Arthur Decato v. Brandfon Motors, Inc. (2013)

MEMORANDUM OF DECISION RE RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

The defendants have moved for summary judgment on liability on the ground that there is no reasonable expectation that the plaintiff will offer sufficient evidence to support his claim that the front driver's side airbag of his motor vehicle was defective.   Due to the lack of sufficient evidence to support the plaintiff's claims of a defect, the court grants the defendants' motion for summary judgment.

FACTS

On June 21, 2011, the plaintiff, Arthur Decato, filed a two-count complaint against Brandfon Motors, Inc. (Brandfon) and American Honda Motor Company, Inc. (Honda).  In his complaint, the plaintiff alleges the following facts.   Around September 2005, the plaintiff purchased a 2006 Honda Ridgeline (Ridgeline) from Brandfon.   On December 5, 2009, the plaintiff was operating the Ridgeline on a highway when he lost control of the vehicle, hitting a guardrail and a dividing barrier.   The plaintiff sustained serious and permanent physical injuries as a result.

Count one is a products liability claim that was brought pursuant to an alleged violation of General Statutes § 52–572m et seq.,¹ and in which the plaintiff alleges that his injuries were caused by the failure of the front airbags to deploy in a proper and timely manner.   Count two is a claim for recklessness that is premised on a theory of products liability and arises under General Statutes § 52–240b.²  In this count, the plaintiff alleges that the defendants acted recklessly by failing to make sure that the Ridgeline was safe for the plaintiff's use.   Both counts are being asserted against both defendants.

In an answer filed on August 30, 2011, Honda denies all of the plaintiff's substantive allegations, and asserts a number of special defenses.³  On September 19, 2011, Brandfon filed an answer in which it also denies the plaintiff's substantive allegations and asserts special defenses that echo those asserted by Honda.

On April 5, 2013, the defendants filed the motion for summary judgment that is presently before the court.   In an accompanying memorandum, the defendants articulate that they are moving for summary judgment on the following grounds:  (1) the plaintiff has no reasonable expectation of offering, at trial, evidence to support his claim that the Ridgeline's driver's side airbag was defective, as it is undisputed that the airbag deployed during the accident;  (2) the plaintiff has failed to articulate a specific design or manufacture defect;  and (3) the plaintiff has failed to disclose an expert who will offer testimony concerning the plaintiff's claims that the airbag was defective and his injuries were greater than that which he would have otherwise sustained in the accident.   To this last point, the defendants represent that counsel for the plaintiff has informed counsel for the defendants that the plaintiff does not intend to disclose an expert.   The plaintiff has neither disclosed an expert, nor has he submitted any expert testimony or evidence in opposition to the defendants' motion.

Overall, the defendants assert that the plaintiff's allegations of a defect are speculative, as he has failed to present direct evidence of a defect and his failure to present expert testimony regarding the identification of a specific defect is fatal to his claims.   The defendants assert that on these grounds, there is no genuine issue of material fact, and they are entitled to judgment as a matter of law.   They have submitted the following evidence in support of their motion:  (1) the plaintiff's complaint (Defs.' April 15, 2013 Ex. A);  (2) excerpts from the April 17, 2012 deposition of the plaintiff (Defs.' April 15, 2013 Ex. B);  (3) excerpts from the May 10, 2012 deposition of the plaintiff (Defs.' April 15, 2013 Ex. C);  and (4) the plaintiff's answers to Honda's first set of interrogatories (Defs.' April 15, 2013 Ex. D).

In his April 30, 2013 objection to the defendants' motion, the plaintiff argues that this matter withstands summary judgment under the “malfunction theory” of product liability, which permits the consideration of circumstantial evidence when direct evidence of a defect is unavailable.   To this effect, the plaintiff asserts that the Ridgeline was repossessed during the time that he was in the hospital being treated for his injuries, and thus, relevant evidence pertaining to the Ridgeline was unavailable for his examination.   The plaintiff also argues that common experience suggests that he sustained enhanced injuries that would not have arisen had the airbag in the Ridgeline deployed properly.   He has submitted the following evidence in support of his position:  (1) an unsworn affidavit by the plaintiff that is dated April 30, 2013 (Pl.'s Ex. A);  (2) excerpts from the April 17, 2012 and May 10, 2012 depositions of the plaintiff (Pl.'s Ex. B);  and (3) excerpts from the August 29, 2012 deposition of John Dube, an employee and friend of the plaintiff who observed the plaintiff's car accident as it occurred (Pl.'s Ex. C).

