Kaitz v. Foreign Motors, Inc., 86-1086

• Decision Date: 26 February 1988
• Docket Number: No. 86-1086,86-1086
• Citation: 516 N.E.2d 1198,25 Mass.App.Ct. 198
• Parties: Charlotte KAITZ et al. 1 v. FOREIGN MOTORS, INC., et al. 2
• Court: Appeals Court of Massachusetts

Page 1198

516 N.E.2d 1198

25 Mass.App.Ct. 198

Charlotte KAITZ et al. ¹ v. FOREIGN MOTORS, INC., et al. ²

No. 86-1086.

Appeals Court of Massachusetts,

Suffolk.

Argued June 11, 1987.

Decided Dec. 24, 1987.

Further Appellate Review Denied Feb. 26, 1988.

Robert Cohen (Gerard J. Powers, Boston, with him), for plaintiffs.

Mark S. Granger, Boston, for Foreign Motors, Inc.

Keith C. Long, for BMW of North America, Inc.

Before ARMSTRONG, PERRETTA and FINE, JJ.

ARMSTRONG, Justice.

The plaintiffs' action (for personal injury, property damage, and loss of consortium) was dismissed on the defendants' motions for summary judgment. The action stemmed from an automobile accident that occurred on July 31, 1980, in the outdoor parking lot of Foreign Motors, Inc., an auto dealership. Mrs. Kaitz had brought her seventeen month old BMW in that morning for a routine, 12,500 mile servicing. The car had been running perfectly up to that time. In the late afternoon the plaintiffs returned and found the serviced BMW in the parking area. Mrs. Kaitz entered the car, turned the ignition key, and, according to her deposition, shifted into drive (the car had automatic transmission) keeping her foot on the brake at all times. The engine raced, the car moved forward, and the harder she pushed the brake the faster the car went. To avoid hitting bystanders, she drove her car into a parked Mercedes and thereby brought her vehicle to a halt.

Two months after the accident, the defendant BMW of North America, Inc. (BMW), issued a recall notice for the model car driven by Mrs. Kaitz. The notice called for the replacement of damper sleeves which cover two of the three springs located on the throttle linkage system. The purpose of the springs is to return the throttle to the idle position after the accelerator is released. The recall notice indicated that under certain conditions--a hot engine coupled with very high environmental temperatures--the damper sleeves can become deformed and impede the operation of the springs. The effect would be to reduce the rate of deceleration. The Kaitzes received the recall notice in November, 1980, several months after the accident, and did not have the damper sleeves replaced with the new ones until June, 1981.

The depositions and affidavits of the Foreign Motors employees were to the effect that the servicing was uneventful--it involved checking the accelerator mechanism and brakes (which received new pads), the car performed perfectly during a test drive after the servicing, and the BMW was still performing perfectly mechanically after the collision. There is no direct evidence that any work was done to the BMW after the collision other than body work. There was no recurrence of the problem after the collision.

The judge did not err in granting summary judgment for the defendants on the counts for breach of warranty of merchantability (against Foreign Motors) and for negligent design and manufacture (against BMW). The standard on a motion for summary judgment is for most purposes identical to that applied to a motion for a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). See Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 873 n. 1, 880, 330 N.E.2d 161 (1975) (Quirico, J., concurring in part and dissenting in part); Fortune v. National Cash Register Co., 373 Mass. 96, 97 n. 1, 364 N.E.2d 1251 (1977). See also Smith & Zobel, Rules Practice, § 56.1 at 348 (1977).

The breach of warranty and negligent design counts were predicated on the existence of a defect, said to be the damper sleeves that were the subject of the later recall notice. On the depositions and answers to interrogatories that were before the judge on the motion, it was clear that there was no evidence to support the plaintiffs' contention that the accident was the result of defective damper sleeves. The only direct evidence on the point was the testimony of two Foreign Motors employees, a mechanic and the service manager, both of whom stated that the throttle linkage was operating perfectly both before and after the accident. This testimony was self-serving and could be disbelieved, but disbelief would not be evidence from which the contrary could properly be found. Commonwealth v. Michaud, 389 Mass. 491, 498, 451 N.E.2d 396 (1983). Palmer v. Palmer, 23 Mass.App.Ct. 245, 251 n. 5, 500 N.E.2d 1354 (1986). No inference could be drawn from the accident's having happened precisely as it would if the damper sleeves became deformed, because the evidence did not support such a premise. The depositions of Mrs. Kaitz and the service manager agreed that the engine idled properly before the accident. Mrs. Kaitz was insistent on the sequence. It was only when she shifted into drive that the engine roared out of control. Her foot never left the brake. It never touched the accelerator. BMW's recall letter and the service bulletin to dealers described only one result of the deforming of the damper sleeves: a retarded deceleration, caused by the sleeves' interference with the return action of two of the three throttle springs. There was no evidence that the problem could occur if the accelerator had not been engaged. The only other evidence bearing on the point supports the defendants: namely, the evidence that the damper sleeves were not replaced until June, 1981, nearly a year after the accident, and after some eight or nine months of post-accident, trouble-free operation. The plaintiffs' inability to produce an expert witness ³ forecloses the possibility of their showing that defective damper sleeves...