Kleve v. General Motors Corp.

• Decision Date: 19 September 1973
• Docket Number: No. 55747,55747
• Citation: 210 N.W.2d 568
• Parties: Jean M. KLEVE, Appellant, v. GENERAL MOTORS CORPORATION and Harvey Ben Bjornson d/b/a Bjornson's Pontiac Company, Appellees.
• Court: Iowa Supreme Court

Page 568

210 N.W.2d 568

Jean M. KLEVE, Appellant, v. GENERAL MOTORS CORPORATION and Harvey Ben Bjornson d/b/a Bjornson's Pontiac Company, Appellees.

No. 55747.

Supreme Court of Iowa.

Sept. 19, 1973.

John E. Miller, Baker, Miller & Baker, Humboldt, for appellant.

A. Roger Witke, Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, and James R. Hamilton, Storm Lake, for appellees.

Considered en banc.

RAWLINGS, Justice.

By products liability action plaintiff seeks recovery of damages from defendants resulting from a single car accident allegedly due to a defective steering mechanism. Plaintiff appeals from directed verdict for defendants. We reverse.

In January 1965, plaintiff Jean M. Kleve (Kleve) purchased a new Pontiac from defendant Harvey Ben Bjornson, doing business as Bjornson's Pontiac Company (Bjornson). This automobile had been manufactured by defendant General Motors Corporation (General Motors). March 1, 1967, Kleve left Livermore and headed west toward Humboldt. At a midway point Kleve endeavored to turn his car to the right but something stuck which made the turn impossible. In an attempt to free the steering wheel he tried turning left sharply and then jerking to the right. Kleve was able to turn left but couldn't bring it back because the mechanism had locked. The car resultantly went into a ditch and finally struck some trees. Kleve was injured and the car wrecked.

The record before us reveals that at time of the accident the Pontiac had been driven about 24,000 to 26,000 miles. After purchase by plaintiff the power steering assembly on the vehicle had not been examined, repaired or modified by anyone.

Kleve identified exhibits H--T as power steering valves and controls removed from his wrecked car. These had been previously delivered by him to Robert Hankins for purpose of examination. Plaintiff stated the aforesaid exhibits had at one time been sent to Dr. Wardle at Ames for inspection, but on delivery to Hankins they were in the same condition as when removed from the Pontiac.

Hankins, for 33 years a vehicle mechanic, testified as an expert on Kleve's behalf. Upon completion of his testimony trial court sustained defendants' objections to plaintiff's evidential offer of exhibits H--T.

Subsequently, after plaintiff had rested, trial court also sustained a defense motion to strike all of Hankins' testimony.

Thereafter a directed verdict for defendants was entered pursuant to their motion.

In support of a reversal plaintiff asserts, trial court erred in (1) striking all of Hankins' testimony; (2) holding plaintiff failed to establish existence of any steering mechanism defect was the proximate cause of the accident and resulting damage; (3) holding applicability of the strict liability doctrine had not been established; and (4) sustaining defendants' directed verdict motion.

I. In Hawkeye-Security Insurance Co. v. Ford Motor Co., 174 N.W.2d 672, 684 (Iowa 1970), this court specifically adopted the principles found in Restatement, Second, Torts, § 402A, which provides:

'Special Liability of Seller of Product for Physical Harm to User or Consumer

'(1) 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.

'(2) The rule stated in Subsection (1) applies although

'(a) the seller has exercised all possible care in the preparation and sale of his product, and

'(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

See also Annot., 13 A.L.R.3d 1057, 1066--1070.

II. Elements essential to establishment of a cause of action under the foregoing 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 time of sale; (6) said defect was the proximate cause of personal injuries or property damage suffered by the user or consumer; (7) damages suffered by the user or consumer. See W. Carmichael, 'Strict Liability in Tort--An Explosion in Products Liability Law', 20 Drake L.Rev. 528 (1971). See also Practice Pointers, 13 A.L.R.3d 1057, 1066--1070, citing Emroch, Pleading and Proof in a Strict Products Liability Case, Insurance L.J. 581 (1966).

III. It is further understood the rule of strict liability in tort applies to a retailer as well as the manufacturer of a defective product. See Vandermark v. Ford Motor Company, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168, 171--172 (1964); 63 Am.Jur.2d, Products Liability, §§ 145--148; 86 C.J.S. Torts § 18.1 (Supp. 1972).

