Shank v. Charger, Inc.

929 N.E.2d 520, 186 Ohio App. 3d 605
CourtOhio Court of Appeals
DecidedMarch 19, 2010
DocketNo. 09-CA-03
StatusPublished
Cited by4 cases

This text of 929 N.E.2d 520 (Shank v. Charger, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shank v. Charger, Inc., 929 N.E.2d 520, 186 Ohio App. 3d 605 (Ohio Ct. App. 2010).

Opinion

Fain, Judge.

{¶ 1} Defendant-appellant, Charger, Inc. (“Charger”) appeals from a judgment awarding plaintiff-appellee, Jeffrey Shank, $2,468.03, plus statutory interest, and attorney fees of $2,500. After a bench trial, the court concluded that Charger had breached its contract for repair of Shank’s automobile, had committed negligence, and had committed an unconscionable act in violation of R.C. 1345.03(B)(6).

[608]*608{¶ 2} Charger contends that the trial court erred in overruling its motion in hmine to preclude the testimony of Shank’s expert. Charger also contends that the trial court erred in finding that it committed an unconscionable act.

{¶ 3} We conclude that the trial court erred in admitting a narrative statement about repairs that were made to Shank’s truck, because Shank failed to comply with the requirements for establishing the business-record exception to hearsay under Evid.R. 803(6). Any error in admitting the evidence was harmless, however, because the opinion of Shank’s expert was not exclusively, or even primarily, based on the repair estimate, but was supported by other facts in evidence, many of which are not disputed.

{¶ 4} We further conclude that the trial court did not err in awarding attorney fees to Shank under R.C. 1345.09(F)(2). Sufficient evidence existed to support the trial court’s finding that Charger committed an unconscionable act under R.C. 1345.03(B)(6). Accordingly, the judgment of the trial court is affirmed.

I

{¶ 5} In the Spring of 2007, Jeffrey Shank purchased a 1999 Chevrolet Silverado truck from Ron Garrett Chevrolet. At the time, the Silverado had been driven about 49,000 miles. Before Shank purchased the truck, new brake pads and rotors were put on the rear of the truck, because the brake rotors were very rusty. This is apparently a common issue with Ford, Chevrolet, and Dodge trucks.

{¶ 6} After Shank purchased the truck, he had no problems with the brakes. In mid-August 2007, Shank took the truck to Auto Lube for its first service. Auto Lube is owned by Charger. Shank took a seat in the customer-service area, which was about six feet away from the bay where his truck was parked. Shank watched while the truck was being serviced.

{¶ 7} During the service, Jason Crank, an Auto Lube employee, accidentally grabbed a bottle of power-steering fluid and poured two to four teaspoons into the brake fluid. Both fluids are clear and look the same, but power-steering fluid is lighter and would float on the top of the brake fluid. Power-steering fluid is oily and contains petroleum.

{¶ 8} Keith Fourman, the assistant manager, noticed that Crank was pouring steering-wheel fluid into the brake reservoir. Shank saw the incident happen, and heard Fourman call out to Crank that he was inserting the wrong fluid. Fourman immediately got a vacuum pump that is similar to a turkey baster, and suctioned out the fluid in the master cylinder. Fourman also used a shop rag and his fingers to try to get the oil out. Fourman wiped out as much as he could, and filled the reservoir with brake fluid.

[609]*609{¶ 9} Auto Lube did not have a written policy in place to deal with situations in which fluids were put in the wrong reservoir. Auto Lube also does not keep brake cleaner or detergent on hand. Fourman indicated at trial that he could not say for sure whether he was able to remove all the power-steering fluid. The brake reservoir contains nooks and crannies that are difficult to reach.

{¶ 10} Fourman testified that he told Shank that he had gotten as much oil out as he could. He told Shank there should be no problem, as brake fluid and power-steering fluid do not mix. Fourman told Shank that he had fixed the problem, and did not recommend that Shank take his vehicle to a mechanic.

{¶ 11} Shank testified at trial that Fourman had said that he got all the fluid out, and that it would be all right. Shank did not call a mechanic, because of Fourman’s representations. ■ He was not alarmed.

{¶ 12} After the brake fluid was refilled, an Auto Lube employee sat in the driver’s seat of the truck, put the brake on, put the truck in drive, and pulled it out of the facility. Shank then left. From that time until early October 2007, Shank drove the truck without incident. Shank mostly drove back and forth to work — a distance of only a few miles. In early October, Shank drove the truck to Springfield, Missouri, to visit his daughter, who was in college. This was the first long trip he had taken since the oil change, and the drive took about ten hours. During the trip, Shank experienced significant vibration in the front of the truck on two different occasions, but was unable to find the cause. When Shank arrived in Springfield, his brakes were clearly dragging. The sensation was as if Shank had one foot on the brake and was trying to accelerate.

{¶ 13} The next morning, Shank took the truck to Thompson Sales, which is located in Springfield, Missouri, and is a General Motors Corporation (“GMC”) dealer. Shank told Thompson that he had experienced intermittent vibration at high rates of speed, that the brakes were dragging, and that there appeared to be a brake problem. Shank picked up his vehicle the next day, after repairs were made. The total for the repairs, including a rental car, was $2,424.01. Thompson showed Shank the parts that were removed from the car. Shank saw rubber hoses and rubber brake components that were swollen, bent, and distorted. Shank did not bring the parts back to Ohio. Shank had no further problems with the brakes after the repair.

{¶ 14} According to expert testimony, the braking system is activated by pressing on the brake pedal. This compresses or pushes a piston or rod to the master cylinder. The master cylinder has two reservoirs, one for the front and one for the back. The pistons in the master cylinder are sealed with rubber seals.

[610]*610{¶ 15} If a vehicle has an antilock-brake system (“ABS”), as Shank’s truck does, the master cylinder pushes fluid through the ABS. The ABS also has pistons that move back and forth and release pressure and has multiple lines that go out to the four wheels, where there are calipers or wheel cylinders. The pressure goes out to the calipers, pushes the pistons out and puts friction on the brake rotor and pads, which makes the car stop. Various components in the brake system contain rubber, including the seals in the master cylinder, the seals in the antilock-brake module, the brake hoses, and the calipers or wheel cylinders.

{¶ 16} The service manual for the 1999 Silverado truck contains the following notice:

{¶ 17} “Using the wrong fluid can badly damage brake system parts. For example, just a few drops of mineral-based oil, such as engine oil, in your brake system can damage brake system parts so badly that they’ll have to be replaced. Don’t let someone put in the wrong kind of fluid.”

{¶ 18} Shank’s expert, Phillip Ayette, testified that any products containing petroleum, including mineral spirits, gasoline, engine oil, transmission fluid, or power-steering fluid, are possible sources of contamination in the brake system. When these contaminants interact with rubber, the rubber parts will swell and become distorted. Even a few drops can damage rubber components.

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Cite This Page — Counsel Stack

Bluebook (online)
929 N.E.2d 520, 186 Ohio App. 3d 605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shank-v-charger-inc-ohioctapp-2010.