# FILED
October 29, 19 97 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ DONNA F. HALEY, Plaintiff -Appella nt, Shelby Circuit No. 81147-8 Vs. C.A. No. 02A01-9704-CV-00086 AMERICAN HONDA MOTOR CO., INC., and C OVINGTON P IKE MOTORS, INC., d/b/a COVINGTON PIKE HONDA, INC., Defend ants-App ellees.

______________________ _____________________________________________________ _ FROM THE SHE

LBY COUNTY CIRCUIT COURT THE HONORABLE D’ARMY BAILEY, JUDGE

Robert L. J. Spence , Jr; The H ardison L aw Firm, P. C., of Memp his For Plaintiff-Appellant R. Dale Bay; John R. Tarpley; Susan R. High-McAuley Lewis, King, Krie g, Waldr op & Caltro n, P.C. of N ashville For Defendants-Appellees

AFFIRMED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE HOLLY KIRBY L ILLARD, JU DGE
This is a produ cts liability case. Plaintiff Donna F. Haley appeals the order of the trial court granting summary judgment to defenda nts American Honda Motor Co. and Covington Pike Motors, Inc.2 Plaintiff’s complain

t filed Au gust 30, 19 96 allege s that plaintif f su stained personal injuries in an automobile accident that occurred on June 1, 1995. She ave rs that at the time of the accident she was driving her 1990 Honda Accord LX automobile which she had purcha sed from the defendant, Covington Pike Motors, Inc., d/b/a Covington Pike Honda on November 30, 1994. She alleges that the vehicle manufactured by def endant American Honda Motor Compa ny, Inc., and sol d by defendant Covington Pike Motors, Inc., was unreasonably dangerous in that it was “defectively designed, manufactured, a ssembled and sold.” The complaint alleges in p articular that the vehicle was defec tively designed because: (1) the seat belt relea sed and permitted plaintiff to strike the steering wheel; (2) excessive slack was permitted to develop and (3) the seat belt was not adequate to provide safe ty support for a

front-end type collision. The complaint further avers that the vehicle was unre asonably dangero us and caus ed injurie s to plaintiff. The complaint further alleges that defendant, American Honda Motor Company, Inc.,
was negligent because of improper design, failure to warn, and inadequate testing of the sea t belts on the vehicle. The complaint further

avers that defendant, Covington Pike Motors, Inc., was negligent by failing to warn o f the def ective c ondition a

nd to exer cisereasonable and ordinary care in the sale of the vehicle. The complain

t also alle ges that both defendants breached the warr anties of mercha ntability and fitness for a particu lar purpo se, and that the breach of these warr anties directly caused or failed to prevent injuries suffe red by plaintiff. Both defendants filed answers in respo n se to the complaint in which they deny the material allegations of

the complaint and join issue thereon. They also rely upon affirmative defense s, including the statute of limitations. Subsequently, defendants filed a joint moti on to dismiss for failure to state a claim and in the alternative for summary judgment. In support o f the motion for summary judgment, defendants filed the affidavit of Covington Pike Honda’s general manager, Benny Aiken. Mr. Aiken’s a ffidavit states that the Honda automobile in question was first received new from American Honda Motor Company, Inc., and was sold as a new vehicle by Covington Pike Honda to A. Joel Henry and K . Dana Henry on January 24, 1990. Some years later, the Honda was re -acquired from anothe r dealer ship and placed in the used car inventory and wassold to plaintiff on October 19, 1994.3

The automobile

was sold to

plaintiff in an “asis” condition and a ll warra nties wer e explic itly disclaimed by Covington Pike Honda . Copies of the sale document s were a

ttached as exhibits to the affidavit. The retail buyers order signed by the plaintiff shows on its face in a conspicuous
manner that all warranties were disclaimed, including the implied warranties of merc hantability and fitness for a particular purpose. The plaintiff ac knowledged such d isclaimer and acknowledged that the vehicle was purcha sed and accepted “as is.” The only proof by plaintiff in opposition to the motions fo r summar y judgment is the affidavit of plaintiff, which we quote:

