Holmquist v. Volkswagen of America, Inc.

Decision Date10 November 1977
Docket NumberNo. 2-59109,2-59109
Citation261 N.W.2d 516
PartiesAugust J. HOLMQUIST, Appellee, v. VOLKSWAGEN OF AMERICA, INC., a corporation, and Gruber, Porsche/Audi, Inc., a corporation, Appellants.
CourtIowa Court of Appeals

Tom Riley, of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for appellee.

Ralph W. Gearhart and Caryl W. Garberson, of Shuttleworth & Ingersoll, Cedar Rapids, for appellant, Volkswagen of America, Inc.

Benjamin W. Blackstock, Cedar Rapids, for appellant, Gruber, Porsche/Audi, Inc.

Heard by ALLBEE, C. J., and DONIELSON, SNELL and OXBERGER, JJ.

SNELL, Judge.

Defendants appeal judgment rendered for plaintiff in the amount of $498,000. A jury found defendants liable for plaintiff's injuries arising out of the manufacture and sale of a defective product. The product was a 1970 Porsche 914 automobile. The case was predicated on the theory of strict liability.

Plaintiff August J. Holmquist was riding as a passenger in the Porsche automobile when it left the road and overturned. The vehicle was being driven by the owner, Judith A. Kilmer. She purchased the car four days earlier from defendant, Gruber, Porsche/Audi, Inc., the authorized dealer for Volkswagen of America, Inc., in Cedar Rapids. Defendant, Volkswagen of America, Inc., manufactured the car. At the time of the accident, the car had been driven 229 miles.

The accident occurred on April 4, 1970, at about 1:50 a. m. The night of the accident Kilmer was a guest at a party hosted by plaintiff at his home in Cedar Rapids. Among the people present were radio announcers from the radio station in Cedar Rapids where plaintiff was employed and their friends. Kilmer invited plaintiff to go for a ride in her new automobile and the two left plaintiff's home between 12:30 and 1:00 a. m. The trip was intended to be short. Kilmer wanted to get home since she had to go to work the next morning. Weather conditions were excellent. The pavement was dry and there was no precipitation.

Kilmer and plaintiff drove several miles through Ellis Park on Ellis Road. She turned the automobile around for the ride back to plaintiff's home. The return trip was made on the same roadway which was designated a County Highway and was surfaced with asphalt.

The road curved slightly to the left on the first leg of an "S" curve, then proceeded a short distance on a straight segment, slightly downgrade, after which it curved sharply to the right. Kilmer drove the car successfully through the first leg of the "S" curve but was unable to maintain the car on the road when it turned to the right. The car went off the left-hand side of the road and overturned. Kilmer and plaintiff were both injured. Plaintiff sustained a broken leg and other injuries. He suffered a loss of blood to the extent he had no blood pressure or pulse on admission to the hospital.

At the time of the accident, plaintiff was a paraplegic, the result of being shot in the back seven years earlier. He was paralyzed below the tenth thoracic vertebra at which level the spinal cord was severed by the gunshot. He was able to get about by use of his wheelchair and a specially equipped car. The injuries received in the automobile accident consisted of multiple fractures of the pelvis and lower right leg. Subsequently it was discovered he had a severed urethra; however, there was dispute whether it occurred in the accident or before. Due to the fractures and complications ensuing from the paralysis, plaintiff's right leg was amputated between the knee and hip. Plaintiff also developed decubitus ulcers which required skin grafting.

Defendants appeal the judgment on the ground their motion for judgment notwithstanding the verdict should have been granted or alternatively, a new trial ordered. The following issues are raised on appeal.

1. Judgment should have been directed in their favor because plaintiff failed to establish a defect in the automobile, and that the alleged defect was a proximate cause of the accident. Further, the recall campaign of defendants was not evidence of a defect or of a proximate cause of the accident.

