Mull v. Ford Motor Company

• Decision Date: 09 November 1966
• Docket Number: Docket 30304.,No. 7,7
• Citation: 368 F.2d 713
• Parties: John Joseph MULL, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

368 F.2d 713 (1966)

John Joseph MULL, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Inc., Defendant-Appellee.

No. 7, Docket 30304.

United States Court of Appeals Second Circuit.

Argued September 21, 1966.

Decided November 9, 1966.

Lawrence Lauer, New York City, for plaintiff-appellant.

George J. Conway, New York City, for defendant-appellee.

Before LUMBARD, Chief Judge, and WATERMAN and ANDERSON, Circuit Judges.

LUMBARD, Chief Judge:

The plaintiff, John Mull, appeals from a judgment of the United States District Court for the Southern District of New York, entered December 13, 1965, for the defendant, Ford Motor Company, upon a directed verdict after trial, in a diversity negligence action, and from an intermediate order entered August 6, 1962, also in favor of Ford Motor Company, dismissing the cause of action for breach of warranty on the ground that appellant Mull was neither an ultimate consumer nor a user of the vehicle that caused the accident. We find no error in the decisions below, and affirm.

On Sunday morning, December 21, 1958, Mull was packing his car, which was parked on Madison Avenue between 40th and 41st Streets in Manhattan. While he was stationed at the rear of the car to arrange the trunk, he was struck by a 1958 Ford taxi cab, owned by the Colt Company, Inc.

As stipulated by both parties' attorneys in the pre-trial order,

"The said taxi cab on December 21, 1958 was operated by one Max Fermaglick, in a southerly direction on Madison Avenue approaching 41st Street. The pace of traffic caused him to reduce the speed of the cab. The cab stalled. Fermaglick got out of the cab and opened the hood and found he was unable to correct the trouble. He closed the hood and returned to the cab and attempted to move it to the curb by using the accelerator and starter of the cab, a process known as `bucking.\' While Fermaglick was so engaged, the hood flew up in front of the windshield, blocking his vision. Fermaglick did not stop the cab but proceeded with his `bucking\' maneuver to bring the cab to the curb. As he got near the curb, the cab struck the plaintiff pinning him between the rear of his car where he was standing engaged in loading his car and the front of the cab."

It was also stipulated that the taxi was manufactured by the Ford Motor Company and delivered directly to the Colt Company, Inc., in New York City, on September 2, 1958. It had been driven 35,000 miles at the time of the accident.

Mull commenced this action against the driver, the Colt Company, Inc., other related corporations, and their controlling shareholders,¹ the King Ford Motors, Inc. (the agency through which the taxi was purchased), and the Ford Motor Company. In January 1963, the Colt Company and its related corporations and shareholders conditionally settled with Mull for the sum of $100,000, and later, the case against King Ford Motors, Inc. was discontinued. Ford Motor Company was the only remaining defendant at the time of trial.

Evidence was offered to show that a proximate cause of the accident was a defective "detente spring" in the gear shift mechanism. At the end of the plaintiff's evidence the court reserved decision on a motion to dismiss the complaint. At the close of testimony, upon reviewing the pre-trial order and the transcript of testimony, Judge Cooper directed a verdict for the defendant. We affirm on the ground that the facts stipulated in the pre-trial order reveal that the cab driver's negligence was an effective intervening and superseding cause as a matter of law, breaking the causal chain, thus relieving Ford from liability for its alleged negligence in design and manufacture. I would further affirm Judge Edelstein's earlier order dismissing plaintiff's cause of action for breach of warranty for the reasons stated in his opinion, Mull v. Colt Co., 31 F.R.D. 154, 168-174 (S.D.N.Y.1962).

I. The Negligence Action

The plaintiff is bound by the statement of facts in the pre-trial order, which was stipulated to by his attorney.

We are reinforced in this conclusion here because the critical sentences contained in the stipulation came verbatim from plaintiff's own pre-trial memorandum,² and closely parallel statements in plaintiff's amended complaint.³

It is a primary purpose of pre-trial stipulations, and pre-trial procedures in general, to simplify the issues of fact and to eliminate those not relied upon. Carefully drawn and negotiated stipulations avoid confusion, and save time and expense for the parties, as well as for the courts. Because of this, stipulations ought to be binding, not only to do justice between the parties, but to encourage their effective use. No request was made before Judge Cooper to modify this stipulation at trial. We must decide the questions on appeal on the basis of the facts as stated in the stipulation.