CO MES NOW the aff

iant, Don na F. Hale

y, after being duly sworn, de poses and states asfollows: 1. I am Donna F. Haley, an adult resident of Memphis, Shelby County, Tennessee. 2. I am the plaintiff in the above-styled cause of action. 3. On or about November 30, 1994, I purcha sed a 1990 Honda Accord LX from th

e defendant, Covi ngton Pike M o tor s, Inc. d/b/a Covington Pike Honda, I nc. At the time I purcha sed this vehicle the seat belts were covere d by a lifetime warranty. 4. I wa s involved in a motor vehicle accident while driving th e 1990 Honda Accord LX, as set for th abov e, on or about June 1, 1995. 5. In this ac cident my

vehicle was st ruck on the driver’s side door a nd there after st

ruck a po le. As a r

esult of th

e injurie s sustain ed, I was transported via ambulance to the Med wher e I was admitted and diagnosed as suffering from bilateral pneumotho

races. I was hospitalize d at t he Regional Medical Center from June

1, 1995 thr

ough June

8, 1995, a

nd th ere after tra nsferred

for fur ther tre atment at

the Baptis t Hospital

Centr a l from June 8, 1995 through June 25, 1995. 6. The mechanics of how I was injured in the vehicle w ere not known to me at the time of the accident or at any time thereafter until A u gust 15, 19 96, when t he nation al Highwa

y Traff ic Administration made kn own to the public tha

t the sea t belts my [sic] 1990 Honda Accord LX were faulty and defective. 7. When I pu

rchase d my vehic le I was n ot a ware th at the seatbel ts were d efectiv e and unr

easonab le [sic] dangero

us. Although the trial

court’s order do es not specify the basis for granting summary judgment, it is apparent that the summary ju dgment on t he implied

warran ty claim was granted because there is no ge n uine issue of material fact. Summary judgment was granted on the productsliability causes of action because they are barre d by the sta tute of lim

itations. T

he only4

issue for review is whether the trial court erred in granting summary ju dgment to th e defendants. Although plaintiff filed her suit more than one year after he r accident and resulting injuries, she asse

rted in the

trial cou rt and as serts in th

is Court tha

t the applic able sta

tutes o f limitation were tolled because the defenda nts fraudulently concealed the caus e of action. Plaintiff’s attorne

ys argue d in the tri al court that plain tiff saw an artic le in the newspaper, USA Today , on or about August 15, 1996, t hat stated tha t the Nati onal High

way Tra ffic Saf ety Administration may seek

civil pen alties ag ainst

American Honda for “withholding information about potentia lly faulty seatbel ts in 1986 - 91 cars.” We mentio n this only by way of explanation because there is nothing in the record to suppo rt plainti ff’s pos ition other than her affida vit previously quoted. Defend ants assert that plaintiff has not properly pleaded claims for either fraud or fraudulent

concealment, and i n any case has offered no evidence in the record to support her theory of fraudulent concealment. Defendants argue that the seat belt eithe r perfo rmed pro perly
or malfunctioned at

the time of the accident and that plaintiff should have known of any po ssible
cause of action against defendants immediately. Even if she did not discover her cause of action at the time of inj ury, Ms. Haley ha d ample op

portunity after th e accid ent to insp ect the s eat belt and determine whethe

r it failed or not. Defend ants argue that Ms
. Haley has offered no evidence that her sea t belt was in any way defect ive, nor h as she de

monstrate d how the d

efenda nts could have possibly concealed any defect fr om her. A trial court should grant a motion for s ummary ju dgment only if the movant de monstrates that there are no genuine issues of material fa ct and that the moving part y i s entitled to judgment as a matter of law. Tenn. R. Civ. P. 56. 03; Byrd v. Ha ll , 847 S.W.2d 208, 210 (Tenn. 1 993); Dunn v. Hack ett , 833 S.W.2d 78, 80 (Tenn. App. 1992). Theparty moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd , 847 S.W.2d at 210. When a motion for summary ju dgment is ma de, the c ourt must consider the motion in the same manner as a motion for directed verdict made at

