*1 BERTRAM JAMES WISE, Appellant
Plaintiff v.
FORD MOTOR COMPANY, Corporation,
a Delaware
Respondent.
Defendant
No. 96-595.
May 29,
Submitted on Briefs
1997.
August 28,
Decided
1997.
St.Rep.
For Weaver, Great Falls. Blewett & of the Court. Opinion LEAPHART delivered
JUSTICE (Wise) judgment jury from the appeals James Wise Bertram Court, County, dis- Judicial District Missoula of the Fourth verdict against Company Ford Motor damages for missing complaint his (Ford). affirm. We appeal: following issues
We address Was there support jury’s 1. substantial evidence to verdict that Ford Escort was defective? Wise Did the District in failing grant Court err Wise’s motion for directed verdict issue of Ford’s failure to warn Wise that Ford Escort windows break in a car wash? failing
3. Did the District Court err in to grant Wise’s motion trial upon insufficiency new based of the evidence? Background
Factual and Procedural daughter’s In 1992 drove his 1987 Ford Escort automobile through a pressurized mechanical wash. As one of the jets water window, water at the driver’s spraying side suddenly into the exploded injuries car. Wise suffered as a result incident. against
Wise filed suit damages Ford to recover and a trial subsequently held. At the close of evidence Wise moved the corut for a directed verdict on the basis that the “uncontradicted evidence” established Ford had actual notice that Ford Escort explode driver’s door windows could exposed to the pressure changes that, of a car wash and 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 specifi- Ford cally finding Wise’s door window was not defective either its design by reason of Ford’s failure warn the inherent danger. post-trial Wise filed for a judgment notwithstanding motions verdict or in the alternative for new trial. The District Court denied appeals Wise’s motions. Wise judgment and the denial post-trial motions.
Discussion 1. Was there substantial support evidence to verdict that the Wise Escort was not defective?
This Court’s standard of
a jury’s
review of
verdict
is to
determine whether substantial
support
evidence existed to
the ver
Okland v.
dict.
305. In
P.2d
Wolf
examination,
light
our
we
review
facts
most favorable to
exists,
prevailing party.
conflicting
credibility
If
*4
given
jury’s
to the
weight
province
evidence is
and we will not
findings
they
inherently impossible
disturb the
unless
Okland,
(1992),
(citing
believe.
340 pre-
Wise contends that all substantial credible evidence defectively designed that Ford Escorts were sented establishes unreasonably dangerous. points He to evidence which established side of numerous instances in which the Escort series model washes; through 1981 broke in car that the years 1990 cause misaligned a window frame in exploding window conjunction pressure change pro- with sudden wash; injured by persons by car were exploding duced a windows; ample dangerous that Ford had notice of condition. products liability theory. is A complaint
Wise’s based on product unreasonably in a who sells defective condition person is for the physical to a user consumer liable harm caused 402A by product. OF TORTS § defective (SECOND) RESTATEMENT (1965) adopted This 402Ain case 27-1-719, MCA. Court § and § (1973), 506, Toyota v. Brandenburger Motor Sales Mont. of 268, A is in 512-15, product P.2d 272-74. a defective condition causing injury beyond to the user that which capable when it is ordinary user. Streich v. Hilton-Davis expected by would be (1984), 57, 692 P.2d 447. In McJunkinv. 214 Mont. Kaufman 910, 918, P.2d Systems & Broad Home test product “[t]he the rule that of a defective proper this Court set out its unreasonably unsuitable for intended product is whether test, If fails this it will be deemed purpose. or foreseeable defective.” facts following regarding testified at trial to the expert in Ford of the driver’s side windows
manufacture and characteristics of tempered in the were made The side windows Wise vehicle Escorts. safety is glass, “tempered glass,” often described as glass. Tempered of its lines and used for side windows on all is used all manufacturers of motor vehicles for side by virtually worldwide tempered safety glass fractures it disin- When applications. fragments which have granular into hundreds of small tegrates edges. bluntly-edged pieces generally small or blunt Such rounded glass fragments. tempering proc- The injury regular less than cause glass tough on the surface of referred creates a “skin” ess ofthe compressive If the surface “compressive as the surface.” fracture any spontaneously the window will reason penetrated All of tem- pieces. into failures disintegrate hundreds small the compres- of one of originate penetration from pered safety glass spontaneous glass. reports Ford has received sive surfaces driveways, vehicles parked windows of vehicles breakage of side *5 road, on traveling passing other, the vehicles each vehicles hitting potholes, slamming, breaking vehicle doors vehicle windows in car washes, and other situations. expert typical
