Rossell v. Volkswagen of America, 1
| Citation | 147 Ariz. 176,709 P.2d 533 |
| Decision Date | 30 August 1984 |
| Docket Number | CA-CIV,No. 1,1 |
| Parties | Phyllis A. ROSSELL, Guardian ad litem of Julie Ann Kennon, a minor, Plaintiff-Appellee, v. VOLKSWAGEN OF AMERICA, a corporation; Volkswagenwerk, A.G., a corporation; Black Corporations I through V, Defendants-Appellants. 5589. |
| Court | Court of Appeals of Arizona |
This is a negligent design of a 1958 Volkswagen battery system case. The battery system of the vehicle involves the battery, its location within the vehicle, the battery cover, and the battery restraint.
Following the trial, the jury returned its verdict in favor of appellee Julie Ann Kennon against appellant Volkswagen for $1,500,000. Volkswagen moved for a judgment notwithstanding the verdict, or, in the alternative, a new trial. Both motions were denied and Volkswagen has appealed to this court from the judgment and the denial of both motions.
The facts are that Phyllis Rossell, the mother and guardian ad litem of Julie Ann Kennon (11 months old at the time of the accident) was driving her own mother's 1958 Volkswagen Type I Sedan, known as a "Bug" or "Beetle", from Riviera, Arizona to Phoenix, on October 16, 1970. (The vehicle had been purchased approximately two months earlier as a used car and the motor had been replaced in 1968). Following a full day's work at Bechtel, Phyllis placed Julie in the right hand passenger seat and left her mobile home between 8:00 and 8:30 p.m. She stopped at Bullhead City for dinner and then continued her trip to Phoenix through Kingman then by State Route 93. At approximately 11:00 p.m., at a point north of Wikieup, on State Route 93, Phyllis either fell asleep or became unconscious and the vehicle drifted to the right off of the paved roadway. It hit a sign and the noise aroused Phyllis. In attempting to gain control of the vehicle, she rolled it over on the road. It then left the road and landed on its top in a wash. Phyllis and Julie remained in the vehicle for seven hours. During this period of time Phyllis was in both unconscious and conscious states. When she finally gained full consciousness, Phyllis exited the vehicle and removed Julie. She then obtained assistance from a passing motorist.
Julie was severely burned by battery acid as a result of the accident. During the years since, she has undergone extensive corrective surgery.
When Phyllis initially filed this case on behalf of Julie against Volkswagen, it was based on four theories of recovery: strict liability resulting from the design of the battery system, negligent design and placement of the battery, strict liability for the design of the heating system, and strict liability for the propensity of a Volkswagen to roll over. Prior to trial, the court granted Volkswagen partial summary judgment on the issue of strict liability as it pertains to the design placement of the car battery because "the substitution of the larger battery for the smaller battery designed for use in the subject vehicle was a substantial change in the condition in which the vehicle was sold." The partial summary judgment also preserved Julie's right to proceed on her theory of negligence regarding the design and placement of the smaller car battery, which allegedly and foreseeably could be changed by the consumer to a larger battery. When plaintiff rested her case, the trial judge granted Volkswagen's motions for directed verdict on the remaining strict liability theories relating to the roll-over propensity and the design of the heater for the introduction of carbon monoxide into the passenger compartment. Thus, plaintiff's only remaining theory for recovery, when the case was submitted to the jury, was the alleged negligent design of the Volkswagen by locating the battery under the rear passenger seat. No cross-appeal was taken by Phyllis from the summary judgment or directed verdicts. On appeal Volkswagen raises three issues for our consideration.
I. SHOULD VOLKSWAGEN HAVE BEEN GRANTED A DIRECTED VERDICT, AND LATER A JUDGMENT N.O.V., ON THE ISSUE OF NEGLIGENT DESIGN BECAUSE APPELLEE
FAILED TO ESTABLISH A PRIMA FACIE CASE OF NEGLIGENCE?
II. IS VOLKSWAGEN ENTITLED TO A NEW TRIAL BECAUSE OF IRREGULARITIES IN THE PROCEEDINGS OF THE TRIAL COURT, AND BECAUSE THE TRIAL COURT'S ABUSES OF DISCRETION DEPRIVED VOLKSWAGEN OF A FAIR TRIAL?
III. IS VOLKSWAGEN ENTITLED TO A NEW TRIAL BECAUSE THE VERDICT IS NOT JUSTIFIED BY THE EVIDENCE AND IS CONTRARY TO THE LAW?
