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Pertile v. General Motors, LLC

United States District Court, D. Colorado

September 15, 2017

GENERAL MOTORS, LLC, a Delaware limited liability company, TRW VEHICLE SAFETY SYSTEMS, INC., a Delaware corporation, KELSEY- AYES COMPANY, a Delaware corporation, Defendants.


          William J. Martínez United States District Judge.

         In this personal injury/product liability action pending under the Court's diversity jurisdiction, 28 U.S.C. § 1332(a), Plaintiffs Daniel and Ginger Pertile bring suit against Defendants General Motors, LLC (“GM”), TRW Vehicle Safety Systems, Inc. (“TRW”), and Kelsey-Hayes Company (“Kelsey-Hayes”), for claims including strict liability, negligence, breach of warranty, violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-101 et seq., and loss of consortium. (See generally ECF No. 254.) Now before the Court is Defendant Kelsey-Hayes's Motion for Summary Judgment. (ECF No. 187). Because Plaintiffs have failed to muster evidence from which a reasonable jury could find that a product component manufactured by Kelsey-Hayes was defective, the motion is granted.


         Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000).

         A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. The Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

         However, “[t]o survive summary judgment, a nonmoving party must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which he carries the burden of proof.” Christy v. Travelers Indem. Co. of Am., 810 F.3d 1220, 1233 (10th Cir. 2016) (internal quotation marks omitted). A party responding to a motion for summary judgment must therefore “ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record, ” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004), and the Court is not obliged to “comb the record” to identify factual disputes or to make a party's case for it, Ford v. West, 222 F.3d 767, 777 (10th Cir. 2000).


         The following facts relevant to the present motion are undisputed where not attributed or noted otherwise.

         This case arises from a single vehicle rollover accident, in which Plaintiff Daniel Pertile was injured, near Vernal, Utah, on February 25, 2013 (the “Crash”). (See generally ECF No. 254 at 3-5.)[1] Among other theories of liability, Plaintiffs allege that “Kelsey-Hayes designed, manufactured, and supplied an original equipment electronic stability control (‘ESC') system to General Motors for use in the subject vehicle, ” (id. at 3-4), and that the ESC system was defective and unreasonably dangerous. They proceed against Kelsey-Hayes on claims of strict liability, negligence, breach of warranty, violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-101 et seq., and loss of consortium. (See ECF No. 31 ¶¶ 11 & 90-118.)

         It is undisputed that the vehicle in which Mr. Pertile was injured was equipped with an ESC system, which GM calls “Stabilitrack.” (ECF No. 187 at 2, ¶ 3.) This system works to improve vehicle stability by detecting and reducing traction. (Id. 2 ¶ 4; ECF No. 218 at 3, ¶ 4.) It functions by tracking driver inputs such as steering and braking, and by monitoring vehicle dynamics, including wheel speeds and directions. (ECF No. 187 at 2, ¶ 5.) Those inputs are communicated to an electronic control module (the “control module” or Electronic Braking Control Module (“EBCM”)), and the system will, in certain circumstances, initiate braking on one or more of the vehicle's wheels to assist the driver in regaining or maintaining control. (See ECF No. 187 at 4, ¶ 5; ECF No. 218 at 3, ¶ 5.)[2]

         As relevant here, Kelsey-Hayes provided components of the ESC system including the control module. (See ECF No. 187 at 2, ¶ 6.)[3] However, Kelsey-Hayes did not supply the sensors which provided the data inputs to the control module. (See ECF No. 187 at 3, ¶ 11.)[4]

         The parties generally agree that functioning ESC systems provide substantial safety benefits. In addition, Plaintiffs' ESC expert, Mr. Loudon, has testified that the ESC products provided by Kelsey-Hayes in this case met all federal and industry standards (ECF No. 187 at 2, ¶ 8; ECF No. 218 at 3, ¶ 8), and that “when the system was working, it worked flawlessly” (ECF No. 187-4 at 8).

         However, Mr. Loudon also concluded-and Kelsey-Hayes does not dispute-that the vehicle's ESC system was disabled and “was not active during this crash.” (ECF No. 187-4 at 17, 19.) More specifically, Mr. Loudon opines that “this vehicle ha[d] a history of random intermittent faults that directly affect[ed] the functioning of the [ESC] system, ” and that “the ESC [warning] light was intermittently and randomly turning on and disabling the ESC function.” (ECF No. 218-2 at 34.) He reached these opinions based on his review of 11 diagnostic fault codes that were recorded in the vehicle's system after the Crash. (See generally Id. at 22-34.) Based on this review, he concluded that “three (3) faults . . . we[re] active in the ignition cycle of the accident and prevented the ESC system from being available to the driver.” (Id. at 34.)

         As to why these faults occurred, the ESC system reports diagnostic faults when one of the data input sensors provides unreliable data to the control module. (ECF No. 187 at 34, ¶ 12; ECF No. 218 at 4, ¶ 12.) Testimony from Kelsey-Hayes's Rule 30(b)(6) designee establishes that the ESC control module responds to such faults by disabling the ESC system, either until the “the fault corrects itself” (for certain “latched type” faults), or until the vehicle's next ignition cycle (for other “ignition latched” faults). (ECF No. 187-3 at 15; see also ECF No. 187 at 3, ¶ 13; ECF No. 218 at 4, ¶ 13.)

