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Consalo v. General Motors Corporation-Cadillac Division

Decided: July 7, 1992.

ALICE CONSALO AND ANTHONY CONSALO, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
GENERAL MOTORS CORPORATION-CADILLAC DIVISION, DEFENDANT-RESPONDENT, AND FISHER-ELKINS BUICK, OLDSMOBILE AND CADILLAC, INC., DEFENDANTS



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.

Stern and Keefe. The opinion of the court was delivered by Keefe, J.A.D.

Keefe

The opinion of the court was delivered by

KEEFE, J.A.D.

In this product liability case, plaintiff Alice Consalo contended that an unspecified manufacturing defect caused an unintended, sudden and uncontrollable acceleration of her 1986 Cadillac Sedan Deville resulting in an accident from which she sustained personal injuries. Her husband, Anthony Consalo, sued per quod. At the end of the plaintiffs' case, Judge Steven Z. Kleiner granted defendant General Motors Corporation's motion for involuntary dismissal. Plaintiffs appeal from that judgment contending that the Judge applied incorrect principles of law to the facts of the case. We affirm substantially for the reasons set forth by Judge Kleiner.

The facts taken in a light most favorable to plaintiffs are as follows. The 1986 Cadillac Sedan Deville was purchased in January 1986. Plaintiff Alice Consalo was the principal operator of the vehicle. She testified that she drove the car 90% of the time. There were 13,264 miles on the vehicle when the accident occurred on October 3, 1986.

Apparently routine service was performed on the vehicle from the date of purchase until the time of accident. However, plaintiffs experienced no difficulty with the accelerator, the brakes or the electrical system of the vehicle before the date of the accident. On the date of the accident, Alice Consalo drove the vehicle, without incident, from her home in Vineland to her husband's place of business located ten to fifteen minutes from her home. Her husband drove the vehicle from that point to a place where they had lunch a short distance away. After lunch Anthony Consalo drove the vehicle back to his place of business

also without incident. He parked the vehicle facing the office building where he worked. When he alighted from the vehicle, Alice moved across the front seat behind the wheel.

In order to exit the premises, Alice intended to back up and make a 180 degree turn in order to enter Main Street. She recalled putting the vehicle in reverse, backing up and bringing the vehicle to a stop without experiencing any problem. When she shifted the vehicle into drive she was unsure whether she touched the accelerator but recollected that the vehicle lunged ahead "like a jet." Although she was not certain where her right foot was at that moment in time, she testified that her left foot was definitely on the floor of the vehicle "as it usually is when I drive." As the vehicle lunged forward she "slammed on [the] brakes, [the] service brakes." Despite the fact that she kept her foot "slammed on the brake, the service brake, the brake I always use" she was unable to stop the vehicle. Instead of slowing the vehicle, she testified that the vehicle actually accelerated progressively as if she had been applying the accelerator rather than the service brake. Plaintiff was able to control the vehicle sufficiently in order to avoid striking a house that was on the premises but ultimately struck the corner of a loading dock some distance away. Although she admitted that she thought about applying the emergency brake a few seconds before the impact, the emergency brake was never applied.

The accident was witnessed by her husband and two of his employees. All of the witnesses agreed that their attention was called to the vehicle by the sound of the engine, and all agreed that they saw one or both rear wheels of the vehicle "lock up" at a point some distance after their attention was called to the racing engine. Mr. Lane, one of the witnesses, testified that the vehicle travelled approximately 200 feet from the building where Mr. Consalo left the vehicle to the point of impact and he saw the driver's side rear tire lock-up approximately 100 feet from the point of impact.

The vehicle was examined by an expert engaged by plaintiffs. In plaintiffs' opening statement to the jury, it was stipulated that the expert was unable to offer any opinion concerning a specific defect in the vehicle.*fn1 In response to General Motors' requests for admissions, plaintiffs admitted they were unaware of any evidence to prove a defect in the idle speed control motor, the cruise control system, the braking system or the acceleration system. Finally, plaintiffs admitted they did not "know or contend to know what ...


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