HOLLOWAY
v.
GENERAL MOTORS CORPORATION
Docket No. 57139, (Calendar Nos. 1, 7).
Supreme Court of Michigan.
Argued May 4, 1976. Argued on rehearing January 3, 1978. Decided February 14, 1977. Decided December 4, 1978.Abood, Abood & Abood, P.C. (by Richard J. Abood and William E. Rheaume), for plaintiffs.
Cholette, Perkins & Buchanan (by Grant J. Gruel, Otis M. Smith of counsel) for defendant General Motors Corporation.
ON REHEARING
Decided February 14, 1977. 399 Mich. 617.
LEVIN, J.
Rehearing was granted to resolve the equal division of this Court following a prior submission of this cause. Holloway v General Motors Corp, 399 Mich. 617; 250 NW2d 736 (1977). The trial court directed a verdict of no cause of action in favor of General Motors on the ground that the Holloways had failed to establish a defect in the ball joint assembly of the automobile. The Court of Appeals affirmed.
Both opinions on the prior submission are in agreement that a plaintiff may establish by circumstantial as well as direct evidence that there was a defect in the product when it left the manufacturer. The disagreement is whether it would be reasonable to infer such a defect from the circumstantial evidence in the instant case.
We conclude that it would be reasonable to draw such an inference.
We have also considered General Motors' further contention, on rehearing, that a failure attributable to the manufacturer is not proven unless the specific cause of the defect is identified. We conclude that, although the specific cause was not so isolated, the Holloways satisfied their burden when they presented evidence from which the jury could reasonably infer that some defect in manufacture caused the accident.
*619 We reverse and remand for a new trial.
I
On May 28, 1971, Ernest Holloway was driving at a speed of approximately 50 to 55 miles per hour along a gravel road in Eaton County when his automobile left the road. The vehicle struck a utility pole. Holloway was killed and his daughter, Brenda, seriously injured. The automobile was four years old, had been driven over 47,000 miles, and there were two previous owners. The Holloways alleged that the accident was caused by a defective ball joint assembly in the right front suspension which broke while the automobile was traveling over chuckholes in the road.
Sharon Holloway, as administratrix of her deceased husband's estate and as next friend of her daughter, commenced this action against General Motors and other defendants. The trial judge granted General Motors' motion for a directed verdict;[1] on appeal, the Court of Appeals affirmed in a split decision on the ground that a manufacturing defect had not been proven. This Court affirmed by a 3 to 3 division. The Holloways' application for rehearing was granted.
II
On the prior submission, one of the issues was *620 whether the ball joint assembly of the Holloway automobile failed while it was on the roadway, as contended by the Holloways, or after it hit a ditch and then a utility pole,[2] as contended by General Motors. If the assembly did not break until after the automobile left the roadway that would indicate the cause of the failure was not a defect in the manufacture but, rather, the driver's loss of control of the automobile and its impact against the ditch or pole.
The opinion for affirmance did not find it necessary to consider that issue because it concluded that, in all events, the circumstantial evidence was insufficient to support an inference of a manufacturing defect. The opinion for reversal concluded that there was sufficient evidence from which the trier of fact could conclude that the break in the assembly occurred on the roadway and, thus, that the break was not a result of the driver's loss of control of the automobile.
