Wilson v. General Motors Corp.

• Decision Date: 05 October 1981
• Docket Number: No. 9790,9790
• Citation: 311 N.W.2d 10
• Parties: Jeffery L. WILSON, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, a foreign corporation, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 10

311 N.W.2d 10

Jeffery L. WILSON, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, a foreign corporation, Defendant and Appellee.

Civ. No. 9790.

Supreme Court of North Dakota.

Oct. 5, 1981.

E. J. Rose, Bismarck, for plaintiff and appellant.

Pearce, Anderson & Durick, Bismarck, for defendant and appellee; argued by Harry J. Pearce, Bismarck.

PAULSON, Justice.

Jeffery L. Wilson appeals from an order issued by the District Court for Ward County on February 4, 1980, which denied his motion to set aside the jury's special verdict, vacate a judgment entered against him on October 3, 1979, and for a new trial. We affirm.

On October 26, 1976, Wilson and Rodney Claude Hunter were employed at the Magic Mile Steam Shop in Minot. During their noon lunch break, they drove to Magic City Campus and visited with Mark Todd Dymoke, who requested that Wilson and Hunter accompany him to Bismarck to attend a rock concert. After they had finished work, Wilson and Hunter changed clothes and accompanied Dymoke on the trip to Bismarck in Dymoke's car, a 1976 Buick Skylark.

Prior to leaving Minot to attend the concert, the boys purchased 36 cans of beer at Gordon's Holiday Spot, Inc., a liquor store located in Minot. The boys consumed some beer and peppermint schnapps and smoked marijuana. After the rock concert, the boys ate and then left Bismarck for Minot at approximately 12:30 a. m. on October 27, 1976.

Dymoke and Hunter drank beer during the return trip to Minot. Dymoke drove the car and Hunter was seated in the front seat of the car as a passenger, while Wilson slept in the back seat of the car. Hunter also slept for a time and awoke to notice Dymoke driving in the middle of U. S. Highway No. 83, which, at that point, had only a northbound lane and a southbound lane of traffic, divided by a center line. Hunter yelled "Todd" and Dymoke directed the car back into its proper northbound lane of traffic. Hunter again slept for a time but awakened when he felt a jolt and then observed that the car was leaving U. S. Highway No. 83 and was entering the ditch-type median which, at that point, separated the two northbound lanes of traffic from the two southbound lanes of traffic, approximately five miles south of Minot at north-south mile marker 192.

The car was traveling at a speed in excess of the legal speed limit when it entered the ditch-type median and Hunter again yelled "Todd" and observed that Dymoke was asleep. Hunter ducked under the dash of the car to lessen the impact of the crash. The car traveled down the ditch-type median and hit a crossover road connecting the two northbound and two southbound lanes of traffic on U. S. Highway No. 83. The car also struck a road sign, as well as a concrete culvert which was located under the two northbound lanes of traffic. All three boys were thrown from the car and were unconscious for a time. Hunter awoke and observed that Wilson was alive but in need of medical attention. Hunter stopped an oncoming car and requested aid and the boys were taken to a hospital in Minot.

Dymoke, the driver of the car, was killed in the crash and Wilson was severely injured and is now a quadriplegic. Wilson commenced this action on January 15, 1978. Named as defendants in the action were Reuben J. Ulrich, Jr. (Dymoke's stepfather), Gloria J. Ulrich (Dymoke's natural mother and the wife of Reuben J. Ulrich, Jr.), and Gordon's Holiday Spot, Inc. On March 15, 1978, Wilson filed an amended complaint to include as defendants General Motors Corporation (the manufacturer of the 1976 Buick Skylark involved in the crash) and Fisher Motors, Inc. of Minot (the franchised dealer of General Motors Corporation). Wilson filed a second amended complaint on July 3, 1979.

In his second amended complaint, Wilson alleged that the three mounting bolts and nuts used to attach the torque converter to the flywheel were not properly tightened or torqued and also were of inferior quality and improper design. Wilson alleged that one of the nuts on a mounting bolt loosened and that the nut or mounting bolt temporarily lodged between the rotating flywheel, torque converter, and stationary parts of the bellhousing and engine, causing the rear wheels of the car to momentarily skid and also causing Dymoke to lose control over the vehicle. The second amended complaint was based upon the theories of breach of implied warranty and strict liability in tort. The theory of negligence, although asserted in the original and in the amended complaint, was not contained in the second amended complaint.

