Friedman v. General Motors Corp.

• Decision Date: 23 July 1975
• Docket Number: No. 74-760,74-760
• Parties: , 72 O.O.2d 119 FRIEDMAN et al., Appellees, v. GENERAL MOTORS CORPORATION, Appellant.
• Court: Ohio Supreme Court

Page 209

43 Ohio St.2d 209

331 N.E.2d 702, 72 O.O.2d 119

FRIEDMAN et al., Appellees, v. GENERAL MOTORS CORPORATION, Appellant.

No. 74-760.

Supreme Court of Ohio.

July 23, 1975.

Syllabus by the Court

A defect in a manufacturered product existing at the time the product left the manufacturer may be proven by circumstantial evidence.

On May 8, 1967, Mr. and Mrs. Morton Friedman, their son, Sheldon, and their daughter, Susan, were driving east on Lake Road in Lorain County. Their automobile, a 1966 Oldsmobile Toronado, had been purchased some 17 months previously from A. D. Pelunis Oldsmobile, Inc., Lakewood.

As Mr. Friedman drove through the city of Avon Lake, he observed that his gasoline gauge registered near empty. Accordingly, he pulled into a gasoline station on the north side of the highway, stopped behind a Rambler which was being serviced at the forward pump of the gasoline pump island, and, after waiting for a short period, turned off the ignition. Some minutes later, after the Rambler had been serviced, a gasoline attendant instructed Friedman, by work or gesture, to pull ahead to the forward set of pumps.

As Friedman turned on the ignition key and started the engine, the Toronado moved forward. It 'peeled' away from the gasoline pumps, bounced off the Rambler and a telephone pole, careened across the street into a commercial parking lot, and crashed into the steel support posts of a large sign. The front end of the Toronado was heavily damaged. The transmission linkages under the hood were jammed so that the gear selector lever could not be shifted into Neutral, Reverse, or Park. All four occupants of the car sustained injuries.

Thereafter, Friedman, his wife, and his two children filed suit, in the Court of Common Pleas of Cuyahoga County, against General Motors Corporation, manufacturer of the automobile, and A. D. Pelunis Oldsmobile, Inc., which had sold it. The complaint alleges that when Friedman started the automobile at the Sohio station, 'the gear shift selector was actually in Drive position, and the engine should not have started. The engine nevertheless did start, and the car leaped forward, and so startled the driver that he could not regain control before the automobile ran wild * * *.' The complaint alleges further that the collisions which followed '* * * were directly caused by defective mechanisms in the car sold by the defendants; and by the misrepresentations of the defendants that the car could not be started in Drive position.'

The case came to trial in April 1972. Witnesses called by the plaintiffs testified as follows:

Lee Krejci and Ralph Gale, patrolmen for the Avon Lake Police Department, conducted an investigation immediately after the accident. Both were questioned as to prevailing weather conditions, the physical location of the automobiles before and after the accident, and other pertinent data. Krejci testified that neither the garage attendant, nor the driver of the Rambler, mentioned mechanical failure on the part of the Toronado in their accident reports. Krejci admitted that his conclusion as to the cause of the accident, that the gas pedal of the Toronado stuck to the floor, was based solely upon supposition. Gale described the peel marks of the accelerating automobile, their length-85 feet-and stated that they began at the middle of the gasoline pump island.

A. D. Pelunis, President of A. D. Pelunis Oldsmobile, Inc., testified that the 1966 Toronado was delivered to the Friedmans on December 10, 1965. From that date to the date of the accident, no adjustment was made to the neutral start switch, ¹ the gear shift indicator needle, or the transmission linkage. Neither the shift tube itself, the neutral start switch, nor the gear shift indicator, were damaged in the collision. Further, according to Pelunis, no post-accident repairs were made until the automobile had been inspected by representatives of both the plaintiffs and the defendants.

Charles E. English, a metallurgist, testified that he examined the damaged Toronado on two occasions. On May 26, 1967, a Pelunis mechanic connected jumper cables from another car to activate the Toronado's electrical circuits. The gear shift indicator on the damaged auto was in Drive position. English turned the ignition key on the ignition lock a number of times. Twice the starter kicked and the car lurched with a forward-backward vibration as the starter engaged. At this time, the engine would not fire and run because of interference by the crushed radiator grill and fan.

