Opinion
KNLCV106007009S
11-09-2015
Cathy Willett et al. v. Budget Rent a Car System et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION (#135) FOR SUMMARY JUDGMENT
Emmet L. Cosgrove, J.
This motion requires a discussion of the amount and type of circumstantial evidence necessary to require a denial of a motion for summary judgment in this product liability action. The plaintiff is proceeding on a " malfunction theory" as opposed to a claim of a specific defect and now opposes the defendant manufacturer's motion for summary judgment.
Through a complaint filed December 12, 2010, the plaintiffs, Cathy Willett, Paul Willett, Jr., and Paul Willett, Sr., brought this product liability action against Budget Rent a Car System, PV Holding Corporation, and Ford Motor Company for injuries arising out of a motor vehicle accident in the state of Virginia. On June 19, 2015, Ford Motor Company moved for summary judgment on the ground that the plaintiffs have failed to present, and will be unable to present, any competent evidence in support of their product defect claim either through a specific defect theory or a malfunction theory. In their objection to summary judgment and accompanying memorandum filed on August 18, 2015, the plaintiffs assert that the circumstantial evidence provided regarding an essentially new product is sufficient to survive the motion for summary judgment and present their product defect claim to the jury under a malfunction theory. Based on the substantial circumstantial evidence provided in the testimony of the plaintiff-driver, genuine issues of material fact remain under the malfunction theory and the defendant's motion is denied.
Budget and PV Holding Corp. (the Budget defendants) are not a part of this motion. Therefore, all references to " the defendant" herein are to Ford.
FACTS
On December 7, 2010, the plaintiffs, Cathy Willett, Paul Willett, Jr., and Paul Willett, Sr., commenced this product liability action against the defendants, Budget Rent A Car System, Inc. (Budget), PV Holding Corp., and Ford Motor Company (Ford) for damages arising out of a motor vehicle accident involving an automobile rented from Budget. The plaintiffs' original complaint filed on October 28, 2014 alleges the following facts. On November 13, 2007, Paul, Sr., rented a 2007 Lincoln Town Car from Budget in Norwich, which was owned by PV Holding Corp. On November 14, 2007, Paul, Sr., was driving the car on Interstate 81 southbound in Pulaski, Virginia with Cathy and Paul, Jr., as passengers. At around 11:50 a.m. near mile mark 88.3 on the interstate, the right front wheel separated from the car and it veered out of control, ran off the road and flipped.
PV Holding Corp. owned the car; Budget rented the car to the plaintiff; Paul, Sr.; and Ford manufactured the car.
Counts four through six allege nearly identical claims by each plaintiff against Ford for products liability. The plaintiffs filed an amended complaint on March 4, 2011 amending counts ten through twelve against Ford which alleged spoliation of evidence. The plaintiffs subsequently withdrew those counts. The plaintiffs also filed a second amended complaint on October 22, 2014 amending counts seven through nine against the Budget defendants alleging spoliation of evidence. Because this motion is brought by Ford alone, the first amended complaint alleging spoliation of evidence by Ford has been withdrawn, and the second amended complaint does not allege any counts against Ford, the operative complaint for this motion is the original complaint and all references to allegations arise from it.
The plaintiffs further allege the following facts. The rental car, distributed by the defendant, was defective and unreasonably dangerous in that the wheel could separate from the car during use. Additionally, the defect existed at the time it was distributed by the defendant and there was no change or alteration to the car between the time it was distributed and the time it malfunctioned. Finally, the car was being used in a proper manner at the time it malfunctioned. The plaintiffs claim that the defendant is liable in one or more of the following ways: (I) it provided a product that was defective and unreasonably dangerous; (ii) it failed to properly test the product for such defects before putting it into the stream of commerce; (iii) it failed to discover the defects before putting the product into the stream of commerce; (iv) it failed to take proper steps to correct the defects before putting the product into the stream of commerce; (v) it failed to warn of the defective conditions; (vi) it breached its implied warranties that the car was merchantable; and (vii) it breached its express warranties that the car was safe. As a result, the plaintiffs each suffered injuries including physical injuries, pain and suffering, lost wages and earning capacity, and lost ability to carry on daily affairs. The plaintiffs seek compensatory and punitive damages, as well as costs.
