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Johnson v. Amerco

OPINION FILED AUGUST 5, 1980.

SAYERS B. JOHNSON, INDIV. AND AS EX'R OF THE ESTATE OF ELSIE P. JOHNSON, DECEASED, PLAINTIFF-APPELLANT,

v.

AMERCO, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT J. SAUNDERS, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 17, 1980.

Plaintiff, Sayers B. Johnson, individually and as executor of his wife's estate, appeals from the judgment of the Circuit Court of St. Clair County entered upon directed verdicts at the close of the plaintiff's case for the defendants, Amerco, Inc., U-Haul Co. of Central Illinois, a corporation, and William Albright, d/b/a Bill's Texaco Service Station. The defendant Amerco, Inc. (now called U-Haul International) operates the U-Haul trailer rental business through companies organized within the individual States, which in turn operate through individual dealers. The system includes the engineering, manufacturing, and insuring of the trailers rented.

This case concerns an accident in which the plaintiff's car, while towing a U-Haul trailer, went out of control and left the highway. No other vehicles were involved. According to plaintiff, the injuries to himself and his wife were relatively minor. Plaintiff was the only occurrence witness to testify, Mrs. Johnson having died prior to trial.

On August 24, 1973, the plaintiff rented a 6- by 12-foot "road van" (RV) tandem-axle U-Haul trailer from defendant Albright, a U-Haul dealer in East St. Louis. The trailer was attached to a permanently mounted hitch on the plaintiff's 1969 Oldsmobile Delta 88 automobile.

The plaintiff and his son loaded the trailer with household goods, which the plaintiff and his wife were moving to Texas. While the parties dispute the exact gross weight of the loaded trailer, the difference is so small as to be immaterial. It is sufficient to say that the loaded trailer weighed about 5,000 pounds. The gross weight of the automobile including goods and passengers was also approximately 5,000 pounds.

Mr. and Mrs. Johnson left East St. Louis at about 2 p.m. on August 25, 1973. Mr. Johnson drove for about 100 miles, proceeding southwest through a hilly area of Missouri on Interstate 44. At St. James, Missouri, Mrs. Johnson took over the driving and proceeded about 40 miles to a point near Waynesville, Missouri.

As they were going down a long hill at about 45 miles per hour the car began to accelerate, and Mrs. Johnson tapped the brake. The trailer began to "sway", that is, swing sideways back and forth behind the car. The swaying increased, and the car and trailer swerved from one lane to another several times. Mrs. Johnson's attempts to exercise control by steering and braking were unsuccessful. The car and trailer left the road on the left side and separated at the time of impact, apparently with the shoulder or embankment of the highway. The trailer turned completely around and came to rest with its rear end against an embankment farther downhill from where the car had stopped. The hitch had torn from the car and remained attached to the trailer.

Plaintiff brought this action against the defendants for compensatory and punitive damages on theories of strict product liability, negligence, and willful and wanton misconduct. During the trial, the court granted the defendants' motions to refuse admission of numerous prior accident reports submitted to U-Haul as well as evidence concerning two previous accidents, involving Larry Slightom and Margaret Hayman which resulted in lawsuits against U-Haul. At the close of the plaintiff's case, the court granted the defendants' motions for directed verdicts on all counts and ruled inadmissible various items of evidence presented.

The strict liability counts alleged that the RV trailer, when attached to the plaintiff's car, was unreasonably dangerous to persons using the highways including the plaintiff "on account of the inherent tendency under the conditions then and there present for the trailer to slide, veer and gyrate over and upon the highways" and that, as a proximate result, the accident occurred. The trial court's directed verdict on this claim was apparently primarily based on a failure of proof of causation. However, defendants argue extensively on appeal that the trial court's ruling is also sustainable because the plaintiff failed to prove an unreasonably dangerous condition.

• 1 To recover under strict liability in tort, the plaintiff must prove that his injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer's control. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182.) Our supreme court has explained the concept of a "defect" as follows:

"Although the definitions of the term `defect' in the context of products liability law use varying language, all of them rest upon the common premise that those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function." Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill.2d 339, 342, 247 N.E.2d 401, 403.

• 2 A prima facie case that a product was defective and that the defect existed when it left the manufacturer's control is made by proof that in the absence of abnormal use or secondary causes the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. (Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill.2d 570, 357 N.E.2d 449; see also Walczak v. General Motors Corp. (1976), 34 Ill. App.3d 773, 340 N.E.2d 684; Annot., 51 A.L.R.3d 8 (1973).) In Tweedy, the court affirmed a judgment for the plaintiff on evidence that the brakes of his car failed to operate during normal use, even though the plaintiff offered no expert testimony concerning the presence of a specific defect and the defendant presented expert testimony tending to show the absence of any malfunction.