Ford’s testified that the scenario for spontane- such ous is that small glass breakages chip scratch or is inflicted on one road, grit of the window surfaces from rock the chips on or sand lodged seal, objects between the window and window or sharp coming in glass Typically contact with the surface. such chips scratches or and, not to eye time, visible the naked over the or chip scratch penetrates to the that enlarges point compressive it the surface, it is too to although Spontaneous still small be noticeable. glass tempered glass of on breakage regardless occurs all models of vehicles of expert manufacture and vehicle line. Ford’s testified that even today technology there is no available to avoid occasional breakages type. this
Both Ford’s and expert expert experi- Wise’s testified that Ford higher expected breakages enced than on side windows Ford produced mid-1985, Escorts between 1981 and 1987. In engi- Ford investigated neers the and concluded that on some Ford Escorts, glass the surface of the window come into contact with edge the a metal bracket in the door frame when the window was tightly (highly rolled up torqued) creating a on compres- scratch redesigned sive surface of the window. Ford the window so that longer would no contact edge metal of the bracket in the door The shipments newly designed frame. first glass for use side to assembly plants drivers’ commenced week by of March 1986 as evidenced a Glass Division Engineering Change Bulletin. Based on this and document other evidence indicat- ing assembly windows, that plants using style were the new Ford’s expert vehicle, that the testified Wise which was assembled on March year type more than one after the new windows were assembly shipped plants, style to contained new window. After suit, expert Wise filed Ford’s examined the Wise vehicle in Missoula again Michigan where he conducted an examination in which style” he installed an “old in Wise window the door and cranked the window and down. He confirmed his observations in that up Missoula binding metal-to-glass there no causing was condition contact when tightly torqued. expert the window was The concluded that the Wise subject vehicle which binding causing condition was higher breakage equipped than normal rates on older model Escorts style conclusion, expert with the old windows. Based opinion likely that the gave breakage most cause window by chip gravel in the Wise Escort was scratch or inflicted road over time to the grit augmented point window subjected pressure to the in the temperature changes surface of window failed and the compressive wash expert disintegrated. agreed tempered glass always Wise’s fails a surface defect and that such a defect could be so small as from unobservable. disposed
Wise of the door to argues because performing it, vehicle after tests on the door was not available satisfy proof at trial and thus Wise could his burden of parties the door window was defective circumstantial evidence. Mfg. Brown v. North Am. Co. 176 Mont. *6 (1983), 477, v. 202 Mont. Corp.
Brothers General Motors P.2d Brothers, Relying argues Brown that the and Wise “flexible” met of by proof of circumstantial evidence can be standard accident, circumstances of the similar occurrences under similar agree. elimination of alternative causes. We Wise circumstances and through that he met this burden evidence of similar re- contends daughter’s through testimony and ported incidents Wise’s Wise’s it chips there no when was that were scratches through However, expert car testified that a taken wash. eye, to the naked cause the chip, small scratch or invisible could not breakage. Alternative causes were therefore neces- spontaneous found that did sarily jury eliminated and have Wise by way of proof of circumstantial evidence. meet burden Furthermore, jury suggesting with evidence presented by all car and that all tempered glass was used manufacturers that spontaneous breakage with and that there was no problems had cars Therefore, jury reduce the had technology available to risk. better “unreasonably” was not the window substantial evidence dangerous. although claims that Ford was aware its sum,
In Wise high had an especially manufactured between 1981 and 1987 Escorts breakage, jury also heard evidence that of spontaneous incidence manufactured after in its Escorts Ford remedied words, the jury In other the Wise’s Escort. would include its which to base decision upon evidence had substantial “unreasonably defective not have an Escort did may contrary daughter’s that his Wise’s evidence condition.” only piece one style the old window was with have been manufactured jury. verdict, considered In a reviewing jury evidence we jury do not decide whether a verdict correct jury or whether a only made the decision. right We review whether substantial evidence verdict we supports that, determine in the instant case, Therefore, it viewing does. in a light evidence most favorable to Ford, substantial evidence existed to support jury verdict in favor of Ford. grant
2. Did the District Court err in failing Wise’s motion for verdict on of directed the issue Ford’s failure to warn Wise that Ford Escort windows could break in a car wash?