On June 19, 2015, the defendant filed a motion for summary judgment on the ground that the plaintiffs have failed to present, and will be unable to present (the deadline for disclosure of experts having passed), any competent evidence in support of their product defect claim either under the specific defect theory or the malfunction theory. The defendant has submitted a memorandum of law in support of the motion, including the complete deposition transcripts of Cathy and Paul, Sr.; a medical records summary from the University of Connecticut Medical Group for Paul, Sr., which includes descriptions of his daytime sleepiness and need to pull his vehicle over to nap; each plaintiffs' complete answers to interrogatories and requests for production; a letter from the defendant's automotive safety office to the National Highway Traffic Safety Administration updating a recall notice on 2007 Lincoln Town Cars for cracked wheel hub assemblies; an affidavit of Eric Kalis, a design analysis engineer employed by the defendant, attesting that the car the plaintiffs rented was not subject to the recall; and a vehicle history report on the car from the Florida Department of Highway Safety and Motor Vehicles. On August 18, 2015, the plaintiffs filed an objection to summary judgment and a memorandum in support of their objection, including a rental contract between Paul, Sr., and Budget and an excerpt from Paul, Sr.'s, deposition. On August 21, 2015, the defendant filed a reply memorandum in support of its motion for summary judgment. The motion was heard at short calendar on August 25, 2015.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56-57, 68 A.3d 1162 (2013).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006). " A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . Practice Book § [17-45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable." (Emphasis omitted; internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013).
A. Specific Defect Theory
The defendant argues that the plaintiffs cannot prove a specific defect because they have never identified precisely what component part or parts of the wheel assembly contained the alleged defect, what the defect was, and how the defect caused the accident; instead relying on a wheel assembly recall notice for 2007 Lincoln Town Cars that does not apply to the subject vehicle. Moreover, the defendant argues the plaintiffs cannot prove a specific defect because the deadline for disclosure of experts has passed. The plaintiffs make no attempt to pursue a claim under the specific defect theory, instead, arguing that there is sufficient circumstantial evidence to present a product defect claim to a jury under the malfunction theory.
The parties use " general malfunction theory, " however, the court will use " malfunction theory" consistent with prior case law.
The defendant argues in its memorandum of law in support of its motion for summary judgment that the plaintiffs cannot rely on a malfunction theory because there is no credible evidence of a malfunction in the car or in its right front wheel assembly. The defendant argues that the malfunction theory requires the plaintiffs to eliminate other potential causes of the accident and the plaintiffs have failed to do so. Additionally, the defendant asserts that the plaintiffs fail to provide evidence of the rental vehicle's usage and service history to demonstrate the car was not altered or misused. In their memorandum in support of their objection to summary judgment, the plaintiffs counter that expert testimony is not necessary in cases where the product is no longer available and an inference of product defect based on circumstantial evidence is present. Furthermore, the plaintiffs assert that there is a genuine issue of material fact as they rented a car that was essentially new and the plaintiff who was operating the car tells of an incident that can only be described as a malfunction: there is no other explanation for what happened. The defendant replies that the plaintiff, Paul, Sr.'s., description of the accident is insufficient to establish a malfunction attributable to the defendant and that the description does not negate other possible causes of the accident.
" Although most product liability cases are based on direct evidence of a specific product defect, there are cases in which such evidence is unavailable . . . The product . . . may be lost when it has been discarded or destroyed after the incident such that the parties are no longer able to examine it . . . In such cases, the plaintiff is unable to produce direct evidence of a defect because of the loss of essential components of the product . . . The absence of direct evidence of a specific product defect is not, however, fatal to a plaintiff's claims, and a plaintiff, under certain circumstances, may establish a prima facie case using circumstantial evidence of a defect attributable to the manufacturer . . . In addition, a plaintiff need not present evidence to establish a specific defect, [as] long as there is evidence of some unspecified dangerous condition." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. at 131-33.