The defendants subsequently filed a supplemental memorandum on June 6, 2013, reiterating their position that expert testimony is required to support the plaintiff's allegation of a defect, and stating that the plaintiff cannot rely on the malfunction theory because he was offered the opportunity to inspect or otherwise access data from the vehicle.   With their reply, the defendants offer additional evidence:  (1) excerpts from the May 10, 2012 deposition of the plaintiff (Defs.' June 6, 2013 Ex. A);  (2) a September 28, 2012 letter that counsel for the defendants sent to the plaintiff, and in which the plaintiff was informed of the availability of the Ridgeline for inspection and invited to participate in a data download of the Ridgeline's restraint system data (Defs.' June 6, 2013 Ex. B);  (3) correspondence from defendants' counsel that is dated November 2, 2012, and in which the defendants provide to the plaintiff copies of the data that Honda was able to retrieve from the Ridgeline (Defs.' June 6, 2013 Ex. C);  and (4) the defendants' notice of disclosure of expert witnesses who reviewed and analyzed the data (Defs.' June 6, 2013 Ex. D).

The parties argued this matter at the June 10, 2013 short calendar.   At short calendar, counsel for the plaintiff acknowledged that the plaintiff had access to the vehicle, as the defendants invited the plaintiff to participate in the process of retrieving performance data from the Ridgeline while the vehicle was located in a salvage yard.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).   Initially, “the party seeking summary judgment has the burden of showing the nonexistence of any material fact ․” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1055 (1984).   Therefore, “[o]n a motion by a defendant for summary judgment the burden is on a defendant to negate each claim as framed by the complaint [and] ․ it is only [o]nce a defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to a plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 626–27, 57 A.3d 391 (2012).  “[T]he trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)   Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

Moreover, “[m]ere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 471, 998 A.2d 766 (2010).  “The mere presence of an adverse claim will not in itself defeat the motion.”  (Internal quotation marks omitted.)  Koutsokos v. Toyota Motor Sales, USA, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 08 5007144 (May 11, 2011, Blawie, J.).

As previously stated, the defendants in the present case argue that the plaintiff's allegation that the front driver's side airbag was defective is merely speculative because the plaintiff does not have direct evidence to support his claims that the airbag was generally defective, that there is a specific design or manufacture defect, or that the airbag is the source of the plaintiff's allegedly enhanced injuries.   With regard to the plaintiff's assertion that this matter should withstand summary judgment because the plaintiff may avail himself of the malfunction theory of product liability, the defendants argue that this theory is inapplicable as it only pertains to situations in which the allegedly defective product is unavailable, but the plaintiff was offered the opportunity to inspect or otherwise access data from the Ridgeline.

The following issues will be discussed in seriatim.   First, whether there are any genuine issues of material fact regarding whether the plaintiff may recover under the strict liability theory of product liability;  and second, if the plaintiff cannot recover under the traditional strict liability theory, whether there are any genuine issues of material fact concerning the applicability of the malfunction theory, which would permit the trier of fact to infer that a defect existed based on circumstantial, instead of direct, evidence.

I

STRICT LIABILITY THEORY OF PRODUCTS LIABILITY

“To recover under the doctrine of strict liability in tort, a plaintiff must prove that:  (1) the defendant was engaged in the business of selling the product;  (2) the product was in a defective condition unreasonably dangerous to the consumer or user;  (3) the defect caused the injury for which compensation [i]s sought;  (4) the defect existed at the time of the sale;  and (5) the product was expected to and did reach the consumer without substantial change in condition ․ For a product to be ‘unreasonably dangerous,’ it must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”  (Citations omitted;  internal quotation marks omitted.)  Metropolitan Property & Casualty Ins. Co. v. Deere & Co., 302 Conn. 123, 131, 25 A.3d 571 (2011).   Our courts have expressed, generally, that a product should be proven defective by way of direct evidence of a specific defect.   See Id.;  White v. Mazda Motor of America, Inc., 139 Conn.App. 39, 54 A.3d 643 (2012), cert. granted, 307 Conn. 949, 60 A.3d 741 (2013);  Koutsoukos v. Toyota Motor Sales, U.S.A., Inc., supra, Superior Court, Docket No. X05 CV 08 5007144.   In Koutsoukos, the Superior Court held that, in cases concerning complex products, evidence of a defect should be presented by way of expert testimony.

