HASSON v. FORD MOTOR COMPANY (1975)

On July 19, 1970, in the early evening, James Hasson, a 19 year old college student was driving his parents' 1966 Lincoln Continental. He was accompanied by four other young persons who were passengers in the vehicle. About 30 minutes after leaving the Hasson home the car, after descending a rather steep grade on Mt. Olympus Drive in Los Angeles, crashed into a fountain located at the bottom of the hill. James Hasson suffered severe injuries, the other passengers suffered minor injuries.

Briefly summarized, the testimony of the occupants of the automobile was that the group had been on a leisurely drive through a portion of the San Fernando Valley and up Laurel Canyon Boulevard to Mulholland Drive. The car had made a few slow stops and the speed of the vehicle had never exceeded 40 miles per hour. The primary purpose of the trip was sightseeing. In the course of descending from Mulholland Drive down Mt. Olympus Drive, when James Hasson attempted to depress the brake pedal to slow the vehicle, the pedal went all the way to the floor and produced no braking action. Efforts by Hasson to apply the parking brake and to shift the automatic transmission to reverse were unavailing. The car continued on to the bottom of the hill where it struck the fountain.

The evidence established that the car had not been driven for approximately five hours prior to James Hasson starting on his ill-fated trip.

The car in question was first sold in August of 1966 to a Mr. Alex Williams. It was equipped with disc brakes on the front wheels and ordinary drum brakes on the rear wheels. Shortly after the purchase, a leaking grease seal caused grease to be deposited on the rear brake linings. The seal was replaced and the rear brakes relined. This service was performed by Johnson and Son, the dealer who sold the car.

Other than the above mentioned service, no brake work was ever performed on the car and no fluid had been added to the hydraulic system. Furthermore, no other braking problem has been experienced prior to the time of the accident.

In August of 1967, Mr. Williams commenced having the car serviced at Beverly Lincoln Mercury (Beverly), a dealership in Beverly Hills. Service was performed every 6,000 miles. In November of 1969, when the car had 40,590 miles, Williams took the car to Beverly for inspection prior to selling it to Mr. Jack Hasson, the father of James Hasson, the injured party here. Williams told Beverly's representatives to make sure ‘everything was in order.’

According to Beverly their records revealed no service to the braking system which indicated that their inspection disclosed no problems with that part of the car. The sale to Hasson was accomplished on November 28, 1969. Subsequently, the Hasson family, during the ensuing 8 months prior to the accident, drove the car approximately 3,400 additional miles.

James Hasson, his father Jack Hasson and the passengers in the automobile brought actions against Ford Motor Company, Johnson and Son and Beverly. The cases were consolidated and after a lengthy trial the jury returned a verdict against Ford and Beverly awarding James Hasson $1,058,612.50 and Jack Hasson $63,663.29. The other four plaintiffs were awarded nominal damages. The jury found in favor of Johnson and Son.

The trial court denied motions by Ford for a new trial, to vacate the judgment and enter a new and different judgment, and for judgment notwithstanding the verdict. The trial court granted a motion for judgment notwithstanding the verdict and in the alternative a new trial in favor of Beverly. Ford appeals from the judgment entered on the verdict and from the order denying its motion for a judgment notwithstanding the verdict. Plaintiffs appeal from the judgment notwithstanding the verdict in favor of Beverly and from the order granting that defendant a new trial. Plaintiffs did not appeal the judgment in favor of Johnson and Son. Beverly cross-appealed from the judgment in favor of plaintiffs.

Plaintiffs' theory upon which the case was tried was that the cause of the accident was a failure of the brakes of the Lincoln Continental due to a vaporization or boiling of the brake fluid causing a loss of braking power. Although here, as in Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890, plaintiffs' complaint against Ford and Johnson and Son contained counts for negligence, warranty and strict product liability, we treat them as a single cause of action based upon a claimed defect in the design of the braking system in the 1966 Lincoln and a defect in the manufacture of the car as a result of the properties of the brake fluid which was used in that vehicle. Since Beverly was neither a distributor nor a retailer of the car in question, plaintiffs' claim of liability against Beverly necessarily rested upon proving Beverly's negligence apart from any liability of Ford for defect in the design or manufacture of the vehicle.

