Warren v. Colombo

Decision Date07 March 1989
Docket NumberNo. 878SC1258,878SC1258
Citation377 S.E.2d 249,93 N.C.App. 92
CourtNorth Carolina Court of Appeals
Parties, Prod.Liab.Rep. (CCH) P 12,172 Jasper WARREN, Jr., Administrator of the Estate of Robert Warren, Plaintiff-Appellant, v. Michael COLOMBO, Administrator of the Estate of Karson Lee Conger, Deceased; Military Distributors of Virginia, Inc. and Thomas Built Buses, Inc., Defendants-Appellees.

Taft, Taft & Haigler by Thomas F. Taft, Kenneth E. Haigler, Robert H. Hochuli, Jr. and James M. Stanley, Jr., Greenville, for plaintiff-appellant.

Sumrell, Sugg, Carmichael & Ashton, by James R. Sugg and Rudolph A. Ashton, III, New Bern, for defendant-appellee Thomas Built Buses, Inc.

ORR, Judge.

The trial court dismissed plaintiff's claims under G.S. 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The test on a motion under this rule is whether the pleading is legally sufficient, and the trial court must treat the allegations of the challenged pleading as true. Azzolino v. Dingfelder, 71 N.C.App. 289, 322 S.E.2d 567 (1984), aff'd in part, rev'd in part, 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986). The legal insufficiency of a complaint may be due to the absence of law to support a claim, absence of fact to support a good claim, or the disclosure of some fact which will defeat the claim. State of Tennessee v. Environmental Management Comm., 78 N.C.App. 763, 338 S.E.2d 781 (1986).

I.

Plaintiff first contends that the trial court erred in dismissing the claim against defendant Thomas Built for negligent design and manufacture of the school bus, thereby proximately causing or enhancing the injuries in question.

The concept of enhanced injury is set forth in an article by Thomas V. Harris entitled Enhanced Injury Theory: An Analytic Framework, 62 N.C.L.Rev. 643 (1984):

Enhanced injury liability is based on the premise that some objects, while they are not made for the purpose of undergoing impact, should be reasonably designed to minimize the injury-producing effect of such contact. In Larsen v. General Motors Corp. the court discussed the nature of this type of liability:

'Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types.

....

No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resultant injury ... all are foreseeable.

....

We perceive of no sound reason, either in logic or experience, nor any command in precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents.'

The proper terminology for characterizing the theory is 'enhanced injury' liability. In addition to that term, courts and commentators have described such accidents as involving 'crashworthiness' or a 'second collision.' In many cases, courts have used the three terms interchangeably.

Id. at 646. (Footnotes omitted.) (Emphasis added.)

While the case sub judice arises from a crash between a tractor trailer and a school bus, the issue presented is couched in the terms of "enhanced injury." Therefore, we shall specifically address the issue as "enhanced injury" and not "crashworthiness" or a "second collision."

This cause of action has not yet been addressed by this Court or our Supreme Court. Under this negligence theory, recovery may be allowed when defects in a vehicle enhance or increase plaintiff's injuries in an accident, although the defect did not cause the accident. Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir.1968). The defect must result from some negligence of the manufacturer in the design or construction of the vehicle. Id. Since Larsen, a majority of states have adopted some form of this doctrine. Sealey v. Ford Motor Co., 499 F.Supp. 475 (E.D.N.C.1980) (citations omitted). See generally Harris, Enhanced Injury Theory: An Analytic Framework, 62 N.C.L.Rev. 643 (1984).

The federal district courts in North Carolina that have considered this issue are divided in their forecast of what North Carolina Courts would do on this issue. Those cases which predict that we would not allow recovery based upon an enhanced injury claim are Simpson v. Hurst Performance, Inc., 437 F.Supp. 445 (M.D.N.C.1977), aff'd, 588 F.2d 1351 (4th Cir.1978); Bulliner v. General Motors Corp., 54 F.R.D. 479 (E.D.N.C.1971); and Alexander v. Seaboard Air Line Railroad Company, 346 F.Supp. 320 (W.D.N.C.1971). Those predicting that we would allow recovery are Isaacson v. Toyota Motor Sales, 438 F.Supp. 1 (E.D.N.C.1976) and Sealey v. Ford Motor Co., 499 F.Supp. 475 (E.D.N.C.1980).

