Dreisonstok v. VOLKSWAGENWERK, AG

• Decision Date: 14 January 1974
• Docket Number: No. 73-1074.,73-1074.
• Citation: 489 F.2d 1066
• Parties: Terri Lee DREISONSTOK, an infant, by her mother and next friend, Catherine A. Dreisonstok, and Catherine A. Dreisonstok, Appellees, v. VOLKSWAGENWERK, A. G., a/k/a Volkswagenwerk Aktiegesellschaft, a foreign corporation, and Volkswagen of America, Inc., a New York corporation, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

489 F.2d 1066 (1974)

Terri Lee DREISONSTOK, an infant, by her mother and next friend, Catherine A. Dreisonstok, and Catherine A. Dreisonstok, Appellees, v. VOLKSWAGENWERK, A. G., a/k/a Volkswagenwerk Aktiegesellschaft, a foreign corporation, and Volkswagen of America, Inc., a New York corporation, Appellants.

No. 73-1074.

United States Court of Appeals, Fourth Circuit.

Argued October 3, 1973.

Decided January 14, 1974.

COPYRIGHT MATERIAL OMITTED

Alexander H. Slaughter, Richmond, Va. (Rosewell Page, II, McGuire Woods, & Battle, Richmond, Va., Herbert Rubin, Michael Hoenig and Herzfeld & Rubin, P. C., New York City, on brief) for appellants.

Oren R. Lewis, Jr., Arlington, Va. (Gary R. Sheehan and Tolbert, Lewis & Fitzgerald, Ltd., Arlington, Va., on brief) for appellees.

Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.

DONALD RUSSELL, Circuit Judge:

The plaintiff, along with her mother, sues a car manufacturer for so-called "enhanced" injuries sustained by her when the Volkswagen microbus in which she was riding crashed into a telephone pole. The microbus had passed the crest of a small hill and was proceeding down the grade at the time of the accident. When the vehicle passed the crest of the hill, the driver noted that his speed was about 40 miles an hour. As the vehicle continued down the hill, the bus began "picking up some speed, a little too much." To reduce his speed, the driver attempted to downshift the vehicle.¹ Because he had some difficulty in locating the gearshift lever, the driver took his "eyes off the road" and in some way "pulled the steering wheel" causing the vehicle to veer "to the right" into "the driveway". The plaintiff screamed, causing the driver to look up. As the driver did, he "saw a telephone pole headed right toward us". He tried to cut back into the road but there "was an oncoming vehicle the other way, so it was either the telephone pole or another vehicle." He chose the telephone pole. The bus hit the pole on its right front. The plaintiff was seated in the center of the seat, next to the driver, with her left leg under her. As a result of the impact, her right leg was caught between the back of the seat and the dashboard of the van and she was apparently thrown forward. She sustained severe injuries to her ankle and femur. She seeks to recover for her injuries, and her mother for medical expenses, from the vehicle manufacturer, contending that the latter was guilty of negligent design in the location of the gearshift in its vehicle and in the want of crashworthiness of its vehicle. The action was tried without a jury. The District Court dismissed the claim relating to the gearshift but concluded that the defendant manufacturer had been guilty of negligence² in failing to use due care in the design of its vehicle by providing "sufficient energy-absorbing materials or devices or `crush space,' if you will, so that at 40 miles an hour the integrity of the passenger compartment would not be violated", and that, as a result, the injuries of the plaintiff were enhanced "over and above those injuries which the plaintiff might have incurred." From judgment entered on the basis of that conclusion in favor of the plaintiff and her mother, the defendants have appealed. We reverse.

The correctness of the finding by the District Court that the defendant manufacturer was guilty of negligent design in this case depends on the determination of what extent a car manufacturer owes the duty to design and market a "crashworthy" vehicle, one which, in the event of a collision, resulting accidentally or negligently from the act of another and not from any defect or malfunction in the vehicle itself, protects against unreasonable risk of injury to the occupants.³ The existence and nature of such a duty is a legal issue, for resolution as a matter of law. So much all the authorities agree.⁴ There are, however, two fairly definite lines of conflicting authority on whether there is such a duty.⁵ One group of which Evans,⁶ is the leading authority, holds that no such duty rests on the manufacturer, since the "intended use" of an automobile does not extend to collisions. The other, while relieving the manufacturer of any duty to design an accident-proof vehicle, would impose a duty to use reasonable care in the design and manufacture of its product so as "to eliminate any unreasonable risk of foreseeable injury" as a result of a collision, for which the manufacturer may not be responsible. Larsen is the primary authority for this rule.⁷

