Ford Motor Co. v. Zipper

502 S.W.2d 74, 1973 Ky. LEXIS 68
CourtCourt of Appeals of Kentucky
DecidedNovember 23, 1973
StatusPublished
Cited by4 cases

This text of 502 S.W.2d 74 (Ford Motor Co. v. Zipper) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford Motor Co. v. Zipper, 502 S.W.2d 74, 1973 Ky. LEXIS 68 (Ky. Ct. App. 1973).

Opinions

REED, Justice.

This is a products liability case in which the appellant, Ford Motor Company, the manufacturer of an automobile involved in a collision, was held responsible for personal injuries and property damage sustained in the accident. The case was tried by a jury and the trial judge entered judgment in accordance with the jury verdict. Ford appeals and contends that it was entitled to a directed verdict on the issue of liability and, in any event, prejudicial errors were committed at the trial by reason of which a new trial should be ordered. We hold that Ford’s liability was properly submitted to the jury and that its substantial rights were not affected by the trial 'court rulings to which complaint is directed. We affirm the judgment for the reasons stated later in this opinion.

The appellee, Alice Zipper, was operating her automobile in April 1967, in Louisville, Kentucky. While her automobile was stopped preparing to make a left turn into a restaurant, it was struck in the rear by an automobile owned and operated by ap-pellee, George L. Siebe. Siebe’s automobile, a 1967 Ford Fairlane, had been purchased by him about 8 months before the accident from appellee Burns Ford, Inc., a Louisville Ford dealer.

Appellee Zipper sued Ford, the manufacturer; Burns, the retailer; and Siebe, the owner of the Ford automobile. Siebe cross-claimed against Ford and Burns. Burns claimed indemnity from Ford. Siebe also sought damages from Burns and Ford for his property damage and loss of use in the total amount of $1,430. The jury found that the accident was caused solely by a defective part in Siebe’s automobile. The jury’s verdict awarded Mrs. Zipper $12,266 for personal injuries against Burns and Ford. The jury also found in favor of Siebe against Burns and Ford for his property damage and loss of use. The jury also awarded a verdict in favor of Burns against Ford for the total amount rendered against Burns. In accordance with the verdict, judgment was entered for $12,266 in favor of Mrs. Zipper and for $1,430 in favor of Siebe, and it was further adjudged that Ford bear ultimate responsibility for the payment of these claims aggregating $13,696.

Siebe claimed that the accident was caused by the failure of his brakes, which he alleged were in a defective condition when manufactured by Ford and remained in that condition when the automobile was purchased from Burns. According to Siebe, he was traveling at approximately 30 miles per hour before the collision. He saw the Zipper automobile stop with its turn signal on and applied his brakes. He stated that he had had no trouble with the brakes prior to the time of the accident but when he applied them on this occasion, the power brake pedal, which was low to the floor, gave a little resistance and went all the way to the floor. He also said that he was unable to get into the other lane in order to avoid the collision due to the presence of another automobile, and that he was not able to brake by using the parking brake before making contact with the Zipper automobile.

The first item presented for consideration is whether a submissible jury issue concerning Ford’s liability was presented. We have adopted the doctrine of strict liability of manufacturers declared in Section 402(a) of the Restatement of Torts, Second. The quantum of proof necessary to make a submissible jury issue concerning the manufacturer’s liability has been considered in several late cases. The later cases considering alleged defects in auto[77]*77mobiles chargeable to the manufacturer are Briner v. General Motors Corporation, Ky., 461 S.W.2d 99 (1970), and Midwestern V. W. Corporation et al. v. Ringley, Ky., 503 S.W.2d 745 (decided June 15, 1973). In the case at bar, there was testimony from a qualified expert that there were three defects in the brake linkage of Siebe’s automobile at the time it left the manufacturer : (a) the center hole in the- linkage was ⅛6 of an inch off center from the side; (b) the hole in the linkage had no chamfer on it; (c) the hole in the linkage was oversized in relation to the. pin that fit through it. This expert also testified that there was no visible defect or damage to any other part of the brake assembly nor were there any marks of impact or damage on the vacuum booster assembly, which would indicate that the linkage was broken by the impact of the two cars. •

This expert’s testimony was clearly to the effect that the cause of the brake failure was a defectively manufactured brake linkage. Unlike equivocal evidence on causation in the Ringley case, this expert’s testimony demonstrated defectively manufactured brake linkage was more likely than not the cause of the accident in his opinion. Although Ford presented contrary expert evidence to the effect that the linkage did not cause the accident, we conclude that the expert evidence on behalf of the appellee was completely sufficient to permit a jury to find that a defectively made linkage caused the brake failure. The requirements of Section 402(a) of the Restatement of Torts, Second, for submissi-bility to the jury were satisfied.

Ford complains that the trial court prej-udicially erred in that it excluded the evidence of Ford’s expert. The record does not bear out the assertion. Ford presented the evidence of one of its employees, John. Klecha, who was qualified and testified as an expert. Klecha undertook to ascribe the brake failure to causes other than defective manufacture. On direct examination, Klecha attempted to explain an expert iment, which he performed at Dearborn, Michigan, at Ford’s central laboratory. Klecha testified that he obtained a similar vacuum booster with a similar linkage attached and carried out an experiment to find out what load the linkage would carry before fracturing.

An objection was interposed when Kle-cha was asked what conclusion he had obtained from the experiment. The objection was based on the use of the word “similar” to describe the parts used in the experiment. Klecha explained that he tested this similar linkage for hardness of the metal and determined that it was not as strong as the metal in the linkage taken from Siebe’s automobile. He then continued to describe the experiment.

In this description he used an illustrative device, the booster, but after giving his explanation he was asked again the result of his experiment, and another objection was interposed which the trial court sustained stating that there had been no showing that the parts used in the experiment came from the same batch of material as that used in the Siebe automobile. Klecha gave additional testimony in chambers, and during his avowal appearance he stated that it was his conclusion that it took 2,090 pounds of pressure (load) to break the linkage used in his test.

When trial resumed in open court before the jury, Klecha was again asked about the amount of pressure required to lock the wheels of the 1967 Ford Fairlane, and he replied: “40 to 50 pounds or 700 to 800 p. s. i.”; then he was asked what amount of pressure was required to break the levers and he answered, “about 2100 pounds.” From this record it is perfectly apparent that, with the exception of the part itself that was used and broken in Klecha’s experiment, all of the information concerning the experiment was heard by the jury. We find no error affecting Ford’s substantial rights so far as the presentation of its expert evidence was concerned.

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502 S.W.2d 74, 1973 Ky. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-motor-co-v-zipper-kyctapp-1973.