A covenant not to sue was executed by Ethel L. Wilson on behalf of Jeffrey L. Wilson. The covenant not to sue released from the action Reuben J. Ulrich, Jr., Gloria J. Ulrich, and the Estate of Mark Todd Dymoke. A stipulation for dismissal was executed by Wilson as to these defendants. Gordon's Holiday Spot, Inc., submitted a motion for summary judgment and the district court granted summary judgment on July 20, 1978.

The trial of this action began on September 11, 1979. Reuben John Ulrich, Jr., testified that the car had 338 miles on the odometer when he purchased the car on September 4, 1976. Prior to the accident, Ulrich and his wife had driven the car on occasion but had not experienced any mechanical difficulty with the car; and his stepson, Mark Todd Dymoke, never notified Ulrich of any problem encountered while he was driving the car. Hunter testified that he had not heard any unusual noises when he was a passenger in the car and that on October 26 and 27, 1976, the car had performed normally at all times prior to the accident. Darrell Orth, a mechanic employed at Fisher Motors, Inc., testified that on August 26, 1976, someone submitted a work order for the car which was later purchased by Ulrich, which order contained the request that the torque converter be tightened to the flywheel bolts. Orth testified that if a bolt were loose on the torque converter and flywheel, the engine and transmission would emit a high-pitched chatter and an "awful noise".

Velmer Louis Battes, an employee at A-1 Wrecking in Williston, testified that he dismantled the 1976 Buick Skylark involved in the crash for the purpose of operating the engine. As he removed the flywheel cover, Battes observed that one bolt was missing from the torque converter and flywheel assembly. Battes also observed that a piece of the engine mounting had been broken. Donn Neal Peterson, a consulting mechanical engineer, observed a hole in the top of the bellhousing and gouges and scratches in the torque converter. In Peterson's opinion, the gouges and scratches in the flywheel were caused by the loose bolt being temporarily wedged between the rotating flywheel and the stationary parts of the engine block. Peterson testified that in his opinion the crash could have resulted due to a locked transmission and drive train which caused Dymoke to lose control over the vehicle.

On cross examination Peterson conceded that other explanations existed for the cause of the crash because the drive train of the car, other than the torque converter, did not evidence failure or damage consistent with Peterson's opinion. However, a piece of the casting of the engine had been broken and it was Peterson's opinion that the loose bolt used to hold the torque converter to the flywheel had created the break. Robert A. Bailey, an employee of General Motors in its engineering staff division, testified that in his opinion the broken piece of the engine block moved inward when it broke and that the loose bolt had not caused the break on the engine casting. General Motors presented at trial a videotape presentation depicting a momentary lockup of the engine, torque converter, and flywheel on a 1976 Buick Skylark at a speed in excess of 55 miles per hour at a test track located near Warren, Michigan. Carlton F. Granthen, an analysis engineer employed by the engineering staff at General Motors, testified that the tests conducted by General Motors revealed that a mechanical interference in the torque converter and flywheel would not affect the control of the vehicle because it would still be possible to steer the vehicle and to stop the vehicle as well.

At the close of the trial the district court submitted the following instructions to the jury, in pertinent part:

"The Plaintiff must establish three essential elements in order to recover, as follows:

"First, that the Defendant manufactured and sold a 1976 Buick Skylark automobile to a dealer which at the time Defendant sold it was in a defective condition unreasonably dangerous to the consumer or user ;

"A product is in a defective condition unreasonably dangerous to the user when it has a propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consumer who purchases it, with the ordinary knowledge common to the foreseeable class of users as to its characteristics. A product is not defective or unreasonably dangerous merely because it is possible to be injured while using it.

"The manufacturer of an automobile is not a guarantor that nobody will get hurt in using the automobile. All that the manufacturer is required to do is to make a product which is free from defective and unreasonably dangerous conditions. The mere fact that an accident has occurred, is not proof that the product was defective or unreasonably dangerous to users.

"Special Verdict Questions

"Members of the jury, you will be given a special verdict form which is attached to the back of these instructions. The form contains several questions for you to answer in light of the evidence in this case and under these instructions.

"The first question you will be asked to answer is question No. 1, which asks whether the 1976 Buick Skylark sold by Fisher Motors was defective in its original design or manufacture when it left General Motors' possession and control so as to be unreasonably dangerous to a prospective user such...