Our standard of review of an
denying
order
a motion for a
directed
is the same as from
judgment
verdict
denial
a motion for
notwithstanding the verdict. This Court reviews an
denying
order
a
judgment
motion
notwithstanding
light
the verdict
in a
most
the non-moving party. Okland,
favorable to
Wise contends that because Ford had windows in 1981-1990 model Escort could explode series exposed or pressure changes specifically sudden deliberately washes, decided not to warn consumers of this danger, duty that Ford should found theory. hable under to warn recognizes liability
Montana law a manufacturer’s for its danger failure to warn its as a separate and distinct *7 theory liability. Brown, 576 P.2d at products Although 718. sound, product may technically if a manufacturer fails to warn of causing injury an risk associated with the use of the product, thereby unreasonably Brown, dangerous. rendered 718-19; Krueger 266, 278, P.2d at v. General Motors Ford Wise contends the existence of a “inter-office memoran- recognizing dum” dated October occurrence window series, indicating model Escort breakages in 1981-1990 problem, proves Ford’s decision to warn consumers of knowledge, and, despite condition failed knew of the provided, The memorandum relevant properly to warn consumers. following: part, the
The Escort concern window has existed on the 1981 Escort for- ward, year up with each model the rate of incidents has No article published lessened. TSB was because of sensitivity Repair conveyed of the issue. instructions were to the Districts word-of-mouth. ... likely
The most cause is the being misaligned window frame causing glass. a stress on the door A sudden wash) pressure change (e.g. from a car glass cause the experience shatter. Our to date glass indicates once a new door the concern is installed does not reoccur.
Import Engineering reports Service has no for this concern on the style No TSB action planned style new Escort. on the old sensitivity due to the of the concern. recognition binding
In addition to condition in the style older windows, Ford had found that containing style Escorts the new did not experience breakage problem. jury window Given that the with substantial presented evidence the Wise Escort was style window, binding manufactured with new and that expert style condition did not occur when Ford’s installed an older Escort, in the upon Wise had substantial which to base its verdict that the Wise vehicle was not in a defective unreasonably dangerous despite condition the existence of the Ford memorandum.
Although presented evidence that Ford knew that its Escort occasionally washes, windows broke in car both testified experts warning inappropriate type for this of risk. The tempered glass which was used in Ford Escort windows was the same type used subject only in most vehicles and was to the incidence of breakage tempered glass. expert inherent testified that he could not think any appropriate warning to caution drivers that the side occasionally variety expert break from a of reasons. Wise’s warning testified that he did not think a “would have done an awful Ford, good.” Viewing light lot of the evidence in a most favorable to support we hold that there was credible evidence to verdict. Accordingly, the District Court’s denial of Wise’s motion for a directed proper. verdict on the failure to warn issue was failing grant Court err in Wise’s motion for a 3. Did the District insufficiency trial based of the evidence? upon new *8 Our review of a district denial of a court’s motion for new trial Industries, whether the court abused its is discretion. Hando v. PPG (1995), 146, 149, 281, Inc. 272 Mont. 900 P.2d 282. Our review of an upon insufficiency based appeal support jury’s evidence to there is verdict whether substantial evidence in the to record support Cartwright Equitable (1996), verdict. v. Assur. Life 976, jury’s
Wise contends that the factual determination that the Wise Escort was neither in design defective nor defective because it lacked warning danger of the inherent that Ford Escort side windows any break in car washes is without support in the evidence let alone substantial evidence. holding
Consistent with our in Issue we hold that substantial jury evidence existed for the to find that the Wise Ford Escort window Therefore, was not defective. the District Court did not abuse its denying discretion in Wise’s motion for upon new trial based insuffi- ciency to support of the evidence the verdict that the Wise Escort was by design. not defective
Likewise, consistent with our holding Issue we hold that credible evidence existed for the to find for Ford on the issue of its failure to warn in regard to the spontaneous breakage Therefore, Escort window. the District Court did not abuse its discre- denying tion in motion insufficiency Wise’s for new trial upon based to support of the evidence verdict the Wise Escort was unreasonably dangerous due to Ford’s failure to warn. summary,
In we hold that substantial evidence to support existed verdict the Wise Ford defectively Escort was not designed, nor to defective for Ford’s failure warn Wise that the side windows could break car washes. Because substantial evidence supports jury’s verdict, Court denying District did not err in verdict, post-trial Wise’s motion for directed or his motions. Affirmed. TURNAGE, CHIEF JUSTICE JUSTICES NELSON and GRAY concur. dissenting.
