In this suit concerning the sale of an allegedly defective vehicle, plaintiff appeals a judgment in favor of the automobile manufacturer. For the reasons that follow, we reverse in part, render, and remand to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
The facts leading up to the instant suit for damages were basically uncontested by the parties. According to the record, on July 5, 1989, the family of Mandy L. McNeely purchased a new 1989 Mercury Topaz from Bayshore Motors Ford-Lincoln-Mercury in Houston, Texas, for Ms. McNeely. The vehicle was manufactured by Ford Motor Company. On February 2, 1990, while Ms. McNeely was travelling to Alexandria, Louisiana, the vehicle threw a piston rod that cracked its engine block, causing Ms. McNeely to "swerve off the highway, run through a guard rail and into a ditch." The vehicle was towed to Town & Country Ford in Denham Springs, Louisiana, for repairs, including the replacement of the vehicle's "short block" (the lower half of the engine.) Repair records from Town & Country Ford indicate that the vehicle had approximately 3,800 miles on it at the time of the repairs, and all of the work was done under warranty. According to Ms. McNeely, the vehicle was at Town & Country Ford for about three or four weeks for these repairs.
Subsequently on March 19, 1990, Ms. McNeely brought the vehicle to Dan Quirk Ford in Slidell, Louisiana, complaining of alignment problems and a "popping" noise in the front end. The vehicle had approximately 4,000 miles on the odometer, and again, the repairs were done under warranty. There is no indication in the record as to how long the vehicle remained at Dan Quirk Ford for these repairs.
The next incident involving the vehicle occurred on September 1, 1990, when Ms. McNeely and her daughter, Patsy Brewer, were leaving a local beauty salon. When Ms. Brewer turned the ignition key to start the vehicle, she heard a loud noise that sounded like a nearby vehicle backfiring. Ms. McNeely, who was seated in the passenger seat at the time, attempted to exit the vehicle in a panic and became entangled in the automatic seatbelt. Ms. Brewer described her mother as "hanging in the air" and indicated that she "looked real funny." Ms. Brewer was not frightened by the incident, and in fact, laughed about it until she realized that her mother was hurt. According to Ms. Brewer, the car was not on fire, but steam was coming from under the hood.
Three days later, on September 4, 1990, the vehicle was returned to Dan Quirk Ford for repair. The repair record from this date reveals that the vehicle had approximately 8,000 miles on the odometer. Again, the "short block" of the engine was replaced under warranty. Both Ms. McNeely and Ms. Brewer indicated that the vehicle remained at Dan Quirk Ford for over one month for these repairs.
Ms. McNeely testified that the vehicle ran "pretty good" for a while after that, but was later brought into Pete Abbington Ford in Alexandria, Louisiana, to have the radiator replaced. According to Ms. McNeely, she drove the vehicle until it had approximately 19,600 miles on it, at which time she parked the car and purchased another vehicle. She indicated that she became too frightened to drive the vehicle. Ms. Brewer indicated that they applied for mediation to receive either a refund of the sales price or a replacement vehicle. However, no evidence was introduced regarding the outcome of this mediation.
The matter proceeded to jury trial on December 8, 9, 10 and 11, 1997. At the close of plaintiffs' case, Ford moved for a directed verdict as to several claims made by the plaintiffs. The following colloquy occurred between the trial court and trial counsel regarding the court's rulings on Ford's motions:
The remaining claims went to the jury for consideration. After deliberation, the jury returned a verdict in favor of Ford. The jury determined that the vehicle was not unreasonably dangerous because it failed to comply with an express warranty made by Ford. Further, although the jury determined that the vehicle contained redhibitory defects that rendered the vehicle absolutely useless for its intended purpose, the jury found that the redhibitory defects did not exist at the time the vehicle left the custody and control of Ford. The jury concluded that Ms. McNeely was not entitled
Subsequently, the plaintiffs filed a motion for judgment notwithstanding the verdict and/or a new trial with respect to the jury's verdict. The motion was scheduled for hearing, and on March 17, 1998, the trial court ruled as follows:
The plaintiffs have appealed these judgments, assigning the following specifications of error:
LOUISIANA PRODUCTS LIABILITY ACT
(Assignments of Error Numbers Three and Four)
A manufacturer's responsibility for an unreasonably dangerous product is set forth in La. R.S. 9:2800.54 as follows:
As previously indicated, the trial court granted a directed verdict as to the first three theories of recovery provided for under the LPLA. However, the remaining claim under the LPLA, that the vehicle was unreasonably dangerous because it did not conform to an express warranty, went to the jury for consideration.