The plaintiff in Koutsoukos was the administrator of the estate of an individual who died subsequent to sustaining injuries in a motor vehicle accident.   See Koutsoukos v. Toyota Motor Sales, U.S.A., Inc., supra, Superior Court, Docket No. X05 CV 08 5007144.   In that case, the plaintiff initiated a suit against the manufacturer and dealer of the motor vehicle that the decedent was operating when she crashed her car, claiming that the decedent suffered enhanced injuries as a result of the non-deployment of an allegedly defective front driver's side airbag.   Similar to the present case, “the plaintiff [in Koutsoukos ] ․ [did] not [proffer] any expert(s) who w[ould have] testif[ied] at trial concerning the vehicle design and biomechanical issues presented in th[e] case.”  Id. In that case, “[t]he question before th[e] court [wa]s whether to allow the ․ question of the non-deployment of a [n] ․ airbag to get to a jury, and the plaintiff's case itself to get to a jury without any expert testimony on front airbags per se offered by the ․ [plaintiff].”  Id. In Koutsoukos, the court granted summary judgment in favor of the defendants, reasoning “that in this case alleging products liability due to non-deployment of an airbag, the plaintiff [wa]s required to produce expert evidence establishing that the airbag system was defective ․ [E]xpert testimony [wa]s needed to survive a motion for summary judgment because these allegations fall into the category recognized by the Supreme Court in [Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 219, 694 A.2d 1319 (1997) ], which noted, ‘Although today we continue to adhere to our long-standing rule that a product's defectiveness is to be determined by the expectations of an ordinary consumer, we nevertheless recognize that there may be instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety.’  “ Koutsoukos v. Toyota Motor Sales, U.S.A., Inc., supra, Superior Court, Docket No. X05 CV 08 5007144.   Thus, “[i]n light of the ․ exceptionally complicated nature and regulatory requirements regarding airbags, expert evidence was required.   Predom v. Hadfield, Superior Court, judicial district of New Haven, Docket No. 419156 (January 26, 2001, Levin, J.) (granting Ford Motor Company's motion for summary judgment in light of plaintiff's failure to produce expert testimony).”  (Emphasis added;  internal quotation marks omitted.)   Koutsoukos v. Toyota Motor Sales, U.S.A., Inc., supra, Superior Court, Docket No. X05 CV 08 5007144.

Overall, “[a] jury does not always need an expert to assist in making certain findings as to a car's performance.   But some are not as familiar ․ Without any expert testimony, an [airbag's] deployment ․ involves too many engineering variables for a mere driver's license to be the only qualification for a juror's license to decide this issue of automotive products liability and injury enhancement as a layman.   It is inadequate as a matter of law without expert testimony.”  Id.

The Appellate Court affirmed the judgment of the trial court, stating that “where complex products are concerned, an ordinary consumer may not be able to form expectations of safety ․ Generally, absent direct evidence of a product defect, [i]f lay witnesses and common experience are not sufficient to remove [a] case from the realm of speculation, the plaintiff will need to present expert testimony to establish a prima facie case.”  (Citation omitted;  internal quotation marks omitted.)  Koutsoukos v. Toyota Motor Sales, U.S.A., Inc., 137 Conn.App. 655, 659, 49 A.3d 302, cert. denied, 307 Conn. 933, 56 A.3d 714 (2012).   While the “[Appellate Court] agree[d] with the plaintiff that there are cases in which a product defect was deemed to be so obvious that expert opinion was not found to be required”;  id., 661;  such was not the case with regard to the facts presented.