The question remains, whether, as a matter of law, the facts set forth in the stipulation should constitute such intervening negligence as to break the causal chain and justify taking the case from the jury.

The plaintiff assumes, and the defendant does not dispute, that the decision whether or not to direct a verdict is governed by the New York standard as to the sufficiency of evidence,⁴ see N.Y. C.P.L.R. Rule 4401; Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 54 N.E.2d 809 (1944), and we proceed on that basis.

Viewing the inferences from the stipulated facts in the light most favorable to the non-moving party, the district court properly directed a verdict for the defendant. By no rational process could the trier of fact find in favor of plaintiff Mull. The inferences to be drawn from the stipulated facts are clear. Although Fermaglick's action followed the failure of the taxi cab, and in that sense was dependent upon the alleged negligence of Ford, his negligence was so gross as to exonerate Ford, for when "* * * the hood flew up in front of the windshield, blocking his vision, Fermaglick did not stop the cab but proceeded with his `bucking' maneuver to bring the cab to the curb." See McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 226 N.Y.S.2d 407, 181 N.E.2d 430 (1962). Ford's negligence, if any, could no longer be said to be a generating force.

Where a new force "intervenes" to bring about a result that defendant's negligence would not otherwise have produced, the defendant is generally held for that result only where the intervening force was foreseeable. See Harper & James, The Law of Torts § 20.5 (1956); Prosser, Law of Torts § 51 (3d ed. 1964). Neither the precise hazard nor the exact consequences need be foreseen. A judgment must be made as to whether the intervening act is "within the risk" reasonably created by the defendant's negligence.

Once the taxi had stalled, it is foreseeable that a car behind might collide with it, and the taxi might be propelled into the plaintiff. It might not be unforeseeable, once the taxi had stalled and its gears had jammed, that the driver might attempt to "buck" it to the curb, to remove it from the traffic lane even though plaintiff was in the street in front of him. But it is not foreseeable that once the hood had popped up, completely obscuring the driver's vision, that he would blindly continue to "buck" the cab. This is not within the risk reasonably to be perceived by the defendant Ford, and we find upon the facts as stipulated that Fermaglick's negligence as a matter of law was "so gross as to supersede the negligence of the defendant and insulate it from liability." McLaughlin v. Mine Safety Appliances Co., supra at 71, 181 N.E.2d at 435, 226 N.Y.S.2d at 414. The jury could not reasonably have found that Ford's alleged negligence was a proximate cause of plaintiff's injury, and therefore the directed verdict as to the cause of action in negligence was proper.

II. The Alleged Breach of Warranty

Plaintiff's second cause of action was based upon breach of implied warranty. We are in agreement that it was properly dismissed. Judge Waterman and Judge Anderson reach this conclusion for reasons stated in Judge Anderson's concurring opinion. In my view New York law would not permit recovery for breach of implied warranty by a mere bystander. What follows is an expression of my own view.

We must look to the law of New York as controlling on this question. It is by no means certain that plaintiff's failure to prove causation for negligence also requires a dismissal on this cause of action. There is some reason to believe that there is no room for a "foreseeability" analysis in such "strict tort liability"⁵ actions, since liability is based on considerations of social policy and not on fault.⁶ The effect of intervening negligence has seldom been at issue because, until the recent assault on privity in manufacturers' strict liability cases, fact situations have rarely provided an opportunity for third party "intervenors."

I agree, however, with the reasons stated in Judge Edelstein's opinion, Mull v. Colt, 31 F.R.D. 154, 168-174 (S.D.N.Y. 1962), for dismissing the plaintiff's claim on the ground that Mull was neither an ultimate consumer nor a user of the vehicle that struck him. No New York cases have gone beyond these limitations. Indeed, there is much language in recent cases which indicates that considerable caution is being exercised by the New York Courts regarding the expansion of warranty concepts. In Greenberg v. Lorenz, 9 N.Y.2d 195, 200, 213 N.Y.S.2d 39, 42, 173 N.E.2d 773, 776, (1961), it was stated that the courts "should be cautious to take one step at a time." See also Randy Knitwear v. American Cyanamid, 11 N.Y.2d 5, 16, 226 N.Y.S.2d 363, 371, 181 N.E.2d 399, 404 (1962) (concurring opinion). In Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963), the Court of Appeals declined to hold a manufacturer of an allegedly defective component part simply because adequate protection was provided by holding more immediate parties. While the Goldbe...