Harrison v. Bill Cairns Pontiac of Marlow Heights, Inc.

ALPERT, Judge. In this products liability case the appellants, Gina and Leonard Harrison, appeal rulings by the Circuit Court for Prince George’s County granting summary judgment for the defendants, Ford Motor Company and Bill Cairns Pontiac of Marlow Heights. Appellants contend that they produced sufficient evidence that a defect that existed in their 1978 Mercury Zephyr at the time of its manufacture by Ford caused a fire and resultant injuries to the plaintiffs some five years later. More specifically, they assert that: The court improperly applied a plaintiff’s burden of demonstrating no genuine issue in deciding defendants’ motion for summary judgment.

On the facts and opinions alleged by the plaintiffs, and the reasonable inferences therefrom, summary judgment for defendants was inappropriate. Even if Ford Motor Co. is entitled to summary judgment, Bill Cairns Pontiac of Marlow Heights, Inc. is clearly not. We disagree with the Harrisons and shall affirm. FACTS On September 21, 1982, the appellants purchased a used 1978 Mercury Zephyr from defendant Bill Cairns Pontiac.

At the time of purchase the automobile had travelled 58,855 miles according to its odometer. Shortly thereafter, the appellants returned the car to Bill Cairns, complaining that ⁴⁴ the tires were bald and of a mildewy smell emanating from an unknown source. The tires were replaced and the salesperson told the appellants that the smell was caused by the previous non-use of the airconditioning or heater and that it would go away. On August 3, 1983, while Gina Harrison was driving through East Potomac Park in the District of Columbia, a fire ignited either within or behind the instrument panel on the dash of the vehicle.

Gina Harrison was unable to stop the vehicle and exited the car prior to the vehicle’s impact with a tree. She sustained bodily injuries. She sued Ford Motor Company and Bill Cairns Pontiac for damages and her husband, Leonard Harrison, also filed suit for loss of consortium. The vehicle was examined by Greg Haas, an investigator for the plaintiffs.

Haas stated both at his deposition and in his investigative report that the fire was caused by “an electrical short in the dashboard directly behind the instrument cluster.” 1 Mr. Haas stated his reasons for this conclusion: Well, because all the wires were burnt and they were what was burnt most in the whole scenario, that is what I presumed was the central point of the fire. And then the second thing that I had to say or I had to figure to get that conclusion was that the only way that they would have caught on fire that way is through a short. Id. Soon after Haas’ examination of the vehicle, the car was destroyed by the appellants or their insurer.

Dr. George Lear, appellants’ second expert witness, was then deposed by the appellees. Because the automobile was ⁴⁵ destroyed prior to his retention as an expert witness, Dr. Lear relied on Gina Harrison’s deposition testimony, Haas’ investigative report, and two photographs of the car in reaching his opinion that the fire was the result of a defect in the electrical system of the car. Pertinent excerpts of Lear’s deposition testimony are as follows: A. I have not reached a specific cause identity at this point, only that it’s because of some defect associated with the vehicle. Cars shouldn’t catch on fire going down the road and drop molten debris on people’s feet.

Q. You’ll have to be more specific about that. You have reached a conclusion that a defect in the car caused fire; is that correct? A. Yes, Q. And the basis for that conclusion is that cars don’t drop molten material on people’s feet? A. That is the very minimum surface contention.

Very few experts or laymen will say that cars should drop molten debris on feet while you’re driving. Q. Are you prepared today to state your opinion based on a reasonable degree of engineering certainty whether any alleged defect in the electrical system caused or contributed to the fire? A. Yes. Q. What is that opinion?

A. I am more than fifty percent certain that this was an electrical fire. Q. And that is based on the driver’s testimony that molten material dropped to her feet, on your review of the investigator’s report and on your review of these photographs; is that correct? A. Yes. Q. Is there anything else that I have left out?

A. No. Q. Now, Dr. Lear, with respect to the alleged electrical defect, do you know what that defect is? ⁴⁶ A. No. Q. How are you going to find out? A. I don’t know. Q. I thought that I had previously asked you how you were going to find out what actually caused the electrical fire and you related at that time that you didn’t know how you were going to find out what caused the fire. A. Yes.

I don’t know that right now. Q. But you had previously stated, I believe, that it is your opinion that the fire was caused by a defect in the automobile; is that correct? A. Yes. Q. Is that a manufacturing defect or a design defect?

A. I don’t know. Q. You don’t know that one way or another? A. I don’t know that one way or another, but I am an expert in the area of automotive maintenance and that qualifies me to say what this frequency of maintenance is and the frequency of activity up underneath that dashboard. Q. You didn’t answer my question.

Isn’t it possible that faulty repair, if it took place in that area—obviously if it took place on the rear tire, it’s not going to affect it—that faulty repair could have resulted in a problem that resulted in an electrical fire? A. That is a possibility. Q. Do you know on which side of the steering wheel, looking at what the driver would be looking at, the main wiring loom is routed in a 1978 Mercury Zephyr? A. No. Q. Do you know on which side the air conditioning motor is located?

A. No. ⁴⁷ Q. Do you know from the same perspective where the air conditioning blower motor resistor wires are located? A. No. Q. Dr. Lear, what are the various possibilities with respect to the specific cause of the electrical fire in this vehicle?—and I am talking about specific wiring systems. A. I am not at the point in my investigation where I would feel that it’s appropriate to address that. Q. What are you going to have to do to reach that point?

A. I don’t know. Q. Do you know whether or not the air conditioning blower motor resistor wires might have been responsible? A. I don’t know. Lear deposition pp. 46, 50, 53, 57, 68-69.