Plaintiffs' theory, however, that the accident was the result of brake fluid vaporization which in turn resulted from a defect in the design and manufacture of the automobile's braking system necessarily required plaintiffs, in order to fasten liability on Beverly, to prove the existence of the defect, the causal connection between the defect and the accident, and a duty on the part of Beverly to correct the defect at the time it serviced the car in November of 1969. Thus the issue of whether the braking system of the car was defective is central to the case against both defendants.

THE JURY'S SPECIAL FINDINGS

The jury in this case was requested to respond to a series of special interrogatories. As to one such interrogatory the jury by a vote of 9–3 declared that Ford and Beverly were negligent.

Crucial to this appeal, however, is that by a vote of 11–1, the jury in response to another special interrogatory replied that the car in question was not defective at the time it was manufactured and sold.

As a background to this latter finding we set forth the court's instructions to the jury as to definition of a defect. The jury was told as follows:

‘As used in these instructions, the term defect is defined as follows: A defect in a product is a condition resulting from workmanship, material or design used in its manufacture which makes the product unfit or unsafe for its intended use.

‘The manufacturer and seller of a product is liable for injuries proximately caused by a defect in the product which existed when the product left their possession, although manifested later, provided that the injury resulted from a use of the product that was reasonably foreseeable by such manufacturer and seller.

‘If instructions or warnings concerning the maintenace or replacement of a component of the braking system of an automobile is reasonably required in order to prevent the possibility of brake failure, the omission of such instructions or warnings may render the automobile defective as this word is used in these instructions.’ (Emphasis added.)

THE EVIDENCE

The 1966 Continental was the first model of that automobile to have disc brakes on the front wheels. According to expert witnesses produced by plaintiffs, disc brakes generate a higher degree of heat than the traditional drum brake and the design of the braking system in the 1966 Lincoln was such as to place the brake fluid in close proximity to the disc brakes thus subjecting the fluid to this higher degree of heat. Further, according to plaintiffs' witnesses, the brake fluid which was used in this particular model of automobile had a property which permitted it to absorb moisture from the atmosphere which in turn lowered its boiling point.

The evidence disclosed that the fluid when it was installed at the factory had a boiling point of 550 degrees Fahrenheit. When the brake fluid was drawn from the car after the accident it was determined that the fluid at that time had a boiling point of 275–300 degrees or roughly 50% lower than the original factory specifications.

According to plaintiffs' expert the design of the system and the use of this particular fluid constituted a defect and that in order to insure proper braking in the 1966 Lincoln Continental the brake fluid should have been changed annually. A contributing defect, according to these experts, was the use of a single master cylinder. Proper safe design according to plaintiffs' witnesses would provide two master cylinders.

Plaintiffs' experts admitted, however, that the braking system on the car at the time of the accident was functional and adequate to provide sufficient braking power for the car and would have done so but for the fact that in their opinion the fluid in the system vaporized causing a total loss of the braking power.

Ford produced an expert witness of its own who testified that it is possible to abuse any braking system to the point that a rapid buildup of heat and consequent fluid boil caused by such abuse will result in the system failing. Ford's expert opined that the accident could not have happened as described by plaintiffs' witnesses since the witnesses negated any abuse of the brakes by the driver.

In response to a series of very lengthy hypothetical questions, plaintiffs' experts gave an opinion that the accident in question was in fact caused by vaporization of the brake fluid and a resultant brake failure. There was, however, a complete failure to establish as a basis for their opinion, that under the circumstances of driving as testified to by the passengers in the car, even the 275 or 300 degree temperature necessary to vaporize the deteriorated fluid could be achieved.

Testimony of experts for both sides describing test runs with a 1966 Lincoln established that it was only possible to achieve a 300 degree temperature in the braking system by subjecting the car's brakes to serious abuse. For example, plaintiffs' expert testified that by driving a similar car at 40 miles per hour with a constant five pound pressure on the braking system, i. e., by dragging or riding the brakes, he was able to produce 300 degrees Fahrenheit temperature and a loss of braking power after 20 miles or 19 minutes of driving. As noted, plaintiffs contended throughout the trial that the driving by James Hasson was not abusive of the vehicle but was instead a very leisurely and moderate trip.