This is a diversity case and, as such, the rights of the parties are governed by Virginia law.⁸ It is conceded that there is no binding Virginia precedent on a car manufacturer's duty to design a "crashworthy" vehicle. The plaintiffs argue, though, that the general trend of the decisions in Virginia, as evidenced by the opinion of this Court in Spruill v. Boyle-Midway, Incorporated (4th Cir. 1962) 308 F.2d 79, ranges Virginia with those jurisdictions imposing liability for negligent design in failing to take reasonable precautions against unreasonable risks of harm to passengers by reason of a collision. For purposes of this decision, it may be assumed that this is the trend of the Virginia decisions. Assuming it to be applicable to the facts of this case, however, the Larsen rule will not support recovery by the plaintiffs.

In arguing in favor of liability, the appellees stress the foreseeability in this mechanical age of automobile collisions, as affirmed in numerous authorities, and would seemingly deduce from this a duty on the car manufacturer to design its vehicle so as to guard against injury from involvement of its vehicle in any such anticipated collisions. The mere fact, however, that automobile collisions are frequent enough to be foreseeable is not sufficient in and of itself to create a duty on the part of the manufacturer to design its car to withstand such collisions under any circumstances. Foreseeability, it has been many times repeated, is not to be equated with duty;⁹ it is, after all, but one factor, albeit an important one, to be weighed in determining the issue of duty.¹⁰ Were foreseeability of collision the absolute litmus test for establishing a duty on the part of the car manufacturer, the obligation of the manufacturer to design a crash-proof car would be absolute, a result that Larsen itself specifically repudiates.¹¹ After all, "Nearly every accident situation, involving an automobile no matter how bizarre, is `foreseeable' if only because in the last fifty years drivers have discovered just about every conceivable way of wrecking an automobile."¹²

The key phrase in the statement of the Larsen rule is "unreasonable risk of injury in the event of a collision", not foreseeability of collision.¹³ The latter circumstance is assumed in collision cases under the Larsen principle; it is the element of "unreasonable risk" that is uncertain in such cases and on which the determination of liability or no liability will rest.¹⁴ It would patently be unreasonable "to require the manufacturer to provide for every conceivable use or unuse of a car." Nader & Page, Automobile Design and the Judicial Process, 55 Cal.L.Rev. 645, 646. Liability for negligent design thus "is imposed only when an unreasonable danger is created. Whether or not this has occurred should be determined by general negligence principles, which involve a balancing of the likelihood of harm, and the gravity of harm if it happens against the burden of the precautions which would be effective to avoid the harm."¹⁵ In short, against the likelihood and gravity of harm "must be balanced in every case the utility of the type of conduct in question."¹⁶ The likelihood of harm is tied in with the obviousness of the danger, whether latent or patent, since it is frequently stated "that a design is not unreasonably dangerous because the risk is one which any one immediately would recognize and avoid."¹⁷ The purposes and intended use of the article is an even more important factor to be considered. After all, it is a commonplace that utility of design and attractiveness of the style of the car are elements which car manufacturers seek after and by which buyers are influenced in their selections.¹⁸ In every case, the utility and purpose of the particular type of vehicle will govern in varying degree the standards of safety to be observed in its design. This was recognized in the Traffic and Motor Vehicle Safety Act, which undertakes "to establish motor vehicle safety standards for motor vehicles." 15 U.S.C. 1381 et seq. In prescribing such standards, the Secretary is directed to "consider whether any such proposed standard is reasonable, practicable and appropriate for the particular type of motor vehicle * * *." Section 1392(f)(3). (Italics added.) Stated somewhat differently, the safety of every type of vehicle is to be evaluated under this Act in connection with what is "reasonable, practicable and appropriate" for its special type. And this is the same rule that has been judicially applied, even in Larsen type cases.¹⁹ Thus, in Dyson v. General Motors Corporation (D.C.Pa. 1969) 298 F.Supp. 1064, 1073, a case which followed and applied the Larsen rule, the Court emphasized that design safety must take account of "differentiation between various models of automobile" and involves "a recognition of the inherent characteristics of each." It pointed out that a convertible could not be made "as safe in roll-over accidents as a standard four-door sedan with center posts and full-door frames." The convertible was only required to be as reasonably safe as its intended use would allow and "not appreciably less safe than other convertibles." Price is, also, a factor to be considered, for, if a change in design would appreciably add to cost, add little to safety, and take an article out of the price range of the market to which it was intended to appeal,...