Chart v. General Motors Corp.

• Decision Date: 04 October 1977
• Docket Number: No. 75-168,75-168
• Parties: , 100 A.L.R.3d 892 Penelope E. CHART, by Richard E. Sommer, her Guardian ad Litem, and Bernice Chart, Plaintiffs-Respondents, v. GENERAL MOTORS CORPORATION, Chevrolet Division, a Foreign Corporation, Defendant-Appellant, Richard L. Gutmann and Vilas County, Defendants, Leo J. Gutmann, Third-Party Defendant. Penelope E. CHART, by Richard E. Sommer, her Guardian ad Litem, and Bernice Chart, Plaintiffs-Respondents, v. Carl J. DVORAK and M. A. Varekois, Defendants.
• Court: Wisconsin Supreme Court

Page 680

258 N.W.2d 680

80 Wis.2d 91, 100 A.L.R.3d 892

Penelope E. CHART, by Richard E. Sommer, her Guardian ad

Litem, and Bernice Chart, Plaintiffs-Respondents, v. GENERAL MOTORS CORPORATION, Chevrolet Division, a Foreign

Corporation, Defendant-Appellant,

Richard L. Gutmann and Vilas County, Defendants,

Leo J. Gutmann, Third-Party Defendant.

Penelope E. CHART, by Richard E. Sommer, her Guardian ad

Litem, and Bernice Chart, Plaintiffs-Respondents, v. Carl J. DVORAK and M. A. Varekois, Defendants.

No. 75-168.

Supreme Court of Wisconsin.

Argued May 4, 1977.

Decided Oct. 4, 1977.

David E. Beckwith, Milwaukee (argued), for appellant; Foley & Lardner, Milwaukee, Tinkham, Smith, Bliss, Patterson & Richards, Wausau, and Frazier F. Hilder, Gen. Motors Corp., Detroit, Mich., on the briefs.

Curtis M. Kirkhuff, Madison (argued), and Richard E. Sommer, Rhinelander (argued), for respondents.

DAY, Justice.

On the night of July 30, 1966 in the town of St. Germain, Wisconsin, Penny Chart, the principal respondent and plaintiff below, was severely injured when the 1963 Corvair Spyder Monza convertible in which she was a passenger went out of control, hitting a telephone pole, spinning, and then hitting a highway sign before coming to rest. In this action for personal injuries, a jury found defendant General Motors Corporation twelve percent negligent for plaintiff's injuries and the court granted judgment accordingly. General Motors appeals. ¹

On the evening of July 30, 1966, Penny Chart (hereinafter plaintiff) and three friends, Angela Quartullo, Renn Karl and Richard Gutmann traveled to a beer bar. The route traveled was through the intersection of state highway 70 and 155. The bar was approximately four miles west of this intersection. It was at this intersection that the accident occurred on the return trip from the bar. During the evening the couples danced and Karl and Gutmann drank beer. At about 11:00 p.m. these four persons and two others, Margaret Beaton and Janet Peterson left in the Gutmann car to go to another bar. Plaintiff sat in the right front seat and did not use her seat belt. Richard Gutmann drove.

The vehicle left the bar parking lot at a rate of speed which caused gravel to fly. After heading east on state highway 70, Gutmann accelerated to a rate of speed which exceeded the legal night speed of 55 m.p.h. Plaintiff, Quartullo and Beaton all protested asking Gutmann at various points to slow down.

At the intersection of state highways 70 and 155 a driver travelling in the direction of the Gutmann automobile who would wish to remain on highway 70 must make a ninety-degree turn to the right. As the Gutmann vehicle approached this intersection, Plaintiff warned Gutmann of the sharp curve ahead to the right. The initial warning was given about one-half mile before the intersection. As the car neared the intersection, plaintiff reiterated her previous warning, stating, "This is the corner. Slow down."

At trial, Gutmann acknowledged receiving these warnings. There was testimony that he ignored these warnings and did not slow down until approximately 200 feet from the curve. At that point he applied the brakes and began to turn the car to the right in order to make the curve. Gutmann failed to negotiate the curve and the Corvair struck a telephone pole and a signpost. As a result plaintiff was ejected from the automobile and struck the ground.

Plaintiff brought suit against driver Gutmann for negligence, General Motors for defective design of the car, Vilas County for negligent maintenance of the intersection and two state highway employees for negligent placement of a highway warning sign.