On June 19, 1967, English conducted another investigation. The gear shift indicator was still in Drive. By this time, the radiator grill and engine fan had been removed, and the front end raised onto blocks so as to permit front wheel rotation. On the 29th or 30th try, the automobile started. The front wheels started rotating rapidly, accelerating to 30 miles per hour in five seconds. The acceleration of the front wheels was so rapid, accoring to English, that '* * * in my opinion, if these were on the ground, the car would move forward.'

At all times during his two investigations, English testified, the gear shift indicator on the Toronado remained in Drive position, a position from which it could not be dislodged.

John Isenhath, the service representative of General Motors called as a witness by the plaintiffs, examined the damaged Toronado on August 17 and September 1, 1967. He, too, started the automobile with the gear shift indicator in Drive position. This indicated, according to Isenhath, that the neutral start switch was either in Neutral or Park, regardless of whether such position was reflected on the gear shift indicator. This was true, according to Isenhath, because the only factor which determines whether the ignition key will start the engine is the position of the contracts inside the neutral start switch. If the contacts are in Neutral, even though the transmission gears and gear shift indicator are in Drive, the ignition key will start the car, in which case the front wheels would immediately rotate.

Isenhath was asked:

'Q. All right, so that I have a very clear answer, the adjustments can be made so that the indicator needle is in Drive, the transmission is in Drive, but the neutral safety switch is malaligned, with those conditions so that it allows ignition to take place?

'A. Yes, it could be adjusted that way.

'Q. That could be done, all right, but it is never supposed to be done?

'A. That is correct.

'Q. That is, the factory should make adjustments to this cannot happen, should it not?

'A. That is correct.'

Friedman, his wife Selma, and his son Sheldon, each testified as to their past experience in driving the Toronado, and as to their recollection of the accident. None of the Friedmans had ever attempted to start the Toronado with the gear shift indicator in any position other than Park. None had encountered a problem shifting gears, and each stated that the gear shift indicator was always accurate. Both Mr. Friedman and Sheldon stated that, when Friedman started the automobile in the Sohio station, it began to move rapidly immediately upon ignition. Sheldon stated:

'My father turned on the ignition. The car started at an abrupt speed. It was just like taking off with an airplane. We hit the car in front of us. I think we pushed it off to the left. It was like pushing a toy out of your way.'

Morton Friedman was questioned extensively as to his actions immediately before the accident. According to his testimony, he believed the automobile was in Park. 'I turned my key on the car like I normally do and the car just went off, just like a jet, at such great speed that I felt-I slammed my foot on the brakes and I was hysterical-I mean, in other words, I just got shook up.' Friedman was positive and explicit that at no time after he turned the ignition key did he make a change in the position of, or touch, the gear shift lever. Friedman admitted that although he though he had put his foot on the brake, he could have hit the accelerator at the same time.

Friedman also testified that the Toronado had never been serviced at an independent garage or gasoline station, that only mechanics from Pelunis Oldsmobile had ever worked on it.

During plaintiffs' case-in-chief, their causes of action against A. D. Pelunis Oldsmobile, Inc., were voluntarily dismissed. At the close of plaintiffs' case, a motion by the defendant, General Motors Corp, for a directed verdict was granted. The trial court concluded that '* * * upon the issue of alleged product defect, reasonable minds could come to but one conclusion upon the evidence submitted, that conclusion being adverse to the plaintiffs.'

Upon appeal to the Court of Appeals, the judgment of the Court of Common Pleas was reversed. The journal entry filed by the Court of Appeals stated, in part:

'There was considerable testimony as to the condition of the car after the accident. The car was a 1966 Toronado which is a front wheel drive Oldsmobile manufactured by the defendant, General Motors Co. This testimony was to the effect that the front end was damaged and the transmission connecting rods were crushed against the fire wall. The transmission gears are in a case mounted under the hood at the rear of the engine and to the front to fire wall.

'The driver brings about a change in the position of the transmission gears by his movement of the shift lever which is connected with the transmission gears by means of various parts and their linkages.

'The shift indicator needle which is supposed to tell the driver the position of the transmission gears is mounted where it is visible to the driver and it moves in concert with the movement of the shift lever. However, the indicator does not control the transmission gears and it is itself adjustable separately from any adjustment in or change in position of the transmission gears. It is possible for the indicator needle to be so...