Back v. Wickes Corp.

• Decision Date: 06 July 1978
• Citation: 375 Mass. 633,378 N.E.2d 964
• Parties: , 24 UCC Rep.Serv. 1164 John P. BACK, administrator v. The WICKES CORPORATION et al. 1 (and four companion cases 2 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 964

378 N.E.2d 964

375 Mass. 633, 24 UCC Rep.Serv. 1164

John P. BACK, administrator

v.

The WICKES CORPORATION et al. ¹ (and four companion cases ²).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 8, 1978.

Decided July 6, 1978.

Albert P. Zabin, Boston, for plaintiffs.

Philander S. Ratzkoff, Boston (Cynthia J. Cohen, Boston, with him), for Wickes Corp.

Karl L. Gollub, Boston, for Chrysler Corp.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Judge.

These are five consolidated actions, four for wrongful death and conscious suffering, and one for personal injuries, arising out of an accident on the Massachusetts Turnpike. The plaintiffs' four decedents perished when the motor home in which they were riding caught fire and exploded after hitting a cable fence at the side of the highway. There was agreement among the parties' experts that the collision might have occurred at a speed as low as twenty-five miles an hour. The plaintiff Albert L. Mead, a passing truck driver, tried to rescue the four from the burning vehicle, and he was injured in the attempt.

The motor home had been manufactured by The Wickes Corporation (Wickes) on a chassis manufactured by Chrysler Corporation (Chrysler). At the trial, the plaintiffs endeavored to prove by expert testimony that the motor home was negligently designed and unmerchantable. The plaintiffs alleged that certain conscious design choices by the defendants were responsible for making an otherwise minor collision fatal. The jury returned verdicts for the defendants in each case on both the negligence and the warranty counts. The plaintiffs appealed, and this court allowed direct appellate review.

We hold that it was error for the trial judge to instruct the jury on the issue of misuse. Accordingly, we reverse the judgments and remand the cases for a new trial on the warranty claims. Contrary to the plaintiffs' assertions, we find no error in the charge with respect to the negligence claims, as will be seen Infra. We discuss the remaining assignments of error only in so far as they may arise at a new trial.

1. The facts. On June 8, 1974, about midnight, Gerald Back, Laura Franceschi, Warren King, and Laurie Yeslow, all students at the University of Massachusetts, were traveling west on the Massachusetts Turnpike in a twenty-three-foot motor home borrowed by Back from a friend of his brother. The vehicle was traveling at an estimated fifty miles an hour when it passed a truck driven by the plaintiff Mead. The motor home left Mead's sight as it rounded a curve, veered off the road into a reflector post and cable fence, and tipped over on its side.

Mead testified that as he rounded the curve he saw the motor home overturned at the side of the road and that "all at once the whole vehicle burst into flames from one end to the other." Mead stopped his truck, as did Wendall W. Betts, another truck driver, and the two attempted to free the screaming occupants by breaking the windshield. Their efforts ceased when an explosion shattered the windshield, killing the occupants and throwing Mead some distance from the vehicle.

The record contains no explanation as to why the motor home struck the fence. Mead did not observe anything unusual about the motor home when it passed his truck. Betts had seen the motor home sway as it changed lanes, and he thought the vehicle had a flat tire. The plaintiffs' theory is that a tire blew out, but the accident reconstruction experts who testified at trial could not venture an opinion on this one way or the other.

The fence consisted of short metal posts connected by heavy wire cables. The experts agreed that one of the posts dislodged the motor home's gasoline tank located near the right rear wheel and caused it to become impaled on the vehicle's rear spring hanger. The experts did not agree, however, on how the tank became dislodged. The plaintiffs maintained the the motor home simply sideswiped the fence and that the posts tore away the side of the vehicle, including the tank, which the plaintiffs contend was not properly shielded from collision damage.

The defendants' reconstruction of the accident was somewhat different. Their evidence tended to show that the vehicle's right front wheel mounted the fence, that the motor home became virtually airborne, and that the impact to the gasoline tank came from beneath when the vehicle came down hard on the fence. The defendants submit that it is highly unusual for such a motor home to sustain a serious blow in its right rear quarter, especially from beneath.

