Fenner v. General Motors Corp., 79-2518

• Decision Date: 08 June 1981
• Docket Number: No. 79-2518,79-2518
• Citation: 657 F.2d 647
• Parties: George FENNER and Catherine Fenner, his wife, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant-Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 647

657 F.2d 647

George FENNER and Catherine Fenner, his wife, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, a Delaware corporation Defendant-Appellee.

No. 79-2518.

United States Court of Appeals Fifth Circuit.

Unit B

June 8, 1981.

Brent M. Turbow, Jacksonville, Fla., Podhurst, Orseck & Parks, Walter H. Beckham, Jr., Joel D. Eaton, Miami, Fla., Arthur Boone, Jacksonville, Fla., for plaintiffs-appellants.

Mathews, Osborne, Erlich, Gobelman & Cobb, Robert C. Gobelman, Jacksonville, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, HILL and KRAVITCH, Circuit Judges.

PER CURIAM:

This personal injury products liability suit arises out of a single car accident which occurred in Palm Beach County, Florida. Plaintiffs sued the manufacturer, General Motors Corporation, alleging a defectively designed steering coupling permitted stone interference in turning the vehicle which proximately caused their accident. A jury awarded plaintiffs $250,000. The district court, however, granted General Motors' post-trial Rule 50, Fed.R.Civ.P., motion for judgment notwithstanding the verdict and, in the alternative, a new trial, on the ground that there was insufficient evidence to establish that the product defect proximately caused the accident. This appeal followed. We affirm the judgment notwithstanding the verdict.

The district court considered the motion for judgment n.o.v. under the standard set forth in the oft-quoted Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc).

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence not just that evidence which supports the non-mover's case but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Id. at 374-75 (footnote omitted). The district court's careful and well-reasoned opinion reflects a proper appreciation of the considerations involved in overturning a jury verdict, in accordance with the law of this Circuit.

Neither party on appeal complains of any error in the admission of evidence. We therefore consider all the evidence which the district court charged the jury it could consider in deciding the case. Spurlin v. General Motors Corp., 528 F.2d 612, 615 (5th Cir. 1976).

Based principally on Mr. Fenner's testimony, the evidence showed that in the early morning hours of December 15, 1972, Mr. Fenner and his wife left their hotel room in Pompano Beach, Florida. To get to the Florida turnpike, they traveled a short distance over a road under construction with loose gravel, potholes, and bumps. Mr. Fenner had driven on this road frequently over the past few days on business, always driving very carefully braking for the potholes and bumps. Traveling northbound, plaintiffs stopped at the first service center for breakfast and to have the car serviced. The attendant checked under the hood but did not call attention to anything. Mr. Fenner noticed a certain stiffness in the steering from the time he had turned onto the turnpike; it was as though his wheels were out of alignment. He attributed this to his driving over the road under construction.

Upon leaving the service center, Mr. Fenner drove at approximately 60 miles per hour in the right-hand northbound lane. Traffic was light that morning. The road was straight and smooth. He passed one vehicle, turning left into the passing lane then turning back into the right-hand lane. Approaching another vehicle, Mr. Fenner pulled into the left-hand lane and passed the vehicle while driving straight ahead. When Mr. Fenner started turning the steering wheel to the right in order to return to the right-hand lane, the "steering jammed," according to his testimony, and the car veered to the left into the median. Plaintiffs' car struck an overpass abutment, causing substantial injury to them. Mr. Fenner stated that he had experienced no undue steering difficulties as he initially turned into the left-hand lane to pass the second vehicle. Only as he attempted to turn the wheel to the right did the steering difficulty occur.

Additional evidence revealed that for some weeks immediately after the accident Mr. Fenner had no memory of the accident or how it had occurred. During that period, he had speculated he had blacked out or some unknown mechanical difficulty with the car had been the cause of the accident.

There were two eyewitnesses to the accident who testified. Neither could say whether the Fenner vehicle appeared to be having steering difficulty. One of the eyewitnesses stated, however, that he observed a puff of smoke which appeared to come from the front left tire of the vehicle. The front left tire was flat on the car wreckage. He stated the car appeared to dip to the left before it went onto the median. The testimony of the other eyewitness, as well as that of the Florida Highway Patrolman who investigated the accident, shed no light on the cause of the accident. The Fenner vehicle was unavailable for later examination.

Plaintiffs contend that their 1972 Oldsmobile Delta 88 contained an inherent defect in the steering mechanism which caused the accident. Plaintiffs showed at trial that the uncovered steering coupling of their model vehicle could suffer from stone interference if a stone lodged between the steering coupling and the vehicle's frame. This stone interference could cause the vehicle's steering to lock up. Plaintiffs then attempted to show this is what happened with their automobile.

The district court found, and it is not challenged on appeal, that the Fenner's car was manufactured with an inherent steering defect and that General Motors had knowledge of the defect. The court also found, however, that the evidence was not sufficient to create a jury question that the defect was the proximate cause of the accident.

Proof of the defect alone is insufficient. There must also be evidence that the defect caused the accident. See Lowe v. General Motors Corp., 624 F.2d 1373 (5th Cir. 1980). In Lowe, this Court held the plaintiffs had established proximate cause. After passing another automobile, the car in which Mrs. Lowe was riding, a 1971 Chevrolet Impala, returned to the right-hand lane and straightened out. The car then angled to the left again and eventually overturned down an embankment. The injured driver told a witness that the car had suddenly become impossible to steer. The wrecker driver who towed the car away examined the car and determined the steering had locked. After a more careful examination, the wrecker driver and a state trooper found a stone lodged inside the steering coupling.

The evidence in Lowe to prove causation is simply not present in this case. As in Lowe, the car driver, Mr. Fenner, complained of steering lock up. Unlike Lowe, there was no examination of the Fenner's automobile and no stone discovered lodged inside the steering coupling. Plaintiffs attempted to prove their theory by Mr. Fenner's testimony and the testimony of an expert witness. Unfortunately, plaintiffs' theory is not supported by Mr. Fenner's facts according to the expert witnesses.

Plaintiffs' expert had conducted extensive tests using a mock-up of the steering column of the Oldsmobile model in question. He concluded that under certain conditions stone interference with the steering could occur. He testified in order for such interference to occur on a right turn there must have been a prior left turn, a noticeable change in the steering characteristics, and then the right turn and interference. When presented with a hypothetical question based on Mr. Fenner's version of the accident, plaintiffs' own expert expressed his opinion that Mr. Fenner's failure to be able to turn right was not due to stone interference since there was no indication by Mr. Fenner that any noticeable binding had occurred after the initial left turn into the passing lane.

One of defendant's experts, Mr. Flesher, whose deposition was read, examined testing done on the steering mechanism of the same model car as the Fenner's 1972 Oldsmobile. He stated the only way...