Higgins v. General Motors Corp., 85-160

• Decision Date: 02 December 1985
• Docket Number: No. 85-160,85-160
• Citation: 699 S.W.2d 741,287 Ark. 390
• Court: Arkansas Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 10,894 Leonard HIGGINS, Appellant, v. GENERAL MOTORS CORPORATION & Smart Chevrolet Company, Appellees.

Page 741

699 S.W.2d 741

287 Ark. 390, Prod.Liab.Rep. (CCH) P 10,894

Leonard HIGGINS, Appellant, v. GENERAL MOTORS CORPORATION & Smart Chevrolet Company, Appellees.

No. 85-160.

Supreme Court of Arkansas.

Dec. 2, 1985.

Rehearing Denied Jan. 13, 1986.

Gary Eubanks & Associates by Darryl E. Baker and James Gerard Schulze, Little Rock, for appellant.

Barber, McCaskill, Amsler, Jones & Hale, Little Rock, Bridges, Young, Matthews, Holmes & Drake, Pine Bluff, for appellees.

HAYS, Justice.

This products liability suit was brought by Leonard Higgins, appellant, against Smart Chevrolet and General Motors Corporation, appellees. Higgins purchased a 1979 Malibu from Smart Chevrolet on July 3, 1979, and complained that the transmission was faulty. On November 12, 1979, after waiting at an intersection for a traffic light to change, Higgins stepped on the accelerator, and, he said, the car shot across the intersection and onto the median. The car was undamaged but Higgins was taken by an ambulance to a hospital where he was treated. He attributed the unusual behavior of the vehicle to a malfunction in the transmission and brought suit against Smart and General Motors, alleging negligence, breach of warranty and strict liability. At the close of appellant's case the court granted a defense motion for a directed verdict. Appellant brings this appeal, the primary contention being the proof was sufficient to submit the case to the jury.

As there was no proof whatever to establish the negligence theory, we can summarily dispose of that claim. The two elements in dispute at trial were: 1) that a defect in the product existed and 2) that such defect was the proximate cause of the injury. As these two elements of a strict liability case are essentially the same required in a breach of warranty case, we will discuss the evidence in terms of strict liability. See Ark.Stat.Ann. § 85-2-314 and § 85-2-715; § 85-2-318.2 and see E.I. Du Pont Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

A plaintiff is no longer required to prove negligence in a strict liability claim but still must prove the product was defective so as to render it unreasonably dangerous, and that the defect was the cause of the injury. The mere possibility this has occurred is not enough, there must be evidence from which the jury can conclude that it is more probable than not. Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677 (1980).

The difficult problems are those of proof by circumstantial evidence. Strictly speaking, since proof of negligence is not in issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are no less applicable. The plaintiff is not required to eliminate all other possibilities, and need not prove his case beyond a reasonable doubt. It is enough that he establishes a preponderance of probability. In the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product, not attributable to the defendant, and thus creates a reasonable inference that the defendant is responsible for the defect. Southern Co. v. Graham, supra; and see Harrell Motors, Inc. v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981); Mixon v. Chrysler Corp., 281 Ark. 202, 663 S.W.2d 713 (1984).

Proof of a specific defect is not required when common experience teaches the accident would not have occurred in the absence of a defect. The mere fact of an accident, standing alone, does not make out a case that the product is defective, but the addition of other facts tending to show the defect existed before the accident, may be sufficient. Harrell Motors, Inc. v. Flanery, supra.

We note that under appropriate circumstances, a user's testimony alone may be sufficient evidence. See, Prosser, Prosser and Keeton on Torts (5th Ed.1984), § 99, p. 696-697; Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 686 P.2d 925 (1984); Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570, 2 Ill.Dec. 282, 357 N.E.2d 449 (1976); Brownell v. White Motor Co., 260 Or. 251, 490 P.2d 184 (1971).

Here, we are reviewing an order granting a motion for a directed verdict. In that situation we view the evidence most favorably to the party against whom the verdict is directed, including all inferences favorable to him, and if any substantial evidence exists which tends to establish an issue in favor of that party, it is error for the court to take the case from the jury. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).

Appellant presented no direct proof of a defect or of the cause of the accident. He relied on circumstantial evidence, primarily his own testimony. Initially, we could not say that when a car moves suddenly, even swiftly, into an intersection common experience tells us it would not have happened absent a defect. Therefore, we examine the evidence to see to what extent appellant negated other causes of the accident.

Appellant offered proof to negate several possible causes, testifying he was in excellent health prior to the accident, that the weather was good on that day and there had been no misuse or abuse of the car. Our difficulty comes in finding appellant adequately negated any cause of the accident due to driver error or control.

While appellant waited for the light to change at the intersection, some of his attention was focused on the radio as he adjusted the controls. He described an awkward position--leaning forward and turning to the right with his left leg "hung up" under the steering wheel. In response to further questioning appellant stated:

It was because in that small car, I had to scoot the seat way back. My wife drove it and I scoot the seat way back and...