Bernhardt, Peter

English

University of Tulsa College of Law

Tulsa Law Review Volume 10 Issue 4 1975 Products Liability--Autmomobile Manufacturers Are Strictly Liable in Tort for Defective Design Which Enhances Injuries in a Collision Peter Bernhardt Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Peter Bernhardt, Products Liability--Autmomobile Manufacturers Are Strictly Liable in Tort for Defective Design Which Enhances Injuries in a Collision, 10 Tulsa L. J. 703 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol10/iss4/16 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. PRODUCTS LIABILITY - AuTOMOmLE MANUFACTUREs AIESTRICTLY LIABLE IN TORT FOR DEFECTIVE DESIGN WHICH EN-HANCES INJURIFES IN A COLLISION. Perez v. Ford Motor Co., 497F.2d 82 (5th Cir. 1974).Plaintiff Perez and his daughter were seriously injured and hiswife was killed when the passenger compartment of the pickup truckin which they were riding separated from the chassis and overturnedafter being struck from the rear by another automobile at a speed dif-ferential of approximately thirty miles per hour. In his action againstthe truck manufacturer Perez alleged that a design defect caused lossof control of the truck and thus compounded the injuries sustained byits passengers.'The United States Court of Appeals for the Fifth Circuit reversedthe trial court,2 which had directed a verdict for the manufacturer onthe grounds that, as a matter of law, a rear-end collision at a thirtymiles an hour speed differential was not "normal use' of the vehicle.3After reviewing Louisiana case law the federal appellate court con-cluded that the "normal use' of a product must be determined by theinjured party's actual use of it and not the effect of intervening forcesupon that use.' The controlling fact was held to be the use to whichthe truck was being put at the time of the accident and not the accidentitself.5 Therefore, upon proper proof on remand, the plaintiff wouldbe allowed to recover either under a theory of strict liability in tort orunder a negligence theory.While a growing number of jurisdictions have allowed recoveryunder general principles of negligence in so-called "second collision!'cases, the Perez case added Louisiana to the few states holding automo-bile manufacturers strictly liable in tort for defective design which en-hances injuries in a collision. Conversely, under the majority view norecovery can be had under any theory-whether negligence, breach ofwarranty or strict liability-where the defective design did not causethe initial accident. The jurisdictions adhering to this rule rely pri-1. Perez v. Ford Motor Co., 497 F.2d 82, 84 (5th Cir. 1974).2. Perez v. Ford Motor Co., No. C.A. 68-737 (E.D. La., Dec. 4, 1972).3. 497 F.2d at 84.4. Id. at 88.5. Id. at 87.1Bernhardt: Products Liability--Autmomobile Manufacturers Are Strictly LiablePublished by TU Law Digital Commons, 1974TULSA LAW JOURNALmarily on the leading case of Evans v. General Motors Corp.," whereinit was reasoned that an automobile manufacturer is under no duty tomake his automobile accident-proof, 7 that the intended purpose of anautomobile does not include collisions with other vehicless and that itwould be a legislative rather than a judicial function to require manu-facturers to construct automobiles in which it would be safe to collide.'Some or all of these propositions were adopted by the courts in otherjurisdictions in denying recovery in "second collision" cases.1°The Eighth Circuit in Larsen v. General Motors Corp." rejectedthe "intended use?' argument of Evans as too narrow and unrealisticand held injuries caused by defective design to be readily foreseeableas an incident to the normal and expected use of an automobile.1 2 Thecourt then stated an automobile manufacturer's duty in the followingterms:We perceive of no sound reason, either in logic or experi-ence, nor any command in precedent, why the manufacturershould not be held to a reasonable duty of care in the designof its vehicle consonant with the state of the art to minimizethe effect of accidents. The manufacturers are not insurersbut should be held to a standard of reasonable care in designto provide a reasonably safe vehicle in which to travel ...This duty of reasonable care in design rests on commonlaw negligence that a manufacturer of an article should usereasonable care in the design and manufacture of his productto eliminate any unreasonable risk of foreseeable injury.'"It was at once apparent to the Larsen court that the accident-proof the-ory advanced in Evans was not really at issue and thus irrelevant,' and6. 