Fortman v. Hemco, Inc.

• Decision Date: 06 June 1989
• Docket Number: No. B026086,B026086
• Citation: 211 Cal.App.3d 241,259 Cal.Rptr. 311
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 12,223 Nichole FORTMAN, Plaintiff and Respondent, v. HEMCO, INC., Defendant and Appellant.

Page 311

259 Cal.Rptr. 311

211 Cal.App.3d 241, Prod.Liab.Rep. (CCH) P 12,223

Nichole FORTMAN, Plaintiff and Respondent, v. HEMCO, INC., Defendant and Appellant.

No. B026086.

Court of Appeal, Second District, Division 4, California.

June 6, 1989.

As Modified on Denial

of Rehearing June 27, 1989.

Moser & Conway, Sherman Oaks, Lascher & Lascher and Edward L. Lascher, Ventura, for defendant and appellant.

Hurley, Grassini & Wrinkle and Roland Wrinkle, North Hollywood, for plaintiff and respondent.

ARLEIGH M. WOODS, Presiding Justice.

Nichole Fortman, a minor, sustained permanent and extensive injuries when she was ejected from her parents' jeep after inadvertently unlatching the passenger door while the car was in operation. The door, which was rear hinged and front opening, caught the wind and flew open ejecting Nichole, who had snagged her sleeve on the door handle. She fell to the street and was run over by another vehicle.

In her lawsuit Nichole alleged that the jeep door was defective by reason of being rear hinged and front opening and because of its use of exposed door handles. The door was part of a fiberglass jeep top sold to jeep owners as an after-market product. ¹

The idea of the fiberglass jeep top was conceived by John Redford. Because he lacked the training to turn his idea into a product, Redford sought advice from Jim Greene, owner of Wild Child Custom Shop, an auto body shop, and Ronald Hill, a trained engineer and president of Hemco Inc., a company that made fiberglass molds and cast products. Redford received advice from Greene and Hill while working out the feasibility of the design for the jeep top. Greene made the prototype from which the mold was made. Hemco made the mold and actually cast two tops, one for Redford's use. Redford rejected Hemco's bid for the right to produce the tops.

Hemco was one of several defendants named in Nichole's action and the only defendant who refused to settle. A jury awarded Nichole $23,742,620 and found Hemco to be 25 percent responsible for her injuries. Hemco appeals. We affirm.

The facts are that John Redford wanted a fiberglass top for his jeep and decided that the only way he could afford one was to produce them commercially. He first talked to Ronald Hill in the fall of 1975. He was looking for someone "in the business of making fiberglass components, finished products in the automotive business." Hill's company, Hemco, was in the business. One of their clients was the Kenworth Truck Company for whom Hemco made truck cabs.

At their initial meeting, Redford showed Hill a sketch of his jeep top concept and asked Hill whether Hemco would be interested in building it. At a second meeting, Redford showed Hill more refined drawings and asked him specific questions as, for example, whether Hemco had sources for hardware and windows. Hill took Redford through Hemco's plant and showed him examples of prototypes being built by Hemco including that of a Kenworth cab. Hill showed an active interest in the jeep top and a willingness to cooperate with Redford and Greene.

Jim Greene set out to build a wooden prototype of the jeep top from which Hemco could make a fiberglass mold. The mold in turn would be used to cast the actual parts of the jeep top. ² While the prototype was being built, there were meetings at both Wild Child and Hemco "to obtain a consensus of opinion about how the wood should be built so that [it] would [be] something that Hemco could make a mold of." Hill and Greene assisted Redford in "all aspects of the design" of the jeep top.

The design incorporated rear-hinged, forward-opening doors that used nonrecessed "hook" handles. Redford consulted Hill about various issues related to the door. Hill, for example, felt the lock Redford wanted to use was unnecessarily expensive. Hill was not consulted on the placement of the door hinge. Hill did say that he saw the market appeal of a rear-hinged door and thought the design outstanding.

Hemco made a mold from Greene's prototype which Hill had revised and edited. In addition to making the mold, Hemco actually cast two jeep tops from the mold, one of which Redford used for his own jeep. Hill also gave Redford an estimate for the cost of producing the tops from the mold. Redford, however, was dissatisfied with both the quality of the tops Hemco produced and Hemco's cost estimate and went to a company called Rigid Forms, Inc., to have the tops produced. Hemco was paid about $2,500 for making the mold.

