Nielsen v. American Honda Motor Co., Inc.

Decision Date30 September 1999
Docket NumberNo. 22189.,22189.
Citation989 P.2d 264,92 Haw. 180
PartiesJames L. NIELSEN, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR CO., INC. and Klein Honda, Defendants-Appellees, and Jeffrey M. Gage, John Does 1-5, Jane Does 1-5, Doe Corporations 1-5, Doe Partnerships 1-5, Non-Profit Organizations 1-5, and Doe Governmental Agencies 1-5, Defendants.
CourtHawaii Court of Appeals

Scot S. Brower, Honolulu, on the briefs, for plaintiff-appellant.

Kenneth K. Fukunaga and Lois H. Yamaguchi (Fukunaga Matayoshi Hershey & Ching), Honolulu, on the briefs, for defendants-appellees.

BURNS, C.J., WATANABE, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that Defendants-Appellees American Honda Motor Co., Inc. (Honda) and Klein Honda (Klein), admitted sales distributors of a 1993 vehicle, were not entitled to summary judgment because they failed to prove that the air bag system in the vehicle properly operated under the facts of the accident involved, viewing such facts in a light most favorable to the non-moving party. We further hold that, on the other hand, Plaintiff-Appellant James L. Nielsen (Plaintiff) raised genuine issues for trial based on his lay opinion that the bag improperly failed to deploy during a collision occurring when the vehicle was traveling at least thirty miles per hour, and also, that Plaintiff was qualified on the basis of the matters set forth in his opposing affidavit to render an expert opinion that the air bag system was defective. Because the first circuit court (the court) decided to the contrary, we vacate the order granting Honda and Klein's motion for summary judgment and the judgment entered in favor of Defendants.

I.
A.

On January 9, 1998, Plaintiff filed a complaint for damages against Defendant Jeffrey M. Gage (Gage),1 Honda, and Klein (Honda and Klein are collectively referred to herein as Defendants). The complaint sought, inter alia, recovery of personal injury damages that Plaintiff incurred in an automobile collision with Gage. At the time of the collision, Plaintiff was driving a 1993 vehicle model Honda Accord SE, allegedly designed and manufactured by Honda2 and sold or distributed by Klein. Plaintiff claimed he was injured because the air bag failed to inflate.

According to the complaint, Honda was "negligent in failing to warn of the danger in the use of the car and/or in it's [sic] design and/or manufacture of the car"; Klein was "negligent in failing to warn of the danger in the use of the vehicle"; Honda and Klein were strictly liable for selling a vehicle which was "defective and dangerous to the user and consumer in that it's [sic] air bag failed to inflate as it should have on impact"; "breached their implied warranty of merchantability by selling the car that was unfit, ... defective, and unsafe"; "breached their implied warranty of fitness for the particular purpose of driving or operating the car"; and "breached their express warranties regarding the vehicle."

B.

On June 19, 1998, Honda and Klein moved for summary judgment, claiming that there was no defect in the subject vehicle, and therefore, no genuine issue of material fact for trial. Honda and Klein represented that an inspection of the vehicle by Scott Neal (Neal), their expert witness, failed to reveal any defect in the Supplemental Restraint System (SRS), commonly referred to as the air bag system.

In his affidavit, Neal set forth his qualifications as an expert on the Honda air bag system. In performance of his assignment, Neal stated that he made a visual inspection of the vehicle and examined pre-repair photographs of the vehicle. Neal opined that the damage to the car was the result of a minor front end collision and was of an "insufficient magnitude and duration to cause the air bag to deploy."

According to Neal, the subject driver side air bag "is controlled by sensors mounted under the dash of the occupant compartment" and the sensors "are designed to close and thereby cause deployment of the air bag in a frontal crash that generates a crash pulse of sufficient magnitude and duration to the passenger compartment[.]" Neal performed a "self-check" of the air bag system by following Honda's shop manual "trouble-shooting" procedure. In that process, he used a digital voltmeter and found the "voltage readings" of the system "to be within specifications." He did not deploy the air bag. Neal concluded that the air bag system had "performed as designed and intended and [wa]s not defective" and that it met "all Honda specifications."

Further, Neal maintained the seat belt webbing and "D ring"3 would contain marks caused "when a seat belt locks up in a collision of sufficient force to mark these items." Based on the lack of such marks, Neal was of the opinion that either Plaintiff was not wearing the seat belt or the accident was not serious.

