Hasson v. Ford Motor Co., LINCOLN-MERCUR

Citation564 P.2d 857,138 Cal.Rptr. 705,19 Cal.3d 530
Decision Date31 May 1977
CourtUnited States State Supreme Court (California)
Parties, 564 P.2d 857, 99 A.L.R.3d 158 James HASSON, a Minor, etc., et al., Plaintiffs and Appellants, v. FORD MOTOR COMPANY et al., Defendants and Appellants. Dennis A. SAVAGE, a Minor, etc., et al., Plaintiffs and Appellants, v. BEVERLY, et al., Defendants and Appellants. L.A. 30536

Page 705

138 Cal.Rptr. 705
19 Cal.3d 530, 564 P.2d 857, 99 A.L.R.3d 158
James HASSON, a Minor, etc., et al., Plaintiffs and Appellants,
FORD MOTOR COMPANY et al., Defendants and Appellants.
Dennis A. SAVAGE, a Minor, etc., et al., Plaintiffs and Appellants,
BEVERLY LINCOLN-MERCURY, INC., et al., Defendants and Appellants.
L.A. 30536.
Supreme Court of California
May 31, 1977.

[19 Cal.3d 535]

Page 709

[564 P.2d 861] Harney, Bambic & Moore and David M. Harney, Los Angeles, for plaintiffs and appellants.

Dryden, Harrington & Swartz, Richard A. Foxx, Peter Abrahams, Waters, McCluskey & Corcoran and Laurence R. Corcoran, Los Angeles, for defendants and appellants.

[19 Cal.3d 536] RICHARDSON, Justice.

In these consolidated products liability actions, defendant Ford Motor Company (Ford) appeals from a judgment following a jury verdict favorable to plaintiffs. Plaintiffs appeal from a judgment notwithstanding the verdict in favor of defendant Beverly Lincoln-Mercury, Inc. (Beverly), and Beverly maintains a protective appeal of the jury verdict against it. We consider among other questions (1) whether a general verdict was fatally inconsistent with a special finding of the jury, and (2) whether error occurred in the failure of the trial court to instruct the jury on the issue of contributory negligence. As to all plaintiffs except James Hasson (hereinafter James), suing through his father and guardian ad litem Jack Hasson (hereinafter Hasson), we will affirm the judgment against Ford and reinstate the jury verdict against Beverly. However, since we will conclude that the trial court erred prejudicially in declining to instruct the jury on the possible contributory negligence of James, we reverse the judgment as to him.

In the early evening of July 19, 1970, James, a 19-year-old first-year college student, was driving a 1966 Lincoln Continental automobile owned by his father Hasson. Four other young people were passengers in the car. As the vehicle descended the steep grade of Mt. Olympus Drive in Los Angeles the brakes failed and the car crashed into a fountain. James suffered permanent brain damage and other serious injuries resulting in permanent total disability. The other passengers were not seriously hurt.

Defendant Ford manufactured the vehicle. Defendant Johnson and Son (Johnson) was its original retail seller, Hasson having later purchased it as a used car from a third party, and defendant Beverly last serviced the vehicle before the accident. James, through his guardian ad litem, and all of the other occupants of the car sued for their injuries. Hasson sought separate reimbursement for medical expenses incurred on James' behalf. Causes of action in both strict liability and negligence were alleged against each of the defendants. The strict

Page 710

[564 P.2d 862] liability theory was ultimately not pursued against Beverly.

The underlying theory of the complaint was that the accident and the resultant--injuries had been caused by a brake failure resulting from a heat-induced vaporization of the brake fluid. Plaintiffs' principal charging allegations were that Ford, in manufacturing the vehicle, had improperly installed a brake fluid the vaporization temperature of which [19 Cal.3d 537] lowered dangerously in use; failed to warn dealers of the need to replace the fluid periodically; improperly designed the braking system so as to permit excessive heat transference to the fluid; and failed to provide a back-up braking system (the so-called 'dual master cylinder' design). The claim against Beverly was founded on allegations that Beverly was negligent in failing to replace to fluid when it serviced the car.

At trial plaintiffs relied primarily on the testimony of three expert witnesses to establish both the cause of the accident and defendants' responsibility therefor. These witnesses based their conclusions upon several factors including the apparent circumstances of the mishap, a laboratory analysis of the brake fluid in the Hasson car, their examination of components of the vehicle's braking system, the results of braking tests administered to another 1966 Continental, and the experts' evaluation of the car's brake system design.