The rule stated in Tweedy excusing proof of a specific defect had already been adopted by this court in Bollmeier v. Ford Motor Co. (1970), 130 Ill. App.2d 844, 265 N.E.2d 212, where we held that proof of a malfunction during normal use which tends to exclude other extrinsic causes is sufficient to make a prima facie case on the issue of the existence of a defective condition. Accordingly, we reversed a directed verdict entered at the close of the plaintiff's case on the strict liability claim, where there was evidence that a car's steering system had failed to operate at the time of the accident, despite evidence that the steering had never previously failed to respond, that it was functional following the accident, and that defendants' expert had discovered no defect.

• 3 Tweedy and Bollmeier basically concern proof of an unreasonably dangerous condition. Suvada also requires proof that the plaintiff's injury or damage was proximately caused by a condition of the product. Proof of a dangerous condition will not establish liability where the evidence strongly suggests that the injury or damage resulted from external causes. (Rockett v. Chevrolet Motor Division, General Motors Corp. (1975), 31 Ill. App.3d 217, 334 N.E.2d 764.) However, it is not incumbent on the plaintiff to disprove with certainty all other possible causes, even where there is some evidence of misuse or abuse of the product. Spotz v. Upright, Inc. (1972), 3 Ill. App.3d 1065, 280 N.E.2d 23.

The issue here is whether the plaintiff's proof of an unreasonably dangerous condition and proximate cause was adequate to withstand the defendant's motion for a directed verdict under the test stated in Pedrick v. Peoria & Eastern Railroad Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, that is, whether all of the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendants that no contrary verdict based on that evidence could ever stand.

Plaintiff's son, William Johnson, testified that he accompanied his father to the service station where the attendant hooked the trailer to the car. The next day, he assisted the plaintiff in loading the trailer. He had used and loaded rental trailers about 15 or 20 times before, although he had never rented a tandem-axle trailer. They loaded the trailer with ordinary household goods, attempting to place heavier items in the front of the trailer in accordance with instructions inside it stating that 60 percent of the weight should be placed in front of a line across the center of the floor. There was also a speed limit sign of 45 miles per hour on the rear of the trailer. He saw no notice concerning weight of the trailer. While loading, they placed blankets and pillows between boxes that did not fit snugly against one another. When all the goods were inside the trailer, there was room remaining above the load, and they tied ropes over the rear of the load to prevent it from shifting. He stated that if there had not been a proper forward weight distribution inside the trailer, he would have been able to wiggle the trailer tongue at the connecting point. However, he was unable to budge the tongue, and estimated the tongue weight to be 400 to 500 pounds. The rear of the automobile was depressed 3 to 6 inches. When his father and mother left, they returned a dolly to the service station. The attendant checked the connection and walked around the car and trailer.

Both William Johnson and the plaintiff testified that on prior occasions they had received U-Haul trailer user's guides in renting U-Haul trailers, but that they did not receive one this time. They apparently knew that the guides were available but felt competent to load the trailer based on past experience.

The plaintiff also testified concerning the loading of the trailer. He stated that the goods came all the way to the rear of the trailer on the floor, but that there were 18 to 24 inches of space above the goods in the front half of the trailer and about 3 feet above the goods in the rear. He estimated that the rear of the car was depressed 2 1/2 to 3 inches. His car had traveled about 35,000 or 36,000 miles, and he had had it tuned and checked within 2 weeks before the trip. Both Mr. and Mrs. Johnson had driven cars towing trailers without mishap.

While the plaintiff was driving during the first 100 miles of the trip, he maintained a speed of 40 to 45 miles per hour. Going down hills the speed would increase to about 50 miles per hour, but he did not apply his brakes when this happened. Mrs. Johnson also maintained a speed of 45 miles per hour. Before reaching the hill on which the accident occurred, they went down what may have been a steeper hill, but Mrs. Johnson did not apply the brakes in descending it.

Mr. Johnson further testified that on the hill in question, the trailer did not begin to sway until Mrs. Johnson tapped the brakes. She attempted to gain control by steering as the car and trailer swerved between the two lanes of the highway. Plaintiff testified that "* * * when it was going right she would turn the wheel to the left, and then by the time it straightened out, she would have to turn it back to the right again." The car changed lanes six or more times before leaving the highway. At some point, Mrs. Johnson pushed the brakes "all the way down." However, the plaintiff "couldn't tell" that this tended to slow the car, and he did not hear the wheels lock or feel the car or trailer actually skidding.

Henry Tummons, the insurance adjuster who investigated the accident, testified that the plaintiff's car sustained rather extensive undercarriage damage, damage to the rear end, a broken windshield, and sheet metal damage. However, to his knowledge there were no repairs to the brake system.

