International Harvester Co. v. Chiarello

• Decision Date: 09 September 1976
• Docket Number: No. 1,CA-CIV,1
• Citation: 27 Ariz.App. 411,555 P.2d 670
• Parties: INTERNATIONAL HARVESTER COMPANY, a Delaware Corporation, Appellant, v. Joseph CHIARELLO and Lavinia Chiarello, husband and wife, Appellees. 2876.
• Court: Arizona Court of Appeals

Page 670

555 P.2d 670

27 Ariz.App. 411

INTERNATIONAL HARVESTER COMPANY, a Delaware Corporation, Appellant, v. Joseph CHIARELLO and Lavinia Chiarello, husband and wife, Appellees.

No. 1 CA-CIV 2876.

Court of Appeals of Arizona, Division 1, Department B.

Sept. 9, 1976.

Rehearing Denied Oct. 6, 1976.

Petition for Review Denied Oct. 26, 1976.

Snell & Wilmer by Warren E. Platt and Charles K. Ayers, Phoenix, for appellant

Kenneth Rosengren, Phoenix, for appellees.

OPINION

SCHROEDER, Judge.

This is an appeal from a judgment upon a jury verdict in a products liability case involving allegedly defective brakes. The major issue concerns whether the plaintiffs presented sufficient evidence to submit the question of the manufacturer's liability to the jury.

The case arises out of a head-on collision. One vehicle was occupied by plaintiffs-appellees, Joseph Chiarello and Lavinia Chiarello. The other vehicle, a Travelall manufactured by appellant, International Harvester Company, was driven by Bernes Sanderson. Plaintiffs instituted this action against International Harvester, Sanderson, and Powells International, Inc., a company which had performed work on the Travelall prior to the accident. The court entered a directed verdict in favor of Powells at the close of plaintiffs' case; the jury returned a verdict in favor of Sanderson and no appeals have been taken from these actions. The jury returned a verdict in favor of plaintiff Joseph Chiarello in sum of $71,750, and in favor of plaintiff Lavinia Chiarello in the amount of $30,750 against International Harvester. International Harvester appeals.

The accident occurred in March of 1972. Mr. Sanderson was driving his Travelall in a westerly direction on Shea Boulevard, a two-lane road, at approximately 52 miles per hour, when an unidentified vehicle suddenly stopped in front of him, causing Sanderson to attempt an emergency stop. The Travelall veered to the left, into the path of oncoming traffic, and struck plaintiffs' car almost head-on, injuring both of the plaintiffs.

After the accident, the Travelall, at the request of Sanderson's insurance company, was removed to a body shop where it was inspected by Clarence 'Lefty' Allen. Allen removed and disassembled the brake master cylinder, and testified that he observed 'aluminum-like chips' in both the upper and lower chambers of the cylinder. At trial he testified that in his opinion, the presence of those chips in the master cylinder mechanism would cause loss of pressure to the braking system, resulting in the veering to the left experienced by Sanderson at the time of the accident. He was also of the opinion that, because of the size of the chips and their presence in both the upper and lower chambers of the cylinder, they could not have been introduced into the cylinder by the addition of brake fluid into the upper chamber. Another expert witness, who had not actually observed the chips, expressed similar opinions on direct examination.

The evidence further showed that at the time of the accident, the Travelall had been driven fewer than 7,000 miles and had been purchased new approximately five months before the accident. A few days after the purchase, Sanderson took the vehicle to Butch's Standard Service Station, at International Falls, Minnesota, to have an auxilliary trailer brake line installed. This operation involved the removal of one of the brake lines leading to the lower chamber of the master cylinder, the insertion of a T-connection for the auxiliary line, and then refilling the upper chamber of the master cylinder with brake fluid. Mr. Sanderson provided copper tubing which Butch's used to replace the brake line. This tubing proved deficient, however, and a few days later Sanderson took the vehicle back to the seller, Scubic Brothers, in Virginia, Minnesota, to have the copper tubing removed and replaced with steel flexline. This operation also necessitated tapping the lower chamber to add the flexline, and refilling lost fluid to the upper chamber.

While other mechanics and dealers apparently worked on the braking system at one time or another, the operations by Butch's and Scubic Brothers appear to have been the only work directly related to the master cylinder from the time of manufacture to the time of the accident.

Although at trial the question of the existence of the chips was hotly contested, the parties are now in agreement that the evidence on that score was sufficient to present the case to the jury, and that the actual dispute has been resolved by the jury's verdict.

