Wise v. Ford Motor Co., No. 96-595

• Docket Nº: No. 96-595
• Citation: 943 P.2d 1310, 284 Mont. 336
• Case Date: August 28, 1997
• Court: United States State Supreme Court of Montana

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943 P.2d 1310 284 Mont. 336, Prod.Liab.Rep. (CCH) P 15,105 Bertram James WISE, Plaintiff and Appellant
v.
FORD MOTOR COMPANY, a Delaware Corporation, Defendant and Respondent. No. 96-595. Supreme Court of Montana. Submitted on Briefs May 29, 1997.
Decided Aug. 28, 1997.

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Bernard J. "Ben" Everett; Knight, Dahood, McLean & Everett, Anaconda, for Plaintiff and Appellant.

John D. Stephenson; Jardine, Stephenson, Blewett & Weaver, Great Falls, for Defendant and Respondent.

LEAPHART, Justice

Bertram James Wise (Wise) appeals from the judgment and jury verdict of the Fourth Judicial District Court, Missoula County, dismissing his complaint for damages against Ford Motor Company (Ford). We affirm.

We address the following issues on appeal:

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1. Was there substantial evidence to support the jury's verdict that the Wise Ford Escort was not defective?

2. Did the District Court err in failing to grant Wise's motion for directed verdict on the issue of Ford's failure to warn Wise that Ford Escort windows could break in a car wash?

3. Did the District Court err in failing to grant Wise's motion for a new trial based upon insufficiency of the evidence?

Factual and Procedural Background

In 1992 Wise drove his daughter's 1987 Ford Escort automobile through a mechanical car wash. As one of the pressurized water jets was spraying water at the driver's side window, the window suddenly exploded into the car. Wise suffered injuries as a result of this incident.

Wise filed suit against Ford to recover damages and a jury trial was subsequently held. At the close of the evidence Wise moved the court for a directed verdict on the basis that the "uncontradicted evidence" established that Ford had actual notice that Ford Escort driver's door windows could explode when exposed to the temperature and pressure changes of a car wash and that, despite this actual notice, Ford did not warn Wise of the vehicle's inherent danger. The court denied the motion. The jury returned a verdict for Ford specifically finding that Wise's door window was not defective either in its design or by reason of Ford's failure to warn of the inherent danger. Wise filed post-trial motions for a judgment notwithstanding the verdict or in the alternative for a new trial. The District Court denied Wise's motions. Wise appeals the judgment and the denial of his post-trial motions.

Discussion

1. Was there substantial evidence to support the jury's verdict that the Wise Ford Escort was not defective?

This Court's standard of review of a jury's verdict is to determine whether substantial evidence existed to support the verdict. Okland v. Wolf (1993), 258 Mont. 35, 39, 850 P.2d 302, 305. In our examination, we review the facts in the light most favorable to the prevailing party. If conflicting evidence exists, the credibility and weight given to the evidence is in the jury's province and we will not disturb the jury's findings unless they are inherently impossible to believe. Okland, 850 P.2d at 305 (citing Silvis v. Hobbs (1992), 251 Mont. 407, 411, 824 P.2d 1013, 1015-16).

Wise contends that all of the substantial credible evidence presented establishes that Ford Escorts were defectively designed and unreasonably dangerous. He points to evidence which established numerous instances in which side windows of the Escort series model years 1981 through 1990 broke in car washes; that the cause of the Escort exploding window problem was a misaligned window frame in conjunction with the sudden temperature or pressure change produced by a car wash; that persons were injured by the exploding windows; and that Ford had ample notice of the dangerous condition.

Wise's complaint is based on a products liability theory. A person who sells a product in a defective condition unreasonably dangerous to a user or consumer is liable for the physical harm caused by the defective product. RESTATEMENT (SECOND) OF TORTS § 402A (1965) and § 27-1-719, MCA. This Court adopted § 402A in the case of Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 512-15, 513 P.2d 268, 272-74. A product is in a defective condition when it is capable of causing injury to the user beyond that which would be expected by the ordinary user. Streich v. Hilton-Davis (1984), 214 Mont. 44, 57, 692 P.2d 440, 447. In McJunkin v. Kaufman & Broad Home Systems (1987), 229 Mont. 432, 445, 748 P.2d 910, 918, this Court set out the rule that "[t]he proper test of a defective product is whether the product was unreasonably unsuitable for its intended or foreseeable purpose. If a product fails this test, it will be deemed defective."

