West v. Caterpillar Tractor Co., Inc., 46709

• Citation: 336 So.2d 80
• Decision Date: 21 July 1976
• Docket Number: No. 46709,46709
• Parties: 24 UCC Rep.Serv. 1154 Leon WEST, Individually and as personal representative of the Estate of Gwendolyn West, Deceased, et al., Plaintiffs-Appellees, v. CATERPILLAR TRACTOR COMPANY, INC., Defendant-Appellant.
• Court: United States State Supreme Court of Florida

Page 80

336 So.2d 80

24 UCC Rep.Serv. 1154

Leon WEST, Individually and as personal representative of the Estate of Gwendolyn West, Deceased, et al., Plaintiffs-Appellees, v. CATERPILLAR TRACTOR COMPANY, INC., Defendant-Appellant.

No. 46709.

Supreme Court of Florida.

July 21, 1976.

Robert Orseck of Podhurst, Orseck & Parks, Ser & Keyfetz, and Berkell, Strauss & Benjamin, Miami, for plaintiff-appellee.

James S. Usich of the Law Offices of Papy, Levy, Carruthers & Poole, Coral Gables, for defendant-appellant.

James E. Tribble and Mark Hicks of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for Dade County Defense Bar Ass'n, amicus curiae.

William M. Hicks, Miami, for Academy of Florida Trial Lawyers, amicus curiae.

ADKINS, Justice.

This case is presented on certificate as authorized by Fla.Stat. § 25.031, F.S.A., and in Rule 4.61, Florida Appellate Rules, 32 F.S.A., from the United States Court of Appeals for the Fifth Circuit, 504 F.2d 967, in an appeal from a final judgment of the trial court which applied the doctrine of strict liability in a products liability suit.

The court states that:

'A caterpillar grader operated by an employee of Houdaille Industries struck and ran over, with its left rear tandem wheel, Gwendolyn West on a street under construction in Miami, Florida, on September 1, 1970. Gwendolyn West died of massive internal injuries after six days in the hospital. As a result, the deceased's husband, Leon West, individually and as administrator of the estate of his deceased wife, claimed a right to damages against Houdaille Industries and Caterpillar Tractor Company, Inc., the manufacturer of the machine. He ultimately settled with Houdaille Industries for $35,000 damages and brought a products liability suit against the manufacturer of the grader, Caterpillar Tractor Company, Inc., in the United States District Court, in and for the Southern District of Florida bottomed on diversity of citizenship jurisdiction.

'West's Complaint contained two counts: (1) negligent design of the grader by failure to provide an audible warning system for use while backing the grader, by failure to provide adequate rear view mirrors, and by manufacturing the grader with a blind spot created by obstructions when looking to the rear while driving in reverse, and (2) a breach of implied warranty or strict liability based upon the same design defects.

'At trial, the evidence indicated that preceding the accident Gwendolyn West had walked to the corner, stood on the west curb of the street which was under construction, speaking to a friend, for a period while the grader operated in a forward manner, southward and proceeded to pass her. The machine reached the end of its southward operation and commenced to back up. In the meantime, Mrs. West began walking across the street intersecting the path of the grader while it was travelling in reverse. She had been waiting for a bus, and as it approached she commenced to walk across the street, looking to her left; and then she looked into her purse; and continued to look into her purse until the time of the accident. She did not look to her right at any time toward the approaching trader. Both West and Caterpillar presented extensive conflicting expert testimony about the alleged defects in the design of the caterpillar.

'The expert proof on the plaintiff's side, in essence, showed improper design and configuration of various parts of the grader obstructing visibility to the rear; absence of appropriate mirrors; and absence of available warnings on a machine created for rearward use; and design with a 'blind spot' behind the operator.

'The expert proof of the defendant, in essence, was that the machine was designed in an ordinary, standard fashion in a practical, reasonable manner, and thus was properly designed and constructed in a reasonably safe manner.

