Perez-Trujillo v. Volvo Car Corp. (Sweden)

• Decision Date: 04 November 1997
• Docket Number: PEREZ-TRUJILL,P,No. 97-1792,97-1792
• Citation: 137 F.3d 50
• Parties: Prod.Liab.Rep. (CCH) P 15,170 Generosolaintiff, Appellant, v. VOLVO CAR CORPORATION (SWEDEN), Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 50

137 F.3d 50

Prod.Liab.Rep. (CCH) P 15,170

Generoso PEREZ-TRUJILLO, Plaintiff, Appellant, v. VOLVO CAR CORPORATION (SWEDEN), Defendant, Appellee.

No. 97-1792.

United States Court of Appeals, First Circuit.

Heard Nov. 4, 1997.

Decided March 5, 1998.

Eduardo M. Joglar, Hato Rey, PR, with whom Esther Crespn Credi, Guaynabo, PR, and Law Offices of Eduardo M. Joglar, Hato Rey, PR, were on brief, for appellant.

Carlos A. Steffens, Guaynabo, PR, with whom Manuel A. Guzman and Manuel A. Guzman Law offices, were on brief, for appellee.

Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and DiCLERICO ^*, District Judge.

CYR, Senior Circuit Judge.

Plaintiff Generoso Perez-Trujillo ["Perez"] challenges a district court order awarding summary judgment to defendant Volvo Car Corporation (Sweden) ["Volvo"] in this strict product liability action. We reverse and remand for further proceedings.

I BACKGROUND ¹

On August 10, 1993, Perez was operating a new 1993 Volvo 940 GL381 along a smooth, straight roadway in Bayamon, Puerto Rico, when the air bag on the driver's side prematurely deployed, causing him to lose consciousness and collide with an oncoming vehicle driven by Alexis Pagan Marrero ["Pagan"]. Perez sustained a permanent cervical disc herniation.

Just before the collision, Pagan had seen the Perez vehicle "zigzagging" and observed a "big [air] bag" and "white smoke" in the driver's compartment. After the accident, the air bag sensor, which monitors the rate The air bag is designed to inflate and deflate within one-fifth of a second, an event undetectable by the human eye. During deployment, the diagnostic unit in the sensor records the actual vehicle deceleration rate, the status of the battery powering the air bag, and any fault codes. Following deployment, the electrical circuits in the sensor burn out and cannot record further data.

of vehicle deceleration, was sent to Volvo for testing. ²

The air bag deployment analysis report ["ADAR"] subsequently issued by Volvo reflected that the sensor had recorded "a ['low violence'] crash," normal battery status, with no fault codes indicating abnormal functioning. Based on these data, Bengt Schultz, a qualified air bag expert employed by Volvo, concluded that the air bag must have deployed after, rather than before, the collision.

Perez brought suit against Volvo in federal district court, asserting a strict product liability claim based on the theory that the Perez injury was proximately caused by the air bag system, which had been defective when it left the Volvo factory. Volvo moved for summary judgment, in reliance on the ADAR and the expert testimony presented by its employee, Schultz. Perez responded with (1) eyewitness deposition testimony from Pagan; (2) an affidavit from Luis Diaz Gandia, a putative air bag expert; ³ and (3) the written responses Volvo provided in July 1994 to a National Highway Traffic Safety Administration ["NHTSA"] investigation, in which Volvo could not explain what caused several so-called "inadvertent [Volvo air bag] deployments" reported to the NHTSA.

The district court ultimately awarded summary judgment to Volvo, for the following reasons. ⁴ First, the court considered intrinsically incredible the Pagan eyewitness testimony that the air bag had inflated and "stayed inflated," given the uncontroverted expert testimony that air bags inflate and deflate too rapidly for the human eye to detect. Second, the ADAR and the expert testimony from Schultz conclusively refuted the Pagan eyewitness testimony, since the sensor is designed to stop recording data once the air bag deploys, and therefore a premature deployment would have disabled the sensor from recording the subsequent collision. Finally, the district court noted that Perez presented no competent "scientific information" to demonstrate that the air bag had "functioned differently from any other produced by Volvo in that year," nor any "scientific explanation how the air bag in question malfunctioned or was poorly designed." Thereafter, the court denied the motion for reconsideration submitted by Perez. See Fed.R.Civ.P. 59(e).

II DISCUSSION

We review the summary judgment ruling de novo, viewing all disputed facts and reasonable inferences favorably to Perez, the nonmoving party. See Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 98 (1st Cir.1997). The summary judgment ruling cannot stand unless Perez failed to adduce sufficient competent evidence to generate a trialworthy issue as to some element essential to his case. See FDIC v. Elder Care Servs., Inc., 82 F.3d 524, 526 (1st Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)).