" [W]hen direct evidence of a specific defect is unavailable, a jury may rely on circumstantial evidence to infer that a product that malfunctioned was defective at the time it left the manufacturer's or seller's control if the plaintiff presents evidence establishing that (1) the incident that caused the plaintiff's harm was of a kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time the product left the manufacturer's or seller's control and was not the result of other reasonably possible causes not attributable to the manufacturer or seller . . . These two inferences, taken together, permit a trier of fact to link the plaintiff's injury to a product defect attributable to the manufacturer or seller." (Footnote omitted.) Id., 139-40. " In addition to these two elements, a plaintiff, as a threshold matter, must present sufficient evidence to support a finding that the product, and not some other cause apart from the product, was more likely than not the cause of the plaintiff's injury." Id., 140 n.9. " A plaintiff may establish these elements through the use of various forms of circumstantial evidence, including evidence of (1) the history and use of the particular product, (2) the manner in which the product malfunctioned, (3) similar malfunctions in similar products that may negate the possibility of other causes, (4) the age of the product in relation to its life expectancy, and (5) the most likely causes of the malfunction . . . If lay witnesses and common experience are not sufficient to remove the case from the realm of speculation, the plaintiff will need to present expert testimony to establish a prima facie case." (Footnote omitted.) Id., 140-41. " Evidence of the most likely causes of the malfunction ordinarily will be presented through an expert witness." Id., 141 n.10.
" [P]roof of an accident alone is insufficient to establish a manufacturer's liability . . . [T]he defendant in a product liability action ordinarily does not have control of the instrumentality that causes the plaintiff's injury at the time the injury occurs. When the product is out of the control of the manufacturer, the likelihood of other potential causes of the accident that are not attributable to the manufacturer necessarily increases . . . Additionally, product accidents often occur for a variety of reasons that do not indicate the existence of a defect . . . To allow such a speculative inference solely from the fact of an accident, when manufacturers and sellers no longer have exclusive control of the product, would essentially convert them into insurers of their products . . . Therefore, the plaintiff's evidence must support a chain of inferences sufficient to link the plaintiff's injury to a product defect and to link the defect to the manufacturer." (Citations omitted.) Id., 136-37.
" Moreover, the application of the malfunction theory in cases in which the evidence is speculative raises substantial questions of fairness in allowing cases to proceed against product manufacturers. Although the doctrine is typically justified on the basis that it may be unfair to prevent the plaintiff from establishing a case when the product has been destroyed in an accident, it does not necessarily follow that it is fair to allow a claim against a manufacturer in the absence of direct evidence. Although the loss of a product in an accident may harm the plaintiff's case, it also may prevent the manufacturer from defending itself by proving the absence of a defect in a particular product." Id., 137-38. " The purpose of the limitations on the application of the malfunction theory is to ensure that, although the plaintiff will have an opportunity to pursue a product liability claim notwithstanding the loss of the product, such cases will proceed to trial only when the plaintiff's evidence is sufficient to establish that it is more probable than not that the plaintiff's injury was caused by a defect in a particular product that can fairly be attributed to the manufacturer and not some other cause." Id., 148.
The plaintiff bears the burden at trial of proving the elements of a prima facie case under the Connecticut Products Liability Act. Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 214. On a motion for summary judgment, however, the burden rests with the moving party to show that no genuine issues of material fact exist. Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). " Thus, the defendant has the burden of demonstrating that the plaintiff cannot establish a prima facie case under the Connecticut Products Liability Act." Hirschbeck v. Wright Medical Technology, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-05-5000410-S (February 18, 2011, Bellis, J.) (51 Conn. L. Rptr. 534).
In O'Connor v. General Motors Corp., Superior Court, judicial district of Milford, Docket No. CV-89-028104 (April 25, 1997, Corradino, J.) (21 Conn. L. Rptr. 151), the court found that the plaintiff had provided enough circumstantial evidence under the malfunction theory to state a prima facie claim and survive summary judgment. In her deposition, the plaintiff, a mechanic, explained that when she engaged the vehicle's ignition from under the hood of the vehicle, it took off in reverse, injuring the mechanic, even though the clutch was not engaged and no one was in the cab. Id. The court concluded that this was sufficient evidence of a malfunction to prove the defect in the four-year-old truck as vehicles typically do not move in reverse when the ignition is turned on, the clutch is not engaged, and an operator is not at the controls. Id. Furthermore, the court found that the plaintiff had sufficiently eliminated other potential causes for summary judgment when her deposition testimony revealed that she spoke to the people at the repair shop after the incident who stated that no similar incident involving this truck had occurred; there were new parts added to the truck but the plaintiff said they were properly installed and appeared to satisfy the manufacturer's specification; the plaintiff was an experienced mechanic and there is no indication that the work she was performing on the truck immediately prior to the incident was done in an improper manner; she completely inspected the vehicle and its parts, as well as the inside the vehicle prior to the incident and determined there were no after market products installed; and she did a thorough under the hood check. Id. Consequently, the court denied the defendant's summary judgment motion. Id.
