Brokopp v. Ford Motor Co.

• Decision Date: 19 July 1977
• Citation: 71 Cal.App.3d 841,139 Cal.Rptr. 888
• Court: California Court of Appeals Court of Appeals
• Parties: , 93 A.L.R.3d 537 Carol Ann BROKOPP and Robert W. Brokopp, Plaintiffs and Respondents, v. FORD MOTOR COMPANY, Defendant and Appellant. Civ. 15804.

Page 888

139 Cal.Rptr. 888

71 Cal.App.3d 841, 93 A.L.R.3d 537

Carol Ann BROKOPP and Robert W. Brokopp, Plaintiffs and Respondents, v. FORD MOTOR COMPANY, Defendant and Appellant.

Civ. 15804.

Court of Appeal, Fourth District, Division 2, California.

July 19, 1977.

As Modified on Denial of Rehearing Aug. 3, 1977.

Gibson, Dunn & Crutcher, G. Edward Fitzgerald, Douglas M. Hindley, Los Angeles, and W. Mike McCray, Tustin, for defendant and appellant.

Golden, Neal & Shuffler and Kenneth J. Golden, Westminster, for plaintiffs and respondents.

OPINION

KAUFMAN, Associate Justice.

In this action to recover damages for personal injuries sustained in a single-vehicle accident, defendant Ford Motor Company ('Ford') appeals from a judgment entered upon a jury verdict in favor of plaintiffs Robert and Carol Brokopp ('plaintiffs') in the amount of $3,010,000.

Named as defendants in addition to Ford were Sunset Ford, Inc. ('Sunset'), a Ford dealer, and Recreational Vans, Inc. ('Recreational'), a supplier of recreational vehicles. The case went to the jury on theories of strict tort liability and negligence as to Ford and Sunset and on the theory of strict tort liability only as to Recreational. The jury returned a verdict of $10,000 in favor of Mrs. Brokopp and $3,000,000 in favor of Mr. Brokopp, both as against Ford and Sunset. Recreational was exonerated. In its verdict the jury attempted to apportion liability for the judgment $2,007,500 to Ford and $1,002,500 to Sunset. The court struck the attempted apportionment as surplusage and entered judgment on the verdict. After rendition of judgment Sunset apparently paid plaintiffs $1,250,000 in return for a release from liability as to Sunset only.

Facts

Inasmuch as Ford does not challenge its sufficiency, it is unnecessary to attempt to summarize the voluminous evidence. A brief statement should suffice.

In June 1973 Mr. Brokopp, a sales manager employed by Sunset, ordered from Recreational through Sunset an Econoline Ford van to be converted into a motor home. The van, which was ordered with factory power steering but without factory air conditioning, was converted by Recreational and, on July 3, 1973, was delivered to Sunset where Mr. Brokopp took possession of it. The van was manufactured, of course, by Ford.

On July 4, Mrs. Brokopp drove the van from Yorba Linda to Corona. She had great difficulty steering. Later that day Mr. Brokopp noticed the power steering belt was handing underneath the vehicle. He and his father attempted to replace the belt, but each time the engine was started, the belt would come off. The next day Mr. Brokopp drove the van to Sunset and had the lot man attempt to replace the belt. Again, each time the engine was started, the belt would come off.

On July 6 Mr. Brokopp took the van to the service department at Sunset for correction of the power steering problem and installation of a non-Ford air conditioner. A mechanic undertook the work. In order to install the air conditioner it was necessary to remove the power steering pump bracket, a part manufactured to Ford's specifications by a subcontractor and installed by Ford. Viewing the evidence most favorably to the judgment, the mechanic discovered a defect in the power steering pump bracket resulting in a misalignment between the power steering pump pulley and the crankshaft pulley upon which the power steering belt revolved. Rather than replacing the defective bracket, the mechanic attempted to remedy the defect by the use of shims and spacers.

Approximately one month later, as Mrs. Brokopp was driving the van in Mexico with Mr. Brokopp as a passenger, the vehicle was involved in a single-car accident while traveling between 45 and 60 miles per hour. Mr. Brokopp sustained severe injuries with the result that he is now a quadriplegic. Mrs. Brokopp sustained an assortment of relatively minor injuries. It was plaintiffs' theory that the power steering pump bracket was defective, that Sunset's mechanic did not cure the defect and that the resulting misalignment caused or permitted the power steering belt to come off one of its pulleys with a resultant loss of power steering which caused Mrs. Brokopp to lose control of the vehicle and crash.

Contentions, Discussion and Disposition

Ford asserts numerous errors. Plaintiffs contend in each instance that there was no error or that any error was waived or was harmless.