359 F.2d 822 (7th Cir.), cert. denied, 385 U.S. 836 (1966).7. 359 F.2d at 824.8. Id. at 825.9. Id. at 824.10. Schemel v. General Motors Corp., 384 F.2d 802 (7th Cir. 1967), cert. denied,390 U.S. 945 (1968); Williams v. Cessna Aircraft Corp., 376 F. Supp. 603, 605 (N.D.Miss. 1974); McClung v. Ford Motor Co., 333 F. Supp. 17 (S.D. W. Va. 1971), af!'dper curiam, 472 F.2d 240 (4th Cir. 1973); Shumard v. General Motors Corp., 270 F.Supp. 311 (S.D. Ohio 1967); Willis v. Chrysler Corp., 264 F. Supp. 1010 (S.D. Tex.1967); Frericks v. General Motors Corp., 20 Md. App. 518, 317 A.2d 494 (1974); Gen-eral Motors Corp. v. Howard, 244 So. 2d 726 (Miss. 1971); Ford Motor Co. v. Simpson,233 So. 2d 797 (Miss. 1970); Walton v. Chrysler Motor Corp., 229 So. 2d 568 (Miss.1969). See generally Annot., 42 A.L.R.3d 560 (1972); Hoenig and Werber, Automobile"Crashworthiness": An Untenable Doctrine, 20 CLEV. ST. L. REV. 578 (1971).11. 391 F.2d 495 (8th Cir. 1968).12. Id. at 502.13. Id. at 503 (footnote omitted).14. Id. at 502. See also Comment, Automobile Design Liability: Larsen v. GeneralMotors And Its Aftermath, 118 U. PA. L. REv. 299, 301 (1969).[Vol. 10:7032Tulsa Law Review, Vol. 10 [1974], Iss. 4, Art. 16https://digitalcommons.law.utulsa.edu/tlr/vol10/iss4/161975] RECENT DEVELOPMENTSthat, despite General Motor's contention to the contrary,'6 the enact-ment of the National Traffic and Motor Vehicle Safety Act of 196616did not have the effect of making safety standards in automobile designan exclusively legislative function.' 7As has been mentioned above, the jurisdictions which adopted theLarsen approach as the more persuasive one, have generally based themanufacturer's liability in "second collision' cases on negligence prin-ciples.' 8 However, the Larsen opinion had expressly left open the pos-sibility for each state to supplement common law negligence liabilitywith strict liability in tort.' 9 Some of the cases following Larsen didthen in fact extend the application of strict liability to actions based onenhanced injuries caused by defective design. 0 It is worthwhile tonote that most of the jurisdictions in which these cases were decidedhad previously recognized a theory of strict liability in tort in the prod-ucts liability field based either on case law-as is true in the instantcase-or on Restatement (Second) of Torts, section 402A (1965).2115. 391 F.2d at 506.16. 15 U.S.C. § 1381 et seq. (1970).17. 391 F.2d at 506.18. Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974); Bremierv. Volkswagen of America, Inc., 340 F. Supp. 949 (D.D.C. 1972); Grundmanis v. Bri-tish Motor Corp., 308 F. Supp. 303 (E.D. Wis. 1970); Dyson v. General Motors Corp.,298 F. Supp. 1064 (E.D. Pa. 1969); Mieher v. Brown, 3 Ill. App. 3d 802, 278 N.E.2d869 (1972); Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737 (Ct.App. 1974); Bolm v. Triumph Corp., 33 N.Y.2d 151, 305 N.E.2d 769 (Ct. App. 1973);Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173, 42 A.L.R.3d 525 (1969). See gen-erally Annot., 42 A.L.R.3d 560 (1972); Katz, Liability of Automobile Manufacturersfor Unsafe Design of Passenger Cars, 69 H&Rv. L. REV. 863 (1956); Nader and Page,Automobile Design and the Judicial Process, 55 CAL. L. Rnv. 645 (1967); Sklaw, "Sec-ond Collision" Liability: The Need For Uniformity, 4 SETON HALL. L. Rv. 499 (1973);Wade, On the Nature of Strict Tort Liability For Products, 44 Miss. LJ. 825 (1973);Note, "Intended Use" And The Unsafe Automobile: Manufacturers' Liability For Negli-gent Design, 28 MD. L. REv. 386 (1968); Comment, Automobile Design Liability: Lar-sen v. General Motors And Its Aftermath, 118 U. PA. L. REv. 299 (1969); 24 VAND.L. REV. 862 (1971).19. 391 F.2d at 503 n.5.20. Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir. 1974) (construing RhodeIsland law); Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972) (con-struing Iowa law); Dyson v. General Motors Corp., 298 F. Supp. 1064 (E.D. Pa. 1969)(construing Pennsylvania law); Culpepper v. Volkswagen of America, Inc., 33 Cal. App.3d 510, 109 Cal. Rptr. 110 (Dist. Ct. App. 1973); Badorek v. General Motors Corp.,11 Cal. App. 3d 902, 90 Cal. Rptr. 305 (Dist. Ct. App. 1970); Brandenburger v. ToyotaMotor Sales, U.S.A., Inc., 513 P.2d 268 (Mont. 1973); May v. Portland Jeep, Inc., 265Or. 307, 509 P.2d 24 (1973); Baumgardner v. American Motors Corp., 83 Wash. 2d751, 522 P.2d 829 (1974); Seattle-First Nat'l Bank v. Volkswagen of America, Inc., 11Wash. App. 800, 525 P.2d 286 (1974).21. R.STATEMENT (SEcoND) oF TORTS § 402A (1965) provides:Special Liability of Seller of Product for Physical Harm to User or Consumer(1) One who sells any product in a defective condition unreasonably dan-gerous to the user or consumer or to his property is subject to liability for3Bernhardt: Products Liability--Autmomobile Manufacturers Are Strictly LiablePublished by TU Law Digital Commons, 1974TULSA LAW JOURNAL [Vol. 10:703Although Perez is merely another case extending the Larsen ap-proach to the strict liability area, it does have significance especiallywhen considered with a view towards Oklahoma law. First of all, theinstant case, taken together with similar decisions over the past fewyears," seems to confirm the existence of a slight judicial trend in favorof allowing recovery in "second collision" cases on the basis of strictliability, where that theory is already being recognized. The OklahomaSupreme Court in Kirkland v. General Motors Corp.23 adopted thestrict liability in tort doctrine for Oklahoma under the name of "Manu-facturers' Products Liability. '2'  The standard of proof announced inthe Kirkland case25 is very similar to the one outlined in Perez,20 dif-ferences in the language employed by the courts notwithstanding.While Oklahoma has joined the jurisdictions allowing recovery un-der a strict liability doctrine upon proper proof, its supreme court hasnot had occasion to decide a controversy involving enhanced injuriescaused by defective design. However, the Tenth Circuit, construingOklahoma law in Marshall v. Ford Motor Co.,2 7 although affirming ajury verdict in favor of the defendant manufacturer, took notice of thefact that the trial court2s by its instructions had held the automobilemanufacturer to strict liability for a defective product unreasonablyphysical harm thereby caused to the ultimate user or consumer, or to his prop-erty, if(a) the seller is engaged in the business of selling such a product, and(b) it is expected to and does reach the user or consumer withoutsubstantial change in the condition in which it is sold.(2) The rule stated in Subsection (1) applies although(a) the seller has exercised all possible care in the preparation andsale of his product, and(b) the user or consumer has not bought the product from or en-tered into any contractual relation with the seller.22. See cases cited notes 18 & 20 supra.23. 521 P.2d 1353 (Okla. 1974).24. Id. at 1361.25. Id. at 1363. The Oklahoma court stated the proof requirements as follows:First of all Plaintiff must prove that the product was the cause of the in-jury; the mere possibility that it might have caused the injury is not enough.Secondly, Plaintiff must prove that the defect existed in the product, if theaction is against the manufacturer, at the time the product left the manufactur-er's possession and control ....Thirdly, Plaintiff must prove that the defect made the article unreasonablydangerous to him or to his property ....26. 497 F.2d at 86. The Fifth Circuit extracted the following standard of prooffrom Louisiana case law:The plaintiff first must prove that the manufacturer's product was defec-tive. In order to establish defectiveness, the plaintiff must show that the prod-uct was in normal use and that the product was unreasonably dangerous in thatuse. After proving that the product was defective for normal use, the plaintiffmust then show that his injuries were caused by the defect.27. 446 F.2d 712 (10thCir. 1971).28. Marshall v. Ford Motor Co., No. 69-C-57 (N.D. Okla., Apr. 7, 1970).4Tulsa Law Review, Vol. 10 [1974], Iss. 4, Art. 16https://digitalcommons.law.utulsa.edu/tlr/vol10/iss4/16RECENT DEVELOPMENTSdangerous to the user.29  The plaintiff alleged defective design basedon the manufacturer's failure to provide a lock or catch on the foldingback of a split front seat. Upon collision, a rear passenger was thrownagainst the folding back of the right front seat, and, since the plaintiffwas restrained by his seat belt, his body was compressed by the inten-sity of the impact resulting in personal injuries. Although it was notalleged that the claimed design defect caused the initial accident butmerely that it enhanced the plaintiffs injuries, the appellate court heldthat it was for jury determination whether defective design proximatelycaused the injuries to the plaintiff. 