Taking the first issue, that appellee failed to establish a prima facie case of negligent design, Volkswagen contends, in part, that its motion for judgment N.O.V. should have been granted since appellee failed to establish a prima facie case of negligence because she failed to present any evidence as to Volkswagen's standard of care and its departure therefrom. It argues that appellee failed to produce expert witness testimony which would establish the standard of care of a motor vehicle manufacturer in 1958 1 (and Volkwagen's deviation from that standard of care) and second, that plaintiff failed to show that the injuries which she suffered twelve years after the car was manufactured should have been foreseeable by Volkswagen.
We begin by considering the first question--did plaintiff establish through expert witness testimony the applicable standard of care owed by a motor vehicle manufacturer in 1958. The trial court instructed the jury on the standard as follows:
The standard of care of a manufacturer in designing a product is that of an expert in regard to the product he sells. A manufacturer is negligent if he fails to act as an ordinary careful manufacturer would act under the circumstances. Thus, if better testing or design was available and would have eliminated an unreasonable danger, the manufacturer is expected to have known and used that method as a matter of due care.
This instruction substantially complies with our opinion in Brady v. Melody Homes Manufacturer, 121 Ariz. 253, 589 P.2d 896 (App.1978).
The dispute between the parties concerns their respective contentions with regard to whether expert witness testimony is needed to establish the appropriate standard of care. Because the "standard of care of the manufacturer is that of an expert with regard to the product he sells," Brady, 121 Ariz. at 259, 589 P.2d at 902, Volkswagen contends that the appropriate standard of care in negligent design cases must always be proved through expert witness testimony. Plaintiff, on the other hand, contends that the necessity of establishing the standard of care through expert witness testimony is only applicable to cases involving professional negligence, such as medical malpractice. Both arguments in our opinion miss the mark.
The resolution of this question depends upon whether, without the benefit of expert witness testimony, a jury within its common understanding, Atchison, Topeka and Santa Fe R.R. Co. v. Parr, 96 Ariz. 13, 18, 391 P.2d 575, 578-79 (1964), could conclude that in the exercise of ordinary care, a safer design was feasible. In Parr, an employee was injured while moving pipe by a crane from a railroad car to a truck. The operator could not see out of the compartment while operating the crane. The court held that the jury could conclude, without the benefit of expert testimony, that the railroad was negligent in providing equipment with restricted visibility. Similarly, in Brown v. Clark Equipment Co., 62 Hawaii 530, 618 P.2d 267 (1980), the court held that the question of whether a large blind spot hindering the vision of an operator of a 35-ton shovel loader could have been reduced or corrected by outside rear view mirrors, was sufficiently within the common understanding of a jury and that no expert witness testimony was required.
On the other hand, expert witness testimony was held to be essential in a case involving the alleged defective design of the braking system and interior design of a commercial bus. McClellan v. Chicago Transit Auth., 34 Ill.App.3d 151, 340 N.E.2d 61 (1975). The feasibility of an elevator toe guard was found to be a technical matter and not within the jury's experience in Westinghouse Electric Corp. v. Nutt, 407 A.2d 606 (D.C.Ct.App.1979).
Thus, the determination of whether expert witness testimony is necessary to prove a manufacturer's negligence must be determined on a case-by-case basis depending on the circumstances involved. Therefore, neither of the broad contentions of the parties are correct. Applying the test set forth in Parr, we conclude that the issue of whether Volkswagen's placement of the battery inside the passenger compartment of the 1958 vehicle and the design of the tie-down system in 1957 violated the applicable standard of care is sufficiently a technical design matter that expert witness testimony is required. See Rule 702, Arizona Rules of Evidence; 3 J. Weinstein & M. Berger, Weinstein's Evidence para. 702 (1982).
Turning now to the question whether there is expert witness evidence of the manufacturer's design standard of care in 1958 in the record, we note that appellee maintains that such evidence was unnecessary. In appellee's brief she states:
Thus, the standards exercised by the automobile industry in 1958 do not establish the standard of care required of a manufacturer in 1958. As indicated, it is some benefit to the fact finder, but in the end the fact finder must decide based upon common notions of prudence. Therefore, whether there is or there is not direct evidence of industry standards in 1958 is totally immaterial to a decision as to whether the 1958 Type I Sedan was negligently designed and created an...
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