The facts and issues of the present case are similar to those presented by the Koutsoukos line of cases, as the product at issue is also an airbag—” [a] complex product [design] in which an ordinary consumer may not be able to form expectations of safety.”  Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 219.   As previously stated, the Appellate Court has held that the proper operation of an airbag is outside the realm of understanding of a layperson, and thus, a layperson cannot be expected to provide a reliable assessment regarding airbag operation and injury enhancement without resorting to speculation.   The defendants have submitted excerpts from their deposition of the plaintiff in which the plaintiff admits that he lacks technical knowledge regarding airbag deployment and does not have any information relating to airbag deployment in the Ridgeline.  (See Defs.' Ex. C 171:4–24, 172:4–17.)   Moreover, as previously stated, the defendants represent that “[c]ounsel for the plaintiff informed counsel for the defendants that the plaintiff d[oes] not intend to disclose an expert” who will offer testimony in support of the plaintiff's claims” (Defs.' Mem. Supp. Summ. J. 3 n.1);  and the plaintiff has not refuted this representation.   Thus, without the introduction of expert testimony from the plaintiff to demonstrate a defect, there is no genuine issue of material fact regarding whether the defendants may be held liable.

Nevertheless, the plaintiff in the present case asserts that his claims should withstand summary judgment based on the malfunction theory, “which permits the trier of fact to infer the existence of a product defect on the basis of circumstantial evidence when direct evidence is unavailable.”  Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 131.   This theory of product liability will be discussed in the following section.

II

MALFUNCTION THEORY OF PRODUCTS LIABILITY

“[T]he malfunction theory is based on the principle that the fact of an accident can support an inference of a defect ․” Id., 136.  “[A] product malfunction may result in an explosion, a crash or a fire that damages or destroys much, if not all, of the product's components ․ The product also may be lost when it has been discarded or destroyed after the incident such that the parties are no longer able to examine it ․ In such cases, the plaintiff is unable to produce direct evidence of a defect because of the loss of essential components of the product.”  (Citations omitted.)  Id., 131–32.   “[T]his theory does not relieve a plaintiff of the burden to prove all elements of a product liability claim [but] ․ it does help to establish a prima facie product liability case by permitting the jury to infer the existence of a defect attributable to the manufacturer.”  (Citation omitted.)  Id., 134.

“[W]hen direct evidence of a specific defect is unavailable, a jury may rely on circumstantial evidence to infer that a product that malfunctioned was defective at the time it left the manufacturer's or seller's control if the plaintiff presents evidence establishing that (1) the incident that caused the plaintiff's harm was of a kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time the product left the manufacturer's or seller's control and was not the result of other reasonably possible causes not attributable to the manufacturer or seller.”  Id., 139–40.  “A plaintiff may establish these elements through the use of various forms of circumstantial evidence, including evidence of (1) the history and use of the particular product, (2) the manner in which the product malfunctioned, (3) similar malfunctions in similar products that may negate the possibility of other causes, (4) the age of the product in relation to its life expectancy, and (5) the most likely causes of the malfunction.   If lay witnesses and common experiences are not sufficient to remove the case from the realm of speculation, the plaintiff will need to present expert testimony to establish a prima facie case.”  Id., 140–41.

Thus, “proof of an accident alone is insufficient to establish a manufacturer's liability ․ [T]he defendant in a product liability action ordinarily does not have control of the instrumentality that causes the plaintiff's injury at the time the injury occurs ․ [Moreover], product accidents often occur for a variety of reasons that do not indicate the existence of a defect ․ To allow such a speculative inference solely from the fact of an accident, when manufacturers and sellers no longer have exclusive control of the product, would essentially convert them into insurers of their products ․ Therefore, the plaintiff's evidence must support a chain of inferences sufficient to link the plaintiff's injury to a product defect and to link the defect to the manufacturer.”  (Citations omitted;  emphasis added.)   Id., 136–37.