JUSTICE TRIEWEILER majority I opinion. dissent from Montana, In strictly prod- manufacturers hable for defective unreasonably dangerous ucts which are to the user the product (1987). damage injury 21-1-719, causes Section user. MCA previously We have held that a is in a defective condition and unreasonably propensity the user when it has beyond property causing damage the user which would purchases contemplated ordinary user or consumer who Sterling Drug, Stretch v.Hilton-Davis Div. Inc. product. *9 447. We have also held that a if, by reasonably in a manner foreseeable the defective when used manufacturer, danger presented an unreasonable which would not warning. Stretch, ordinary the a 214 by user without recognized P.2d at 447. Mont. at case, this undisputed being on the facts in
Based beyond a operated by presented Bertram James Wise hazard what contemplated by ordinary consumer and hazard would be only by be eliminated danger an unreasonable which presented they I No that know believes that when adequate warning. an one significant possibility into car wash there is a drive their car seriously injure them. If window could shatter and the driver’s side type, risk of that it significant its vehicle created Ford knew duty customers of that fact. had a to warn its testimony following from Ford’s majority The concludes fact were representative properly created issues of factory by jury: resolved by in this vehicle was used all type
1. The same used manufacturers; problems have similar with
2. All manufacturers of motor vehicles glass; shattered high to incidence of shattered feature which led design The models; present in
glass in Ford Escorts was opinion expert/representative of Ford’s 4. It was the scratch preexisting shattered because of a in the Wise vehicle window or chip. majority is that it relied on with the evidence problem
The or was possession, found in Ford’s by documents disproved was either Furthermore, factual foundation. given without opinion evidence opinion to refute the unfounded opportunity was denied the plaintiff part question. by Ford’s loss of vehicle defendant discovered from the following documents were The litigation: of this the course during Association to car International Car Wash from the
1. A bulletin July following: which stated the dated operators wash OPERATORS TO CAR WASH SPECIAL ALERT AND MODELS LYNX ESCORT MOTOR COMPANY RE: FORD operators Car wash from the across the nation are reporting problems Company’s Lynx with Motor and Escort model cars years’ with the side vintage virtually various exploding in the car wash after the customer leaves the car wash. specific reason, operators For no action or car wash are reporting virtually that side front windows these automobiles are explod- car ing itself, finishing either wash area of wash, the car driving cases, while customers are streets. In most pops completely disintegrates apparent for no reason. Early investigation shows no reason apparent for these mishaps they being variety under a observed of different circum- stances. The Ford Company Motor has been contacted on this problem, present and at the has no answers for occurrences. operators ICA therefore advises car wash in turn advise their they customers that if have return the their Company Ford Motor dealer appropriate action. proposed Dana, President,
2. A letter Bill from Mike’s Carwashes, (presumably Inc. to other car operators): wash
THE MYSTERIOUS POPPING WINDOW Mercury Lynx Owners, Dear Ford Escort and years, In the few past we have had several instances of Escort Lynx cars in which side windows have disintegrated either in car leaving. wash even after
This is unique NOT to Mike’s Carwashes. Please see Bulletin Special from the International Carwash Association posted on bulletin board. year
At Mike’s wash over a million we cars and in 1990 we had incidents; in we have not Also, such so far 1991 we have had 6. experienced “popping any windows” on other make or model of car year history. in our 43
However, because increased insurance claims on these vehi- cles, turn prices can increase for all Mike’s car wash customers, only feel it we fair to institute the following policy: of July 1,1991, longer responsible
As we can no breakage be for Mercury Escort and Lynx side windows automobiles. using your You our car wash at will own risk. apologize any may you.
