Bernal v. American Honda Motor Co., Inc.

• Decision Date: 12 August 1976
• Docket Number: No. 43608,43608
• Citation: 87 Wn.2d 406,553 P.2d 107
• Parties: Anthony BERNAL and Claudette Bernal, his wife, Petitioners, v. AMERICAN HONDA MOTOR COMPANY, INC., a corporation, and Duane Hinshaw, d/b/a Hinshaw's Honda and Honda Motor Company, Ltd., Respondents.
• Court: Washington Supreme Court

Page 406

87 Wn.2d 406

553 P.2d 107

Anthony BERNAL and Claudette Bernal, his wife, Petitioners, v. AMERICAN HONDA MOTOR COMPANY, INC., a corporation, and Duane Hinshaw, d/b/a Hinshaw's Honda and Honda Motor Company, Ltd., Respondents.

No. 43608.

Supreme Court of Washington, En Banc.

Aug. 12, 1976.

Johnson & Crane, Ernest F. Crane, Auburn, Belli, Ash, Ellison & Choulos, Herbert Resner, Stephen Tabor, San Francisco, Cal., for petitioners.

Guttormsen, Scholfield & Stafford, Jack P. Scholfield, Seattle, for respondents.

HOROWITZ, Associate Justice.

This court granted review of a decision of the Court of Appeals, which affirmed the trial court's order of summary judgment in favor of the defendants in a products liability case. We reverse.

On April 11, 1971, plaintiff Anthony Bernal was a passenger in the rear seat of a Honda 600 automobile which was stopped for a red traffic signal. At that moment, the Honda was struck from the rear by a Pontiac Firebird automobile. The speed of the Pontiac at time of impact is in dispute, and estimates from different persons range from 15 to 40 m.p.h. Plaintiff suffered a spinal injury in the accident, resulting in permanent paralysis from the chest down. His brother, also a rear seat passenger, died immediately following the accident.

In order to properly answer the questions presented by this case, it is necessary to review in greater detail than usual the history of the proceedings. On April 23, 1973, the date the trial court granted defendants' motion for summary judgment now the subject of appeal, the record, summarized chronologically, showed the following.

July 31, 1971, Anthony Bernal and his wife filed their complaint against American Honda Motor Company, the distributor of the automobile, claiming the Honda was of such a negligent design and construction as to be an unreasonable and dangerous risk to its occupants. May 16, 1972, defendant American Honda Motor Company moved for summary judgment. In support of its motion, defendant argued there is no liability in Washington under plaintiffs' theory of recovery.

Plaintiffs' memorandum in opposition to summary judgment argued the opposite view. Plaintiffs' counsel also filed an affidavit stating (1) they had contacted several experts to appear as witnesses in the case; (2) a technical investigator had told them by letter that the primary cause of injury in the accident was a lack of structural rigidity in the rear portion of the Honda; and (3) further discovery as to the design of the Honda was forthcoming. Also filed in opposition to the motion was the affidavit of Officer Jerome Christin, assigned to the traffic division of the Auburn, Washington, police department. He stated that based upon his investigation of traffic accidents in this and other cases, any rear-end collision with this model Honda automobile under the same circumstances would end in serious injury to passengers in the rear seat of the Honda.

On May 18, 1972, plaintiffs filed an amended complaint, adding two additional claims of relief: (1) strict liability for defective design and construction of the Honda, which was unreasonably dangerous to the user or consumer; and (2) express warranty that the Honda was free from defects and in all respects safe for use in the manner for which it was designed, manufactured and sold. The amended complaint also added Duane Hinshaw, d/b/a Hinshaw's Honda, the retailer of the Honda in question, as a second defendant.

The motion for summary judgment was denied May 26, 1972, without prejudice to defendants' right to renew the motion after the facts had been more fully developed.

September 19, 1972, plaintiffs filed additional answers to defendant American Honda's first interrogatories. The answers are signed and acknowledged by the plaintiffs, signed by their counsel, and state in general terms why the Honda automobile is defectively designed. The same day plaintiffs also filed answers to American Honda's supplementary interrogatories. They enumerate in great detail with facts and figures, the alleged defects in the construction of the Honda. They are signed and acknowledged by the plaintiffs and signed by their counsel. ¹

February 17, 1973, plaintiffs were granted leave by the court to amend their complaint to include Honda Motor Company, Ltd., the manufacturer of the automobile as a party defendant.

The original motion for summary judgment was then renewed.