the close of the plaintiff's proo f; that is, "the co urt must ta

ke the str ongest le gitimate view of the evidenc e in favor of the nonmoving party, allow all reasonable inference s in favor of that party, and discard all count ervailin g evidenc e." Id . at 210-11. In Byrd , the Tennessee Supreme Court stated: Once it is shown by the moving party that there is no genuine5 issue of material fact, the nonmoving party must then de mons trate, by affid avits or d iscover y materia ls, that the

re is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party ca nnot simply

rely upon his pleadings butmust set forth specific facts showing that there is a genuine i ssue of ma

terial f act for trial. Id
. at 211. (c itations om

itted)(e mphasis in o

rig inal). The summa

ry judgme

nt proce ss should only be used a s a means

of concl uding a ca se when t

here ar e no genu ine issue s of mater

ial fact , and the case can be resolved on the legal issues a lone. Id . a t 210 (citing Be llamy v. Federal Express Cor

p ., 749 S.W.2d 31, 33 (Tenn. 1988)).

NEGLIGE

NCE & STRICT

LIABILI TY CLAIMS Tennessee Code Annotated § 28-3-104(a)(1) provides that actions for injuries to the person must be commenced within one (1) year after the cause of action

accrues. Additionally, T.C.A. § 29-28-103(a) provides that products liability actions involving personal injury must be brought within the peri od of time s pecifie d in T.C.A. § 28-3-10 4. In prod

ucts liabi lity cases the
cause of action for injury to the person generally acc rues on the date of the personal injury. T.C.A. § 28-3-104(b)(1) (Supp. 1996). However, Tenne ssee fol lows the “disc overy rule” in persona l injury actions whic

h provide s that: the cause of action accrues and the statute of limitations begins to run when the injury occurs o

r is dis covered, or

when in the exercise of reasonable c are and diligence, it

should have been discovered. . . . The discovery rule applies only in cases where th

e plaintif f does not discover and rea sonably c ould

not be expected to discover that he had a right of action. Potts v. Celotex Corp. , 796 S.W.2d 678 (Tenn. 1990) (citations omitted). Plaintiff asserts that she could not reasonably have been expected to discover that she had
a cause of action a gainst the defenda nts beca use they “

knowingly

and willf

ully” with

held information from the public regarding potentially defective seat belts. On the other ha nd, defenda nts assert that plaintiff

must have known at the time of the ac cident wh

ether the seat be

lt malfunctionedor not. Plaintiff’s complaint alleges that “the seat belt released and pe rmitted plaintiff to strike the steering wheel of her vehicle,” and that “said seat belt was further defective in that it permitted excessive slack to develop.” If those allegations are true, it is difficul t t o understandhow AmericanHonda or Covington Pi

ke Motors could poss ibly have co nceale d this from her . Ms. Hale

y stated in

her aff idavit tha t:6 The mech anics o f how I was injured in the vehicle were not known to me at the time of the accident or at any time thereafter until August 15, 1996 , w hen the N ational H ighway Tr

affic Admi ni stration made known to the pub lic that the seat be lts my [sic] 1990 Honda Accord LX were faulty and defective. We question how lear

ning of pos sible def

ects in Ho nda seat

belts thro

ugh a new spaper a

rticle suddenly pu t Ms. H aley on notice of the mechanics of how she was injure d in her particular accident. Even if we assume that the defendants’ alleged failure to warn o f known de fects in certain seat belts amounted to fraud, crucial elements of fra udulent concealment are lacking. The Tenness ee Supre

me Court ha s held tha

t: [A] plaintiff

who seek s to tolla statute of limitations on the ground of fraudulent concealment

must prove that the cause of action was known to and fraudul ently concealed by the defendant. Knowledge on the part of t he [defendant] of the facts giving rise

to a cau se of action is an essential element of fraudulent concea lment. Concealment is als o an esse ntial ele ment and itmay co nsist of with holdin g information or making use of some device to mislead, thus involving act and intention. Generally, a plaintif

