElroys against both GM and the Manglasses. Concordantly, it had disposed of Gary Manglass' affirmative negligence and warranty claims against GM by finding verdicts of no cause. ³

In contrast to the outcome of the case against her husband, in which, as owner of the Nova, Janice Manglass had to be found vicariously liable to the Barrys and McElroys (Vehicle and Traffic Law, § 388), since she was not present in the vehicle when the accident occurred, conceptually she was not thereby precluded from recovering in her affirmative action against GM (Mills v. Gabriel, 259 App.Div. 60, 18 N.Y.S.2d 78, affd. 284 N.Y. 755, 31 N.E.2d 512). Obviously hearkening to an appropriate instruction on that subject, the jury decided for her against GM both in negligence and for breach of warranty.

GM did not appeal the Janice Manglass verdict, which, in due course, became final and binding. But, on the premise that the verdicts were fatally incongruous, it took the Barry and McElroy judgments to the Appellate Division. This claim originally had been articulated when, after the jury had announced its verdicts and before it had been directed to pass on the apportionment question, GM's trial counsel, contending that there were "clearly inconsistencies" in an exoneration of his client in strict products liability while holding it liable for negligence, asked the court to seek "an advisory verdict" via the submission of a special interrogatory on whether the jury found the motor mount defective. This request was denied. ⁴ Thereafter, GM fared no better when, in a timely posttrial CPLR 4404 (subd. ) motion for a new trial, ⁵ it further developed its inconsistency assertion by pointing out that, since the essential components of breach of warranty and strict products liability are alike, the "divergent findings" for Janice Manglass against GM on the former theory vis-a-vis the one for GM on...