February 28, 1973, plaintiffs filed a memorandum in opposition to summary judgment. It states the law in Washington permits a claim for enhanced injuries from design defects. Evidence of the Honda's defective design was not discussed.

Defendants, in a supplemental memorandum in support of the motion, filed March 1, 1973, renewed their argument that liability cannot be imposed on the basis of a design defect where the alleged defect was not the proximate cause of the accident. The facts concerning the existence of a dangerous design were argued to be irrelevant to the motion: 'The application of the principal (sic) is not going to change by the discovery of additional facts. It is a legal principal (sic) which either applies to this case or it does not apply.'

March 3, 1973, plaintiffs filed the deposition of Steven G. Fleming, a 19-year-old employee of a lumber company and a passenger in the Pontiac Firebird. He states his belief the design of the Honda automobile is hazardous.

March 7, 1973, the court rendered an oral decision granting summary judgment to defendants. The court gave as its reason that recovery upon the claims alleged by plaintiffs could only be permitted by legislative action. The court did not discuss plaintiffs' evidence in support of their claims.

March 9, 1973, plaintiffs filed a second amended complaint. It seeks damages against Honda Motor Company, Ltd., under the three claims for relief set out in plaintiffs' first amended complaint.

March 27, 1973, plaintiffs filed an affidavit, attached to and identifying photos of both automobiles following the collision, taken by the Auburn Police Department.

The order granting summary judgment in favor of American Honda Motor Company, Inc., and Duane Hinshaw, d/b/a Hinshaw's Honda, was signed and filed April 11, 1973. It states the court had before it and considered the depositions of Mr. Jerome Christin and Mr. Steven G. Fleming, all exhibits attached, offered in evidence or identified in any of these depositions, all documents filed, and all affidavits and photographs. An order granting summary judgment in favor of Honda Motor Co., Ltd., in the same form as the first, was signed and filed August 10, 1973.

Plaintiffs appealed. The Court of Appeals, Division I, affirmed, but on another ground. Bernal v. American Honda Motor Co., Inc., 11 Wash.App. 903, 527 P.2d 273 (1974). The court noted that subsequent to the grant of summary judgment this court decided Baumgardner v. American Motors Corp., 83 Wash.2d 751, 522 P.2d 829 (1974), which held that an action for enhanced injuries resulting from defective design of a product may be brought in Washington either under a negligence theory or under strict liability. The Court of Appeals nevertheless upheld the trial court upon a ground not considered below. The court held the plaintiffs had not presented a genuine issue of material fact as to whether the design of the Honda automobile violated a standard of care owed by the manufacturer or designer to the user of the product, and if so whether the design defect, if any, caused the enhancement of Anthony Bernal's injuries.

Subsequent to the Court of Appeals opinion, this court decided Seattle-First Nat'l Bank v. Tabert, 85 Wash.2d 145, 542 P.2d 774 (1975). Tabert clarified the standard for recovery under the theory of strict liability in a design defect case. The court held the plaintiff may recover under strict liability if the product (including the design) is 'not reasonably safe.' Seattle-First Nat'l Bank v. Tabert, supra at 154, 542 P.2d 774. A plaintiff is not required to prove defectiveness as a separate matter; '(i)f a product is unreasonably dangerous, it is necessarily defective.' Seattle-First Nat'l Bank v. Tabert, supra at 154, 542 P.2d at 779. The court noted the concept of 'reasonably safe' is to be measured in terms of the reasonable expectations of the ordinary consumer--a relative rather than absolute concept. The court presented guidelines for applying this test:

In determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue.

Seattle-First Nat'l Bank v. Tabert, supra at 154, 542 P.2d at 779.

Initially, we cannot agree with the Court of Appeals that plaintiffs, by their evidence before the trial court, did not raise a material issue of fact as to the negligence or dangerousness of the Honda's design, and whether it was a proximate cause of enhanced injuries to plaintiff Anthony Bernal. As next appears, the affidavit of Officer Christin together with the photographs showing the condition of the Honda automobile after the collision are sufficient to raise this material issue of fact. We need not, therefore, address ourselves to defendants' contention that the remainder of plaintiffs' evidence does not meet the standards of CR 56(e) because it is too conclusory or no more than inadmissible lay opinion. ²

To support a denial of summary judgment, the affidavit of Officer Christin must meet the requirements of CR 56(e), namely, (1) be made on personal knowledge, (2) set forth admissible evidentiary facts, and (3) affirmatively show the affiant is competent to testify to the matters stated therein. CR 56(e)...