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Garrido v. Team Auto Sales, Inc.

Supreme Court of South Dakota

May 23, 2018

ALEJANDRO GARRIDO, TANYA HOOF, and TANYA HOOF as limited conservator for the minor child M.I., Plaintiffs and Appellants,
v.
TEAM AUTO SALES, INC., Defendant and Appellee.

          CONSIDERED ON BRIEFS APRIL 16, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT A. MANDEL Judge

          HEATHER M. LAMMERS BOGARD CHRISTOPHER A. CHRISTIANSON STEPHEN C. HOFFMAN of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, LLP Attorneys for plaintiffs and Rapid City, South Dakota appellants.

          GARY D. JENSEN JESSICA L. LARSON of Beardsley, Jensen & Lee, Prof LLC Attorneys for defendant and Rapid City, South Dakota appellee.

          JENSEN, JUSTICE

         [¶1.] Alejandro Garrido and Tanya Hoof purchased a used vehicle from Team Auto Sales, Inc. (TAS), a used-car dealer. In this action, Garrido, Hoof, and Hoof's six-year old son, M.I., (Appellants) allege that the vehicle was sold without a muffler and that they suffered carbon monoxide poisoning from the vehicle. The circuit court determined that Appellants failed to generate a question of fact as to causation and granted TAS's motion for summary judgment on all claims. We affirm in part, reverse in part, and remand.

         Background

         [¶2.] Hoof and Garrido were involved in a romantic relationship and lived together with M.I. and several other family members in Rapid City. After Hoof's personal vehicle became inoperable, she decided to purchase another one. On February 10, 2014, Hoof and Garrido went to TAS to search for a vehicle.

         [¶3.] TAS showed Hoof and Garrido a 1991 Honda Accord it had for sale. The vehicle had over 180, 000 miles on it, had been taken in on a trade, and was valued at $1, 500. An employee of TAS took the car for a test drive, but other than cleaning it, TAS had not inspected or done any other work on the vehicle. Hoof and Garrido acknowledged that they knew the car would likely have mechanical issues, however, Garrido planned to fix whatever was wrong. The vehicle had to be jump-started before it could be test driven. Hoof and Garrido took the vehicle for a short drive around the block. Hoof noticed that the vehicle smelled of gasoline and that it sounded like a lawnmower when running. Garrido observed that the vehicle was louder than what he would have expected from a vehicle with its original exhaust system intact. Neither Hoof nor Garrido discussed the smell or noise with anyone at TAS. Garrido also came back and drove the vehicle a second time before purchasing it.

         [¶4.] Hoof paid the $1, 500 purchase price for the vehicle and Garrido signed the purchase order. The agreement stated that the vehicle was being sold "AS IS- NO WARRANTY." The TAS salesman claimed that he had explained the terms of the agreement to Garrido, that he had told Garrido he should have the car inspected, and that the car was being sold "as is" without any warranties. Garrido understood he was purchasing the vehicle without any warranties and that he could have had the vehicle inspected before purchasing it.

         [¶5.] In the following weeks, Hoof complained that the smell of exhaust coming from the vehicle was giving her headaches. Garrido thought the car may have had an exhaust leak. He checked under the hood but could not locate any leaks and did not observe a missing muffler. Hoof and Garrido continued to drive the vehicle and dealt with the exhaust smell by driving with the windows open. Hoof and Garrido did not have the car inspected by a mechanic, but the oil was changed approximately one month after the purchase. The oil-change shop noted several fluid leaks, but did not list the muffler as missing.

         [¶6.] On March 31, 2014, Hoof and M.I. were both admitted to the emergency room. M.I. had been coughing and wheezing for approximately two days before the ER visit and was prescribed a nebulizer to treat his symptoms. Hoof was having issues with anxiety, had difficulty breathing, and had been coughing. She had also claimed to have been physically assaulted by Garrido the previous night. Hoof was prescribed Valium and released. There is no evidence connecting this episode with the carbon monoxide poisoning the next day.

         [¶7.] On April 1, 2014, 50 days after purchasing the vehicle, Appellants took the vehicle to look at an apartment they were considering renting. When they arrived at the apartment complex, the three stayed inside the vehicle for 30 to 45 minutes while waiting for the landlord to show them the apartment. The vehicle was parked and running throughout this time. The vehicle's windows were open most of this time. However, Appellants closed the windows when it started to rain. When the landlord arrived, all three left to go inside. Garrido claimed that as M.I. got out of the car, he fell. Garrido picked M.I. up and asked if he was okay. M.I. said no and that he was not feeling well. Garrido carried M.I. over his shoulder while looking at the apartment.