Although General Motors continues to argue that it would be more reasonable to infer from certain circumstantial evidence that the break occurred after the automobile left the roadway, it has conceded, for the purposes of this rehearing, that the break occurred on the roadway.[3]
III
We therefore proceed on the premise that it would be reasonable to infer that the ball joint assembly failed on the roadway before the driver lost control of the automobile and, thus, that the *621 assembly was defective. Proceeding on that premise, it is also reasonable to infer that the defect in and failure of the assembly caused the accident.[4]
The still-disputed issue is whether that defect was shown to have been attributable to the manufacturer.[5]
A plaintiff has the burden of establishing that when the product left the manufacturer it was defective. He is not, however, obliged to eliminate all possible causes of the accident consistent with the view that there was no manufacturing defect.[6] He sustains his burden when he establishes with direct or circumstantial evidence a reasonable probability that the defect is attributable to the manufacturer.[7]
*622 On a motion for directed verdict, the question is whether it is reasonable to infer from the evidence, direct or circumstantial, that the accident was probably caused by a defect attributable to the manufacturer. Questions of comparative probability are to be resolved by the trier of fact.[8] As stated in Schoepper v Hancock Chemical Co, 113 Mich. 582, 586, 589; 71 N.W. 1081 (1897), and since reaffirmed in Schedlbauer v Chris-Craft Corp, 381 Mich. 217, 230-231; 160 NW2d 889 (1968):
"It is true that where an injury occurs that cannot be accounted for and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. * * * But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than upon the other. * * * [T]he question of whether the inference suggested by the plaintiff's theory is the correct one, or whether it was sufficiently rebutted, was for the jury." (Emphasis supplied.)[9]
The opinion for reversal on the prior submission of this cause similarly declared:
"Although the strength of an inference that the accident was caused by a manufacturing defect depends on the plausibility of competing explanations for the accident, plaintiffs did not have the burden of proving that the accident could only be attributable to a manufacturing defect or `of effectively eliminating any other factors or circumstances which could have been responsible *623 for the failure.' It was enough that they indicated `a logical sequence of cause and effect * * * notwithstanding the existence of other plausible theories with or without support in the evidence.' Schedlbauer v Chris-Craft Corp, 381 Mich. 217, 220, fn 1; 160 NW2d 889 (1968). They were `not required to offer evidence which positively exclude[s] every other possible cause of the accident.' Swensson v New York, Albany Despatch Co, 309 NY 497, 502; 131 NE2d 902, 904 (1956)."[10]
IV
The opinion for reversal on the prior submission contrasted a defect in a wheel assembly with a failure in a part of the automobile subject to periodic maintenance, e.g., the braking system:[11]
"Wheel assemblies are not expected to wear out and be replaced. There was no suggestion that this assembly had been tampered with or that it is a part of the car that is expected to be or reasonably should be inspected on a periodic basis.
"While it may be necessary in some cases for a plaintiff to introduce evidence of proper maintenance to support an inference that the defect occurred before the product left the factory, where the defect alleged is latent in the very structure of the vehicle and may not in ordinary circumstances be discovered during routine maintenance, evidence of proper maintenance is not required.
* * *
"While prior malfunction of a brake system may indicate a manufacturing defect, the absence of prior malfunction does not negative the existence of a latent structural defect. A defective break system may function *624 intermittently; it is the nature of a wheel assembly failure that there are no `prior incidents.'"[12]
Where a failure is caused by a defect in a relatively inaccessible part integral to the structure of the automobile not generally required to be repaired, replaced or maintained, it may be reasonable, absent misuse, to infer that the defect is attributable to the manufacturer.[13]
The circumstantial evidence in the instant case adequately supports a reasonable inference that the accident was probably caused by a defect attributable to the manufacturer. Both the Holloways and General Motors agree that the break in the ball joint assembly was fresh, metallurgically clean, and due to an impact failure. This suggests that the failure was not a result of fatigue or wear,[14] and, indeed, General Motors' experts testified *625 that there were no signs of fatigue or wear. The fresh, metallurgically clean break, indicative of impact failure not attributable to fatigue or wear, tended also to negative lack of requisite maintenance, improper repair and even prior misuse as alternative causes. We are left with a reasonable probability that something was inherently wrong with the ball joint assembly such that it was unable to withstand an impact it should have withstood.[15]
Counsel for General Motors, in his oral argument before this Court on rehearing, said:
"It was a clean, fresh, metallurgically fresh, impact fracture. There is no dispute about that. Everybody that testified in the case admitted that it was a clean break, not a fatigue failure. And, therefore, if it is an impact failure, a clean break rather than something that wears down after 47,000 miles and six years and three owners, there are only three alternatives: it was either designed *626 improperly, or the material that was used was in some way inadequate for the expected life of the vehicle, or there was some combination of design and material." (Emphasis supplied.)
Common to each alternative is that it is attributable to the manufacturer and indicates a product defect.
V
On rehearing, General Motors principally argues that a plaintiff does not sustain his burden of proof unless he identifies the specific cause of the defect. It contends that the Holloways must demonstrate which of the possible alternatives (design, material, assembly or a combination) was the precise cause of the failure, or be barred from recovery. It advances the policy argument that one of the purposes of the tort law is to encourage those engaged in activity which causes injury to adopt remedial measures to avoid so injuring other persons. If in truth there was a defect in manufacture, General Motors needs specific identification of the cause so that it can effect corrective measures.
