Hughes v. American Jawa, Ltd.

• Citation: 529 F.2d 21
• Decision Date: 09 January 1976
• Docket Number: No. 75--1282,75--1282
• Parties: Robert E. HUGHES, Appellant, v. AMERICAN JAWA, LTD., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 21

529 F.2d 21

Robert E. HUGHES, Appellant, v. AMERICAN JAWA, LTD., Appellee.

No. 75--1282.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 3, 1975.

Decided Jan. 9, 1976.

Jerold L. Drake, Grant City, Mo., for appellant.

Wendell E. Koerner, Jr., St. Joseph, Mo., for appellee.

Before GIBSON, Chief Judge, and LAY and ROSS, Circuit Judges.

GIBSON, Chief Judge.

In this removed diversity case, plaintiff, Robert Hughes, appeals from a grant of summary judgment in favor of defendant, American Jawa, Ltd. Plaintiff instituted the present strict tort liability action seeking a $90,000 recovery for injuries sustained in an accident while operating a motorcycle distributed by defendant.

The motorcycle in question is a 1970 Jawa CZ 175cc. It was originally purchased on March 2, 1970, by William Stephenson through defendant's distribution system. In March of 1971 the motorcycle was purchased by plaintiff after it had been driven approximately 1500 miles. After owning the motorcycle for a year and a half plaintiff sold it to his brother, James, with nearly 3000 miles reflected on the odometer. Prior to this time the motorcycle had performed without incident and with no mechanical malfunctions. It had been subjected to normal maintenance service and had not been disassembled in any way.

On September 24, 1972, plaintiff was riding the motorcycle at approximately 50 m.p.h. on a blacktop road near Allendale, Missouri. The rear wheel suddenly locked and the motorcycle skidded for several feet. Plaintiff was thrown off the machine and sustained personal injuries. James Hughes, who was following plaintiff on another motorcycle, observed the rear wheel lock from a vantage point 500 yards behind the plaintiff. When James arrived at the scene of the accident, he attempted to remove the motorcycle from the road. He noticed that the rear wheel was immobile and ascertained that the engine was locked after unsuccessfully attempting to start it. Between 15 and 45 minutes later the engine and wheel became unlocked on their own accord and the motorcycle started and performed properly. The motorcycle was thereafter taken to a motorcycle dealer, who inspected the transmission and rear wheel to determine the cause of the accident. Nothing was found which may have suggested a reason why the engine locked and no repairs were deemed necessary. The motorcycle has been driven approximately 3700 miles since the incident in question and there has been no recurrence of the problem which occasioned plaintiff's accident.

Plaintiff bases his claim on the theory of strict tort liability as codified in § 402A of the Restatement (Second) of Torts. The law of Missouri, which concededly governs in this case, has recognized and adopted the rule of strict liability in tort actions. Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 364 (Mo.1969). To recover in this action, plaintiff must show that defendant sold an unreasonably dangerous, defective product and that the product's condition was not substantially changed before it reached the user. Keener v. Dayton Electric Manufacturing Co., supra at 364. The key issues to be litigated in this case are whether the motorcycle was in fact defective in design or manufacture and, if so, whether such defect caused the accident. Defendant contends that the accident was caused by either improper machine maintenance or lack of due care exercised by plaintiff. Plaintiff alleges that the motorcycle was defective as a result of either faulty design, lack of due care by the manufacturer or use of defective parts in the manufacturing process. The sole issue presented on this appeal is whether the District Court properly granted summary judgment for defendant on the basis that there was no genuine issue as to whether a defect actually existed.

The standards to be applied when a party moves for summary judgment pursuant to Fed.R.Civ.P. 56 have been clearly set forth by the United States Supreme Court:

Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case 'show that (except as to the amount of damages) there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Rule 56(c), Fed.Rules Civ.Proc., 28 U.S.C.A. This rule authorizes summary judgment 'only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, . . . (and where) no genuine issue remains for trial . . . (for) the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.' Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944).

Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962).

Summary judgment is not to be used as a surrogate for a plenary trial and is to be invoked only when 'the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances.' Ozark Milling Co. v. Allied Mills, Inc., 480 F.2d 1014, 1015 (8th Cir. 1973). In making this determination all permissible inferences which may be drawn from the facts presented 'must be viewed in the light most favorable to the party opposing the motion.' United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); accord, Klinge v. Lutheran Charities Association, 523 F.2d 56, 61--62 (8th Cir. 1975).

Since tort actions generally encompass a multitude of factual issues and abstract concepts that become elusive when applied to varying concrete factual situations, such actions are usually not appropriate for disposition by summary judgment. Williams v. Chick, 373 F.2d 330, 332 (8th Cir. 1967); 6 Moore's Federal Practice P56.17(42) (1975); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2729 (1973); see Dombrowski v. Eastland, 387 U.S. 82, 84, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). However, there may be rare and extraordinary tort cases in which the nonmoving party could not prevail under any discernible circumstances, and in these instances summary judgment may be appropriate. Brown v. Gamm, 525 F.2d 60 (8th Cir. 1975). We must therefore review the record to determine whether this particular case is a proper one for summary judgment.

Since the plaintiff has not plead and could not recover on a res ipsa loquitur theory in this case, he must present evidence showing something more than the mere occurrence of the accident and defendant's responsibility in placing the motorcycle in the public domain. Plaintiff is required in this strict tort liability action to present sufficient evidence, either circumstantial or direct, to give rise to an inference that a defect existed in the motorcycle at the time it was originally sold by the defendant and that such defect caused the incident precipitating plaintiff's injury. Williams v. Ford Motor Co., 494 S.W.2d 678, 681 (Mo.Ct.App.1973).

The only evidence presented by plaintiff beyond the fact of the accident itself was in the form of a deposition of Dr. William S. Gatley, a professor of mechanical engineering at the University of Missouri at Rolla. Pursuant to a hypothetical question wherein it was assumed that the motorcycle was properly maintained and lubricated, Dr. Gatley was asked what might cause the motorcycle's rear wheel to lock under the circumstances of plaintiff's accident. Dr. Gatley responded that it was reasonable to assume that the engine locked because 'excessive friction' caused the piston to expand more rapidly than the cylinder. The piston would eventually reach zero clearance and would be incapable of moving within the cylinder. Dr. Gatley contended that three factors could contribute to the creation of sufficient 'excessive friction' to cause a piston seizure: (1) the piston was too large or the cylinder was too small; (2) the conditions under which the motorcycle was being operated could generate excessive heat in the engine; (3) a marginal lubrication system could cause insufficient oil to reach the critical operational areas of the engine. Based upon the circumstances of the accident, Dr. Gatley gave his opinion that the motorcycle was defective either in design or manufacture.

Plaintiff contends that this evidence is sufficient to create a factual dispute as to whether or not the motorcycle was defective. Defendant alleges that Dr. Gatley's deposition, when considered in light of all the circumstances, is based on pure speculation and lacks sufficient probative weight to lend any viability to plaintiff's theory of the case. It appears that Dr. Gatley's opinion is somewhat conjectural and abstract. Also, in view...