Buccery v. General Motors Corp.

• Decision Date: 27 July 1976
• Citation: 132 Cal.Rptr. 605,60 Cal.App.3d 533
• Court: California Court of Appeals Court of Appeals
• Parties: Perry BUCCERY, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION et al., Defendants and Respondents. Civ. 48051.

Page 605

132 Cal.Rptr. 605

60 Cal.App.3d 533

Perry BUCCERY, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION et al., Defendants and Respondents.

Civ. 48051.

Court of Appeal, Second District, Division 3, California.

July 27, 1976.

As Modified Aug. 17, 1976.

Peacock & Sullivan, Inc., Carl M. Hovland, Inglewood, and Robert B. Horner, law student, for plaintiff and appellant.

Hillsinger & Costanzo, Professional Corp., and Darrell A. Forgey, Los Angeles, for defendant and respondent General Motors Corp.

Early, Maslach, Boyd & Leavey, and Maryann M. Seltzer, Los Angeles, for defendant and respondent Champion Chevrolet.

POTTER, Associate Justice.

Plaintiff Perry Buccery appeals from a judgment in favor of defendants General Motors Corporation and Champion Chevrolet ¹ rendered upon granting of defendants' motions for nonsuit.

Plaintiff's complaint sought damages for personal injuries arising out of a rear-end collision in which his Chevrolet LUV (Light Utility Vehicle) pick-up truck was struck by a Chevrolet El Camino driven by James F. Willett. Plaintiff's LUV was marketed by General Motors Corporation and Champion Chevrolet was the dealer through whom plaintiff purchased it. The negligence cause of action against Willett was settled and the case proceeded to trial against defendants General Motors Corporation and Champion Chevrolet 'on a theory of strict liability.'

Defendants produced evidence showing that the Willett vehicle struck plaintiff's vehicle with a relatively mild impact. Willett testified that at the point of impact his vehicle was not traveling more than 5 m.p.h. in excess of the speed of plaintiff's vehicle. This testimony was confirmed by plaintiff's expert witness, an automotive engineer with extensive experience in vehicle testing to determine the 'damage produced on the vehicle for a given speed and a certain kind of crash, and to study the response of occupants within the vehicle.'

The impact was, however, sufficient to cause the rear of plaintiff's head to strike the window in the back of the cab of his vehicle. There was no padded head restraint in the LUV and the top of the seat was well below head level.

Plaintiff's automotive engineer expert testified that the lack of a head restraint contributed substantially to the impact upon plaintiff's head, increasing it from approximately 10--G to as much as 167--G. According to this expert, an average person would not sustain an injury with a 10--G impact produced by a 'reasonably deformable surface.' The witness described an evaluation undertaken by him in 1970 of the Isezu Model 126 Light Utility Vehicle, which was substantially the same vehicle as the LUV. He stated that the vehicle evaluated by him included head restraints.

Plaintiff's expert was of the opinion that a vehicle manufactured in 1973 for use in the United States without head restraints was 'of unsafe design' and that the lack of such head restraints was 'a product defect.' He pointed out that in 1973 (1) head restraints were an accepted 'valid safety device,' (2) that there were no technical problems presented in 'putting head restraints on vehicles like LUV trucks' (that is, 'fitting head restraints in a vehicle like this is both feasible and would be beneficial'), and (3) that the increase in the cost of the car would be 'certainly a very small precentage.'

During the direct examination of plaintiff's expert, it was brought out that restraints have been required by federal regulations on all passenger cars produced since January 1, 1969. On cross-examination, it was brought out that the witness believed that the federal safety standard requiring head restraints did not apply to 'trucks and multipurpose vehicles.'

The evidence with respect to plaintiff's injury resulting from the impact between the back of his head and the rear window of the cab supported his claim for substantial damages. Plaintiff described symptoms immediately following the accident, including unconsciousness, nausea, severe headache and imbalance. He was hospitalized for approximately a month and--did not return to his employment for 11 months. Plaintiff's treating physician made an original diagnosis of 'cerebral concussion' which he thought was caused by the blow to plaintiff's head. Another doctor who examined plaintiff for the purpose of testimony was also of the opinion that plaintiff had 'a cerebral concussion . . . due to the accident.'