0Impliedly then at least, Marshall seems to follow Larsen ratherthan Evans and could be taken as an indication that Oklahoma mayadopt the Larsen approach once the "second collision" issue presentsitself to its courts in a proper case. The following concurring opinionfrom Escola v. Coca-Cola Bottling Co.,31 as quoted with approval inKirkland, is indicative of the overall progressive spirit in recent Okla-homa products liability cases:3"It is to the public interest to discourage the marketing ofproducts having defects that are a menace to the public. Ifsuch products nevertheless find their way into the market itis to the public interest to place the responsibility for what-ever injury they may cause upon the manufacturer, who,even if he is not negligent in the manufacture of the product,is responsible for its reaching the market. However inter-mittently such injuries may occur and however haphazardlythey may strike, the risk of their occurrence is a constant riskand a general one. Against such a risk there should be gen-eral and constant protection and the manufacturer is best sit-uated to afford such protection.33If an attempt be made to select the decisive factor from the rationaleunderlying the various products liability cases involving enhanced inju-ries caused by defective design, that factor would have to be the inter-pretation of "intended purpose" or "normal use." It is the portion ofthe Perez opinion dealing with this issue which may provide a usefulguideline for future Oklahoma decisions in this area. A comparison29. 446 F.2d at 715. This was three years before the Oklahoma Supreme Courtadopted strict liability in tort in the Kirkland case.30. 446 F.2d at 715.31. 24 Cal. 2d 453, 150 P.2d 436 (1944).32. Moss v. Polyco, Inc., 522 P.2d 622 (Okla. 1974); Kirkland v. General MotorsCorp., 521 P.2d 1353 (Okla. 1974).33. 24 Cal. 2d at -, 150 P.2d at 441 (emphasis added). In Kirkland the quoteappears in 521 P.2d at 1362.1975]5Bernhardt: Products Liability--Autmomobile Manufacturers Are Strictly LiablePublished by TU Law Digital Commons, 1974TULSA LAW JOURNALbetween Louisiana case law relative to "normal use' as examined inPerez34 and corresponding Oklahoma cases85 reveals that abnormal useis a complete defense which will defeat recovery in both jurisdictionsbut no precise definition as to what constitutes "normal use" can beascertained. It is submitted that the Perez court's "normal use" inter-pretation in regard to "second collision" liability"0 is entirely consistentwith Oklahoma's "Manufacturers' Products Liability" doctrine and Ok-lahoma case law in the products liability field. It should, therefore,obtain in Oklahoma as well, with the result of allowing recovery undertheories of negligence and strict liability for enhanced injuries causedby defective design once that issue is properly before the Oklahomacourts.Peter Bernhardt34. 497 F.2d 82, 85-87. The court specifically considered Weber v. Fidelity &Casualty Ins. Co., 259 La. 599, 250 So. 2d 754 (1971) and Williams v. Allied ChemicalCorp., 270 So. 2d 157 (La. Ct. App. 1972).35. See, e.g., Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 859 (5th Cir.1967) (construing Oklahoma law); McCready v. United Iron & Steel Co., 272 F.2d 700,703 (10th Cir. 1959) (construing Oklahoma law); Pryor v. Lee C. Moore Corp., 262F.2d 673, 674 (10th Cir. 1958) (construing Oklahoma law); Marker v. Universal OilProducts Co., 250 F.2d 603, 606 (10th Cir. 1957) (construing Oklahoma law); Kirklandv. General Motors Corp., 521 P.2d 1353, 1366 (Okla. 1974); Royse v. Stine, 473 P.2d923, 925 (Okla. 1970); Barnhart v. Freeman Equipment Co., 441 P.2d 993, 999 (Okla.1968); Crane Co. v. Sears, 168 Okla. 603, 608-09, 35 P.2d 916, 922 (1934).36. See text accompanying notes 4 & 5 supra.[Vol. 10: 7036Tulsa Law Review, Vol. 10 [1974], Iss. 4, Art. 16https://digitalcommons.law.utulsa.edu/tlr/vol10/iss4/16

Products Liability--Autmomobile Manufacturers Are Strictly Liable in Tort for Defective Design Which Enhances Injuries in a Collision

https://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=1300&amp;context=tlr

Products Liability--Autmomobile Manufacturers Are Strictly Liable in Tort for Defective Design Which Enhances Injuries in a Collision

Abstract

Similar works

Full text

Available Versions

University of Tulsa College of Law