Lowe v. General Motors Corp.
| Decision Date | 29 August 1980 |
| Docket Number | Nos. 77-2737,77-2738,s. 77-2737 |
| Citation | 624 F.2d 1373 |
| Parties | 6 Fed. R. Evid. Serv. 913 Roy Ronald LOWE, as Administrator of the Estate of Lou Ann Lowe, Deceased, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee. Roy FULFORD, as Administrator of the Estate of Elva Fulford, Deceased, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edward F. Morgan, Tuscaloosa Ala., C. O. Burkhalter, Gordo, Ala., for plaintiff-appellant Lowe.
Olin W. Zeanah, Wilbor J. Hust, Jr., Tuscaloosa, Ala., for plaintiff-appellant Fulford.
Charles A. Stewart, Jr., Birmingham, Ala., Gen. Motors Corp., Detroit, Mich., Otis M. Smith, Eugene D. Martenson, Birmingham, Ala., for defendant-appellee.
Appeals from the United States District Court for the Northern District of Alabama.
Before BROWN, HILL and RANDALL, Circuit Judges.
This is a products liability action which arose out of an accident involving a 1971 Chevrolet Impala in which the steering mechanism unexpectedly locked causing the automobile to go out of control. The result was the death of Mrs. Elva Fulford and her daughter, Mrs. Lou Ann Lowe. The husbands of the decedents brought this action against the manufacturer, General Motors Corporation (GM), based upon the Alabama Wrongful Death Statute, 1975 Ala.Code sec. 6-5-410 (formerly 1958 Ala.Code, tit. 7, sec. 123). The plaintiffs alleged that negligence per se was established by GM's violation of the National Traffic and Motor Vehicle Safety Act of 1966 (MVSA), 15 U.S.C.A. § 1402 (1974) (current version at 15 U.S.C.A. § 1411 (West Supp. 1980)).
After hearing the evidence, a jury rendered a verdict for the plaintiffs in the amounts of $500,000 each. The District Court, however, ordered a new trial, reasoning that allowing evidence of any violation by GM of the MVSA to establish negligence per se was the equivalent of allowing a direct cause of action under the MVSA, contravening the holding of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).
The District Court held, in the alternative, that the verdicts were "excessive and demonstrat(ed) prejudice, bias and passion," and that if this were the only issue the court would have required a new trial unless the plaintiffs agreed to a remittitur of $250,000. The District Court was also of the opinion that even if a cause of action existed under the MVSA, there was a failure to prove proximate cause between the violation of the Act and the accident.
At the second trial, no evidence of violation of the MVSA was admitted, and the jury rendered a verdict for the defendants. The plaintiffs now appeal and we vacate the order granting a new trial and the judgment in the second trial and remand for reinstatement of the first verdict. 1
In the early morning of September 17, 1973, Mrs. Fulford drove to pick up her daughter, Mrs. Lowe, at the daughter's home in Gordo, Alabama, to bring her back to her own home in Tuscaloosa to spend a few days. In order to get to her daughter's house Mrs. Fulford, driving a 1971 Chevrolet Impala, had to travel on a gravel road.
At approximately 9:30 a. m., after picking up her daughter, the two were headed back to Mrs. Fulford's house along a paved level highway, U.S. Highway 82. It was a clear, dry day. Traveling at about 50 miles per hour, they overtook and passed the automobile operated by John Calvin Davis. To do so, Mrs. Fulford went into the left lane and then, after she had overtaken the car, back into the right lane, straightening her course. Davis testified that suddenly the Fulford automobile inexplicably angled to the left again, crossed the highway, traveled along the shoulder of the road for a distance, and then overturned down an embankment.
A witness to the accident, J. C. Champion, was told by Mrs. Fulford, as she lay injured in the automobile, that the car had suddenly become impossible to steer. Mrs. Fulford died in the ambulance on the way to the hospital. Mrs. Lowe died in the hospital a few days later.
Chester Bambarger, the wrecker driver who towed the automobile away, examined it and determined that the steering was indeed locked. Upon a more careful examination of the undercarriage, he and an Alabama State Trooper, C. W. Barrentine, found a stone lodged inside the steering coupling.
At trial the plaintiffs asserted two theories of negligence on the part of GM first, defective design of the automobile and second, failure to adequately warn the public of this defect.