Under Puerto Rico law, Perez must prove four essential elements; viz. (1) the Volvo air bag had a "manufacturing defect" of which Perez was unaware, (2) the defect made the air bag system "unsafe," ⁵ (3) the usage to which the air bag was put by Perez was reasonably foreseeable by Volvo, and (4) the defect proximately caused injury to Perez. See Rivera Santana v. Superior Packaging Inc., No. 89-593, 1992 WL 754830, at * 4 (P.R. Dec. 9, 1992); see also Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 971 (1st Cir.1991). Given satisfactory proof of these four essential elements Volvo would be strictly liable even though the air bag was manufactured with reasonable care and regardless whether Perez owned the Volvo. See Restatement (Second) of Torts § 402A. Only the first and second elements are at issue here.

As to the first element, a "manufacturing defect" is present if the product "differs from the manufacturer's intended result or from other ostensibly identical units of the same product line." Rivera Santana, No. 89-593, 1992 WL 754830, at * 5 n. 7. Volvo does not deny that competent proof of an air bag deployment prior to a frontal collision would establish the requisite unsafe defect. Volvo insists, however, that the district court correctly dismissed, as incredible, the proffered testimony that Pagan saw the air bag "inflated," since it is undisputed that the human eye cannot perceive the inflation-deflation event. Since we cannot agree with the district court's characterization of the Pagan testimony, we are unable to accept its conclusion.

In so construing the Pagan eyewitness account, the district court failed to treat the evidence in the light most favorable to Perez, the nonmoving party. See Acosta-Orozco, 132 F.3d at 98. Pagan did not unambiguously attest either that he saw the air bag inflate or while inflated, much less that it "stayed inflated." Rather, Pagan simply stated that just before the collision he observed that "this [i.e., the Perez car] has the air bag open...." ⁶ Thus, even assuming an air bag deployment cannot be detected by the human eye, fairly construed the Pagan eyewitness account indicates that he saw the air bag "fully" deployed--that is, after it had inflated and deflated.

Further, Pagan attested that he did not "see" the driver of the Volvo, but never intimated that it was the air bag ("fully" inflated or otherwise) that obstructed his view of the driver. Whether this was because Perez was no longer upright in the driver's seat after having been knocked unconscious during the air bag deployment, or because, as Pagan also attested, the Volvo was already "zigzagging" (i.e., Perez had already lost control), were material matters which required further factfinding. Moreover, Perez also represented that two other eyewitnesses, riding with Pagan, would corroborate Pagan's observations at trial.

For its part, Volvo presented no evidence that an oncoming driver could not see an "open" (i.e., deployed and deflated) air bag in these circumstances. Nor did Volvo undermine the probativeness of the deposition testimony that Pagan simultaneously observed "white smoke inside the [Perez] car," presumably a reference to the release of white powder which normally accompanies an air bag deployment. In our view, therefore, the eyewitness testimony from Pagan could not be dismissed as incredible without resorting to impermissible factfinding. See Abraham v. Nagle, 116 F.3d 11, 15 (1st Cir.1997) ("It was not, of course, [permissible] ... to resolve credibility issues on summary judgment.").

Next, Volvo suggests that it proffered other competent evidence--the ADAR and the expert testimony from its employee, Schultz--which was so conclusive that no rational factfinder could credit the eyewitness deposition testimony from Pagan. Volvo emphasizes, in particular, that the electrical circuits in the air bag sensor burn out as soon as the bag deploys, rendering the sensor incapable of recording further impact data, and therefore that the sensor could not have recorded the Perez-Pagan "crash" had the bag deployed prematurely.

Nevertheless, the Volvo proffer did not rule out a reasonable inference that--for whatever reason, known or unknown--the sensor may have received or recorded a false deceleration or impact reading, mistaken normal driving conditions for a collision, and falsely stored that nonevent as "a ['low violence'] crash." Of course, Schultz did state, though without any factual predicate or explanation, that "[a]n air bag sensor, even if defective, cannot, and will not, record information of an accident that did not occur."

We find particularly troubling Volvo's counterintuitive assumption that an electrical component cannot malfunction and that its unfailing performance can be predicted with absolute certainty in any and all circumstances. True, Volvo was unable to induce another false reading from this sensor, but the ADAR in no way suggests that Volvo attempted to replicate the exact external conditions to which the sensor had been subjected in situ on August 10, 1993. Cf. Bogosian v. Mercedes-Benz of N.A., Inc., 104 F.3d 472, 480 (1st Cir.1997) ("Where, as here, a conclusion that a product was defective derives from a test or examination of...