Initially, Rigid Forms used the Hemco mold to produce the jeep tops. Later, the number of pieces for the mold was reduced from 12 to 8. However, there were no changes made by Rigid Forms on the Hemco mold for the doors. Unchanged, the door mold was used for the entire period the jeep tops were produced by Rigid Forms. Every door produced by the mold was identical to the mold.

One of the jeep tops cast from the Hemco mold was attached to the jeep eventually purchased by Richard Fortman. On November 13, 1981, Debra Fortman used the jeep to drive to and from the bank. With her was her three-year-old daughter, Nichole. At the bank, one of the tellers gave Nichole a booklet to play with. During the drive home from the bank, Nichole dropped the booklet and asked her mother for permission to pick it up. Nichole was not wearing a seatbelt. Her mother told her to get the booklet and then to sit back down. Mrs. Fortman saw Nichole standing in the area of the front door. She then saw Nichole's arm next to the door and heard Nichole yell " 'Mommie.' " The door blew open and she saw Nichole hanging on the door as if she was holding on or hooked. Nichole fell to the street below, and was run over by a car in the next lane which was a few feet behind the jeep. ³

As the accident was later reconstructed, Nichole apparently pulled herself forward from her seat to a standing position on the floor by grasping the door handle. As she stood, she pressed the handle down, releasing the door latch. The door caught the wind and began to open. Nichole snagged her shirt sleeve on the handle and was thrown out of the car.

Nichole brought an action against numerous defendants. Nichole alleged causes of action in strict liability and negligence against Hemco. By the time the action went to trial, settlements had reduced the defendants to Hemco and Austin Hardware & Supply, Inc. Nichole dismissed her negligence cause of action against Hemco. Mrs. Fortman dismissed her cause of action for negligent infliction of emotional distress, removing her as a plaintiff from the case. Thus, as against Hemco, the trial proceeded solely on a strict liability theory. ⁴

The only expert put on by either side regarding the defective door and Hemco's role in its production was Cory Gray, an engineer specializing in accident analysis.

On the issue of defect, Gray testified that rear-hinged, front-opening doors had been recognized as unsafe by the automobile industry for years. No American car had utilized this door design since the mid-1960's, because of the danger of inadvertent door openings.

Based on his own experiments, Gray concluded that at 30 to 35 miles per hour, the speed of the Fortman jeep at the time of the accident, it would have taken no more than a second from the moment the door became unlatched to when it opened 180 degrees, slapping against the back of the jeep. He said that within a half second a child holding onto the handle when the door opened could be yanked from the car.

In addition to the danger of inadvertent door openings, Gray identified a second danger created by the use of exposed, nonrecessed interior door handles. The use of this kind of handle creates the possibility of a passenger or driver grabbing the handle in an emergency and unlatching the door. Gray concluded that the jeep door was defective for both these reasons.

Gray also testified to the role played by the mold-maker in the manufacturing process. Gray characterized the making of the mold as "the first step" of that process. A fiberglass product, like the door, could not have been manufactured without a fiberglass mold. The mold imparted the exact shape which all subsequent doors would take.

Gray's testimony suggested that Hemco would have been aware of the defective configuration of the door from the outset of its involvement with the project. The Hemco mold was made from a prototype, a mockup giving the appearance of the final product. Gray testified that the prototype would have shown that the design of the jeep top incorporated front-latching doors when Hemco's president, Hill, inspected the prototype. Moreover, the mold itself would have revealed an indentation at the site of the door's lock showing the door to be front latching. Indeed, because of manufacturing considerations, the mold-maker would have to pay special attention to that area of the door. The mold-maker would realize, therefore, that doors cast from this mold would be front latching.

Hemco did not put on any expert testimony. Instead, its case consisted of reading into evidence portions of James Greene's deposition. Greene had no recollection of the role that Hemco had played in the production of the jeep top, ⁵ supporting Hemco's position that its role was insignificant.

At the conclusion of the trial, the jury returned a verdict in which it found Hemco 25 percent liable for Nichole's injuries and her mother, Debra, 75 percent liable. Damages were awarded to Nichole in the amount of $23,742,620 of which $17,742,620 was for economic losses and $6 million for noneconomic losses. Hemco moved for a new trial and judgment notwithstanding the verdict. These motions were denied.

I

Hemco maintains that its involvement with the manufacturing process that resulted in the production of the defectively designed door was insufficient to warrant imposition of strict liability. ⁶ It also challenges the substantiality of the evidence on the liability issue. An overview of the...