'The district court submitted the case to the jury on three potential theories of recovery: negligence, which is not pertinent to this certificate; breach of an implied warranty of merchantability; and strict tort liability. On implied warranty the Court instructed the jury that:

'Thus, in order for the plaintiff to prevail on the basis of the breach of an implied warranty of merchantability, the plaintiff must establish each of the following elements by a preponderance of the evidence:

'1. The motor grader manufactured by the defendant, Caterpillar Tractor Company, was not reasonably fit for the purposes for which it was sold and intended to be used;

'2. The motor grader manufactured by the defendant was defective on the date of its delivery to Houdaille Industries, whose employee was operating the vehicle at the time of the accident; and

'3. The plaintiff incurred damages as a result of the alleged defects.

'On strict liability, the Court instructed:

'. . . in order for the plaintiffs to recover under the theory of strict tort liability, the plaintiff must establish each of the following elements by a preponderance of the evidence:

'1. That at the time of the sale the road-grading vehicle was in a defective condition unreasonably dangerous to foreseeable users or bystanders; and

'2. That the defective, unreasonably dangerous condition in the roadgrading vehicle was a proximate cause of the damages complained of in this litigation by the plaintiff.

'Additionally, the Court asked the jury to consider Gwendolyn West's negligence:

'. . . the burden is upon the defendant, Caterpillar Tractor Company, to establish by a preponderance of evidence that Mrs. West was contributorily negligent, as alleged, and that such negligence contributed one of the proximate causes of any injuries sustained by the plaintiff. On the defense of contributory negligence you must determine . . ..

'1. Was Mrs. West herself negligent in the manner alleged by the defendant? If yes,

'2. Was such negligence a proximate cause of the incident complained of by the plaintiff? If yes,

'3. What was the percentage of Mrs. West's negligence which contributed to the accident complained of by the plaintiff?

'The Court did not instruct the jury as to assumption of risk. ¹

'In answer to special interrogatories, the jury found Caterpillar liable on all three theories of recovery and determined that damages totalled $125,000. The jury also concluded that Mrs. West's negligence contributed to the accident to a degree of 35 percent.

'The Court entered judgment for West and disregarded comparative negligence on the basis of strict liability and concluded that contributory (comparative) negligence was no defense to strict liability in Florida. The Court thus awarded damages of $90,000 which represented the full jury award of $125,000 set off by the earlier $35,000 settlement. This appeal followed.

'3. Questions to be Certified.

'1. (a) Under Florida law, may a manufacturer be held liable under the theory of strict liability in tort, as distinct from breach of implied warranty of merchantability, for injury to a user of the product or a bystander?

'(b) If the answer to 1(a) is in the affirmative, what type of conduct by the injured party would create a defense of contributory or comparative negligence?

'(1) In particular, under principles of Florida law, would lack of ordinary due care, as found by the jury in this case, constitute a defense to strict tort liability?

'2. Assuming Florida law provides for liability on behalf of a manufacturer to a user or bystander for breach of implied warranty, what type of conduct by an injured person would constitute a defense of contributory or comparative negligence?

'(a) In particular, does the lack of ordinary due care, as found by the jury in the case, constitute such a defense?'

Products liability deals with recourse for personal injury or property damage resulting from the use of a product and, in the past, has covered actions for negligence, breach of express warranty, breach of implied warranty, and fraud. These theories of recovery have been refined and consolidated to such an extent that the distinctions frequently have more theoretical than practical significance. As a result the theory of strict liability has evolved to complement the traditional conditional warranty and negligence theories. A statement of this theory appears in the American Law Institute Restatement (Second) of Torts § 402 A, as follows:

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, 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 without substantial 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 and sale of his product, and

'(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

Strict liability was adopted at an early date by the California Supreme Court in Greenman v. Yuba Power Prod., Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049, 1054 (1963):

'A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.'

In the development of products liability case law by the Courts of this State many of the vestiges of the traditional contractual 'warranty' have been removed. It was traditionally recognized that, unless there is privity, liability to the consumer should be in tort and not in contract. See Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1133--34 (1960). In Hoskins v. Jackson Grain Co., 63 So.2d 514 (Fla.1953), this Court aligned itself with those courts holding that a...