Acknowledging that encouraging tortfeasors to adopt corrective measures is one of the purposes of the tort law, another purpose is to compensate injured persons. It is the injury inflicted on the plaintiff that entitles him to a remedy, not his skill in discovering precisely where defendant's manufacturing process went wrong.
Just as a plaintiff injured in an automobile collision need not identify a character or other personality defect which caused the defendant to drive negligently, either to educate him or others so that remedial measures may be adopted or to *627 facilitate governmental determination of whether he should be permitted to continue to drive, neither need a person injured by product failure identify the specific defect.
As stated in Bronson v J L Hudson Co, 376 Mich. 98, 102-103; 135 NW2d 388 (1965), where the Court acknowledged that the specific irritant had not been identified:
"In this regard, the case does not differ from some food poisoning cases: you eat and you get sick and what made you sick was something in the food. What the poison was may be impossible to identify. In this case, the favorable view of plaintiffs' proofs is that the new, unwashed slip (that is unchanged from time of purchase) bought and immediately worn close to the body with a nearly immediate skin reaction contained an irritant which caused Mrs. Berke's dermatitis. Defense proofs may well explode the inference, but standing alone it is neither fanciful or conjectural. Add to the hypothesis, of course, plaintiffs' other proofs: clothes worn that day (other than the slip) were ones usually worn; diet and habits on the day in question were usual and ordinary; no previous history of rash, dermatitis, or allergy. Upon such proofs, the reasonable mind could legitimately infer that the one new element in Mrs. Berke's life at that time, the new slip, was directly linked with her injury. The reasonable mind now demands explanation. This is the task of defendant."[16]
Moreover, even if the specific cause is identified, *628 it may not be possible to adopt measures which would prevent recurrence of the failure it may be that such failures occur irregularly and unpredictably, however great the care exercised to prevent occurrence.
Finally, General Motors suggests that even if a nonspecific defect has been circumstantially proven, "it is the duty of the plaintiff to prove by the most accurate evidence that is reasonably available to him the particular defect or act or omission which to him was the cause of the injury for which he would recover". Schedlbauer v Chris-Craft Corp, supra, p 231. The Court in Schedlbauer suggested that the plaintiff might have been at fault in not retrieving an allegedly defective fuel pump from the water, thereby precluding examination of the pump by the defendant.
General Motors asserts that the Holloways' access to the ball joint assembly, coupled with their failure to call a witness expert in metallurgy or automobile design, constituted a failure to prove their case by the most accurate evidence reasonably available.
While the plaintiff in Schedlbauer failed to produce the allegedly defective part, the Holloways produced the ball joint assembly so that both sides would have access to it. Production of the ball joint assembly enabled General Motors to present a metallurgical view of the matter. It did so. Metallurgical experts called by it opined that the break was fresh, metallurgically clean and due to an impact failure, not attributable to fatigue or wear, a view of the matter consistent with and, indeed, probative of the Holloways' theory of manufacturing defect.[17]
*629 The Holloways were at liberty to establish that there was a reasonable probability of a manufacturing defect in the assembly by direct or circumstantial evidence. A manufacturing defect can be proved by circumstantial evidence without expert opinion testimony.[18] Accordingly, the Holloways were not under an obligation to present a metallurgist's view of the matter.
Reversed and remanded for a new trial.
KAVANAGH, C.J., and WILLIAMS and BLAIR MOODY, JR., JJ., concurred with LEVIN, J.
FITZGERALD, J. (concurring in result for remand).
We concur in the result of Justice LEVIN's opinion because, upon rehearing, we have become persuaded that there was a question of fact upon which reasonable minds could differ. A directed verdict on behalf of defendant was therefore, improper.
We find probative the evidence presented by plaintiffs' witnesses that the break in the ball joint assembly occurred on the roadway before the driver lost control of the automobile, rather than after the automobile left the roadway and collided with a ditch and then a utility pole. In fact, General Motors, for purposes of the rehearing, conceded that the break occurred on the roadway. In addition, there was uncontroverted evidence that the break in the ball joint assembly was fresh and metallurgically clean and caused by an impact failure rather than fatigue or wear. Further, defendant's expert testified that the automobile was *630 designed to travel on roads even worse than the road on which the accident occurred. From this evidence, we believe that a jury question arises concerning a possible manufacturing defect in this particular ball joint assembly.