         [¶8.] After the apartment tour, M.I. indicated he was feeling better. However, after M.I. got back into the vehicle, he began seizing. Hoof and Garrido rushed M.I. to the emergency room at Rapid City Regional Medical Center. By the time they arrived, M.I. had stopped seizing but was not breathing. The admitting physician suspected M.I. was suffering from carbon monoxide poisoning because he had no history of seizures and smelled of exhaust fumes. M.I.'s carbon monoxide levels were checked immediately and were found to be toxic at 45 parts per million (ppm). Hoof and Garrido's carbon monoxide levels were also checked and registered 29 ppm and 26 ppm respectively. All three were diagnosed with carbon monoxide poisoning and placed in hyperbaric oxygen chambers for treatment.

         [¶9.] After Appellants arrived at the hospital, the Rapid City Fire Department was called to inspect the Honda. The Fire Department unit that specialized in handling carbon monoxide incidents was unavailable, so another unit with limited experience in handling such incidents responded. This unit arrived 20 minutes later and completed a carbon monoxide test of the vehicle's passenger compartment approximately 38 minutes after the vehicle was vacated by the Appellants. The tests showed that carbon monoxide was present in the passenger compartment at the level of 16 ppm. This was within a range generally considered non-toxic and would not cause an acute carbon monoxide exposure based on the length of time Appellants reported being in the vehicle. First responders noticed a smell of gas, that the vehicle did not have a muffler, and that the end of the exhaust pipe was positioned near the rear seat. The first responders started the vehicle and ran it for two minutes with all the doors and windows closed. Because the vehicle compartment still registered 16 ppm after two minutes, no further action was taken with respect to the vehicle. Garrido installed a muffler on the vehicle shortly after the April 1, 2014 incident.

         [¶10.] Appellants filed a complaint against TAS seeking damages for carbon monoxide poisoning they alleged was caused by the absence of a muffler on the vehicle. The complaint asserted TAS was liable for damages on the theories of strict liability, negligence, negligent misrepresentation, intentional misrepresentation, negligent infliction of emotional distress, intentional infliction of emotional distress, breach of contract, breach of express warranty, and breach of implied warranty. TAS motioned for summary judgment, arguing that the claims should be dismissed as a matter of law and that the evidence was insufficient to establish causation as a matter of law.

         [¶11.] At the April 24, 2017 summary judgment hearing, the circuit court expressed concern with causation and the theories of liability. The circuit court deferred ruling on the motion and granted Appellants' request for a continuance to obtain additional expert testimony on causation. Appellants obtained an expert report from Joseph Tjaden, a paramedic and Captain of the Rapid City Fire Department Hazardous Materials Response Team. Tjaden was not present at the April 1, 2014 incident but headed the unit that normally handled carbon monoxide incidents. In his deposition, Tjaden stated:

Vehicle exhaust contains dangerous materials, with [c]arbon [m]onoxide being the dominant material which has acute impact on the body. . . . This is a primary reason that vehicle exhaust exists above the cabin or behind the rear wheels, to help keep the exhaust away from vehicle openings. Carbon [m]onoxide is a colorless, odorless gas present in the combustion of fossil fuels and incomplete combustion of natural materials.

Tjaden also concluded that M.I.'s symptoms were "consistent with an acute exposure [to] high quantities of [c]arbon [m]onoxide, " and found evidence that M.I. was "feeling sick on the way to the apartment viewing, the fall and weakness at the apartment, the [testimony that M.I.] possibly felt better in fresh air, but the ill feeling increased upon returning to the vehicle" constituted a "strong" indication that "the vehicle was the cause of the poisoning." Tjaden also concluded that having the car parked in one place with the muffler missing and windows open for an extended time would allow carbon monoxide to enter the vehicle and cause the high levels of exposure Appellants displayed at the hospital. He also opined that because the exhaust pipe of the vehicle ended near the rear seat, it was more likely that exhaust had enveloped the interior of the vehicle. Tjaden also noted that carbon monoxide can dissipate rapidly when not in a contained environment and that the opening of the vehicle's doors at the hospital by Appellants and the fire department, combined with the breeze on the day of the incident, would have caused the carbon monoxide levels in the vehicle to quickly lower when the engine was not running. Tjaden ...


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