Sipes v. General Motors Corp.

• Decision Date: 03 June 1997
• Docket Number: No. 06-96-00026-CV,06-96-00026-CV
• Citation: Sipes v. General Motors Corp., 946 S.W.2d 143 (Tex. App. 1997)
• Parties: Rick SIPES and Jamie Sipes, Appellants, v. GENERAL MOTORS CORPORATION, Delco Electronics Corporation, J.O. Williams Motors, Inc., Morton International, Inc., and Siemens Electronic Limited, the successor in interest to Siemens Bendix Automotive Electronics Limited, and Morton International, Inc., Appellees.
• Court: Texas Court of Appeals

Page 143

946 S.W.2d 143

Rick SIPES and Jamie Sipes, Appellants, v.GENERAL MOTORS CORPORATION, Delco Electronics CorporationJ.O. Williams Motors, Inc., Morton International, Inc., and Siemens Electronic Limited, the successor in interest to Siemens Bendix Automotive Electronics Limited, and Morton International, Inc., Appellees.

No. 06-96-00026-CV.

Court of Appeals of Texas Texarkana.

Submitted Oct. 8, 1996.

Decided May 14, 1997.

Rehearing Overruled June 3, 1997.

Frank Supercinski, Longview, for appellants.

Michele R. Sowers, J. Karl Viehman, Hartline, Dacus, Dreyer, Kern, Dallas, for General Motors, Delco and Williams Motors.

Marcus A. Carroll, Deborah J. Race, Ireland, Carroll, Kelley, Tyler, for appelleeSiemens Electronics Limited.

Kevin J. Dunne, Sedgwick, Defert, Moran, Arnold, San Francisco, CA, for appelleeMorton International.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

GRANT, Justice.

Ricky and Jamie Sipes appeal from a summary judgment granted to General Motors Corporation, Delco Electronics Corporation, J.O. Williams Motors, Inc., Morton International, Inc., and Siemens Electronic, Limited.

The Sipeses, purchasers and owners of a new Pontiac Firebird, filed suit as plaintiffs below, seeking damages from an alleged failure of the Firebird's airbag to deploy.After purchasing the Firebird, Jamie Sipes received injuries to her arms, hands, upper body, and neck in an accident in which the airbag failed to deploy.The Sipeses sued for strict liability, negligent design, negligence, and breach of warranty claims under the Texas Deceptive Trade Practices and Consumer Protection Act.¹

On appeal, the Sipeses contend (1) that the trial court erred in granting the summary judgment because the summary judgment proof did not negate as a matter of law an essential element of their causes of action and (2) that the trial court erred in denying their motion for continuance.

SUMMARY JUDGMENT STANDARDS

A party moving for summary judgment has the burden of establishing both the absence of a genuine issue of material fact and the movant's entitlement to judgment as a matter of law.TEX.R.CIV.P. 166a(c);Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23(Tex.1990).A defendantmovant can prevail by establishing conclusively against the plaintiff² one factual element of each theory the plaintiff pleaded.Swilley v. Hughes, 488 S.W.2d 64, 67(Tex.1972).In deciding whether there is a disputed issue of material fact precluding summary judgment, an appellate court views all evidence in the light most favorable to the nonmovant and resolves all doubts in the nonmovant's favor.Nixon v. Mr. Property Management, 690 S.W.2d 546(Tex.1985).To obtain summary judgment, a defendant need not show that the plaintiff cannot succeed on any theory conceivable; the defendant is only "required to meet the plaintiff's case as pleaded."Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759(Tex.1976).If a summary judgment motion involves the weight of showings, the motion should not be granted.Bridges v. Farmer, 483 S.W.2d 939(Tex.Civ.App.-Waco 1972, no writ)(citingTex.R.Civ.P. 166a).Therefore, we do not weigh the amount or strength of evidence offered by each side.If any theory advanced in a motion for summary judgment supports the granting of summary judgment, a court of appeals may affirm, regardless of whether the trial court specified the grounds on which it relied.Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623(Tex.1996).

General Motors Corp., Delco Electronics Corp., J.O. Williams Motors, Inc., and Morton International, Inc. filed a joint motion for summary judgment.Siemens's separate motion for summary judgment included similar grounds, plus an additional ground that we shall address separately.Throughout this opinion, it must be kept in mind that in a summary judgment proceeding against the plaintiff, movants(defendants) must conclusively negate one of the essential elements of the defect or causation as a matter of law.

Although the Sipeses have not pleaded their case with specificity, the joint movants have not sought under Rules 90and91 of the Rules of Civil Procedure to require more specific pleadings.Thus, we will address the various theories under the general pleadings made by the Sipeses.