Restricted Cross-Examination of Plaintiffs' Experts

Each party called numerous expert witnesses. Ford complains that the court erroneously precluded it from asking two of plaintiffs' experts certain questions pertaining to their compensation.

Both Mr. Clement and Dr. Sommer gave testimony important to plaintiffs' case on the issue of causation. On cross-examination, Ford's counsel, among other things, attempted to show self-interest and bias on the part of these witnesses by inquiring into their compensation. He asked Mr. Clement at what rate he was billing plaintiffs. He asked Dr. Sommer whether his bill had been paid by plaintiffs. Plaintiffs' objections to these questions were sustained.

As plaintiffs virtually concede, these rulings were contrary to Evidence Code section 722(b) which provides: 'The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.'

Plaintiffs contend, however, that these errors were not prejudicial. We agree. While Ford was precluded from obtaining the answers to these two specific questions, it was not prevented generally from inquiring into this subject. It was permitted to elicit from Mr. Clement the number of hours he spent on the case, the fact that he had submitted bills for his services and the fact that his fees were not contingent on the outcome of the case. It was permitted to elicit from Dr. Sommer the number of hours he and his associate had spent on the case, the hourly charge for his services and the fact that he had submitted bills for his services. He was not asked, as was Mr. Clement, whether payment of his fees was contingent on the outcome of the case. The court's ruling did not inhibit Ford's counsel in attacking the credibility of plaintiffs' experts. In his arguments to the jury, Ford's counsel hammered on the fact that plaintiffs' experts has only a combined experience of four years and yet were being paid $20,000 to $25,000 for their services. There is no reasonable probability that these minor errors could have affected the outcome of this case which was tried over a period in excess of two and one-half months.

Proof of Negligent Inspection by Incompetent and Irrelevant Evidence

Plaintiffs' theory of negligence against Ford was that Ford negligently failed to inspect for and negligently failed to discover the defect in the power steering pump bracket. To prove Ford's negligence in that respect, plaintiffs were permitted to introduce evidence that an entirely different component of the vehicle, namely, the connection between the Pitman arm and the sector shaft, was defectively manufactured and negligently inspected. After the accident the connection between the Pitman arm and the sector shaft of the van was found broken. There was no evidence whatever, however, that the accident was in any way caused by this break. In fact, the experts were unanimous in concluding that the break was caused by the crash. Moreover, although the Pitman arm-sector shaft junction is a part of the steering system, it has nothing whatever to do with the power steering pump bracket, the power steering belt or its pulleys. Nevertheless, over Ford's strenuous objections, plaintiffs were permitted to introduce physical evidence and expert testimony, that the Pitman arm-sector shaft junction was imperfectly manufactured and would have broken at some point during the life of the vehicle, which would have resulted in a complete loss of steering. It was plaintiffs' theory that if Ford was negligent in failing to discover this very important defect, it must also have been negligent in failing to discover the defect in the power steering pump bracket.

It was error to permit plaintiffs to attempt to prove Ford's negligence in failing to discover the defect in the power steering pump bracket by evidence of its negligence in failing to discover the defect in the Pitman arm-sector shaft junction. Evidence of a trait of character (disposition to negligence) is inadmissible when offered to prove conduct on a specified occasion. (Evid.Code, § 1101(a); cf. Marocco v. Ford Motor Co., 7 Cal.App.3d 84, 91--92, 86 Cal.Rptr. 526.) '(E)vidence of a trait of a person's character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion.' (Evid.Code, § 1104; Carr v. Stern, 17 Cal.App. 397, 406--407, 120 P. 35.) 'It is a fundamental rule of evidence that you cannot prove the commission of an act by showing the commission of similar acts by the same person at other times and under other circumstances. Such evidence is simply not relevant . . ..' (Larson v. Larsen, 72 Cal.App. 169, 172, 236 P. 979, 980; cf. Marocco v. Ford Motor Co., supra; see Evid.Code, § 1101(b); Witkin, Cal. Evidence (2d ed.) § 350, pp. 309--310.)

As authority to the contrary, plaintiffs cite Mattox v. Isley, 111 Cal.App.2d 774, 245 P.2d 664. In that case a child had been injured in a theater by a sharp-edged metal band protruding from the back of the seat behind which the child was sitting. Plaintiffs say that the plaintiff there was permitted to show that numerous seats in the theater were similarly defective and that, thus, the case is authority for the admission of the challenged evidence in the case at bench. Not so.

It is true that the opinion notes that many seats throughout the theater suffered from the same defect (111 Cal.App.2d at p. 776, 245 P.2d 664), but we are not told...