With respect to the first theory of negligence, engineering expert for the plaintiffs, Dr. Sachs Hanagud, made an independent study of the vehicle and concluded that there were two related causes for the accident: (1) blocked steering due to the stone interference problem in the steering coupling which resulted in (2) the fracture of a tooth of the Pitman shaft caused by metal fatigue and the stress applied to unjam the steering mechanism. It also was his opinion that the uncovered design of the steering coupling was an unsafe engineering design because it allowed rocks to fly up into the bottom of the car and possibly lodge between the coupling and the frame, causing the steering to jam.
Expert witness for the defense, Dr. Julian Doughty, was of the opinion that no stone interference problem caused this accident. Another expert witness for the defense, Dr. Alfred D. Droulillard, was of the opinion that the tooth of the Pitman shaft fractured, not because of metal fatigue, but on impact at the time of the accident, possibly, the defense asserts, when the vehicle may have hit a concrete abutment as it overturned.
Fulford and Lowe also contended that GM failed to give the public proper warning of these defects upon their discovery, in violation of 15 U.S.C.A. § 1402(a), in effect at the time of the accident, which stated:
Every manufacturer of motor vehicles or tires shall furnish notification of any defect in any motor vehicle or motor vehicle equipment produced by such manufacturer which he determines, in good faith, relates to motor vehicle safety, to the purchaser (where known to the manufacturer) of such motor vehicle or motor vehicle equipment, within a reasonable time after such manufacturer has discovered such defect.
They claimed that GM violated this statute in three ways, in (i) the untimeliness of the notice, (ii) its inadequacy in describing the amount of danger the defect created, and (iii) GM's failure to provide enough steering coupling shields for all the automobiles subject to the recall campaign.
First, the notice was not given within a reasonable time after the defect was discovered. In 1971, GM learned that it was possible for a stone to become lodged between the steering coupling and the frame, resulting in partial loss of steering control. All Chevrolet dealers were mailed notice of this defect on May 19, 1972, but a recall campaign of all 1971 and 1972 Chevrolet automobiles equipped with power steering, with notice to individual owners, was not commenced until March 1973.
Second, Fulford and Lowe alleged that the notice was inadequate. The letter sent to Chevrolet owners urged them to have a steering coupling shield installed by their dealers at no extra cost, "to prevent the possibility of a partial loss of steering control. . . ." The letter went on to say that
(s)uch an incident could occur when you drive your car on an unpaved road surface if a stone should be thrown up into the engine compartment where it can lodge between the steering coupling and the frame. If this should happen, it may cause increased steering effort or interference with steering control of your car. It is possible that it could even result in a partial loss of steering control.
The notice did not say that it was possible for a stone to become lodged inside the steering coupling, possibly resulting in a total loss of steering.
Third, the notice was inadequate because GM did not make steering coupling shields available at their dealerships in numbers sufficient to implement the recall campaign. As of October 27, 1973, GM had manufactured only 64,277 shields for the more than 3,700,000 1971 and 1972 models subject to the recall program. The morning after Mr. Fulford received the recall notice, he went to the Chevrolet dealer in Tuscaloosa, but the dealer did not have any steering coupling shields. He went back once or twice more, but there were still no shields. Mr. Fulford also tried to get the shield from dealers in cities in Florida, Georgia, North Carolina and South Carolina, but no one had them. In all, Mr. Fulford went to no less than 13 different dealerships throughout the south, and none of them had the shields.
In its instructions to the jury in the first trial, the District Court included the following charge:
The plaintiffs however further contend that the defendant was negligent in the handling of its recall campaign. Congress has passed what is known as the Motor Vehicle Safety Standards Act. This act in pertinent parts provide (sic) that every manufacturer of motor vehicles shall notify the purchaser of that vehicle of any defect which the manufacturer in good faith determines to exist if the defect relates to motor vehicle safety. The manufacturer is required to do this within a reasonable time after he discovers it. He is also required to give information to the purchaser about methods of correcting the defect. Motor vehicle safety is defined as the performance of motor vehicles in such a manner that the public is protected against unreasonable risk of accidents occurring as a result of the design, construction and performance of the vehicle and is also protected against unreasonable risks of death and injury in the event of an accident.
This act creates the duty on the part of the manufacturer to notify the purchasers of the existence of defects which a...
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