In their third assignment of error, plaintiffs assert that the trial court erred in granting a directed verdict as to their claim that the vehicle was unreasonably dangerous in construction or composition. Further, in assignment of error number four, plaintiffs contend that the jury was in error in denying their claim under the "express warranty" provision of the LPLA. Because we conclude that assignment of error number three has merit, it is not necessary for us to address the issue set forth in assignment of error number four.
Louisiana Code of Civil Procedure article 1810, which governs directed verdicts, states as follows:
A trial court has much discretion in determining whether to grant a motion for directed verdict. New Orleans Property Development, Ltd. v. Aetna Casualty and Surety Company, 93-0692, p. 5 (La. App. 1 Cir. 4/8/94), 642 So.2d 1312, 1315. A motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the party opposing the motion, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Barnes v. Thames, 578 So.2d 1155, 1162 (La.App. 1 Cir. 2/15/91), writs denied, 577 So.2d 1009 (La.1991). However, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. Newpark Resources, Inc. v. Marsh & McLennan of Louisiana, Inc., 96-0935, pp. 4-5 (La.App. 1 Cir. 2/14/97), 691 So.2d 208, 211, writ denied, 97-0691 (La.4/25/97), 692 So.2d 1094.
On appeal, the standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict. Furthermore, the propriety of a directed verdict must be evaluated in light of the substantive law underpinning the plaintiffs claims. Theriot v. Bourg, 96-0466, p. 7 (La.App. 1 Cir. 2/14/97), 691 So.2d 213, 219, writ denied, 97-1151 (La.6/30/97), 696 So.2d 1008.
Pursuant to La. R.S. 9:2800.55, a product is unreasonably dangerous in construction or composition if, at the time the product left the manufacturer's control, the product deviated in a material way
Citing Ashley v. General Motors Corporation, 27,851 (La.App. 2 Cir. 1/24/96), 666 So.2d 1320, Ford asserts that the plaintiffs have failed to meet their burden of proof under La. R.S. 9:2800.55 in that they did not produce any evidence of the specifications or performance standards for the engine designed for use in the 1989 Ford Topaz. While we recognize that plaintiffs did not present any evidence of Ford's specifications or performance standards for the engine in question, we do not agree that Ashley is controlling here.
In Ashley, an allegedly defective accelerator system in a 1984 Oldsmobile Cutlass caused an accident resulting in personal injuries. At the time of the accident, the vehicle was five years old and had over 75,000 miles on the odometer. Ashley, 27,851 at 1, 666 So.2d at 1321. The court noted that not only did the plaintiffs fail to produce evidence regarding General Motors' specifications and performance standards for the accelerator system in question, but they also failed to prove that the accelerator system on their car deviated in any fashion from the identical system installed on similar cars. The court concluded that it could not infer the existence of a defect based solely on the fact that an accident occurred. Ashley, 27,851 at 4-5, 666 So.2d at 1322.
In the instant case, however, we are faced with a very different fact scenario. The engine in Ms. McNeely's 1989 Mercury Topaz failed approximately six months after the vehicle was purchased. It had only 3,800 miles on it at the time. The short block of the engine was replaced, and just seven months later, the engine failed again, this time with approximately 8,000 miles on the odometer.