2. The alleged design deficiencies. At trial, the plaintiffs maintained that the design of the motor home was dangerous in many respects. The defendants, in turn, denied that the motor home was defectively designed, and they relied heavily on evidence that the vehicle conformed to all product safety standards prevailing in the industry in 1973, when it was manufactured. We briefly review the conflicting evidence.

It was the opinion of the plaintiffs' expert Burnstine that the location of the fuel tank was not in conformance with good engineering practice. The forty-gallon tank was mounted on the chassis, but outside the perimeter of the chassis frame. Thus situated, the tank did not receive the protection of the chassis frame during the collision. Burnstine testified that, given the state of the art in 1973, it would have been possible to design the chassis in such a way as to include the forty-gallon fuel tank within the frame. Chrysler's engineer testified, however, that mounting the tank inside the frame was not feasible for this model motor home. He also testified that all manufacturers in the industry place the fuel tanks outside the chassis frame on vehicles with an equivalent wheelbase; that the tank was mounted in the safest possible location; that it was located where the Federal government insists fuel tanks be placed on school buses; and that Chrysler, who had supplied the fuel tank, specifically recommended that Wickes not change the location.

The plaintiffs further contended that many other aspects of the vehicle's design contributed to making the side-mounted tank unnecessarily vulnerable to collision damage. Because of its shape, the tank protruded about eighteen inches outboard of the chassis frame, although it was still inside the outermost skin of the vehicle. The evidence tended to show that cost, rather than safety considerations, had determined the shape of the tank and that, if this tank had protruded less, it would have been less likely to rupture in a collision. The plaintiffs also stressed, among other things, the lack of protection afforded the fuel tank by the plywood floor and the aluminum siding; the failure of Wickes to treat the inflammable building materials with flame retardants; and the absence of structural members called body outriggers, which would have provided strength to the vehicle in a fore and aft direction, possibly preventing the dislocation of the fuel tank. The plaintiffs further stressed the lack of crash testing to determine the actual integrity of the fuel system.

The defendants' experts testified that the alternative designs suggested by the plaintiffs were all either less safe or structurally less sound. An inflammability expert testified that he tested all the interior materials of an identical vehicle and that they met or exceeded the voluntary standards of the National Fire Protection Association and also the minimum standards prescribed for all vehicles by the United States Department of Transportation. As to each defect alleged by the plaintiffs, the defendants introduced evidence tending to show that the motor home's features were safe and proper and that Wickes and Chrysler had adhered to the highest industry practice.

3. The instruction on misuse. In his instructions on the warranty count, the judge charged the jury, over objection, that the misuse or abuse of the product would be a complete defense. He told the jury that if a product were used in an "extraordinary or unusual manner" there would be no warranty liability for any injury resulting from such "unusual or abusive or different use." ³ The correctness of this charge is determined not in the abstract, but by reference to the state of the evidence in the case. Nelson v. Economy Grocery Stores Corp., 305 Mass. 383, 25 N.E.2d 986 (1940). In light of the evidence, this portion of the charge was erroneous.

There was no evidence whatsoever that the motor home had been misused; thus the instruction on misuse was superfluous and misleading. Commonwealth v. Scagliotti, --- Mass. ---, ---^a 371 N.E.2d 726 (1977). It should have been omitted. Caron v. Lynn Sand & Stone Co., 270 Mass. 340, 348, 170 N.E. 77 (1930).

This portion of the charge also was incomplete in its statement of the law concerning misuse. Even if the evidence had warranted a charge on this issue, the charge given was misleading in that it allowed the jury to conclude that crashing into a highway guardrail is an "abnormal" or "extraordinary" use of a motor home such as would absolve the manufacturer from liability. We have rejected this view in so far as it pertains to negligence actions, Smith v. Ariens Co., --- Mass. ---, --- - --- ^b 377 N.E.2d 954 (1978), and we likewise reject it with regard to products liability actions brought under the Uniform Commercial Code. It is no more than a play on words to charge that goods must be fit for "ordinary" purposes, but not for "extraordinary" or "different" or "unusual" purposes. Such an instruction fails to inform the jury as to whether the defendant has warranted the goods to be free from the propensity that caused the plaintiff's injuries.

Amendments to the Massachusetts version of the Uniform Commercial Code make it clear that the Legislature has transformed warranty liability into a remedy intended to be fully as comprehensive as the...