Sigler v. American Honda Motor Co. ( 2008 )

ROGERS, Circuit Judge,

dissenting.

This case presents a textbook example of when a district court should grant summary judgment, and the district court properly did so. Although there was injury, there is no evidence by which a reasonable jury could find a defect in the car.

The car was disposed of prior to the lawsuit. All agree that there is no basis for finding a defect from the nondeploying airbag unless the plaintiffs car came to a sudden stop while going at least 14 miles per hour. There is, simply put, no evidence that the car was going that fast when it came to rest.

When a car leaves the highway at 70 miles per hour, it will, without further acceleration, eventually come to rest. There is no evidence of how far the ear went before stopping, other than the fact that it was within sight of the highway. With regard to the circumstances of the car’s coming to rest, plaintiff relies upon the deposition of the plaintiffs husband, who arrived at the scene after the incident. The deposition provides in relevant part:

Q: Okay. Tell me what you were able to see when you got to the scene.

A: Well, once you got — you could see where she went through a fence. And then once you got further, right before — at the bottom there was a small— I don’t want to say creek, but it was water. You could tell right there is where she stopped, because there was trees knocked over, and the fence and the bumper and everything was wrapped up right in there.

Q: Okay. Had she gotten to that watery area yet?

A: If the trees hadn’t have been there, she would have went in, yes.

Q: Okay. And when you say some of the trees were knocked over, we are describing these kind of like brush trees that we have along in here?

A: Well, the one that actually stopped the car was — it was probably a good, if I had to guess, six inches or larger around.

Q: Okay. But it wasn’t down?

A: Yes, it was.

Q: Okay. And do you know whether it came down in the accident, or whether it was down—

A: Well, to the best of my knowledge, to be able to look the way it fell, you know, it brought the roots up, and that’s what stopped the vehicle.

Q: Okay. So, as you’re looking at this tree, it’s uprooted?

A: Correct.

Q: And is it laying — if you’re looking at the — if you’re sitting in the driver’s seat, is the tree laying—

A: Forward.

Q: — straight forward—

A: Yes.

Q: — straight in front of the car?

A: Yes

Q: And where was the bumper relative to the tree?

A: It was wrapped up in with — there was small trees, large trees. I mean, she had pushed everything to this creek bed, what I call it.

Q: Okay.

A: And it’s just all mangled up in with the trees and the fence.

Q: Was it — where was it relative to the six-inch tree that you described being uprooted?

A: It was, I believe, on the left-hand side of it. I believe right beside it.

This part of the record was not included in the appendix until after oral argument. It is troubling that plaintiffs brief misleadingly referred to the tree as “a six-inch diameter tree” (Pl.Br.8), when the evidence shows that the uprooted tree was “six inches around ” (emphasis added) and thus less than two inches in diameter. It is also troubling that plaintiffs counsel at oral argument indicated that the bumper of the car was “wrapped around the tree,” when the evidence shows instead that the bumper was “wrapped up in the trees” and “she [plaintiff] had pushed everything to this creekbed.”

Regardless of these mischaracteriza-tions, the key point is that the plaintiff has not presented evidence from which a reasonable juror could find that the airbag was defective. When a car leaves a highway at 70 miles per hour and coasts for an uncertain distance to a stop in wet ground in a bunch of small trees, there is no way that a reasonable juror could conclude, without more, on a more-probable-than-not-basis, that the car was going over 14 miles per hour when it suddenly came to a stop. Summary judgment was therefore not only appropriate, but compelled.

The remaining issues need not be addressed. I would affirm.