Krueger v. General Motors Corp., 89-024
| Citation | 46 St.Rep. 2114,783 P.2d 1340,240 Mont. 266 |
| Decision Date | 18 December 1989 |
| Docket Number | No. 89-024,89-024 |
| Parties | , Prod.Liab.Rep.(CCH)P 12,355 Andrew KRUEGER and Suzanne Krueger, Plaintiffs and Respondents, v. GENERAL MOTORS CORPORATION, a Delaware Corporation, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
Curtis G. Thompson, Jardine, Stephenson, Blewett & Weaver, Great Falls, Richard A. Bowman (argued), Kent B. Hanson and Kim M. Schmid, Bowman & Brooke, Minneapolis, Minn., for defendant and appellant.
Dennis Patrick Conner (argued), Great Falls, Erik B. Thueson, Helena, for plaintiffs and respondents.
This is an appeal from a jury verdict and judgment of the Eighth Judicial District, Cascade County, awarding general and special compensatory damages in a products liability case. Defendant General Motors Corporation [GM] appeals an award of the District Court of the Eighth Judicial District, Cascade County awarding the plaintiff Andrew Krueger (Krueger) damages in the sum of $1,293,430.00. The District Court found that GM's failure to warn regarding a defectively designed full-time four wheel drive transfer case was the proximate cause of plaintiff's injuries. We affirm.
GM raises the following issues and specifications of error on appeal:
1) Did the District Court err in excluding evidence of videotaped tests conducted by the defendant's expert witness regarding the response of various types of transfer cases under conditions similar to the accident in question?
2) Did the District Court err in admitting evidence of other incidents involving the sudden rolling of vehicles equipped with the New Process Model 203 transfer case?
3) Did the District Court err in excluding evidence of plaintiff's prior drug convictions and alleged habitual drug use on the issue of plaintiff's life expectancy?
4) Did the District Court err in instructing the jury regarding the affirmative defense of assumption of the risk in products liability litigation?
5) Is there substantial evidence in the record to support the District Court's finding that GM's failure to warn was a proximate cause of Andrew Krueger's injuries?
6) Did the District Court err in admitting into evidence hearsay testimony and allowing plaintiff's arguments alleged by defendant to be based on hearsay statements?
7) Did the District Court err in overruling defendants objections to plaintiff's closing arguments requesting the jury to "send a message" to GM when punitive damages were not an issue in the case?
On February 17, 1983 Krueger experienced problems with the universal joint on the front drive shaft of a 1976 General Motors Chevrolet full-time four wheel drive pickup that he had borrowed from a friend. He drove the pickup to the Pit Stop, an auto repair shop in Great Falls owned by a friend, where he planned to remove the shaft and leave it for repairs.
Krueger parked the truck on the sloping driveway outside the Pit Stop (approximately 5 1/2?) and with the vehicle engaged in park proceeded to remove the front drive shaft. When Krueger disconnected the shaft the pickup began to roll down the slope of the driveway. The back of Krueger's head got caught in the front differential and was pulled forward on to his chest as the truck rolled over him. The accident broke Krueger's neck and severely damaged his spinal cord, rendering Krueger a quadriplegic.
Prior to 1973, all GM four wheel drive vehicles were equipped with conventional transfer cases; with such transfer cases the rear drive shaft remains locked when the vehicle is in "park." This is necessary because with a conventional transfer case disengaged and the wheel hubs unlocked, as they normally would be on dry pavement, the vehicle is essentially a two wheel drive vehicle and would roll unless the rear drive shaft was locked.
The pickup involved in this accident was equipped with a New Process Model 203 full-time four wheel drive transfer case, used in GM models with automatic transmissions from the years 1973 to 1979. On these vehicles, the "park" gear locks the power output shaft leading from the engine to the transfer case, to which the front and rear drive shafts are then connected.