THE JUDGMENT AGAINST FORD

Ford contends that the evidence does not support the judgment because there was an inadequate factual basis for plaintiffs' expert's opinion, that fluid vaporization caused the accident. We agree.

An expert's opinion is worth no more than the facts upon which it is based. (People v. Williams, 200 Cal.App.2d 838, 19 Cal.Rptr. 743; Owings v. Industrial Acc. Com., 31 Cal.2d 689, 192 P.2d 1.) It is difficult to see how the plaintiffs' witnesses could advance an opinion carrying any weight that the accident here was caused by a vaporization of brake fluid without some evidence that the manner in which the car was driven could have produced the requisite temperatures.

More important, however, is the fact that the general verdict of the jury is fatally inconsistent with the special finding that the car was not defective. The entire thrust of plaintiffs' evidence was that the 1966 Lincoln was defectively designed and manufactured when Ford's engineers located the fluid in the position which they did, used the particular fluid which they used and failed to provide dual master cylinders. According to plaintiffs this defective design and manufacture ordained a deterioration in the fluid which would ultimately produce a brake failure unless the fluid was changed periodically. From this defective design and manufacture, plaintiffs argue that there arose a duty on the part of Ford to warn its dealers and customers of this problem, a breach of which duty was negligence notwithstanding that the jury found no such defect to exist.

A manufacturer is liable ‘for all injuries proximately caused by any of its products which are adjudged ‘defective.” (Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, p. 134, 104 Cal.Rptr. 433, p. 442, 501 P.2d 1153, 1162.)

‘[A] product, although faultlessly made, may nevertheless be deemed ‘defective’ if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning.' (Gherna v. Ford Motor Co., 246 Cal.App.2d 639, at 651, 55 Cal.Rptr. 94, at 102; also see Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 46 Cal.Rptr. 552; Johnson v. Standard Brands Paint Co., 274 Cal.App.2d 331, 79 Cal.Rtpr. 194.) Hence, the duty to warn flows from a defect in the product which exists at the time it is put on the market. This was the thrust of the court's instruction to the jury.

On the other hand, a manufacturer is not liable for injury occurring in the use of its product which is not the result of a defect and there is no duty to warn in the absence of a defect, as that term is defined.

The jury's special finding of ‘no defect’ was a rejection of the testimony of plaintiffs' experts because under the court's instructions, if the jury had found that Ford breached its duty to warn, it would have had to answer ‘yes' to the question of whether the car was defective when manufactured and sold.

‘[T]he test for strict liability is the same as that for negligence, except for the element of scienter.’ (Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, at 640, 105 Cal.Rptr. 890, at 895.) Thus a manufacturer may be held liable as the result of injury caused by a defect in his product without requiring the injured party to prove that the manufacturer breached a duty of due care in putting the product in the stream of commerce. (Ault v. International Harvester Co., 13 Cal.3d 113, 115 Cal.Rptr. 393, 524 P.2d 865.) But if the product is proved not to be defective then necessarily the injured party, in failing to carry the lighter burden of proof required to establish strict liability, has failed to carry the heavier burden of proving negligence.

Where a special finding is inconsistent with a general verdict, the former controls and the court must enter judgment accordingly. (Code Civ.Proc., § 625; Witkin, Cal.Proc.2d ed., Trial, § 280, p. 3085; Bond v. DeWitt, 126 Cal.App.2d 540, 272 P.2d 561.)

A special finding is inconsistent with a general verdict when as a matter of law the special finding by itself would authorize a judgment different from the general verdict. (Bate v. Marsteller, 232 Cal.App.2d 605, 43 Cal.Rptr. 149.) Based on the special finding here the trial court should have entered judgment on that finding notwithstanding the jury's general verdict.

In view of our disposition of the case, there is no need to discuss Ford's other claims of error.

THE VERDICT AGAINST BEVERLY AND THE JUDGMENT NOTWITHSTANDING THE VERDICT

The observations made concerning the jury finding of ‘no defect’ in the car are also germane to the plaintiffs' case against Beverly. Additionally, the trial court succinctly and correctly summed up the matter as to Beverly in its statement of reasons for granting a new trial and we quote it verbatim.