“[A]ppl[ying] ․ the malfunction theory in cases in which the evidence is speculative raises substantial questions of fairness in allowing cases to proceed against product manufacturers.   Although th[is] doctrine is typically justified on the basis that it may be unfair to prevent the plaintiff from establishing a case when the product has been destroyed in an accident, it does not necessarily follow that it is fair to allow a claim against a manufacturer in the absence of direct evidence.   Although the loss of a product in an accident may harm the plaintiff's case, it also may prevent the manufacturer from defending itself by proving the absence of a defect in a particular product.”  Id., 137–38.  “The purpose of the limitations on the application of the malfunction theory is to ensure that, although the plaintiff will have an opportunity to pursue a product liability claim notwithstanding the loss of the product, such cases will proceed to trial only when the plaintiff's evidence is sufficient to establish that it is more probable than not that the plaintiff's injury was caused by a defect in a particular product that can fairly be attributed to the manufacturer and not some other cause.”  Id., 148–49.

Thus, whether the product was available to the plaintiff is the threshold issue that must be determined before any relevant circumstantial evidence can be considered.   If the subject product was unavailable, the plaintiff may rely on circumstantial evidence to establish the elements of the two-part liability test.   However, in the present case, the subject product—the Ridgeline—was available for inspection, and the plaintiff was not prevented from gathering evidence from the Ridgeline in order to present direct evidence of a specific product defect.   Evidence submitted by the defendants indicate that counsel for the plaintiff was informed of the Ridgeline's availability for inspection, and the plaintiff was invited to participate in the download of data from the Ridgeline.  (See generally Defs.' June 6, 2013 Ex. B.) Additionally, as previously stated, counsel for the plaintiff has acknowledged that the vehicle was made available for the plaintiff's inspection.   Moreover, if the Ridgeline was made available to the defendants then it stands to reason that it was, therefore, not unavailable for inspection by the plaintiff.   The malfunction theory is, therefore, inapplicable on the basis of the evidence presented by the defendant and by the plaintiff's own concession, as the case law indicates that this theory is only applicable in cases where the subject product or its components were destroyed, or are otherwise unavailable or inaccessible.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is granted.

Frechette, J.

FOOTNOTES

FN1. General Statutes § 52–572n, which is entitled “product liability claims,” provides in relevant part:  “(a) A product liability claim ․ may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.“(b) A claim may be asserted successfully under said sections notwithstanding the claimant did not buy the product from or enter into any contractual relationship with the product seller ․”.  FN1. General Statutes § 52–572n, which is entitled “product liability claims,” provides in relevant part:  “(a) A product liability claim ․ may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.“(b) A claim may be asserted successfully under said sections notwithstanding the claimant did not buy the product from or enter into any contractual relationship with the product seller ․”

FN2. General Statutes § 52–240b, which is entitled “punitive damages in product liability actions,” provides in relevant part:  “Punitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product ․”.  FN2. General Statutes § 52–240b, which is entitled “punitive damages in product liability actions,” provides in relevant part:  “Punitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product ․”

FN3. Honda asserts the following special defenses:  (1) the plaintiff was comparatively responsible and/or at fault for the incident by negligently or improperly operating and/or maintaining his vehicle;  (2) the plaintiff spoliated or failed to maintain the vehicle in its post-accident state, which prejudiced Honda from accessing potentially exculpatory evidence, and thus, the plaintiff is barred from recovery in whole or in part;  (3) the plaintiff cannot prove that the vehicle was in substantially the same condition as when it left Honda's control, and thus, may be barred from recovery;  and (4) the plaintiff is barred from any recovery against Honda because the vehicle was misused and the incident was the result of the plaintiff's misuse..  FN3. Honda asserts the following special defenses:  (1) the plaintiff was comparatively responsible and/or at fault for the incident by negligently or improperly operating and/or maintaining his vehicle;  (2) the plaintiff spoliated or failed to maintain the vehicle in its post-accident state, which prejudiced Honda from accessing potentially exculpatory evidence, and thus, the plaintiff is barred from recovery in whole or in part;  (3) the plaintiff cannot prove that the vehicle was in substantially the same condition as when it left Honda's control, and thus, may be barred from recovery;  and (4) the plaintiff is barred from any recovery against Honda because the vehicle was misused and the incident was the result of the plaintiff's misuse.

Frechette, Matthew E., J.