Kroeger v. Ford Motor Co.

• Decision Date: 03 February 1995
• Docket Number: No. S-93-334,S-93-334
• Citation: 527 N.W.2d 178,247 Neb. 323
• Parties: Mertisha KROEGER, Appellant, v. FORD MOTOR COMPANY, Appellee.
• Court: Nebraska Supreme Court

Page 178

527 N.W.2d 178

247 Neb. 323

Mertisha KROEGER, Appellant, v. FORD MOTOR COMPANY, Appellee.

No. S-93-334.

Supreme Court of Nebraska.

Feb. 3, 1995.

Syllabus by the Court

1. Directed Verdict: Appeal and Error. In reviewing the action of a trial court, an appellate court must treat a motion for directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence. In order to sustain a motion for directed verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion from the evidence.

2. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence.

3. Rules of Evidence: Appeal and Error. The admissibility of evidence is reviewed for abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court.

4. Principal and Agent: Compromise and Settlement. Settlement with an agent constitutes settlement with the principal, no matter what the parties may have intended.

5. Circumstantial Evidence: Verdicts. Circumstantial evidence is not sufficient to sustain a verdict depending solely thereon for support, unless the circumstances proved by the evidence are of such a nature and so related to each other that the conclusion reached by the jury is the only one that can fairly and reasonably be drawn therefrom.

6. Circumstantial Evidence. When there is direct evidence sufficient to refute all theories of the cause of damage except the one established solely by circumstantial evidence, there then remains but one inference deducible from the facts under the circumstances, and it is within the province of the trier of fact to make this determination. However, where several inferences are deducible from the facts presented, a plaintiff does not sustain her position by reliance on only the inferences which would entitle her to recover.

7. Circumstantial Evidence: Directed Verdict. A directed verdict is required if more than one conclusion can reasonably be drawn from the circumstantial evidence presented.

8. Rules of Evidence: Hearsay: Records: Words and Phrases. Compilations prepared by private entities at the direction of a federal agency do not constitute the "facts required to be observed and recorded pursuant to a duty imposed by law" contemplated by Neb.Rev.Stat. § 27-803(7) (Reissue 1989).

9. Trial: Expert Witnesses: Appeal and Error. A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.

10. Trial: Expert Witnesses. The soundness of a trial court's decision regarding the admissibility of expert testimony depends upon the qualifications of the witness, the nature of the issue on which the opinion is sought, the foundation laid, and the particular facts of the case.

11. Trial: Expert Witnesses. Expert testimony should not be received if it appears that the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion, and where the opinion is based on facts shown not to be true, the opinion lacks probative value.

James E. Schaefer, of Gallup & Schaefer, for appellant.

William J. Brennan and Joseph A. Jordano, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., and John M. Thomas, for appellee.

HASTINGS, C.J., CAPORALE, FAHRNBRUCH, WRIGHT, and CONNOLLY, JJ.

CONNOLLY, Justice.

Mertisha Kroeger appeals the directed verdict entered against her by the Douglas County District Court in her product liability action against the appellee, Ford Motor Company (Ford). Kroeger's claim arose out of a one-car accident in which she was seriously injured while driving an automobile manufactured by Ford. Kroeger sued Ford under the theories of strict liability, negligence, breach of express warranty, and breach of implied warranty. At the end of Kroeger's case in chief, Ford made a motion for directed verdict, which the trial court sustained. For the reasons stated below, we affirm the trial court's decision.

I. FACTUAL BACKGROUND

1. THE VEHICLE

Kroeger purchased a new 1986 Ford Taurus automobile on January 8, 1986, from Atchley Ford in Omaha. The Taurus was manufactured by the appellee, Ford. Kroeger began experiencing mechanical problems with the vehicle almost immediately. She took the car back to Atchley on several occasions for repairs. After each repair, Kroeger testified, she was assured by Atchley that the car had been repaired, that nothing was wrong with the car when she brought it in, or that whatever she was complaining of either could not be repaired or constituted a regular characteristic of the Ford Taurus.