Accordingly, we find, after rehearing, that defendant was not entitled to a directed verdict since there appears to have been a genuine question of fact upon which reasonable minds could differ.
We concur in the remand.
COLEMAN and RYAN, JJ., concurred with FITZGERALD, J.
NOTES
[1] The judge said:
"In this case, the plaintiff established through its expert Harris, that the suspension system broke while the vehicle was on the highway. They further established through Harris, that it broke as a result of hitting a chuckhole or chuckholes. I suppose it might be inferred from this, that there was a breach of warranty, because the car should have been equipped to survive such an impact.
"Plaintiffs submitted no proofs on that point. Moreover, none of the proofs submitted, indicate defective parts.
"Couple this with the fact that this vehicle had performed for more than four years and some 47,000 miles without evidence of part failure in its suspension system, there's just not facts upon which an inference of parts defect can exist."
[2] General Motors states that the automobile hit a ditch before it hit the utility pole, a point overlooked in the opinion for reversal on prior submission.
[3] The trial court so found; see the quotation from its findings directing a verdict, fn 1, supra.
[4] Plaintiffs' expert testified that upon such a failure the automobile would not be driveable by an average driver traveling at 50 to 55 miles per hour over a bumpy gravel road. A police officer testified that a fresh break in the A-frame made the car "completely indriveable [sic]" in that condition because the car would uncontrollably veer to the right. Another officer testified that the appearance of the tire tracks indicated that something had made the car pull to the right.
[5] The term "defect", as applied in Michigan products liability cases, "marks off the zone of the manufacturer's responsibility. Piercefield v Remington Arms Co, Inc, [375 Mich. 85], 98 [; 133 NW2d 129 (1965)]." Snider v Bob Thibodeau Ford, Inc, 42 Mich. App. 708, 713; 202 NW2d 727 (1972).
[6] See Greco v Bucciconi Engineering Co, Inc, 283 F Supp 978, 984-985 (WD Pa, 1967), aff'd 407 F2d 87 (CA 3, 1969); Kohler v Ford Motor Co, 187 Neb 428; 191 NW2d 601 (1971); Farmer v International Harvester Co, 97 Idaho 742, 749; 553 P2d 1306, 1313 (1976); Shoshone Coca-Cola Bottling Co v Dolinski, 82 Nev 439, 443; 420 P2d 855, 858 (1966); Keller v Coca Cola Bottling Co, 214 Or 654, 661; 330 P2d 346, 350 (1958); Escola v Coca Cola Bottling Co of Fresno, 24 Cal 2d 453, 458; 150 P2d 436, 439 (1944); McCann v Atlas Supply Co, 325 F Supp 701, 703-704 (WD Pa, 1971); Prosser, Torts (4th ed), § 103, pp 672-673.
[7] See Stewart v Budget Rent-A-Car Corp, 52 Haw. 71; 470 P2d 240 (1970); McCann v Atlas Supply Co, supra, pp 703-704; Bollmeier v Ford Motor Co, 130 Ill App 2d 844, 851-852; 265 NE2d 212, 217 (1970); Greco v Bucciconi Engineering Co, supra, pp 984-985; Phillips v Newport, 28 Tenn App 187, 202; 187 S.W.2d 965, 971 (1945); Browder v Pettigrew, 541 S.W.2d 402, 405 (Tenn, 1976); Escola v Coca Cola Bottling Co, supra, p 458; Vandagriff v J C Penney Co, 228 Cal App 2d 579, 583; 39 Cal Rptr 671, 674 (1964); Coca-Cola Bottling Co v Negron Torres, 255 F2d 149, 153 (CA 1, 1958); Henningsen v Bloomfield Motors, Inc, 32 NJ 358, 410; 161 A2d 69, 98 (1960); Summers v Interstate Tractor & Equipment Co, 466 F2d 42, 46-47 (CA 9, 1972); Prosser, supra, § 103, pp 672-673; 2 Dooley, Modern Tort Law, § 32.63.
[8] See Kaminski v Grand Trunk W R Co, 347 Mich. 417, 422; 79 NW2d 899 (1956); MacDougall v Ford Motor Co, 214 Pa Super 384; 257 A2d 676 (1969).
[9] See Kujawski v Cohn, 56 Mich. App. 533; 224 NW2d 908 (1974).
