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In a serious injury accident, auto accident attorneys sometimes need to get creative to find liability. When a car malfunction results in a car accident, the spotlight can turn to auto repair negligence claims. But as a recent case suggests, proving negligence isn’t always easy.
Auto repair negligence can cause serious injury accidents. Particularly when brakes fail, there may be nothing a driver can do to avoid a crash. When that happens, responsible auto accident attorneys can turn to auto repair companies as possible defendants in third party claims.
But auto repair negligence is the claim, it isn’t enough to just show the accident happened. A recent unpublished Michigan Court of Appeals case, Gusamano v Barney’s Automotive Services, says that proof of actual negligence is a must.
In April 2013, Dino Gusmano was driving his employer’s Dodge Ram in Shelby Township, Michigan when his brakes failed. As he approached the intersection of 23 Mile and Schoenerr Roads, he “hit the brakes, and they failed, going right to the floor.” Gusmano’s truck went into intersecting traffic where he hit another vehicle. A brake line fluid leak was deemed to have caused the failure, and the crash.
In seeking recovery for his injuries, Gusamano and his wife filed a lawsuit against two auto repair companies that had serviced the vehicle’s brakes: Barney’s Auto Services and Brownies Muffler Service, Inc. The plaintiffs claimed Barney’s installed refurbished brakes earlier in the year, and that Brownies provided repairs and maintenance during the same period. But the complaint didn’t describe any specific negligence by either company.
It turned out that “in the past year” was a bit of an exaggeration. Based on the work orders provided by the defendants, the last brake work done by Barney’s occurred on July 19, 2010 – nearly three years and 53,000 miles before the accident. Brownies did work on the vehicle in 2012, but it had nothing to do with the brake line. Instead, the company work order said Brownies installed a “right rotor” two “front pads” and a “clamp.”
Gusmano’s attorney represented that he had visited Barneys and seen a worksheet for additional brake work done close to the accident, but was unable to produce that worksheet. The attorney also presented an expert statement, which said using a clamp on the brake line “could produce . . . a hole in the brake line after pressure build-up.” However, neither the expert nor the attorney could provide proof that was where the clamp was applied.
The Michigan Court of Appeals considered whether this evidence was enough to create a question of fact as to the negligence of the auto repair facilities. In order to collect third party damages, a plaintiff must show that the auto repair facility failed to take reasonable care in repairing his or her vehicle. The court said Gusmano didn’t do that.
An attorney’s statements cannot be used as evidence to create a factual dispute. MRPC 3.7(a) says:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client
Gusmano’s lawyer wanted to testify to the contested issue of the last work done by Barneys, which connected directly to whether the auto repair shop was negligent. In fact, it was the only evidence that would have suggested Barneys may have been responsible for the brake line failure. Because the attorney was not allowed to testify, summary disposition was appropriate.
When it came to Brownies, the expert testified that replacing a single rotor, rather than symmetrical replacement, and the use of a clamp on the brake line could have resulted in ware and tear. However, Gusmano’s attorney did not claim the rotor caused the accident, and there was no evidence that the clamp was applied to the brake line. The court held that the plaintiffs “failed to create a material question of fact and the trial court properly dismissed their claim. The court summarized:
“Speculation is insufficient to overcome a motion for summary disposition. Libralter Plastics,
Inc v Chubb Group of Ins Cos, 199 Mich App 482, 486; 502 NW2d 742 (1993).”
This case urges auto accident attorneys to do their homework when it comes to proving negligence, and not to wait until the deadline to get things done. The attorney in Gusmano had a medical emergency days before the end of discovery. Because of this, he did not depose either of the mechanics that provided affidavits for the defendants. Even though he had known that they would be testifying, he waited until the last minute to serve notices of deposition. When his medical emergency arose, there was no more time to play catch up later.
Auto accident attorneys are human. They have accidents, illnesses, and get sick. Without the appropriate coverage mechanisms in place, an unexpected emergency can cause an attorney to lose a case. While Gusmano stands for the need to present evidence of auto repair neglect, it also provides a warning to auto attorneys: don’t press your luck with deadlines. Whenever possible get depositions and discovery done early. You never know what could come up at the 11th hour.
David Christensen is an auto accident attorney at Christensen Law in Southfield, Michigan. He has handled insurance claims and third party lawsuits for over 25 years. If your client has a difficult auto negligence claim, contact Christensen Law for a referral today.