2. Error was committed by the trial court in refusing to allow testimony by defendants' expert witness, Severy.

3. The verdict of $498,000 was excessive and not supported by the evidence.

4. The trial court abused its discretion in failing to grant defendants a new trial.

I. We consider together the matters relating to directing a verdict or judgment n. o. v. for defendants. The supreme court discussed the theory of strict liability in 1970 in Hawkeye Security Insurance Co. v. Ford Motor Co., 174 N.W.2d 672 (Iowa 1970). In that case the principles found in Restatement (second) of Torts § 402A (1965) were adopted. Liability of the seller of a product for physical harm to the user or consumer is predicated on the proposition that one who sells any product in a defective condition, unreasonably dangerous to the user or consumer, or to his property, is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

The elements essential to establish a cause of action under this standard are: 1) sale of a product by the defendant, 2) the product was in a defective condition, 3) the defective condition was unreasonably dangerous to the user or consumer, 4) the seller was engaged in the business of selling such a product or products, 5) said product was expected to and did reach the user or consumer without substantial change in condition; i. e., the defect existed at the time of sale, 6) said defect was the proximate cause of personal injuries or property damage suffered by the user or consumer, and 7) damages suffered by the user or consumer. See Kleve v. General Motors Corp., 210 N.W.2d 568, 570-71 (Iowa 1973).

The rule of strict liability in tort applies to a retailer as well as to the manufacturer of a defective product. Vandermark v. Ford Motor Co.,61 Cal.2d 256, 37 Cal.Rptr. 896, 899-890, 391 P.2d 168, 171-72 (1964); Kleve v. General Motors Corp., supra. Thus, the doctrine applies to both defendants in the instant case.

Defendants claim the second and sixth elements for proving a strict liability case have not been met by plaintiff. They assert there is insufficient evidence to create a jury question that a defect was present in the Porsche automobile as claimed by plaintiff, and that the defect was the proximate cause of the accident. The defect relied on by plaintiff was in the steering apparatus.

In considering these questions, we view the evidence in the light most favorable to plaintiff. Rule 14(f)(2), Rules of Appellate Procedure. Viewed thusly, a jury could find the following facts: the automobile purchased by Judith Kilmer from defendant Gruber was four days old at the time of the accident and had been driven 229 miles. Kilmer noticed prior to the accident that the steering wheel turned hard and made an unusual clicking sound when the wheel was turned; she had complained to the defendant Gruber about these matters. Another witness, Clair Keyton, drove the car before the accident, observed it steered hard, heard a funny grinding sound and felt a vibration when she turned the steering wheel.

Immediately prior to the accident, when Kilmer was with plaintiff, she had trouble making a "U" turn due to the difficulty with the steering wheel. After making the "U" turn she headed back to Cedar Rapids, traversing a curve to the left. In trying to turn the steering wheel back to negotiate the right turn of an "S" curve, she found it would not turn. This caused her car to leave the roadway and turn over. The speed of the automobile at the time of the accident was between 40 and 45 miles per hour and within the legal limit.

After the accident, an investigator, Lester J. Burianek, tested the steering wheel and found it would stick or bind when turned to the right after being turned as far left as possible. A few days later a mechanic engaged by defendants tightened the retaining bolts on the steering mechanism of the car. Several turns with a torque wrench were made on the bolts. This was done before the car was examined further or road tested. After the bolts were tightened Burianek again tested the steering wheel and found the sticking or binding was gone. A recall letter sent by defendant Gruber to Kilmer which arrived after the accident advised that the retaining bolts for the steering gear should be checked for tightness. Other evidence indicated that under continued driving the retaining bolts may loosen, resulting in a serious impairment of steering control.

Defendants point out that no expert witness on behalf of plaintiff testified as to the claimed defect in the steering mechanism or that the condition of the retaining bolts, even if defective, could have caused the accident. Defendants further assert that the recall campaign is not evidence of any probative value nor does the rest of plaintiff's evidence amount to a quantum of proof sufficient to create a jury issue.

In Kleve v. General Motors Corp., 210 N.W.2d 568 (Iowa 1973), plaintiff alleged that the steering on his automobile was defective and that when he tried to turn the steering wheel to the right, something stuck which made the turn impossible. He attempted to free the steering wheel by turning left sharply and then jerking to the right. He couldn't bring it back because the mechanism locked. The car went into a ditch, plaintiff was injured and the car wrecked. Expert testimony regarding the steering assembly was offered on behalf of plaintiff but was stricken on objection. Thereafter, the trial court sustained a motion for directed verdict. The supreme court noted that while a plaintiff must prove the...

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