No brake difficulties had been experienced with the Hasson vehicle within recent years. Trial testimony revealed that before James and his friends began their ride the car had not been driven for several hours, but at the time of the accident it had been operated for approximately one-half hour in moderately heavy suburban traffic. It had stopped or slowed several times in traffic, on downgrades, and at scenic overlooks. The passengers testified that the vehicle's speed during this period had never exceeded 40 miles per hour and was usually slower. The general temperature of the air was in the eighties. According to all of the passengers, James attempted to slow the vehicle as it proceeded down Mt. Olympus, but without advance warning the pressing of the brake pedal to the floor did not reduce the car's speed. James then tried to use the emergency brake and to shift the car into reverse to slow it, but these measures were also wholly ineffective.

Two investigating officers tested the brake pedal within 45 minutes after the accident and both of them found application of force to the brake pedal resulted in firm and normal pressure. No skid marks were found.

Testimony of the experts on both sides focused on the nature of the vehicle's brake fluid. The boiling point of the fluid initially installed by Ford in 1966 Lincoln Continentals was 550 F. Containers of this fluid carried a waring from Ford that use in the 1966 Lincoln of Fluids composed of chemical formulae different from that first used in the car could result in brake failure because of variances in the boiling point of [19 Cal.3d 538] various liquids. Ford representatives testified that the high initial boiling point of the factory-installed fluid was desirable for safety reasons.

Examinations of the particular brake fluid removed from the Hasson vehicle after the accident revealed that it was 'hygroscopic'--that is, in use, it readily absorbed contaminants such as water vapor. This contamination of the fluid caused a progressive reduction of the temperature at which it boiled and vaporized. These tests, unchallenged by defendants, also disclosed that the fluid was dark in color, further indicating the presence of impurities, and that the liquid's boiling point had fallen to approximately 300 F. This corresponded to a vaporization point of 275 F. to 280 F. Further, the fluid was found to contain approximately 5.1 percent water. This degree of contamination could produce a vaporization point as low as 248 F.

All expert witnesses agreed that the boiling point of the brake fluid initially installed in the Hasson car would have been sufficient to prevent vaporization under the conditions encountered by the vehicle and that the general brake system was safe for normal operation if the original factory-recommended

Page 711

[564 P.2d 863] fluid was used. There was no evidence that Ford ever specifically warned either dealers or customers that a failure to replace the brake fluid periodically might cause brake malfunctions.

Both Ford and Beverly denied fault and contended, alternatively, that no brake failure had occurred, or that if one had occurred, that it was due to James' sole or contributory negligence. Defendants relied primarily on the conclusions of Ford's experts, based upon their examination of the Hasson vehicle's braking system and the results of various experimental tests conducted by them.

The jury found against all defendants except Johnson and awarded damages totalling $1,123,840.04. The trial court denied Ford's alternative motions for judgment notwithstanding the verdict or new trial but granted a judgment notwithstanding the verdict for Beverly.

We consider the issues.

1. Inconsistent Verdicts

Code of Civil Procedure section 625 provides: 'In all cases the court may direct the jury to find a special verdict in writing, upon all, or any of the issues, and in all cases may instruct them, if they render a general [19 Cal.3d 539] verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. . . . Where a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly.' (Italics added.)

Pursuant to section 625, and over the objections of all parties, the trial court submitted special interrogatories to the jury. Among them were the following:

'1. In these cases, were any of the following defendants negligent?

a. Ford Motor Company: Yes____ No____

b. Johnson & Sons: Yes____ No____

c. Beverly Lincoln: Yes____ No____

'2. If nine or more jurors voted Yes to interrogatory Number 1 as to any defendant, with respect to that defendant was any such negligence a proximate cause of injury and damage to the plaintiffs? (Yes--No alternative repeated for each defendant.)

'3. Was there a defect in the 1966 Lincoln Continental automobile involved in the accident of July 19, 1970, existing at the time it was manufactured and sold by defendants Ford and Johnson & Sons?

Yes _ _ No _ _

'4. If nine or more jurors voted Yes to interrogatory Number 3, was such defect a proximate cause of injury and damage to the plaintiffs?

Yes _ _ No _ _'

In response to interrogatory No. 1, the jury voted nine to three that both Ford and Beverly had been negligent, but unanimously found that Johnson had not been negligent. Interrogatory No. 2, relating to proximate cause, was answered in the affirmative by a similar nine to three vote. As to interrogatory No. 3, however, 11 jurors voted that there had been no 'defect' in the Hasson vehicle 'at the time it was manufactured and sold.'

[19 Cal.3d 540] Ford perceives an inconsistency between the special finding of 'no defect,' at the...

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