In Balducci v. Hyundai Motor America, Inc., United States District Court, Docket No. 3:08CV00356 (AVC), (D.Conn. March 12, 2010), aff'd, 406 F.App'x 517 (2d Cir. 2011), the court granted the defendant's summary judgment motion on a product liability claim utilizing the malfunction theory. The plaintiff was involved in a low-speed collision on a city street and the air bags failed to deploy. Id. The defendant submitted two reports from experts that concluded that the air bag system properly did not deploy under the conditions of the accident. Id. The plaintiff, however, did not produce any expert or circumstantial evidence to controvert the defendant's expert reports. Id. Consequently, the court found that the plaintiff failed to demonstrate a genuine issue of material fact to survive summary judgment. Id.
In Perez v. Toyota Motor Sales U.S.A., Inc., United States District Court, Docket No. 3:11CV1112 (WWE), (D.Conn. 2013) (appeal withdrawn, Docket No. 13-3360, (2d Cir. December 11, 2013)), the court found that the plaintiff failed to provide evidence to support an inference that the defect was attributable to the manufacturer or seller to preclude summary judgment. The plaintiff alleged that as he was driving his vehicle, he heard the engine getting louder and the engine speed increased. Id. The evidence submitted indicated that the plaintiff did not press the accelerator and attempted to slow the vehicle by using the emergency brake and the brake pedal. Id. The court did not reach whether the plaintiff had provided sufficient evidence of a defect, instead finding that he failed to provide any evidence to support an inference that the defect was attributable to the manufacturer or seller of the truck eight years after production and four years after sale. Id. Consequently, the court granted the defendants' summary judgment motion. Id.
In Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 123, our Supreme Court held that the plaintiff's evidence was insufficient to support a finding against the defendant manufacturer under the malfunction theory, reversing the trial court's denial of a directed verdict. Id., 157-58. The court reasoned that the plaintiff's evidence supported an inference of a product defect when it (I) provided evidence that fire originated in tractor through fire expert testimony; (ii) another expert determined that all causes but the electrical system in the tractor could be ruled out; and (iii) the electrical system could not be ruled in or out because of the damage caused to the system in the fire. Id., 153-54. The court reasoned that this circumstantial evidence was sufficient to support an inference that the fire started within the tractor and that the fire most likely started as a result of a failure in the tractor's electrical system because electrical systems do not ordinarily ignite without defect. Id., 154. Nevertheless, the court held that the plaintiff failed to eliminate other reasonably possible causes of the defect as the plaintiff's evidence itself pointed to improper maintenance by the dealer performing work on the tractor four years after production and improper use because the plaintiff continued to use the tractor for months while it was running poorly. Id., 154-55. Therefore, the Supreme Court directed that judgment be entered for the defendant. Id., 158.
1. Proof of a Defect
In the present case, the defendant produces Paul, Sr.'s, deposition testimony that the car was nearly a year old and had around 7, 800 miles on it at the time the plaintiffs rented the vehicle. Additionally, the testimony provided indicates that Paul, Sr., experienced no problems with the vehicle's operation or systems, or that the plaintiffs were aware of any problems existing before Paul, Sr., rented it. The defendant provides deposition testimony and medical records indicating that Paul, Sr., has a documented medical history of " easy fatigability" and " daytime sleepiness, " including episodes of sleeping while driving that required him to pull over and take a nap. The defendant provides additional deposition testimony of Cathy and Paul, Sr., indicating that she was resting with her eyes closed and Paul, Jr., was asleep or resting immediately prior to the accident and did not observe Paul, Sr., as he drove. Finally, the defendant produces testimony of the plaintiffs that they lack any information regarding the vehicle's driving, rental, and maintenance history.
