Friedrich v. Anderson

• Decision Date: 02 May 1974
• Docket Number: No. 39050,39050
• Citation: 217 N.W.2d 831,191 Neb. 724
• Parties: Lowell FRIEDRICH, Appellant, v. Medill ANDERSON et al., Appellees.
• Court: Nebraska Supreme Court

Page 831

217 N.W.2d 831

191 Neb. 724

Lowell FRIEDRICH, Appellant, v. Medill ANDERSON et al., Appellees.

No. 39050.

Supreme Court of Nebraska.

May 2, 1974.

Syllabus by the Court

1. A manufacturer of goods has a duty to use reasonable care in their design to protect those who will use them from unreasonable risk of harm while they are being used for their intended purpose or for any purpose which could be reasonably expected.

2. The subjection of an automobile to accidental collision with another automobile or object while being used for its intended purpose is a use which a manufacturer could reasonably expect.

3. An automobile manufacturer is not an insurer that its product is, from a design viewpoint, incapable of producing injury.

4. Where all the evidence relating to the claimed duty of a manufacturer in the design of a product is before the court and undisputed and is not sufficient that reasonable minds could properly find that a defectively designed product created a foreseeable and unreasonable risk of harm, the court is justified in granting summary judgment in favor of the manufacturer.

Kennedy, Holland, DeLacy & Svoboda, William M. Lamson, Jr., Robert F. Craig, Omaha, Rogers & Rogers, Patrick G. Rogers, Randolph, for appellant.

Cassem, Tierney, Adams & Henatsch, L. J. Tierney, Theodore J. Stouffer, Omaha, Deutsch & Hagen, Norfolk, for appellees.

Heard before SPENCER, SMITH, and CLINTON, JJ., and BRODKEY and HASTINGS, District Judges.

HASTINGS, District Judge.

The question here involves the correctness of the action of the trial court in sustaining the motions for summary judgment of the defendants Chrysler Corporation and Chrysler Motors Corporation, the manufacturer and distributor, respectively, of a certain 1966 Plymouth automobile owned by plaintiff at the time of the accident in question.

Plaintiff was a passenger in his automobile being driven by his wife, when it was struck from the left side by another automobile, throwing him forward and to the left so that his head struck the gearshift lever knob when it was in the low position. He alleged in his second amended petition that the knob was defectively designed, that the 'second impact' caused specific injuries to his eye, and that the defendants were liable on the theories of specific negligence, breach of warranty, and strict liability.

Defendants denied all allegations of negligence on their part, although for the purpose of the motions, stipulated with plaintiff that there would be some evidence from which it could be concluded that the knob was defectively designed. In addition, it must be conceded for the same purpose that some of plaintiff's injuries resulted from his eye being in collision with and penetrated by the knob.

The only other facts appeared from depositions of two engineers in the employment of the defendants. Essentially, one could conclude from their testimony that the gearshift lever knob in use at the time plaintiff's auto was built, was approximately 1/2 inch in diameter; that half way through the 1966 model year the size of the knob was increased to approximately 1 inch in diameter to conform to G.S.A. standards which merely relate to specifications required of automobiles purchased by the United States Government; that there were no official federal standards then or at any time since relating to size or design of such knobs; that the larger the flat surface of the end of the knob, assuming a head-on impact with it rather than one at an angle, the less would be the force of impact per unit of area; that the size and shape of the knob must be counter-balanced against the utility of its use for the purpose intended; and that no records of any injury from gear shift knobs on Chrysler products other than this one were within the records of the defendants or knowledge of these witnesses.

The trial court in sustaining defendants' motions and granting summary judgment in their favor found that 'it is conclusively established there was no duty on the part of said defendants at the time of manufacture and sale to design a gearshift lever knob so as to be incapable of producing the injury to this plaintiff or incapable of causing injury in the event of collision with another vehicle.'

As stated in Green v. Village of Terrytown, 189 Neb. 615, 204 N.W.2d 152: 'The moving party is not entitled to summary judgment except where there exists no genuine issue as to any material fact in the case and where under the facts he is entitled to judgment as a matter of law. . . . The burden is upon the party moving for the summary judgment to show that no issue of fact exists, and unless he can conclusively do so, the motion must be overruled. . . . Upon a motion for summary judgment the court examines the evidence, not to decide any issue of fact, but to discover if any real issue of fact exists. . . . In considering a motion for summary judgment the court views the evidence in the light most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn therefrom.'

Assuming the facts extablished as set forth above, the precise question before us is the nature or extent of the duty which an automobile manufacturer owes to the users of its products in the event of injury or enhanced injury resulting from a 'second impact' or collision of a passenger with the inside of an automobile following an initial external collision. This is a case of first impression in Nebraska. There are two distinct theories, each strenuously urged by the respective parties. Each finds its champion in a federal case, Evans v. General Motors Corp., 359 F.2d 822 (7th Cir., 1966) supporting defendants' position, and Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir., 1968), substantiating that of plaintiff. Evans states that such duty is to produce a vehicle which is reasonably fit for its intended use or for the purpose for which it was made and which is free from hidden defects, whereas Larsen insists that a manufacturer, although having no duty to make a product accident-proof or fool-proof, nevertheless, is under a duty to use reasonable care in the design so as to make it safe to the user for its foreseeable use and that its intended use on the streets includes the foreseeable possibility of collision with other automobiles. These two cases have been cited in most 'second impact' cases in both state and federal jurisdictions, and have been discussed, analyzed, and criticized in both majority and dissenting opinions. It is therefore necessary to examine them both in some detail.

In Evans, plaintiff's decedent suffered injuries and death while driving a car which was struck in the side by another. Plaintiff there claimed that decedent's injuries were enhanced to the point of causing death because the automobile manufactured by the defendant, was designed with an 'X' frame, rather than the supposedly superior perimeter frame being used by a competitor and grounded her action on specific negligence, implied warranty, and strict tort liability. After pretrial conferences, the District Court dismissed the complaint on the ground that it failed to state a claim against defendant upon which relief could be granted. As the two-judge majority stated: 'The major question before us is the nature of the duty which an automobile manufacturer owes to users of its product. This presents an issue of law for the Court. . . . A manufacturer is not under a duty to make his automobile accident-proof or fool-proof; nor must he render the vehicle 'more' safe where the danger to be avoided is obvious to all. . . . The intended purpose of an automobile does not...