f seekin g to estab lish frau dulent co ncealme nt must prove that the d

efenda nt took af firmati ve ac tion to conceal the cause of action and that the plaintiff could not have discov ered the cause of a ction des

pite exercising reasonable diligence
. Benton v. Snyder , 825 S.W.2 d 409, 414 (Tenn. 199 2) (emph asis added)(citations omitted). See also Soldano v. Owens-Corning Fiberglass Corp. , 696 S.W.2d 887 (Tenn. 1985) (stating that the statute of

limitations begins to run at the time of the discovery of the fraud by the plaintiff if the plai ntiff coul d not have discover ed his ca use of action despite exer cising re asonable diligence). In the case

at bar, p laintiff

’s use of the seat belt would

alert her to any def

ect that w ould allow the restr

aint to fa il, and she

was, at th

e very le ast, put on inquiry as to how she sustained heri njuries. In the re cord bef ore us, su mmary judg ment on the

negligence and st

rict liab ili t y claims was proper.

BREACH OF W ARRANTY CL

AIMS Ms. Haley’s complaint alleged that both American Honda and Covington Pike Motors breached the warr anties of mercha ntability and fitness for a

particu lar purp ose. Ms. H aley als o asserts that the seat belts in her Honda were c overe d by a lifetime warranty, however, her1 The defendants point out that Ms. Haley raised the issue of a lifetime war ranty on the seat belts on the day of the hearing on this matter. We agre e that her complaint does not properly allege a breach of a lifetime seat belt warranty, but hold that the argument is moot because even if properly alleged, Ms. Ha ley has offered no competent proof of such a warranty. 7 complaint contains no such a

lle gation. 1 The only e

vidence in the re cord to th

is effect is a statement by Ms. Haley in her affidavit that: “At the time I purcha sed this ve

hicle the seat bel ts
were covered by a lifetime warranty.” From exa mining the transcript of the hearing on t he defenda nts’ motions, it

seems tha

t some stat

ement in the USA Today article

alludes to

a lifetime warranty on Honda seat belts. This article is not part of the record. However, the rec ord does contain document s from Co ving ton Pike Motors wherein Ms. Haley acknowledged by her signature that the v ehicle s he purch ased wa s “as is,” and that a ll warra nties exp ress and implied, including the implied warranties of m er chantability and fitness for a particular purpose, wer e express ly disclaimed. Unde r Tenn essee law, both express and implied warranties may be disclaimed. T.C .A. § 47-2 -316 (199 6). “[U ]nless the circumst ances in dicate o therwise , all implied warranties are excluded by expre ssions like ‘as is,’ . . . or othe

r langua ge which in
common understanding calls the buyer’s attention to the exclusion of warran ties and ma

kes plain tha t there is no implied warranty.” T.C.A. § 47-2-316(3)(a) (1996)
. See Malone v. M oore Oldsmobile, Pontiac, GMC, Inc. , 1988 WL 36455 (Tenn. App. 1988). The evidence shows that Ms. Haley’s signature appeared a total of eight times beneath the various disclaimer clauses in the sales contract. When faced with a motion for summar y judgmen t, the party opposing the motion cannot si mply rely o n her ple adings, but must set forth specific facts showing that there is a genuine issue of material fact for trial. Tenn. R. Civ. P. 56.06. When conside r i ng the evidence present

ed by def endants o f the war

ranty dis claimer s, Ms. Hale y’s uncor roborat e d statement in her affidavit that the seat belts came with a lifetime warr anty is not a suf

ficien t “specif ic fact” to create a genuine issue for trial as to the existence of any wa rranty. This statement simply does not rise to the dignity of evidence that will support plaintiff’s claim. See Perryman v. Peterbilt of Knoxville, Inc. , 708 S.W.2d 403, 406 (Tenn. App. 1985). The order of the trial court granting summary judgment is affirmed. Costs of appeal are
assesse d against

the appe llant.8 ___________________________ W. FRANK CR

AWFORD PRESIDING JUDGE, W.S. CONCUR:

________________________________ ALAN E. HIGHERS, JUDGE

________________________________ HOLLY KIRBY LILLARD, JUDGE