Because of cornering problems where the outer wheel must rotate faster than the wheels on the inside of the corner, a differential is needed to compensate for these two different rotation speeds. A differential makes this compensation by applying the engine's driving force through the path of least resistance. In a full-time four wheel drive vehicle, a third inter-axial differential, located in the transfer case, is needed to compensate for the difference in cornering speeds between the front and rear wheels. When either of the drive shafts is disconnected on a full-time four wheel drive, this inter-axial differential applies the locking force of the "park" gear through the path of least resistance to the drive shaft that is no longer connected, this allows all the vehicle's wheels, including those on the still connected axle and drive shaft, to roll freely. Thus, a vehicle equipped with a New Process Model 203 transfer case and engaged in "park" will begin to roll when a single drive shaft is removed or a single wheel is jacked off the ground. The only way to prevent this motion is to first engage the vehicle in "park" and then in four wheel drive "lock." Engaging "lock" on a full-time four wheel drive is similar to engaging the transfer case and locking the hubs on a conventional four wheel drive. It locks all wheels so they will turn at the same speed regardless of cornering distances, eliminating the function of the differential, and thus no one portion of the drive train can become a path of least resistance.
As one can see, there is a great difference in the effect of putting a full-time versus a conventional four wheel drive pickup in park when the front drive shaft is disconnected. In the conventional models, "park" locked the rear drive shaft and that is all that had to be done. But in a vehicle equipped with the New Process Model 203 one had to place the transmission in "park" and also engage the transfer case in "lock," locking all four wheels and insuring that the vehicle was completely immobilized.
During his service in the military, Krueger gained considerable experience and knowledge regarding the operation and repair of conventional four wheel drive vehicles. Krueger had also been employed as a drive line specialist for Glacier Motors in Cut Bank, Montana. During that time he built and repaired approximately 500 drive lines. Krueger's knowledge or lack thereof of the dangers in removing the front drive shaft on a full-time four wheel drive equipped with the New Process Model 203 and whether GM provided a reasonably safe transfer case design and/or a warning sufficient to avoid strict products liability were focal issues at trial.
During trial, plaintiff advocated an alternative transfer case design, the Borg Warner Quadra Trac (used in Jeeps at the time), asserting that it would have prevented the accident. The Quadra Trac employs a limited-slip friction clutch in the transfer case to retain the traction that would be lost when all the power is transferred via the differential to the wheel experiencing the least resistance. The friction clutch requires an individual wheel or axle to experience a threshold amount of torque for the clutch to slip and allow the differential to work freely. Until the threshold level of torque is reached, such as when the inside wheel experiences resistance when cornering, both wheels will revolve at the same speed. Thus, when a single wheel is the only one powered, such as when one wheel spins out on ice or snow, the friction clutch provides a limited traction recovery to the other wheel until the spinning wheel regains its traction. A vehicle equipped with the New Process 203, on the other hand, would be unable to generate any traction and remain immobile. Friction clutches wear out quickly and are rarely maintained at the torque specifications level present when manufactured.
Krueger argued that a properly maintained Borg Warner Quadra Trac transfer case would have prevented the accident because the friction clutch in the transfer case differential would have engaged the park gear to the rear drive shaft once the vehicle began to roll. Plaintiff contended that this would have either held the vehicle on the slope or, if the clutch was worn, slowed its rolling enough to provide Krueger enough time to get clear of the vehicle. GM argued that even a Borg Warner Quadra Trac transfer case at specifications would not have held the vehicle on the accident slope.
We now address the first issue raised by GM: Did the District Court err in excluding evidence of videotaped tests conducted by the defendant's expert witness regarding the response of various types of transfer cases under conditions similar to the accident in question? In its brief, GM argues that copies of the videotapes were given to the plaintiff prior to trial, and thus do not raise a discovery compliance issue. At the deposition of defendant's expert, Richard Keefer, approximately two weeks prior to trial, GM assured Krueger's attorney, Mr. Dennis Conner, that any such videotapes would be disclosed prior to trial:
Q (BY MR. CONNER) Well, what pending assignments do you have?
A Pending assignments?
Q Right.
A I don't believe I have any specific pending assignments.... If refinements to the preliminary work we've done on evaluating various kinds of vehicles, full-time and/or part time and the rollaway situation, are requested, why, I expect we'll do it. And if it's requested that they are reported in some way, why, we certainly have the capability to do that.
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