We inconvenience this cause Sincerely, Dana, President, Bill
(signature) Carwashes, Inc. Mike’s added.)
(Underlining Company generated On Ford Motor October two following response previous interoffice memorandum to the documents:
BACKCtROUND The Escort window concern has existed on the 1981 Escort forward year with each model to 1991: up the rate ofincidence has lessened. sensitivity No TSB article was because of the published conveyed issue. to the districts word- Repair instructions were .... of-mouth CAUSE ESCORT WINDOW
POSSIBLE likely being misaligned, is cause the window frame The most glass. A sudden a stress on door causing wash) glass cause change (e.g. from a pressure the. glass anew door experience date indicates once shatter. Our installed, concern does reoccur.
CONCLUSION for this concern on the reports has no Import engineering service style planned No TSB action is on the old style Escort.
new sensitivity of the concern. due to the added.) (Underlining 6,1992: April memorandum dated interoffice
4. Ford “Popping” Subject: Escort Window Current Status: major problem breakage at car washes was
Door Escort/Lynx over-torquing to the the window MY due 19851/286 Car Wash Associa- from the International mechanism. The letter Lynx. Al- on the Escort problems 1991 refers tion dated Lynx last mentioned, produced *11 year model though no body designation by “non-emergency” to Due the for the 1987 MY. years containing old the model parts, the use old and direction 1986, are 19851/2 and much of 1987. design parts visibility in the problem and nature Due to sensitive either the International to contact it is not recommended press, or Mike’s Carwashes. Association Car Wash added.) (Underlining words, other from possession
In we know documents in Ford’s that or not same type glass, whether other manufacturers used the of problems were not the same experiencing type washes from cars Mercury than Lynx. other the Ford Escort We also that know 1987, though assembly redesigned prior the window had been even on a basis change “non-emergency” was treated so that most of design parts, the cars manufactured in still had old and Wise’s early part was manufactured 1987. We also know vehicle memorandum from interoffice of popping present started with the 1981 Escort and was windows on models up Furthermore, although manufactured to 1991. Ford’s expert/rep- opinion resentative testified that his the shattered in Wise’s likely was most result of a scratch or he chip, vehicle admitted inspected that he had never the window and therefore had no basis door of opinion, for that and the the vehicle which was purchased testing specifically Ford for was lost so that no one other than Ford Finally, test it. owner’s testimony uncontradicted was chip prior present no scratch to the time the window shattered. for We have stated the test a directed verdict as follows: commonly employed The test if to determine legally sufficient to cases issues withdraw from the different whether reasonable men could draw conclusions from only reasonably If proper, evidence. one conclusion is then directed verdict is proper. 18, v. Leitzke
Semensa omitted). (citation case, documents,
In this based on Ford’s own persons reasonable disagree could not Escorts manufactured from 1981 through year the 1990 model had a propensity causing damage beyond contemplated by the user would ordinary which operator, Ford, motor vehicle and that because issue’s “sensi- failed tivity,” potential danger to warn users respond even car wash asked for operators guidance because of the frequency shattering. with which the windows were reasons, these vehicle in Bertram For which James Wise injured, was, by definitions, our prior a defective injury. factually Car simple legally. caused The issues were pressure are not to shatter of a designed from the car wash. they are, they If and the owners of the vehicle should forewarned, This did shatter. The was not be warned. owner *12 though warning given even knew risk. No because of Company’s determination that it would not Company’s testimony best interest to do so. Ford’s discredited notwithstanding, Wise was entitled to a directed verdict. reasons,
For these I dissent from the majority opinion. joins JUSTICE HUNT in the foregoing dissenting opinion.