The contentions in this appeal center upon the source of the chips, and relate principally to whether plaintiffs introduced sufficient, competent evidence on which the jury could base a conclusion that the chips were introduced during manufacture, rather than during subsequent work on the braking system performed by Scubic Brothers or Butch's.

Plaintiffs introduced no evidence concerning the precise techniques, equipment, brake fluid, or parts used by Butch's and Scubic Brothers. Plaintiffs' experts were permitted to testify generally concerning the manner in which an auxiliary trailer brake line is installed, and how removal of copper tubing and substitution of a flexline would be accomplished. In addition, the deposition of an employee of Scubic Brothers was read into the record and the deposition also described the nature of the work done by Scubic Brothers and Butch's.

Over appellant's objection, plaintiffs' experts were asked by plaintiff's counsel a hypothetical question in which they were to assume that the work performed by Butch's and Scubic Brothers was 'within the boundaries of ordinary, acceptable practices,' and that it in essence was done by competent, qualified dealers using satisfactory equipment. Appellant contends that the hypotheticals were improper and require reversal because they assumed facts not in evidence, I.e., the competency and standard work of Butch's and Scubic Brothers.

We fully recognize that where experts' opinions are predicated on hypothetical situations, the facts assumed in the hypothetical must be supported by evidence before the court. See Udall, Arizona Law of Evidence § 24 (1960). Where, an expert's opinion is predicated upon facts not in evidence, the opinion is improper evidence. Alires v. Southern Pacific Company, 93 Ariz. 97, 373 P.2d 913 (1963); Carrizoza v. Zahn, 21 Ariz.App. 94, 515 P.2d 1192 (1973).

In this case, there was no evidence concerning the competency and standard of work done by Scubic Brothers and Butch's. However, upon our careful review of the testimony of the two experts questioned, we conclude that their opinions were not based upon any facts improperly assumed in the question. The questioned assumptions were not material to the experts' opinions. A thorough reading of both experts' testimony demonstrates that they were knowledgeable as to the operations performed in installing an auxiliary trailer brake line. It was their opinion that regardless of the competency of the installer or the quality of the materials used, the installations performed by Butch's and Scubic Brothers would not have caused introduction of 'aluminum-like' chips into the braking system. This is because, as Mr. Allen testified, the chips observed were in both chambers of the cylinder. As one of the experts specifically explained, this would not have occurred after manufacture unless the master brake cylinder was disassembled. No such disassembly occurred. We, therefore, find no reversible error in connection with the experts' testimony in response to the hypotheticals. ¹

Appellant's next contention is that even on the basis of all of the admitted evidence, International Harvester should have been granted a directed verdict because the plaintiffs failed to establish a prima facie case of strict liability in tort against the manufacturer.

Arizona has adopted the principle of strict liability as embodied in Restatement (Second) of Torts § 402A (1965). See, e.g., Tucson Industries, Inc. v. Schwartz, 108 Ariz. 464, 501 P.2d 936 (1972); Reader v. General Motors Corp., 107 Ariz. 149, 483 P.2d 1388 (1971); O S. Stapley Company v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968). Although this principle is stated in terms of liability of the seller, the parties here agree that it is equally applicable in this case to the liability of the manufacturer. That section requires, among other things, that the plaintiffs establish a prima facie case that the product was defective when sold and that it reached the user 'without substantial change in the condition in which it is sold.'

Our courts have recognized that a plaintiff will seldom be able to produce a witness able to testify from personal knowledge that a product was defective when manufactured or sold, and that circumstantial evidence may be relied upon. Reader v. General Motors Corp., supra; Bailey v. Montgomery Ward and Company, 6 Ariz.App. 213, 431 P.2d 108 (1967). Our Supreme Court has stated that, 'A reasonable inference that a product was sold in a defective condition may be created by evidence negating other causes of such condition for which the seller would not be responsible. See Jakubowski v. Minnesota Mining and Manufacturing, 42 N.J. 177, 199 A.2d 826 (1964).' Reader v. General Motors Corp., supra, 107 Ariz. at 155, 483 P.2d at 1394. See also Annot. 54 A.L.R.3d 1079, Products Liability--Existence of Defect.

Reader involved an improperly attached speedometer cable. There was evidence indicating that none of the services performed following sale of the vehicle required contact with the cable. The court held that the questions of whether the system was improperly designed or whether the defect was the responsibility of the dealer prior to sale were for the jury. Other Arizona cases requiring the jury to resolve the issue of liability include Davidson v. Wee, 5 Ariz.App. 187, 424 P.2d 835 (1967); Bailey v. Montgomery Ward...