Several automobile mechanics were called to testify on behalf of the plaintiffs regarding the cause of these engine failures. All of the mechanics were of the opinion that both engines in Ms. McNeely's vehicle failed due to a defective part that was manufactured by Ford. They further indicated that there was no evidence of customer abuse of the vehicle nor any other reasonable explanation for what caused the two engines to fail. The evidence revealed that the vehicle was properly maintained by Ms. McNeely in that she brought the vehicle in for regular oil changes and tune-ups.
According to Dennis Haffner, who worked at Town & Country Ford at the time in question, it was very unusual for this type of problem to occur with only 3,800 miles on an engine. In fact, Mr. Haffner testified that this particular vehicle would not have been scheduled for its initial servicing until the engine had approximately 5,000-7,000 miles on it. Mr. Haffner described the first engine failure in Ms. McNeely's vehicle as a "pretty major engine failure." Furthermore, he indicated that anytime a vehicle was repaired under warranty, such as in the case of Ms. McNeely's vehicle, it was because they had determined there to be a defect in the vehicle.
The Louisiana Supreme Court addressed a similar fact scenario in the case of Joseph v. Bohn Ford, Inc., 483 So.2d 934 (La.1986)
After reviewing the entire record, and considering the court's holding in Joseph, we conclude that the trial court erred in granting a directed verdict in favor of Ford on the issue of whether Ms. McNeely's vehicle was unreasonably dangerous in construction or composition. Based on the evidence presented to the jury, issues were raised upon which reasonable and fairminded individuals could disagree. Clearly, the facts and inferences did not overwhelmingly favor Ford's position that Ms. McNeely's vehicle was not unreasonably dangerous in construction or composition. Therefore, the trial court erred in granting Ford's motion for directed verdict and foreclosed any finding of fact on the part of the jury regarding this issue. This interdiction of the fact-finding process is a legal error requiring this court to review the case de novo from the record and render a judgment. Ferrell v. Fireman's Fund Insurance Co., 94-1252, pp. 3-4 (La.2/20/95), 650 So.2d 742, 745; Myers v. American Seating Company, 93-1350, p. 14 (La.App. 1 Cir. 5/20/94), 637 So.2d 771, 778-79, writs denied, 94-1569, 94-1633 (La.10/7/94), 644 So.2d 631, 632.
We have thoroughly reviewed the merits of this matter using a de novo standard of review and conclude that the plaintiffs produced sufficient evidence to prove that at the time Ms. McNeely's vehicle left Ford's control, it deviated from otherwise identical products made by Ford. In the instant case, as in Joseph, the vehicle in question was purchased from an authorized Ford dealer with a new car warranty. The engine in the vehicle failed with approximately 3,800 miles on it, and there was no evidence of owner abuse or abnormal use. Further, mechanics who testified on behalf of the plaintiffs indicated that it was very unusual for this type of failure to occur on an engine with only 3,800 miles, which would not normally be scheduled for its initial servicing until it had between 5,000 and 7,000 miles on it.
Having determined that the plaintiffs satisfied their burden of proof under the LPLA, we must now address the issue of damages. For the purposes of the LPLA, La. R.S. 9:2800.53(5) defines "damage" as follows:
According to the record, the plaintiffs asserted both a wrongful death action and a survival action. Each right arises at a different time and addresses itself to the recovery of damages for totally different injuries and losses. Taylor v. Giddens, 618 So.2d 834, 840 (La.1993). In a survival action, beneficiaries of the deceased have the right to recover the damages that the deceased suffered and would have been entitled to recover from the tort-feasor had the deceased lived. La. Civ.Code art. 2315.1. In a wrongful death action, if the deceased dies as a result of the tort, the named beneficiaries are granted the right to recover from the tort-feasor damages that they have sustained as a result of the deceased's wrongful death. La. Civ.Code art. 2315.2.