After 4 months and several repairs by Atchley mechanics, Kroeger began experiencing problems with the power steering belts. Kroeger complained to the mechanics at Atchley that something was cutting or breaking the power steering belts and that when Kroeger executed a right turn in the vehicle, she would have to pull hard on the steering wheel to get it to come back after the turn. Various mechanics at Atchley adjusted and replaced the power steering belts on several occasions. They also replaced the pulley at least twice and attempted to adjust the pulley and align it with the power steering belts. During this period of time, Atchley mechanics also performed numerous other repairs, including aligning the front end and repairing the brakes, catalytic converter, air conditioner, and dashboard lights.

Despite the repeated trips to Atchley, Kroeger continued to experience problems with her car. In October 1986, when the car had been driven approximately 12,000 miles, Kroeger began taking the vehicle to McFayden Ford for service. During the month of October, McFayden's mechanics performed a number of repairs on Kroeger's Ford Taurus, including checking and adjusting various belts and disassembling the steering wheel to service the cruise control.

On November 18, McFayden's mechanics installed a new power steering rack. One of Kroeger's expert witnesses, Roy Burdick, concluded that whoever replaced the steering rack "hadn't finished his job and sent the car out with what I would say [was] faulty workmanship." Burdick believed, among other things, that the mechanics had reassembled the vehicle improperly using air wrenches instead of torque wrenches. He believed that McFayden's mechanics had failed to tighten various bolts and locknuts, creating a dangerous condition.

In late November, the car began making a "clunking" noise under the hood. Kroeger's husband, Robert Kroeger, opened the hood while his brother-in-law turned the steering wheel. Kroeger's husband saw the engine move from side to side. He contacted McFayden, which sent two mechanics, Keith Kruse and Robert Fredlund, to pick up the vehicle. Kruse testified in his deposition that he heard the clunking noise and saw the unusual movement of the engine. The vehicle was taken back to McFayden, where the mechanics tightened some of the bolts and replaced the power steering belts and the pulley.

2. THE CRASH

After driving the Ford Taurus home from the last repair, Kroeger testified, she refused to drive the vehicle again. However, on January 19, 1987, Kroeger agreed to pick up her mother-in-law and take her to a doctor's appointment at Immanuel hospital. Kroeger used the Ford Taurus on that occasion, and it was during the trip to the hospital that the accident in the instant case occurred.

Kroeger picked up her mother-in-law in Blair, Nebraska, and brought her to Omaha. The crash occurred on 72d Street in Omaha as Kroeger was driving toward the hospital. At the point where the accident occurred and in the surrounding area, 72d Street is a four-lane street, with two lanes containing northbound traffic and two lanes containing southbound traffic. Kroeger was traveling southbound on 72d Street in the west (right) lane. As the vehicle approached the hospital, Kroeger began to move toward the east (left) southbound lane so that she could execute a left turn to enter the hospital parking lot. At the point where Kroeger began to move the vehicle into the left lane and where the front left wheel was in the left lane, the steering wheel whipped out of her hands. Kroeger sensed that she had lost control of the vehicle and pressed the brake pedal to the floor. The brake was ineffective.

An eyewitness to the accident, Loyal Bridges, noticed the Kroeger vehicle as he was traveling northbound in the right-hand lane on 72d Street. Bridges testified that his attention was drawn to the Kroeger vehicle because he noticed that Kroeger was moving her hands erratically. Bridges saw the Kroeger vehicle move toward the west curb on 72d Street. Both tires on the passenger side of the Kroeger vehicle climbed up onto the curb. The Ford Taurus traveled a short distance with the passenger side tires over the curb and then came back onto 72d Street and headed toward Bridges' vehicle. Bridges testified that he brought his automobile to a stop because he was unsure where the Kroeger vehicle was going. The Kroeger vehicle reached the left-hand southbound lane of 72d Street near the median, then turned to the right and went over the embankment on the west side of 72d Street. Bridges testified that he radioed his employer and instructed the people there to call for help.

3. THE TRIAL

Kroeger brought the instant action...