Greenland v. Ford Motor Co., Inc.

• Decision Date: 31 October 1975
• Docket Number: No. 6854,6854
• Citation: 347 A.2d 159,115 N.H. 564
• Parties: Alvin GREENLAND et al. v. FORD MOTOR COMPANY, INC., et al. EAST DERRY GARAGE, INC. v. FORD MOTOR COMPANY, INC.
• Court: New Hampshire Supreme Court

Page 159

347 A.2d 159

115 N.H. 564

Alvin GREENLAND et al. v. FORD MOTOR COMPANY, INC., et al.

EAST DERRY GARAGE, INC. v. FORD MOTOR COMPANY, INC.

No. 6854.

Supreme Court of New Hampshire.

Oct. 31, 1975.

Burns, Bryant, Hinchey, Cox & Shea, Dover (Paul R. Cox, Dover, orally), for plaintiffs.

Devine, Millimet, Stahl & Branch, Manchester (Matthias J. Reynolds, Manchester, orally), for defendant.

Waldeigh, Starr, Peters, Dunn & Kohls and James C. Wheat, Manchester, for East Derry Garage, Inc.

GRIFFITH, Justice.

These are product liability actions brought by the plaintiffs to recover damages for death, personal injuries, property damages and loss of consortium resulting from an accident on October 19, 1966, on Route 101 in Bedford. The initial actions sought recovery from the Ford Motor Company and East Derry Garage, Inc., on the basis of negligence, breach of express and implied warranties, misrepresentation and strict liability. East Derry Garage, Inc., filed a third-part action against Ford Motor Company, seeking indemnity for any judgment rendered against it in the actions of the Greenlands plus reasonable attorney's fees and costs and this was consolidated for trial with the other actions.

Trial by jury began June 5, 1972, at which time the plaintiffs had waived all liability claims against the East Derry Garage except that grounded on strict liability and relied solely on the grounds of negligence and strict liability in their claims against Ford Motor Company. Ford Motor Company initially refused the request of East Derry Garage to assume the defense but did so after five days of trial; the then plaintiffs dismissed their cases against East Derry Garage, Inc. The jury returned verdicts for the defendant Ford Motor Company in all actions. The Trial Court (Morris, J.) reserved and transferred the exceptions of the plaintiffs including those to the denial of their motions for a new trial. The trial court also transferred the exception of East Derry Garage, Inc., to the denial of its motion for reimbursement from Ford Motor Company of its reasonable attorney's fees from June 5, 1972, to June 12, 1972.

Alvin and Helene Greenland, on February 23, 1966, purchased a 1966 Mercury Comet Caliente from the East Derry Garage. The car, which had been briefly used as a salesman's demonstrator, had been sold to the Greenlands as a new car. On October 19, 1966, Helene Greenland was on her way in the car to Milford to pick up her husband, Alvin, who taught school there. In the car with Helene were five-month-old Margie Sue, who died as a result of injuries sustained in the accident, six-year-old Bruce, and three-year-old Eric. It was a very rainy day and as Mrs. Greenland came around a gradual curve at approximately forty to forty-five miles per hour, she skidded, crossed over into oncoming traffic and collided with a two-and-a-half-ton truck coming downhill in the opposite direction. The impact of the collision was so severe that the front end of the Greenland vehicle was sheared off at the firewall. Helene Greenland testified she had no recollection of the accident and the only testimony as to the events preceding the accident came from Mr. Francis Leary, the operator of a vehicle following the Greenland car, and Mr. Joseph Thibeault, the driver of the truck in the collision. Mr. Leary testified the Greenland car skidded without apparent reason and that he saw no application of brakes or change in speed prior to the impact. Mr. Thibeault testified that Mrs. Greenland did not appear to have any trouble operating her car before it suddenly spun out in front of his truck.

The liability claim of the plaintiffs centered on an allegation that the accident was caused by a metallurgical defect in a pin or stud in the ball and socket assembly of the right front wheel. Experts for the plaintiffs testified that in their opinion the stud broke prior to the accident causing the car to go out of control while experts for the defendant testified that the ball stud fractured as a result of the accident.

I.