As set forth in the preceding paragraphs, to survive a motion for summary judgment, a plaintiff must provide evidence that it is " more probable than not that the plaintiff's injury was caused by a defect in a particular product that can fairly be attributed to the manufacturer and not some other cause." Nonetheless, the burden is on the movant to show that the plaintiff cannot make out a prima facie case. Rebutting the plaintiffs' claim in their complaint that the front passenger wheel detached causing Paul, Sr., to lose control of the vehicle and roll over, the defendant produces evidence of Paul, Sr.'s, documented history of sleeping while driving suggesting that the cause of the accident was that he fell asleep. This is not evidence, though, that Paul, Sr., fell asleep on this occasion.
In rebuttal, the plaintiffs rely almost entirely on Paul Sr.'s description of the accident. The plaintiffs provide excerpts of Paul, Sr.'s, deposition in which he testifies that the vehicle was " essentially new" at the time of the accident. Describing the accident Paul Sr. states: " [t]he car went down, the steering wheel got thrown out of my hand. I compensated the car, tried to compensate it, couldn't compensate it. I had my hands back on the wheel. And we went in the median, hit the guardrail." Additionally, in the excerpts provided, Paul, Sr., testifies that the vehicle did not hit any structures when the car jerked to the right, other than the bumper hitting the road. He further states that the car did not respond to his attempts to compensate by steering to the left; although the vehicle did ultimately move to the left " by itself" where it hit the guardrail. While the plaintiffs do not directly rebut the defendant's claim that Paul, Sr., fell asleep, the evidence presented calls the theory into question. Paul, Sr., falling asleep at the wheel could be consistent with a feeling of going down to one side (i.e. " nodding off"). His testimony, however, is that after the car " went down" to the front passenger's side, the car failed to respond to any attempts to correct the pulling to the right and that the car eventually went left " by itself, " striking the guardrail. Reading the evidence in the light most favorable to the plaintiffs, Paul, Sr., describes the events as one who was awake and perceiving them, not as one who had fallen asleep at the wheel (i.e. " I was driving and next thing I knew, I woke up upside down."). Additionally, the time of day and lack of evidence of adverse weather conditions preclude such influences as other possible causes of the accident.
The excerpt provided is not certified but appears to mirror the defendant's complete submission of Paul, Sr.'s, deposition. The defendant does not challenge the authenticity of the plaintiffs' exhibit.
The plaintiffs also provide a copy of a rental agreement with Budget indicating that a vehicle had 14, 909 miles when it left Budget. The agreement, however, is for a Ford Explorer, not a Lincoln Town Car.
The plaintiffs argue that Paul, Sr., describes no sleepiness and that they took rest stops. A lack of a description of sleepiness is not a rebuttal to such a charge. Additionally, no evidence is provided by the plaintiffs to support the assertion that they took rest stops.
The defendant replies that a plaintiff's description of an accident alone is not evidence of a defect. The defendant fails to produce evidence to rebut the plaintiffs' evidence of the vehicle's unresponsiveness during the accident attributable to anything other than a defect. In fact, the defendant provides further evidence that the plaintiffs did not hit anything when the car went to the right (evidence that the car hit something to the right after the car " went down" could explain how the car became inoperative absent a defect consistent with the defendant's sleeping theory). Moreover, the defendant does not produce evidence that Paul, Sr., fell asleep while driving in this instance, only that he has in the past.
The malfunction theory cases previously cited are informative in analyzing whether there is sufficient evidence of a defect. This case is distinguishable from the Balducci case as the plaintiffs produce circumstantial evidence that rebuts the defendant's evidence suggesting Paul, Sr., fell asleep. Moreover, the plaintiffs' evidence is analogous to O'Connor where that plaintiff's testimony was enough to survive summary judgment because the plaintiff there described circumstances of a defect. The O'Connor plaintiff described operational and situational matters leading up to the accident leading one to conclude the a malfunction occurred, including her engaging the ignition from the engine compartment, that the clutch of the car was not engaged, and no one was in the cab of the vehicle. The plaintiffs here submit evidence that after the car went down to the front passenger's side, the car became inoperable and failed to respond to Paul, Sr.'s, attempts to change direction, ultimately veering left despite his inputs on the steering wheel. The defendant supports Paul, Sr.'s, description by citing evidence that the car did not strike anything after the wheel went down that would explain its unresponsiveness. While expert testimony, such as that provided by the plaintiff in Deere, is preferable in eliminating other potential causes outside of the wheel assembly, the circumstantial evidence provided is sufficient to rebut the defendant's charge that Paul, Sr., fell asleep; this is the only ground supported by evidence for the defendant's charge that the plaintiffs cannot state a prima facie case.