THE COLLISION

Side Impact

The Sipeses seem to take the position that the airbag should have deployed whether there was a side or frontal impact.³One of the reasons the movants relied on to obtain the summary judgment was that the airbag was not designed to deploy in a side impact collision and that the collision in question was a side impact to the Firebird.The summary judgment proof was undisputed on the point that the airbag was not designed to deploy unless there was a frontal or near-frontal collision.(Affidavit of movants' expert Garry S. Bahling, and owners' manual.)

The movants offered testimony that the Supplemental Inflatable Restraint System (SIR) was not designed to deploy in side impact collisions because deployment in these collisions would be unlikely to help reduce injuries and in fact might increase the injuries because the SIR deploys longitudinally whereas the principle direction of force in a side impact collision is lateral.(Bahling's affidavit).

The Sipeses offered no summary judgment proof in response to the movants' proof that the system was not designed to deploy in a side impact and would not benefit the driver even if it had deployed in a side impact.The Sipeses offered no airbag expert to show that the airbag was designed to deploy in a side impact.In fact, the Sipeses attached to their summary judgment response material from General Motors stating that the SIR was not designed "to inflate during rear or side impacts."In her affidavit, Jamie Sipes said that if she had known that the airbag would not deploy in this accident when severe force and damage was inflicted to the front of her automobile, she would not have bought it.

Frontal Impact

To be entitled to a summary judgment on the basis that there was no frontal impact, the movants must show conclusively as a matter of law that there was no frontal impact.They seek to do so by expert opinion.

Opinion testimony can rise no higher than the facts upon which it is based.SeeBell v. Bell, 248 S.W.2d 978(Tex.Civ.App.-Amarillo1952, writ ref'd n.r.e.).Opinion testimony cannot be based upon the assumption of an unproven fact.Golleher v. Herrera, 651 S.W.2d 329(Tex.App.-Amarillo 1983, no writ).The movants offered summary judgment proof, through affidavits of witnesses, including the opinions of their experts, that this was a side collision.

The appellees contend that Jamie Sipes admitted in her deposition that Brent McKnight struck her Pontiac on the side.⁴In her deposition, she did not say that McKnight struck her on the side.In her affidavit opposing summary judgment she said that "severe force and damage [was] inflicted to the front of [the] Pontiac," and that the collision caused "severe damage to the front of the said Pontiac."If a nonmovant's deposition and affidavit opposing summary judgment provide a basis for conflicting inferences, a fact issue arises.Randall v. Dallas Power & Light Co., 752 S.W.2d 4(Tex.1988).If Jamie Sipes's deposition answers implied that McKnight struck her on the side, then her affidavit definitely provided a basis for conflicting inferences.This does not prevent the proof from giving rise to a fact issue, if any portion disputes the movants' versions of the facts.It was undisputed that the cars were traveling in perpendicular paths, but in such a situation it is possible that the collision itself could be a frontal or near-frontal collision as to the Sipeses' vehicle.

Further summary judgment proof attached to the Sipeses' response included this photograph of the vehicle after the collision:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Also, included in the exhibits was the following drawing by McKnight, which he made during his deposition.The drawing shows that Vehicle 1 (the Sipeses' vehicle) collided with Vehicle 2 (McKnight's vehicle) at a position on the right front of the Sipeses' vehicle.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Sipeses also attached to their response the following engineering drawing, provided by General Motors in discovery.The drawing shows the window of deployment.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In the next drawing, this window of deployment has been overlaid on McKnight's drawing of how the collision occurred.This combined evidence indicates the collision was in the deployment window.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Lay witnesses can testify about how the impact occurred.Jamie Sipes's lay testimony, the photograph, and the drawing are enough to present some summary judgment proof that the collision was a frontal or near-frontal collision as to the Sipeses' vehicle.The movants therefore have not proved conclusively as a matter of law that the impact was not a frontal or near-frontal collision.Bahling's general conclusion that there was no defect is predicated primarily on there being a side impact to the Sipeses's vehicle and that the force of the impact was not sufficient.These material underlying facts are in dispute.Thus, the movants are not entitled to summary judgment on the ground that there was not a frontal impact.

The Threshold for Deployment

The movants also offered summary judgment proof through their expert, Bahling, that the forces in the impact were insufficient to trigger the designed deployment of the airbag.Specifically, Bahling testified that the airbag was "designed to deploy in only those moderate to severe frontal and near frontal collisions in which the driver could receive serious or life-threatening injuries."(Emphasis added.)Bahling had been the senior...