Plaintiffs excepted to the refusal of the trial court to strike the evidence of Dyer Carroll, an expert for the defendant. Mr. Carroll testified on the performance characteristics of tires and the bald condition of the used tires on the Greenland vehicle. He concluded that they failed to conform to minimum tread standards and were unsafe, particularly under the wet road conditions that prevailed on the day of the accident. In answer to a hypothetical question and over the objection of the plaintiffs he gave as his opinion 'that the automobile skidded out of control and this was the cause of the accident-that this was the result of skidding and loss of control.'

In the course of a lengthy cross-examination of Mr. Carroll, he agreed that he had considered as a possible factor in the accident that there was a good probability that Mrs. Greenland was momentarily distracted by the children in the car. Plaintiffs' counsel moved to strike the testimony of Mr. Carroll on the ground that his opinion was based upon a fact not in evidence, i.e., that Mrs. Greenland was distracted by the children in the car. In support of their exception to the denial of this motion, plaintiffs argue that there was no evidence in the case that this occurred. The witness based his opinion on an inference from the fact that the car was occupied only by the driver and three children aged five months to six years. It does not render an expert's opinion inadmissible for it to be based on inferences from the evidence. Canney v. Travelers Insurance Co., 110 N.H. 304, 266 A.2d 831 (1970); Fitzpatrick v. Company, 101 N.H. 35, 131 A.2d 634 (1957); Massachusetts Mut. Life Ins. Co. v. Brei, 311 F.2d 463 (2d Cir. 1962); Annot., 56 A.L.R.3d, 300, 335 (1974). It was for the jury to determine whether this was a proper inference and '(a)ny discrepancy in the basis for the opinion would affect the weight rather than the admissibility of the evidence.' Canney v. Travelers Insurance Co., 110 N.H. at 307, 266 A.2d at 834 (1970); Great American Ind. Co. v. Roussell, 103 N.H. 125, 130, 166 A.2d 866, 869 (1960). It was pointed out in the Canney case that '(c)ross examination is the recommended method for an opposing party to accurately establish and test the basis of an expert opinion.' 110 N.H. at 307, 266 A.2d at 834 (1970). The plaintiffs' cross-examination of Mr. Carroll effectively probed the basis for his opinion and pointed out any weaknesses in his testimony to the jury.

II.

At the close of all the evidence the trial court, subject to plaintiffs' exceptions, granted the defendant's motion for a directed verdict on the plaintiffs' counts based on negligence. The trial court thus limited the jury's consideration on liability to strict liability in tort. We agree with the plaintiffs that there was evidence that would entitle the jury to consider the negligence count but we do not agree that the limitation of issues to strict liability was in error.

It is clear that a products liability action grounded on strict liability may be joined with an action grounded on negligence (Annot., 52 A.L.R.3d 101 (1973)) and the American Law Institute has recognized that strict liability 'does not preclude liability based upon the alternative ground of negligence of the seller, where such negligence can be proved.' Restatement (Second) of Torts § 402 A, Comment a, at 348 (1965). Whether both issues must be submitted to the jury, however, is dependent upon the facts and circumstances of the case.

Jiminez v. Sears, Roebuck & Company, 4 Cal.3d 379, 93 Cal.Rptr. 769, 482 P.2d 681 (1971), relied upon by the plaintiffs, is an example of when both negligence and strict liability must be submitted. The trial court submitted the case on the sole issue of strict liability and denied a requested instruction on negligence. Following a verdict for the defendant, the trial court granted a motion for a new trial. There was evidence in the case that in addition to the claim based upon strict liability that Sears could be found negligent for not warning that the ladder should not be used on soft ground. Thus the jury could have found the product not defective when sold but found for the plaintiff on the negligence theory.

The present case differs from the Jiminez case in that the sole issue in the case centered around the claimed metallurgical fault in the pin in the ball and socket assembly in the right front wheel. The plaintiffs' evidence on negligence focused on a claimed failure of the Ford Motor Company to utilize proper testing procedures which would have detected the structural weakness.

The jury were properly instructed as requested by the plaintiffs that the burden on the plaintiffs in strict liability was to establish that there was a defect in the car when it left the defendant that rendered the car unreasonably dangerous to user and that the defect was causal to the accident. It should be noted that the plaintiffs in this case did not rely upon a broad claim that defendant's negligent failure to discover the defect by inspecting or testing was ultimately causal of the accident. Instead their requested instructions on negligence, if given, would have added an additional burden to their case...