The court is further persuaded by the Supreme Court's reasoning in Deere that " failure [of] a relatively inaccessible part integral to the structure of the product and not generally required to be repaired, replaced or maintained, " may establish circumstantial evidence of a defect. Id., 141-42. " [T]he addition of very little more in the way of other facts, as for example . . . a new car veered suddenly and sharply from the road without the fault of the driver, that the defect had given trouble before the accident, that other similar products made by the defendant had met with similar misfortunes, or the elimination of other causes, or the aid of expert opinion, may be enough to support the inference [of a defect]." (Emphasis added; internal quotation marks omitted.) Id. Neither party has offered evidence of how often the wheel assembly components must be maintained (much less within the first 10, 000 miles/first year of use) but it is indisputable that such components are integral to the structure of the product. Ultimately, the defendant's evidence that Paul, Sr., fell asleep compared to Paul, Sr.'s, testimony involves a weighing of evidence and credibility, material issues of fact for a jury. Therefore, while sparse, there is sufficient evidence here to support a defect to rise above mere speculation as the incident described is of the kind that does not ordinarily occur absent a defect, reading the evidence submitted in the light most favorable to the plaintiffs, as the court must.
2. Defect Attributable to the Defendant and Not Other Possible Causes
Addressing the plaintiffs' burden under the malfunction theory to demonstrate that the defect originated with the defendant and not other potential causes, the defendant provides evidence that the car was operating properly and the plaintiffs lack knowledge or evidence of the vehicle's history that could attribute a defect to the defendant. The plaintiffs provide nearly identical evidence that the car was less than a year old and that there were roughly 7, 800 miles on it. The parties do not disagree on the facts but on whether such a vehicle can be considered new or essentially new. The reason for this disagreement is found in Metropolitan Property & Casualty Ins. Co. v. Deere & Co. : " We note that when the product at issue is new or nearly new, there is much less of a possibility that a malfunction would be caused by factors not attributable to the manufacturer (such as mistreatment, lack of maintenance, or improper maintenance). Therefore, it would not necessarily be speculative to conclude that any defect in the product is attributable to the manufacturer in a recently purchased product, even in the absence of additional affirmative evidence linking the defect to the manufacturer. When the product is not new or nearly new at the time of the malfunction, however, more evidence is required to eliminate the speculation that some other cause was responsible for the accident by negating other reasonably possible causes and demonstrating that the product was most likely defective when it left the manufacturer's control." Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. at 156 n.19. Indeed, the defendant makes many citations to language such as this to argue that the plaintiffs must provide evidence to eliminate other potential causes such as improper maintenance and improper use. While the plaintiffs do not challenge their lack of use and maintenance history, they rely on a potential finding at trial that the car in which they were traveling was new or nearly new, precluding a need to demonstrate that some other cause such as improper use or maintenance was not the cause of the alleged defect.
The rental contract provided by the plaintiffs, entered on the date alleged in the complaint, is for a brown Ford Explorer not a Lincoln Town Car. Apparently, this may explain the varied mileages mentioned in the parties' papers.
Although both sides provide inconsistent mileage numbers as discussed in the previous footnote.
This case is distinguishable from Deere and Perez which granted summary judgment because the plaintiffs failed to eliminate other potential causes of the defect. The products, a tractor and a truck, in those cases were four and eight years old, respectively, at the time of the incidents. The car in this case is much newer and a reasonable jury could find that the vehicle was nearly new, as there is no evidence presented by the defendant of the vehicle's life expectancy to conclude otherwise. Therefore, a genuine issue of material fact remains whether the car involved was new or nearly new such to remove speculation that something else was the cause of the defect.
Given the evidence submitted, material issues of fact remain whether a defect, attributable to the defendant, existed in the car and whether the car was new or nearly new to such that it is not speculative to attribute the defect to the defendant rather than that improper use or maintenance caused the defect. At this stage of the proceedings, the court does not think it would be appropriate to grant the summary judgment motion. Enough has been set forth to at least make a prima facie case linking the defect to the time of sale.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is denied.