Plaintiff filed a memorandum in opposition to the motion, arguing that genuine issues of material fact existed. In his attached affidavit, Plaintiff represented himself as an expert on air bag systems. Plaintiff stated he was "a professional licensed automobile mechanic for the past twenty years" and was certified by the "National Institute for Automotive Service Excellence." He listed his qualifications as follows:

I have repaired, evaluated, tested, and worked on many Honda automobiles. I have training and job experience with the mechanics, operation, diagnosis, maintenance, and repair of automobile air bag systems. I am personally familiar with how air bag systems operate and function. I have knowledge of the design and performance characteristics of the 1993 Honda Accord SE air bag system.

(Emphasis added.)

Plaintiff first asserted that Neal's evaluation did not include appropriate tests, such as an examination of the sensors and a clock spring in the steering wheel. Plaintiff maintained that "[i]f the clock spring is not set correctly, the air bag will not deploy, [and the self-check will not be able to detect this defect]."

According to Plaintiff, he had "reviewed the 1993 Honda Accord SE air bag specifications, which indicate[d] air bag deployment will occur "at [a] 30[-]mile[s-]per[-]hour impact." Plaintiff recounted that he was "personally familiar with the force of impact," and "[a]t the time of impact" his vehicle was "moving at least 30 miles per hour" when it struck "Gage's vehicle with such force" that Gage's vehicle "rolled ... on it's [sic] roof... at least 50 feet." He opined that the air bag system should have deployed and was defective in failing to do so:

[I]t is customary for automobile mechanics to rely upon [the foregoing] information, or data, in rendering opinions regarding defects, and specification deficiencies of air bag systems, and in my opinion to a reasonable degree of automobile mechanic certainty, the 1993 Honda SE air bag system that is the subject of this action was defective, should have deployed, and did not meet Honda specifications, at the time of the accident that is the subject of this litigation.

Plaintiff also rested his conclusions on review of pre-repair photographs of the auto. Finally, Plaintiff declared he was wearing his seat belt at the time of the collision.

In Defendants' reply papers, Neal responded by claiming he had examined the sensors and found "no failure modes." Neal further asserted that there is no "clock spring" in the steering wheel but that Plaintiff was mistakenly referring to a "cable reel... located in the steering wheel/column of the subject vehicle." According to Neal, electrical readings he had obtained of the cable reel "did not fall within the abnormal limit."

On August 26, 1998, the court granted Defendants' summary judgment motion, finding no genuine issues of material fact, and dismissed Plaintiff's claims against Honda and Klein. The court ruled that (1) Defendants had "sustained their initial burden of proof of showing an absence of the defect in the product (air bag) in the subject Honda automobile"; and (2) Plaintiff had "failed to respond with any admissible competent evidence." According to the court, Plaintiff's affidavit opposing summary judgment lacked "sufficient facts which establish[ed] that Plaintiff [wa]s competent to testify to the opinions and conclusions regarding the existence of a defect in the air bag[.]" Thus, the court ruled that Plaintiff's affidavit was insufficient to raise a genuine issue of material fact.

II.

A summary judgment order is reviewed on appeal under the same standard applied by the trial court. State v. Tradewinds Elec. Serv. and Contracting, Inc., 80 Hawai`i 218, 222, 908 P.2d 1204, 1208 (1995). Consequently, we must determine whether, viewing all the evidence in a light most favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party has clearly demonstrated that it is entitled to judgment as a matter of law. Id.; Hawai`i Rules of Civil Procedure Rule 56(c). In our view, there were genuine issues for trial and Defendants failed to demonstrate they were entitled to judgment.

III.

Initially, we recognize that the use of expert testimony in summary judgment proceedings seems counter-intuitive. "After all, summary judgments are only proper when no factual disputes exist, and the stock-in-trade of the expert witness is venturing opinions on the issues of fact." E. Brunet, The Use and Misuse of Expert Testimony in Summary Judgment, 22 U.C.Davis L.Rev. 93, 93 (1988) (hereinafter The Use and Misuse of Expert Testimony). Indeed, "[t]he very presence of an expert implies that issues of fact exist." Id. However, "[c]ontemporary decisions allow experts to testify in generalized terms and often grant summary judgment for the movant on the basis of such testimony." E. Brunet, Summary Judgment Materials, 147 F.R.D. 647, 671 (1993). One rationale for this practice is rooted in the liberalized evidentiary rules allowing expert testimony. The Use...

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