In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident that caused the injury. The plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759. A tort-feasor is liable only for damages caused by his negligent act. He is not liable for damages caused by separate, independent or intervening causes. Haydel v. Hercules Transport, Inc., 94-1246, p. 23 (La.App. 1 Cir. 4/7/95), 654 So.2d 418, 432, writ denied, 95-1172 (La.6/23/95), 656 So.2d 1019.
Ms. McNeely testified that six days after the incident in September 1990, she saw Dr. Diamond, her family physician, with complaints of back and neck pain and migraine headaches.
Also testifying at the trial of this matter was Dr. Paul M. Doty, an orthopedic surgeon retained by Ford to examine Ms. McNeely. According to Dr. Doty, he saw Ms. McNeely in November 1993 for an independent medical examination at the request of Ford. Prior to examining Ms. McNeely, he reviewed her previous medical records, including the X-rays that were taken by Dr. Diamond after the September 1990 incident. His review of the records from Dr. Diamond revealed that Ms. McNeely had strained her neck, back and shoulder in the incident in question.
Regarding Dr. Doty's findings, following his examination of Ms. McNeely, Dr. Doty testified as follows:
The only other medical evidence presented to the jury was the deposition testimony of Dr. Kenneth Adatto, an orthopedic surgeon who treated Ms. McNeely for the disk problems referred to by Dr. Doty. We have thoroughly reviewed the deposition of Dr. Adatto and find that his treatment of Ms. McNeely, which did not begin until March 13, 1992, was not causally connected to the September 1990 incident. Thus, we did not consider his treatment, diagnosis, or prognosis in assessing the amount of damages to which Ms. McNeely is entitled. Rather, we looked solely to the medical evidence regarding the muscle strain that Ms. McNeely sustained in this incident.
Having reviewed the record in its entirety, we initially note that any recovery to which Ms. McNeely is entitled should be reduced by 25 percent, a figure that we conclude represents the percentage of negligence attributable to her. It is clear from the evidence that Ms. McNeely's actions in attempting to get out of the vehicle in a hurried fashion were not reasonable and contributed to the injuries that she sustained. Based on our review of the medical evidence, we conclude that an award of $4,500.00, reduced by 25 percent for the percentage of negligence attributable to Ms. McNeely, would sufficiently compensate Ms. McNeely's surviving heirs for the injuries that she suffered in this incident. Thus, we award plaintiffs $3,375.00 in general damages. There is no evidence in the record regarding any special damages to which Ms. McNeely may be entitled. Therefore, we make no award for same.
(Assignment of Error Number Two)
In assignment of error number two, plaintiffs assert that the jury erred in denying
Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold that renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. La. Civ.Code art. 2520.
A defect is presumed to have existed before the sale if it manifests itself within three days immediately following the sale. La. Civ.Code art. 2530. This court has acknowledged that later appearing defects do not enjoy this presumption as a matter of law. See Rhodes v. All Star Ford, Inc., 599 So.2d 812, 814 (La.App. 1 Cir.1992). In Rhodes, however, we recognized that "in the absence of other explanations, later appearing defects may be inferred to have pre-existed the sale, when such defects do not usually result from ordinary use." Rhodes, 599 So.2d at 814. The existence of a redhibitory defect is a question of fact and should not be disturbed in the absence of manifest error. Id.
Generally, the amount of damages a plaintiff can recover because of a redhibitory defect depends upon the type of seller involved. Under La. Civ.Code art. 2531, a good faith seller, namely, one who knew not of the vices in the thing he sold, is required to repair, remedy, or correct the vices or defects in the property that he sold. If he is unable to do so, he must restore the purchase price with interest and reimburse the reasonable expenses occasioned by the sale and those expenses incurred for the preservation of the property. La. Civ.Code art. 2531; Landaiche v. Supreme Chevrolet, Inc., 602 So.2d 1127, 1132 (La.App. 1 Cir.1992).
The seller who knows the vice of the thing that he sells and omits to declare it is answerable to the buyer in damages. In addition to restitution of the purchase price and repayment of expenses, including reasonable attorney's fees, the bad faith seller is answerable for other damages. La. Civ.Code art. 2545. Under certain circumstances, those damages can include nonpecuniary damages for mental anguish, aggravation, and inconvenience.