         Given the particular data in this case, Plaintiff's expert, Mr. Loudon, testified in particular that the vehicle's steering wheel position sensor (also referred to as the steering wheel angle sensor) reported unreliable data to the ESC control module prior to the Crash. (ECF No. 187 at 4, ¶ 15; ECF No. 218 at 4, ¶ 15.)[5] The ESC control module then disabled the system, so that it was not engaged at the time of the Crash. (ECF No. 187 at 4, ¶ 16; ECF No. 218 at 4, ¶ 16.) In assessing “why the system detected” the faults related to the steering wheel angle sensor, Mr. Loudon testified that “a failure in the sensors is the likely cause.” (ECF No. 187-4 at 12.) Regarding the resulting operation of disabling the ESC system, Mr. Loudon testified as follows:

Q. * * * If you have a fault that is detected, whether it be a sensor or a communication, either one, the appropriate response is to disable ESC; correct?
A. Yes. If a sensor-if it is based on a sensor that is a fundamental part of the ESC system, yes.
Q. Because if it doesn't know what's going on it can't make correct adjustments?
A. Correct.
Q. Now, why do you think that the vehicle had intermittent faults?
A. Because the-it either had a sensor problem or if the diagnostic strategy was not well conceived.

(ECF No. 187-4 at 16.) However, as to the final statement quoted above, the Court has, by separate contemporaneous order, found that any testimony from Mr. Loudon regarding a problem with the ESC system's “diagnostic strategy” does not correspond to a disclosed opinion identifying any such actual diagnostic problem, and is inadmissible under Federal Rule of Evidence 702. (See ECF No. 332 at 8-11.)

         III. ANALYSIS

         A. Product Defect: Strict Liability & Negligence Claims

         Colorado has long recognized the doctrine of strict liability in product liability actions against manufacturers of defective products, following the Restatement (Second) of Torts § 402A. Union Supply Co. v. Pust, 583 P.2d 276, 280 (1978) (citing Hiigel v. Gen. Motors Corp., 544 P.2d 983 (1975)). Generally speaking, “[t]he Colorado Products Liability Act, Colo. Rev. Stat. §§ 13-21-401 et seq., defines ‘manufacturer, ' limits liability of sellers and distributors who are not manufacturers, and creates a presumption of non-defectiveness for products sold ten years or more before any claimed injuries. Under Colorado law, the sine qua non of a strict liability claim is the ‘sale' of a ‘product.'” Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1017-18 (10th Cir. 2000).[6]To establish liability, “[a] plaintiff has the burden of persuasion as to the defective condition of a product. Regardless of whether a product liability action is grounded in negligence or strict liability, a plaintiff must prove that the product was defective.” Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 205 (Colo. 1992); Kokins v. Teleflex, Inc., 621 F.3d 1290, 1300 (10th Cir. 2010).[7]

         Plaintiffs may pursue such a claim here against Kelsey-Hayes as the manufacturer of a component used in the vehicle, specifically, the control module or other components of the ESC system that were manufactured by Kelsey-Hayes. See Union Supply, 583 P.2d at 281. Colorado law “follow[s] the majority view that a manufacturer of component parts may be held strictly liable for injuries to a consumer caused by design defects in the component parts when they are expected to and do reach the consumer without substantial change in condition.” Id.

         Arguing for summary judgment, Kelsey-Hayes cites to Mr. Loudon's testimony, set out above, explaining that the reason the ESC system was disabled at the time of the Crash-and therefore was allegedly defective- was because the steering wheel angle sensor was reporting unreliable data to the control module, that the control module therefore disabled the ESC system, and that this was the appropriate response to unreliable sensor data. (See ECF No. 187 at 3-6; ECF No. 187-4 at 12, 16.) In other words, Kelsey-Hayes's argument implies that while Plaintiffs might have a viable component defect as to the data sensors, Kelsey-Hayes did not manufacture those sensors. Kelsey-Hayes argues “[t]here is no evidence of any product defect in any components designed, manufactured, or supplied by Kelsey-Hayes, ” including the ESC control module. (ECF No. 187 at 6.)

         Plaintiffs argue that the vehicle's “ESC system was defective, ” and that “Kelsey-Hayes is the designer of the 2011 Chevy Silverado's ESC controller that determines when the system will engage.” (ECF No. 218 at 8.) Initially, there is some disconnect between, on the one hand, Plaintiffs' arguments directed to a defect in the “ESC system” as a whole (see, e.g., id. (“the ESC system as designed and manufactured is defective and unreasonably dangerous”) and, on the other hand, Kelsey-Hayes's argument distinguishing between the data sensors and the system component(s) that were manufactured by Kelsey-Hayes. Kelsey-Hayes argues “Plaintiffs . . . must demonstrate the specific component Kelsey-Hayes ...

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