The United States Fourth Circuit Court of Appeals also has considered this question. In the per curiam opinion of Wilson v. Ford Motor Company, 656 F.2d 960 (4th Cir.1981), the Fourth Circuit upheld the district court ruling based upon the prediction that the Supreme Court of North Carolina would not allow a claim for injuries "which neither caused nor contributed to the accident." The Court stated in a footnote that because North Carolina rejects strict liability, then we would also reject an enhanced injury claim. Id. See Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504 (1980). The Wilson Court did not address the likelihood of a successful enhanced injury claim under negligence or product liability theories. Relying upon Wilson, the Fourth Circuit again rejected enhanced injury claims in Martin v. Volkswagen of America, Inc., 707 F.2d 823 (4th Cir.1983) and Erwin v. Jeep Corp., 812 F.2d 172 (4th Cir.1987).

While the decisions of federal district and appellate courts are instructive on these issues, we are not bound by their decisions. Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 347 S.E.2d 25 (1986). Instead, this Court must determine whether a cause of action for enhanced injuries is permissible under North Carolina law. We conclude that it is for the reasons set forth below.

The enhanced injury concept has been grounded in other jurisdictions in both general negligence law and product liability.

As in any action for negligence, the essential elements of a suit for products liability sounding in tort must include

(1) evidence of a standard of care owed by the reasonably prudent person in similar circumstances;

(2) breach of that standard of care;

(3) injury caused directly or proximately by the breach, and;

(4) loss because of the injury.

W. Prosser, Hornbork of the Law of Torts sec. 30 (4th ed.1971); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 656, 268 S.E.2d 190, 194 (1980).

A.

We first address the question of duty of a manufacturer under North Carolina law.

A manufacturer's standard of care in products liability is found in the leading case of Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967).

Since the liability is to be based on negligence, the defendant is required to exercise the care of a reasonable man under the circumstances. His negligence may be found over an area quite as broad as his whole activity in preparing and selling the product. He may be negligent first of all in designing it, so that it becomes unsafe for the intended use. He may be negligent in failing to inspect or test his materials, or the work itself, to discover possible defects, or dangerous propensities.

Id. at 491, 157 S.E.2d at 102-03, quoting W. Prosser, Law of Torts sec. 665 (3d ed. 1964).

None of the courts addressing the issue of enhanced injury under a negligence theory have imposed a duty on the defendant to build a vehicle that would withstand all crashes. All manufacturers owe a duty to their purchasers to design and build a vehicle reasonably safe to minimize its injury producing effects. See Seese v. Volkswagenwerk A.G., 648 F.2d 833 (3rd Cir.1981), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981). We believe that defendant was under the same duty. The pleadings adequately set forth allegations of defendant's duty, and the law as set forth in Corprew controls on this question.

B.

Plaintiff must next establish that defendant breached the duty. W. Prosser, Law of Torts sec. 30 (4th Ed.1971). Plaintiff alleged the following breaches of defendant's duty:

45. That the injuries herein and subsequent death suffered by plaintiff's intestate were proximately caused by or enhanced by the negligent conduct of defendant Thomas in that it:

a. Failed to adequately pad the seats in said bus.

b. Failed to adequately secure the seats to the floor of the bus.

c. Constructed seats of materials of insufficient quality and strength so as to withstand reasonably foreseeable forces acting upon them d. Constructed seats of metal tubing which breaks easily and becomes sharp and dangerous when broken.

e. Constructed the exterior siding of the bus of materials that are not sufficient to withstand reasonably foreseeable forces acting upon them.

f. Constructed the exterior siding of the bus of a material inadequate to withstand impacts reasonably expected to be encountered in the normal useage [sic] of a school bus.

g. Designed the bus using materials which would not withstand collisions normally encountered during the normal life of a school bus.

h. Failed to provide seat belts for the passengers of the bus.

i. Failed to use reasonable care in the design of its vehicle to avoid subjecting the passengers to an unreasonable risk of collision injury.

46. That the negligence, carelessness and wilful and wanton conduct of the defendant Thomas was a proximate cause of the collision, injuries and subsequent death of the plaintiff's intestate and was a proximate cause of the...

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