‘Plaintiffs' case was predicated upon their claim that the vehicle in which the plaintiffs were riding had sustained a brake failure due to a vaporization of brake fluid. Plaintiffs predicated their case against the Ford Motor Company on the theory that they should have warned the dealers that the brake fluid should be replaced periodically. The uncontroverted evidence established that Beverly Lincoln Mercury Inc. had no knowledge of the alleged need for brake fluid change or replacement, and no evidence was presented that Beverly Lincoln Mercury, Inc., should have had such knowledge. In fact, evidence was presented which established without question that it was not the custom and practice in the industry to periodically change brake fluid and information that Ford Motor Company may have had with respect to the need for periodic change of brake fluid was never conveyed to Beverly Lincoln Mercury, Inc. Ford Motor Company was privy to information that it did not pass on to its dealers with respect to the boiling point of the brake fluid being drastically lowered through in-service use.

‘The evidence established without conflict that Beverly Lincoln Mercury, Inc., last saw the vehicle in question some eight months prior to the time the accident occurred. It was further established without conflict that at no time did anyone until the time the accident occurred ever experience brake problems of any kind with the vehicle in question. All experts who examined the vehicle after the accident occurred testified that the vehicle involved in the accident was equipped with brakes at the time the accident occurred that were capable of producing ‘specification performance’. It was established that all aspects of the braking system of the vehicle involved in the accident were functional both before and after the accident and if a brake failure occurred, it could only have occurred through a vaporization of the brake fluid, a phenomena for which the defendant, Beverly Lincoln Mercury, Inc., could not be held responsible because it neither knew nor had reason to know that the boiling point of brake fluid could be drastically reduced through in-service use.'

Plaintiffs contend that an additional theory of negligence which would support a judgment against Beverly is that Beverly should have performed a complete brake job on the car at the 40,000 mile check for the reason that the rear brake linings were less than 1/8 inch thick at that time. Beverly's representatives testified that they customarily recommended a relining of the brakes when the lining wears below 1/8 inch in thickness and that as a part of that service they replace the brake fluid.

Plaintiffs' argument goes that since the evidence indicated that the rear brakes, according to Beverly's custom, required relining, if Beverly had followed its usual practice the fluid would have been replaced and the accident would not have happened.

This argument, of course, is premised on the notion that the fluid in the car vaporized where a new fluid would not have. We have previously pointed out that there is insufficient evidence to support a conclusion that the fluid did in fact vaporize under the conditions of driving as described by plaintiffs' witness. It could have been that the brakes were so abused that even the new fluid would have vaporized, but be that as it may the question resolves itself to one of whether it was a breach of a duty of due care by Beverly not to change the fluid. In other words, was Beverly under a duty to change the fluid?

Even if we assume arguendo that it was negligence for Beverly not to reline the rear brakes as plaintiff contends, that was not the cause of the accident. Plaintiffs have never contended that a lack of lining on the rear brakes caused the accident. In fact, as pointed out above even plaintiffs' experts conceded that the braking system was capable of specification performance both before and after the accident.

In order for a defendant to be liable in negligence for harm to another the defendant must not only be proven to be negligent but that negligence must be a legal cause of the harm. (Restatement of Torts, 2d ed., § 430.) The harm must result from exposure to the hazard created.

Whether we look at this issue in terms of duty or causation the result is the same. Beverly cannot be held liable for this accident for failing to reline the rear brakes simply because its usual custom would have included a change of brake fluid at the same time. The failure to reline the rear brakes is unrelated, as a hazard, to the failure to change the fluid. The jury's finding that the car was not defective eliminated any duty on the part of Beverly to correct the alleged defect and thus eliminated any possible finding of negligence based on a breach of that duty.

Failure to observe a custom may be negligence, but the custom is not the standard. The standard remains one of ordinary care, (Pauly v. King, 44 Cal.2d 649, 284 P.2d 487; Owen v. Rheem Mfg. Co., 83 Cal.App.2d 42, 187 P.2d 785) and a person who ordinarily exercises a higher degree of care than the law requires should not be penalized if he fails to exercise that degree of care on a given occasion. (65 C.J.S. Negligence § 16, p. 602.)

The judgment against Ford is reversed and the trial court is directed to enter judgment in favor of Ford, the judgment notwithstanding the verdict in favor of Beverly is affirmed. Ford and Beverly to recover their respective costs.

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.