Plaintiffs' theory against General Motors, established through expert testimony, was that the 1963 rear engine Corvair had a defective rear suspension system. It was alleged the automobile's wing axle type suspension possessed certain inherent disadvantages which prevented this type of suspension from being widely accepted in the manufacture of automobiles in this country. In particular, it was alleged that the swing axle, under severe lateral forces produced by cornering, tended to lift the rear end of the vehicle. This in turn caused the rear tires to bend causing "oversteer." In an oversteer vehicle, the natural character of the vehicle in a turn is to cut a curve sharper and to follow a radius which would be tighter than the intended path. This type of steering characteristic was alleged to be foreign and unfamiliar to the average American driver. These characteristics of the automobile allegedly caused the back end of the automobile to go out of control during the cornering maneuver at the accident intersection.

A six week trial commencing September 9, 1974 culminated in a verdict for Penelope Chart in the amount of $777,674 and a verdict in favor of her mother in the amount of $34,917. Liability was apportioned at seventy-five percent to the driver Gutmann; twelve percent to General Motors, five percent to Vilas County; five percent to state employees Dvorak and Varekois and three percent to plaintiff Penelope Chart.

After verdict the trial court granted judgment notwithstanding the verdict in favor of defendants Varekois and Dvorak. The court also reduced damages by five percent to reflect a release that the plaintiffs had given to Vilas county prior to trial.

The trial court admitted over strenuous objection by counsel for General Motors evidence relating to subsequent changes in the design of the 1964 and 1965 Corvair suspension systems.

Rule 904.07, Stats., entitled Subsequent remedial measures provides in part:

"When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving . . . feasibility of precautionary measures, if controverted . . .."

General Motors argues this section excludes evidence of design change in the instant case. The question has not been decided in this state. The Judicial Council note following the above cited rule says: ²

"The rule does not attempt to make the determination whether remedial measures in product design are admissible as 'feasibility of a precautionary measure' to prove that the product was defective. The authorities are in conflict. See 1 Frumer, Products Liability, sec. 12.04 at 337 (1964)."

Authorities are divided on the question whether evidence of subsequent remedial changes is admissible in a products liability case such as this. We are persuaded that such evidence is admissible. Evidence of subsequent remedial measures is not without probative value. In the well-reasoned and persuasive opinion of Ault v. International Harvester Co., 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148 (1974), the California Supreme Court stated, "if the changes occur closely in time they may well illustrate the feasibility of the improvement at the time of the accident, one of the normal elements in the negligence calculus." ³

Although the evidence may be relevant, nevertheless the underlying policy of sec. 904.07, Stats. is to exclude such evidence so as not to deter a potential or present defendant from taking steps that will promote safety but at the same time tend to be inculpatory. However, the case of Sutkowski v. Universal Marion Corporation, 5 Ill.App.3d 313, 281 N.E.2d 749 (1972), notes that in the products liability area, "policy considerations are involved which shift the emphasis from the defendant manufacturers' conduct to the character of the product." With this change in emphasis, admission of evidence of subsequent conduct poses little threat to the social policy embodied in sec. 904.07, Stats.

On this point the California Supreme Court wrote,

"When the context is transformed from a typical negligence setting to the modern products liability field, however, the 'public policy' assumptions justifying this evidentiary rule are no longer valid. The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement. In the products liability area, the exclusionary rule . . . does not affect the primary conduct of the mass producer of goods, but serves merely as a shield against potential liability. In short, the purpose of section 1151 is not applicable to a strict liability case and hence its exclusionary rule should not be gratuitously extended to that field." Ault, supra, 117 Cal.Rptr. at 815, 528 P.2d at 1151. See also, Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke L.J. 837, 845-852.

We agree that the conduct of a manufacture of a mass-produced product will not be guided by the evidentiary rule we make here. Economic realities will set the course and these realities are that the sooner remedial measures are taken, the less costly the defect will be to the manufacturer.

Many car manufacturers "recall" particular models for correction of defects discovered after large numbers have been purchased by consumers so that hazards may be eliminated. This very commendable practice is usually accompanied by a great deal of media publicity to advise and encourage car owners to turn the cars in for correction. Part of the purpose of such public recall is to reduce the possibility of injury to drivers and passengers and possible liability for such injuries. We have read but are not persuaded by...