[10] Holloway v General Motors Corp, 399 Mich. 617, 635-636; 250 NW2d 736 (1977) (LEVIN, J.).
[11] See Kupowski v Avis Ford, Inc, 395 Mich. 155, 166; 235 NW2d 324 (1975), and Snider v Bob Thibodeau Ford, Inc, supra, where the defect alleged was in the braking system.
[12] Holloway v General Motors Corp, supra, pp 634-635. The opinion continued:
"A defect in the wheel assembly involves the basic structural integrity of the vehicle and may not be discoverable during periodic maintenance. There is no suggestion that this wheel assembly had been tampered with or improperly maintained. A jury could reasonably conclude that there was a defect and that it was latent until the wheel assembly broke without warning causing the accident." Id., p 636.
[13] "In cases where the defect is more or less in a `sealed package', it is more plausible to believe that the defect was caused by the manufacturer than to believe that the package was opened after sale, the defect caused independently, and then the package resealed." Meli v General Motors Corp, 37 Mich. App. 514, 519; 195 NW2d 85 (1972).
This is but the converse of cases suggesting that in a proper case an inference of defect attributable to the manufacturer may be negatived by evidence that the product requires periodic maintenance. See Meli v General Motors Corp, supra, p 519; Kupkowski v Avis Ford, Inc, supra, p 166.
[14] Fatigue or wear does not necessarily relieve the manufacturer of responsibility; as stated in the opinion for reversal on prior submission:
"Although `reasonable wear is a natural consequence of normal usage', it is not an adequate response to say that the vehicle is four years old, had been driven 47,000 miles and has had three owners. Automobiles are manufactured and sold for use in excess of 50,000 miles. The consumer may justifiably rely on the basic integrity of the product. A sudden failure of the wheel assembly is likely to cause death or serious bodily injury. The industry cannot properly expect that when the warranty period runs out the consumer will either junk the automobile or have it disassembled, inspected for metal fatigue or defect and rebuilt part-by-part, or be deemed to have assumed the risk of latent and non-discernible structural defects.
"This is not to say that all parts of an automobile can be expected to function indefinitely and flawlessly without maintenance for the life of the vehicle. It is to say that the manufacturer who alone is in a position to guard against the risk is subject to liability for a life-threatening latent structural defect which ticks away like a time bomb with every mile driven." Holloway v General Motors Corp, supra, pp 634-635.
[15] A General Motors expert testified that the automobile was designed and manufactured to travel on roads even worse than the one where the accident occurred.
The question of what constitutes "normal use" is normally for the jury to resolve. Snider v Bob Thibodeau Ford, Inc, supra, p 716.
In a somewhat analogous situation, the rule is that a plaintiff need not prove which person among alternative negligent tortfeasors caused his injury. See Summers v Tice, 33 Cal 2d 80; 199 P2d 1 (1948); Prosser, supra, § 41, pp 243-244.
[16] In Pohlod v General Motkrs Corp, 40 Mich. App. 583, 588; 199 NW2d 277 (1972), a case similar to the present one, the plaintiffs claimed that a defective front ball joint caused their vehicle to go out of control. The evidence in that case only established that the "ball joint on the vehicle was defective in design, manufacture or assembly". (Emphasis supplied.) Nonetheless, the Court held that plaintiffs had made out a prima facie case. See, also, Greco v Bucciconi Engineering Co, supra; Tweedy v Wright Ford Sales, Inc, 64 Ill 2d 570; 357 NE2d 449 (1976); Farmer v International Harvester Co, supra; Bollmeier v Ford Motor Co, supra; MacDougall v Ford Motor Co, supra; Henningsen v Bloomfield Motors, Inc, supra; Jarnot v Ford Motor Co, 191 Pa Super 422; 156 A2d 568 (1959).
[17] The Holloways have not made any specific factual assertions about the ball joint assembly which are disputed by General Motors.
[18] 32A CJS, Evidence, § 1039, pp 748-761; 30 Am Jur 2d, Evidence, § 1091, pp 248-252.
In Brownell v White Motor Corp, 260 Or 251, 258-259; 490 P2d 184, 187; 51 ALR3d 1, 7 (1971), the Court held that circumstantial proof of the existence of a defect is permissible even when the product is not destroyed or otherwise unavailable.