At the time of trial plaintiff's recovery, though stable, was far from complete. Both doctors agreed that he was peculiarly susceptible to traumatic injury to his brain, having suffered a degree of encephalopathy on various prior occasions when stress, trauma or infection 'aggravated the preexisting disposition towards this type of result.' There was, however, substantial evidence from plaintiff, from his daughter, and from his wife, as well as the doctor's testimony, that his condition immediately prior to the accident was far more satisfactory than it had been at any time since the accident.

Both defendants raised the defense of assumption of risk, and plaintiff was examined extensively concerning his knowledge of the alleged defect and the hazards presented thereby. Plaintiff purchased the vehicle in March 1973. The accident occurred October 8, 1973. According to plaintiff's testimony, before purchasing the vehicle he did not notice the lack of head restraints but that shortly thereafter he did notice their absence and 'the small distance between the seat and the back of the cab' and 'thought I'd better get something back there.' When asked if he wanted head restraints 'because you felt that if you did get involved in a rear-end accident, you were liable to hit your head on a back window,' plaintiff answered, 'That's precisely what I am trying to say. That's what I--why I wanted them.' When plaintiff attempted to obtain head rests at Champion Chevrolet, the parts department said they did not have any and suggested that he try automobile accessories stores. Thereafter, every chance he had, plaintiff stopped at accessories stores and attempted to purchase head restraints. He tried several places without success. The closest he came was to find a padded rest that 'had a couple of prongs that slipped over the back and over partially the front,' but this accessory was not usuable on the LUV seat which had no solid back. Plaintiff continued his efforts to find head restraints up to the time of the accident and 'was even planning on making one.'

On cross-examination, it was also developed that plaintiff did not consider purchasing a similar type pick-up 'like the Ford Courier or the Toyota or the Datsun Pickup' or inquire as to whether they were equipped with head restraints. No evidence was offered, however, as to any such vehicles being so equipped except a deluxe model of the Toyota which was available by the time of the trial.

On redirect examination, plaintiff testified that he had not constructed any head restraints and knew nothing about their design. He also testified that he did not realize that in the absence of a head rest he would sustain a concussion from a 5 m.p.h. rear-end impact.

At the conclusion of plaintiff's case, both defendants moved for nonsuit. The grounds stated for the motion were specified by counsel for defendant General Motors. Counsel for Champion Chevrolet merely stated 'I guess I will have to join in the motion to make it complete as to the situation we are confronted with as on behalf of my client.' The grounds specified by counsel for defendant General Motors were: (1) that there was no evidence of a defect inasmuch as the absence of head rests was patent, (2) that plaintiff's testimony established a defense of assumption of risk, and (3) that the evidence failed to show that but for the absence of head restraint plaintiff 'who is peculiarly susceptible to this type of injury' would not have been injured.

In granting the motions for nonsuit, the court specified reasons as follows:

'THE COURT: This case points up the necessity for standards in the manufacture of products. It points up the fact that with regard to safety devices, safety precautions that are engineered into things, there is as many opinions as there are experts and there has been great debate over the use of certain types of safety devices.

'Now, those charged with the responsibility for adopting standards have done so; General Motors complied with those standards. General Motors has done nothing wrong in this case. There is nothing wrong with what they did, and I don't think that it is within the province of a jury to determine at the persuasion of very competent attorneys that what they did was wrong.

'I think that the standards have been set up, General Motors has complied with them, and there is no defect whatsoever in this case.'

Contentions

Appellant contends that there was substantial evidence to support a jury verdict in his favor. Defendants contend to the contrary that (1) the trial court correctly determined that General Motors complied with the safety standards required for pick-up trucks, (2) the only purported defect in the vehicle shown by plaintiff was one which was 'known and observed by him,' and (3) that the evidence, as a matter law, established the defense of assumption

of risk. Defendants' Compliance With Federal Motor Vehicle Safety Standards Does Not Preclude Imposition of Common Law Liability for Defective Product

The ground stated by the court for granting defendants' motion for nonsuit was defendants' compliance with the standards established under the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. §§ 1381--1431). an examination of the standards promulgated By the secertary of Transportation pursuant to 15 U.S.C. § 1392, subsection (a), confirms the accuracy of the testimony of plaintiff's expert that head restraints had been prescribed for all passenger vehicles since January 1, 1969, but...