We have thoroughly reviewed the record in the instant case and conclude that the jury erred in determining that the redhibitory defects in Ms. McNeely's vehicle were not present when the vehicle left the custody and control of Ford. The evidence presented by Ms. McNeely is sufficient in that an inference can be drawn that the defects were present in the vehicle at the time of the sale. Because the defects did not appear within three days of the sale, the plaintiffs cannot benefit from the presumption set forth in Article 2530. However, because the evidence has revealed that this type of engine failure does not "usually result from ordinary use," and there has been no other explanation for the engine failures, an inference can be drawn that the vehicle was defective when it left the custody and control of Ford. Thus, we reverse the jury's finding in this regard and address the issue of damages recoverable because of these redhibitory defects.
Ford, as manufacturer of the vehicle in question, "is deemed to be in bad faith in selling a defective product" and is liable to the buyer for all damages recoverable under Article 2545. See Cox, supra. Pursuant to Article 2545, a seller in bad faith "is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees."
According to the plaintiffs' petition for damages and the testimony of Ms. McNeely, the purchase price of the vehicle was $14,000.00. There was no other evidence introduced regarding the actual expenses occasioned by the sale of this particular vehicle or any interest paid. In fact, neither Ms. McNeely's brother nor her son, Joe D. McNeely, even testified at the trial of this matter. As they were responsible for purchasing this vehicle for Ms. McNeely, they would have been in the best position to testify regarding these other damages. Thus, we can only assess damages in the amount of $14,000.00 for the purchase price of the vehicle. Regarding the "reasonable attorney fees" that are also recoverable under Article 2545, the evidence in the record is insufficient for us to make a de novo award of attorney fees. Therefore, we will remand the matter to the trial court for a hearing to determine same.
MENTAL ANGUISH DAMAGES
(Assignment of Error Number Five)
In assignment of error number five, plaintiffs assert that the jury erred in denying Ms. Brewer recovery for mental anguish under La. Civ.Code art. 2315.6. Louisiana jurisprudence supports an award for mental anguish and emotional distress arising out of injury to another when that person comes upon the scene of the event soon thereafter, provided that the trauma suffered by the victim is such that it can be reasonably expected that one in plaintiff's position would suffer serious
Lejeune, 556 So.2d at 570 (citations omitted).
We have carefully reviewed the entire record in this matter. While we acknowledge that Ms. Brewer may have been upset upon realizing that her mother had been injured while attempting to exit the vehicle, the record is devoid of any evidence that the distress she may have suffered was of a nature that could be categorized as "severe and debilitating" or that she was unable to cope with the situation. Thus, while we are sympathetic to the experience suffered by Ms. Brewer, she is not entitled to an award for mental anguish under Article 2315.6.
JUDGMENT NOTWITHSTANDING THE VERDICT
(Assignment of Error Number Six)
In the final assignment of error, plaintiffs allege that the trial court erred in failing to grant their motion for a judgment notwithstanding the verdict. Based on our findings above, we conclude that this issue is moot, and therefore, pretermit discussion of same.
For the above and foregoing reasons, the directed verdict by the trial court regarding the plaintiffs' claim that the vehicle in question was defective in construction and composition pursuant to the LPLA is reversed. Plaintiffs are awarded damages in the amount of $3,375.00 together with legal interest from the date of judicial demand for their survival action. Further, the jury's finding that the redhibitory defects in Ms. McNeely's vehicle did not exist at the time the vehicle left the custody and control of Ford is manifestly erroneous, and therefore, reversed. Plaintiffs are awarded $14,000.00 in damages together with legal interest from the date of judicial demand and all court costs of this proceeding. The matter is remanded to the trial court for a determination of attorney's fees. Costs associated with this appeal are assessed against defendant-appellee, Ford Motor Co., Inc.