Sumner v. General Motors Corp.

• Decision Date: 18 August 1995
• Docket Number: Docket Nos. 156587,162814 and 162894
• Citation: 538 N.W.2d 112,212 Mich.App. 694
• Parties: , Prod.Liab.Rep. (CCH) P 14,345 Constance M. SUMNER and James R. Sumner, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee, and The Product Liability Advisory Council, Inc., Amicus Curiae. Constance M. SUMNER and James R. Sumner, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee. Constance M. SUMNER and James R. Sumner, Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 112

538 N.W.2d 112

212 Mich.App. 694, Prod.Liab.Rep. (CCH) P 14,345

Constance M. SUMNER and James R. Sumner, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee, and The Product Liability Advisory Council, Inc., Amicus Curiae.

Constance M. SUMNER and James R. Sumner, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

Constance M. SUMNER and James R. Sumner, Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.

Docket Nos. 156587, 162814 and 162894.

Court of Appeals of Michigan.

Submitted Feb. 16, 1995, at Lansing.

Decided Aug. 18, 1995, at 9:10 a.m.

Released for Publication Oct. 10, 1995.

Beltz & Associates by Charles D. Riley, Flint, for plaintiffs.

Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for defendant.

Dickinson, Wright, Moon, Van Dusen & Freeman by John E.S. Scott, Detroit (Herzfeld & Rubin, P.C. by Michael Hoenig, New York City, of counsel).

Before MICHAEL J. KELLY, P.J., and McDONALD and GRIFFIN, JJ.

McDONALD, Judge.

Plaintiffs appeal as of right from a judgment of no cause of action entered on September 4, 1992, in this action to recover for negligent manufacture of an automobile and breach of an implied warranty of fitness. Plaintiffs also appeal and defendant cross appeals from a March 11, 1993, order taxing costs against plaintiffs. We reverse.

Plaintiff Constance Sumner was seriously injured when the vehicle she was driving was hit nearly head-on by a vehicle operated by Tony Perkins after Perkins' vehicle crossed the center line of the road. Trial testimony suggested Sumner's vehicle, which had been manufactured by defendant, was defective in that some of its welds were ineffective. The testimony further suggested the defective welds caused buckling "that would not have occurred if the welds ha[d] been [intact]." Plaintiffs' experts testified plaintiff's injuries were enhanced above and beyond those she would have received absent the defective welding. The jury found defendant to be negligent, but found the negligence was not "a proximate cause of the enhanced injury to the plaintiff." The jury also found defendant had not breached any implied warranty. The court entered a judgment of no cause of action and an order taxing costs against plaintiffs.

On appeal plaintiffs first argue the court improperly permitted the admission of evidence of two videotaped crash tests that did not accurately reenact Sumner's accident. We agree and find admission of the evidence for purposes of demonstrating that weld defects played no role in causing enhancement of plaintiff's injuries constituted error requiring reversal.

Results obtained in an out-of-court experiment are not admissible unless the conditions of the experiment are sufficiently similar to those involved in the particular case. Przeradski v. Rexnord, Inc., 119 Mich.App. 500, 326 N.W.2d 541 (1982), remanded on other grounds 417 Mich. 1100.19, 338 N.W.2d 188 (1983). Defendant's claim that the tests here at issue were not conducted in order to simulate Sumner's accident, while frequently repeated in the record, is inconsistent with the testimony of the defense witnesses. The witnesses went beyond use of the tapes to illustrate general physical principles. Gorelick v. Dep't of State Hwys., 127 Mich.App. 324, 339 N.W.2d 635 (1983). Both defense expert witnesses observed that the welds were insignificant in the crash tests and concluded from this information the different weld defects present during the accident were likewise insignificant under the different circumstances surrounding the accident. By testifying the test results could be generalized to the facts of the accident, we believe defendant's experts implicitly suggested the tests had been conducted under conditions similar to those of the accident. The tests were not used to prove generalities, but instead to prove a very important specific factual question: what role the defective welds played in the alleged enhancement of plaintiff's injuries. Because the evidence addressed a major issue in the case and was visually very compelling, we find the error was not harmless. MCR 2.613. Admission of the evidence of the videotaped tests was improper.

Plaintiffs also claim the trial court erred in instructing the jury regarding the issues of proximate cause and apportionment of damages. ¹ We disagree.

It is well settled in Michigan that a manufacturer of a defective automobile may be liable for a portion of a plaintiff's injuries in an automobile collision where the automobile itself played no role in causing the collision. Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 231 N.W.2d 413 (1975). In Rutherford, this Court adopted the position set forth in Larsen v. General Motors Corp., 391 F.2d 495 (CA 8, 1968), ² recognizing the "crashworthiness" or "second collision" doctrine of products liability.

It is also clear that any such cause of action, being predicated on the theory that the defect, although not the cause of the accident, resulted in the enhancement of the plaintiff's injuries, requires a showing of such enhanced injuries. Larsen, supra; Lowe, supra. What appears to be less clear, however, is which party bears the burden of proving the fact and extent of the enhanced injuries. Although logic seems to dictate only one plausible response, that the plaintiffs be required to prove this "element" of their claim, we note the existence of opposing views. See Huddell v. Levin, 537 F.2d 726 (CA 3, 1976), Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241 (CA 2, 1981) (the plaintiff has the burden of proving the extent of enhanced injuries attributable to the defective design), and Richardson v. Volkswagenwerk A.G., 552 F.Supp. 73 (W.D.MO., 1982), Fox v. Ford Motor Co., 575 F.2d 774 (CA 10, 1978) (the plaintiff need only show that the defect was a substantial factor in causing the enhanced injury, then the burden shifts to the defendant to apportion the injuries between those resulting from the initial collision and those from the alleged defect; if the injury is indivisible, the manufacturer may be held liable for the entire amount of the plaintiff's injuries).

We find the position set forth in Caiazzo and Huddell the better-reasoned one. See also Levenstam & Lapp, Plaintiff's burden of proving enhanced injury in crashworthiness cases: A clash worthy of analysis, 38 De Paul L.R. 55 (1989). A manufacturer's liability in crashworthiness cases is limited. As stated by the court in Larsen, supra at 503, "the manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design." (Emphasis added...