IV. Additionally, the phrase 'defective condition unreasonably dangerous to the user or consumer or to his property' found in Restatement, Second, Torts, § 402A means the defect in a product not contemplated by the user or consumer which would be unreasonably dangerous to him in the normal and innocent use or consumption thereof. See Restatement, Second, Torts, § 402A, comment (h); Farr v. Armstrong Rubber Company, 288 Minn. 83, 179 N.W.2d 64, 68--69 (1970); 20 Drake L.Rev. at 541--543. See also Annot., 13 A.L.R.3d 1057, 1077--1080.

Touching on the same subject 63 Am.Jur.2d, Products Liability, § 15, states in part:

'It has been held that proof that when it was put to normal use a product broke, causing injury, evidences the defectiveness of the material from which the product was manufactured. Similarly, it has been said that proof of a specific defect in the product is not an essential element in establishing a cause of action, and that where machinery malfunctions, it obviously lacks fitness, regardless of the cause of the malfunction.'

See also Hunter v. Ford Motor Company, 37 A.D.2d 335, 325 N.Y.S.2d 469, 471 (1971).

It is further understood that under the strict liability in tort doctrine the party placing a defective product in the stream of commerce may be liable regardless of care exercised in the production thereof. Stated otherwise, strict liability in tort is not predicated on negligence. See Restatement, Second, Torts, § 402A, comment (m); Ritter v. Narragansett Electric Company, 109 R.I. 176, 283 A.2d 255, 260--263 (1971); Annot., 13 A.L.R.3d 1057, 1071--1077.

V. Without question the burden was upon plaintiff to prove the Pontiac was defective when it left the seller's hands. Proof of such defect need not, however, necessarily rest upon direct evidence. It can be and is usually established by circumstantial evidence. See Vandermark v. Ford Motor Company, 37 Cal.Rptr. at 898, 391 P.2d at 170; MacDougall v. Ford Motor Company, 214 Pa.Super. 384, 257 A.2d 676, 680 (1969); Barnett v. Ford Motor Co., 463 S.W.2d 33, 35 (Tex.Civ.App.--Waco 1970, no writ), 20 Drake L.Rev. at 544. See also Hunter v. Ford Motor Company, Supra; Annot., 13 A.L.R.3d 1057, 1066.

Proximate cause may also be established in like manner. See MacDougall v. Ford Motor Company, Supra.

With regard to the foregoing, rule 344(f)(16), Iowa R.Civ.P., states:

'An issue may be proven by circumstantial evidence; but this evidence must be such as to make the theory of causation reasonably probable, not merely possible, and more probable than any other theory based on such evidence. Generally, however, it will be for the jury or other trier of the facts to say whether circumstantial evidence meets this test.'

See also Robeson v. Dilts, 170 N.W.2d 408, 414 (Iowa 1969); State Farm Etc. Ins. Co. v. Anderson-Weber, 252 Iowa 1289, 1302, 110 N.W.2d 449 (1961).

VI. Another precept which instantly comes into play is thus stated in Hawkeye-Security Insurance Co. v. Ford Motor Co., 174 N.W.2d at 681:

'We hold age and type of use of a product are relevant factors to be considered in products liability cases of this type but they are relevant factors for the trier of the facts. Only in rare cases, or in absence of other proofs, are they controlling as a matter of law. (Authority cited).'

VII. And DeMoss v. Darwin T. Lynner Construction Co., 159 N.W.2d 463, 469 (Iowa 1968), expresses this basic principle applicable to our review of the instant case:

'In considering a motion for directed verdict * * * we are required to view the evidence in the light most favorable to the party against whom the motion is made. Rule 344(f) 2, Rules of Civil Procedure; True v. Larimore, 255 Iowa 451, 461, 123 N.W.2d 5, 10.'

See also Leasing, Incorporated v. Gage, 199 N.W.2d 43, 44 (Iowa 1972); Schneberger v. Glenn, 176 N.W.2d 782, 784 (Iowa 1970).

VIII. Mindful of the foregoing we look now to the record at hand.

As heretofore revealed the Pontiac which Kleve purchased from the Bjornson agency was a General Motors product. This car had unquestionably been driven some distance prior to the accident here involved within that period of time no one had tampered with the power steering mechanism. Moreover, the vehicle had been used by Kleve in the manner for which it was produced, i.e., as a personal car. While it was being so operated the power steering mechanism locked, the car left the road, Kleve was injured and his Pontiac wrecked.

Furthermore, Kleve testified the steering assembly parts delivered by him to Hankins were in the same condition as when removed from the wrecked car. This identification sufficed since the involved vehicle parts were relatively impervious to change. See State v. Lunsford, 204 N.W.2d 613, 616 (Iowa 1973), and citations. Moreover the aforesaid parts were identified and used by the expert...