Ford's expert testified at trial to the following facts regarding the manufacture and characteristics of the driver's side windows in Ford Escorts. The side windows in the Wise vehicle were made of tempered glass. Tempered glass, often described as "tempered

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safety glass," is used by Ford for side windows on all of its car lines and is used worldwide by virtually all manufacturers of motor vehicles for side window applications. When tempered safety glass fractures it disintegrates into hundreds of small granular fragments which have rounded or blunt edges. Such small bluntly-edged pieces generally cause less injury than regular glass fragments. The tempering process creates a tough "skin" on the surface of the glass which is referred to as the "compressive surface." If the compressive surface of the glass is penetrated for any reason the window will spontaneously fracture and disintegrate into hundreds of small pieces. All failures of tempered safety glass originate from penetration of one of the compressive surfaces on the glass. Ford has received reports of spontaneous breakage of side windows of vehicles parked in driveways, vehicles traveling on the road, vehicles passing each other, vehicles hitting potholes, vehicle doors slamming, vehicle windows breaking in car washes, and other situations.

Ford's expert testified that the typical scenario for such spontaneous glass breakages is that a small scratch or chip is inflicted on one of the window surfaces from rock chips on the road, grit or sand lodged between the window and window seal, or sharp objects coming in contact with the glass surface. Typically such scratches or chips are not visible to the naked eye and, over time, the scratch or chip enlarges to the point that it penetrates the compressive surface, although it is still too small to be noticeable. Spontaneous glass breakage of tempered glass occurs on all models of vehicles regardless of manufacture and vehicle line. Ford's expert testified that even today there is no technology available to avoid occasional breakages of this type.

Both Ford's expert and Wise's expert testified that Ford experienced higher than expected breakages of side windows on Ford Escorts produced between 1981 and 1987. In mid-1985, Ford engineers investigated the problem and concluded that on some Ford Escorts, the glass surface of the window could come into contact with the edge of a metal bracket in the door frame when the window was rolled up tightly (highly torqued) creating a scratch on the compressive surface of the window. Ford redesigned the window so that the glass would no longer contact the metal edge of the bracket in the door frame. The first shipments of the newly designed glass for use in drivers' side windows to the assembly plants commenced the week of March 3, 1986 as evidenced by a Glass Division Engineering Change Bulletin. Based on this document and other evidence indicating that assembly plants were using the new style windows, Ford's expert testified that the Wise vehicle, which was assembled on March 12, 1987, more than one year after the new type windows were shipped to the assembly plants, contained the new style window. After Wise filed suit, Ford's expert examined the Wise vehicle in Missoula and again in Michigan where he conducted an examination in which he installed an "old style" window in the Wise door and cranked the window up and down. He confirmed his observations in Missoula that there was no binding condition causing metal-to-glass contact when the window was tightly torqued. The expert concluded that the condition which was causing higher than normal breakage rates on older model Escorts equipped with the old style windows. Based on this conclusion, Ford's expert gave his opinion that the most likely cause of the window breakage in the Wise Escort was a scratch or chip inflicted by road gravel or grit which augmented over time to the point that when the window was subjected to the pressure and temperature changes in the car wash the compressive surface of the window failed and the window disintegrated. Wise's expert agreed that tempered glass always fails from a surface defect and that such a defect could be so small as to be unobservable.

Wise argues that because Ford disposed of the door to the Wise vehicle after performing tests on it, the door was not available to the parties at trial and thus Wise could satisfy his burden of proof that the door window was defective by circumstantial evidence. Brown v. North Am. Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711 and Brothers v. General Motors Corp. (1983), 202 Mont. 477, 658 P.2d 1108. Relying on Brown and Brothers, Wise argues that the "flexible"

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standard of circumstantial evidence can be met by proof of the circumstances of the accident, similar occurrences under similar circumstances and elimination of alternative causes. We agree. Wise contends that he met this burden through evidence of similar reported incidents and through Wise's and Wise's daughter's testimony that there were no scratches or chips on the window when it was taken through the car wash. However, Ford's expert testified that a small scratch or chip, invisible to the naked eye, could cause the spontaneous breakage. Alternative causes were therefore not necessarily...