No experts retained by the defendants have examined the vehicle because of its destruction. Appellants also rely on two recall orders from Ford Motor Company that applied to some 1978 Mercury Zephyrs. The unrefuted affidavit from a design analysis engineer at Ford Motor Company, however, indicates that the Harrisons’ vehicle was manufactured several months subsequent to the vehicles that were subject to the recall order. (See Affidavit of Thomas Patterson.) No other evidence regarding the possibility of a defect has been produced by the Harrisons.

The Harrisons have attempted to impute liability to the defendants under several theories. These are (1) negligent manufacture and design, (2) breach of implied warranties of merchantability, (3) negligent failure to warn, and (4) strict liability. 2 Although the substantive law of the District of Columbia, the situs of the injury, applies, “the sufficiency of evidence and permissibility of inferences are to be determined by the law of the forum, generally, and in res ipsa ⁴⁸ loquitur situations.” Joffre v. Canada Dry, Inc., 222 Md. 1, 7 , 158 A.2d 631 (1960). See also Vernon v. Aubinoe, 259 Md. 159, 162 , 269 A.2d 620 (1970) (“Maryland law ... controls as to the inferences to be drawn from the evidence, the sufficiency of the evidence, the inferences from it to go to the jury____”). Negligent Manufacture and Design—Res Ipsa Loquitur Although the appellants have made some allusions as to the applicability of the doctrine of res ipsa loquitur, the inference of negligence created by that doctrine is not applicable here.

Traditionally, the three criteria necessary for successful reliance on the doctrine of res ipsa loquitur [are]: 1. A casualty of a sort which usually does not occur in the absence of negligence, 2. Caused by an instrumentality within the defendant’s exclusive control, 3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.

Giant Food, Inc. v. Washington Coca Cola Bottling Co., 273 Md. 592, 597 , 332 A.2d 1 (1975); Munzert v. American Stores Co., 232 Md. 97, 104 , 192 A.2d 59 (1963); Potomac Edison Co. v. Burdette, 70 Md.App. 566, 574 , 521 A.2d 1276 (1987); and C & P Telephone Company of Maryland v. Hicks, 25 Md.App. 503, 516 , 337 A.2d 744 (1975). Although application of the doctrine of res ipsa loquitur in this case could be attacked as to any of the three above mentioned required elements, the “instrumentality within the defendant’s exclusive control” element is most obviously not met. Although Maryland courts do not apply the “exclusive control” test literally, the plaintiff must produce sufficient evidence tending to eliminate other causes, such as the absence of negligence, negligence of third parties, or the plaintiff’s own alteration or misuse. See Hicks, supra, at ⁴⁹ 531-33, 337 A.2d 744 .

See generally Restatement (Second) of Torts, § 328D and comments f-g, i (1965). Here, evidence concerning the vehicle’s service history, accidents, or alterations before the appellants acquired the car is totally lacking. At the time of purchase, the vehicle was more than four years old, with over 58,000 miles on the odometer. The automobile had passed through at least one prior owner.

Further, the record gives no indication as to the service history, accidents or possible alterations to the vehicle during the appellants’ one year ownership. An opinion from one of the appellants’ experts, Dr. Lear, during his deposition, to the effect that the area of the dashboard where the fire broke out is not generally serviced after 58,000 miles, {see Lear’s Deposition, at 55-57), is mere conjecture in that it was not based on examination of the car itself, discussions with prior owners, or any other pertinent facts. Further, the following exchange occurred: Q. You didn’t answer my question. Isn’t it possible that faulty repair, if it took place in that area—obviously if it took place on the rear tire, it’s not going to affect it—that faulty repair could have resulted in a problem that resulted in an electrical fire?

A. That is a possibility. Id. at 57. Such testimony is not sufficient to meet the “exclusive control” requirement for a res ipsa loquitur inference. In Jensen v. American Motors Corp., 50 Md.App. 226 , 437 A.2d 242 (1981), the appellants sued the appellees for injuries resulting from a single vehicle accident.

The driver of the vehicle testified that he had heard a squeal in the tires and that the vehicle had previously “swerved to the left a couple of times.” Id. at 228 , 437 A.2d 242 . The vehicle was approximately 9 months old and had been driven approximately 10,000 miles. The court held that “[r]es ipsa loquitur does not apply.” Id. at 232 , 437 A.2d 242 . Similarly, in other jurisdictions, courts have held that the inference created by the doctrine of res ipsa loquitur is not applicable where the age of the vehicle, coupled with the ⁵⁰ plaintiff’s failure to exclude sufficiently other causes of the accident not attributable to the defendant do not warrant the inference.

See Brandon v. Caterpillar Tractor Corp., 125 A.D.2d 625 , 510 N.Y.S.2d 165 (N.Y.App.Div.1986) (explosion of 8-year-old bulldozer where employee of products distributor made several alterations three months prior does not warrant application of res ipsa loquitur against the manufacturer); Wear v. Chenault Motor Co., 52 Ala.App. 382 , 293 So.2d 298 (Civ.App.), cert. denied, 292 Ala. 756 , 293 So.2d 301 (1974) (“Res ipsa loquitur does not apply as the necessary element of control had not been present for nearly a year, neither does the evidence disclose the cause of the fire.”). Because the plaintiff has submitted no other evidence regarding the negligence of either Ford Motor Company or Bill Cairns Pontiac, summary judgment as to counts I and III of the complaint, alleging negligent manufacture and design and negligent failure to warn, respectively, was properly entered. Ford’s Liability Under Strict Liability Or Implied Warranty Theories The remaining theories of liability are breach of implied warranty of merchantability and strict liability. “To recover on either theory—implied warranty or strict liability—the plaintiff in a products liability case must satisfy three basics from an evidentiary standpoint: (1) the existence of a defect, (2) the