L.S. Shoen, founder of the U-Haul system and president of the holding company that wholly owned the defendants Amerco, Inc., and U-Haul Company of Central Illinois, testified under section 60 examination. It was his decision to establish, what he called the "maximum controllable speed" recommendation of 45 miles per hour which appeared on the rear of the trailer rented by plaintiff. However, he explained that the varying recommendations as to the maximum speed made by U-Haul over the years for its various trailers were not based on scientific calculation or fact. Rather they were intended as a conservative recommendation to compensate for any tendency on the part of trailer users to operate at highly excessive speeds. Likewise, the admonition in the trailer user's guide that the maximum gross trailer weight should not exceed 3500 pounds was also intended merely as a cautionary device to prevent users from grossly overloading a trailer to 7000 or 8000 pounds.

Accordingly, he thought it reasonable for a user to load fully a trailer, even though an RV trailer would exceed 3500 pounds when only 70 percent loaded with ordinary household goods weighing 7 pounds per cubic foot and the HV, 6 by 14 foot, trailer would exceed the 3500-pound limitation when loaded more than half full. He also acknowledged that "ordinary household goods" might exceed 7 pounds per cubic foot depending on the nature of the given householder's goods. Mr. Shoen did not expect that the average user would go to a scale and actually weigh the trailer. In addition, he assumed that the user would have no practical means of determining that the trailer load was properly distributed, other than to simply estimate the weight and try to put the heavier items in the front of the trailer. He expressed the opinion that it was safe to touch the brakes, hit a bump, pass a bus, or top a hill with a properly loaded trailer at 60 miles per hour. As a general rule, he considered that "* * * the larger the vehicle, the greater the mass of the conveying vehicles in relationship to speed, the greater the likelihood of having an accident." However, he believed that the RV trailer was safe based on the testing of this and other U-Haul trailers, his own extensive personal use of the trailers, and statistics indicating that even the more accident prone HV trailer traveled an average of about 2 1/2 times as many miles per accident as did the average passenger car without a trailer behind it. Accident statistics also indicated that the RV trailer had a lower accident rate than the other tandem axle U-Haul van models and the 5- by 10-foot single-axle model.

Professor Wallace Diboll testified as an expert witness on behalf of the plaintiff. He was an associate professor of mechanical engineering at Washington University where he had been employed for 23 years. He held a masters degree in mechanical engineering and had served as a consultant to private industry in various capacities. His specialty was the area of vibrations and stress analysis of fluid mechanics of machinery. However, he had also conducted laboratory model testing and analysis on the problem of trailer stability. For a number of years, he had owned and towed Airstream travel trailers. He had test driven his current 23-foot single-axle trailer loaded to about 5000 pounds. He had never tested a U-Haul RV trailer but said that the same concepts of physical motion applied to travel and utility trailers. He considered his Airstream trailer to be of approximately the same mass and configuration as the U-Haul trailer, although his trailer was appreciably larger, and the U-Haul trailer had a higher center of gravity. He agreed that numerous factors other than speed and weight had to be considered in determining the dynamic stability, that is, stability while in motion, of a car-trailer combination. However, aerodynamic factors were of secondary importance. Trailer mass and center of gravity were primary considerations.

Diboll had designed, constructed and installed a "weight-carrying" hitch. This type of hitch (the type on the plaintiff's car) had the effect of transferring the forces exerted by the trailer tongue entirely onto the rear wheels of the car. He had also installed and adjusted the "weight-equalizing" or "weight-distributing" type of hitch, which he used with his trailer. The function of this hitch design was to distribute the forces exerted by the trailer equally over the four wheels of the tow car. Professor Diboll stated that this would increase the car's ability to resist oscillation if the trailer was properly loaded more heavily in the front.

He considered it safe for a car weighing 5000 pounds to tow a trailer of the same weight with a weight-carrying hitch at 35 miles per hour. However, he would not exceed this speed without further testing. He considered it unsafe for this combination to travel at 45 miles per hour. An accident would not necessarily occur at 45 miles per hour, but going down a hill or braking under certain conditions could lead to instability or oscillation that might result in an increasing twisting effect of the trailer upon the car. A car with a weight-carrying hitch attached to a trailer with a tongue weight of 300 to 350 pounds might remain stable going down a hill, but might become unstable on the same hill if the tongue weight was 450 or 500 pounds.

On cross-examination he acknowledged that his opinions as to safe speeds were not based on actual measurements or application of the formulas derived in his laboratory experimentation with trailer stability. He could not tell at what speed the specific car-trailer combination involved in this case would become unstable. However, he ...


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