Gardner v. General Motors Corp.

• Decision Date: 16 December 1974
• Docket Number: No. 73-1966,73-1966
• Citation: 507 F.2d 525
• Parties: Dorothy Mae GARDNER, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant. Mazie M. JOHNSON, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant. Alice J. VAN LEWEN, Individually, et al., Plaintiffs-Appellees, v. GENERAL MOTORS CORORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 525

507 F.2d 525

Dorothy Mae GARDNER, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.

Mazie M. JOHNSON, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.

Alice J. VAN LEWEN, Individually, et al., Plaintiffs-Appellees, v. GENERAL MOTORS CORORATION, Defendant-Appellant.

No. 73-1966.

United States Court of Appeals, Tenth Circuit.

Argued July 12, 1974.

Decided Dec. 16, 1974.

William H. Hazlitt, Denver, Colo. (Michael E. Oldham and Thomas H. Barrows, Weller, Friedrich, Hickisch & Hazlitt, Denver, Colo., and Ross L. Malone, of counsel, Gen. Motors Corp., Detroit, Mich., on the brief), for defendant-appellant.

Thomas J. Constantine, Hindry & Meyer, Denver, Colo., for plaintiffs-appellees Van Lewen.

Richard W. Laugesen, Dosh, DeMoulin, Anderson & Campbell, Denver, Colo., for plaintiff-appellee Johnson.

Bennett S. Aisenberg, Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., for plaintiff-appellee Gardner.

Before LEWIS, Chief Judge, and BREITENSTEIN and BARRETT, Circuit judges.

LEWIS, Chief Judge.

This is a product liability case involving a 1966 three-quarter ton pickup truck manufactured and sold new by General Motors Corporation (GMC). The appeal is taken by GMC from judgments aggregating approximately $700,000 in actions brought and consolidated in the District Court for the District of Colorado under the Colorado Wrongful Death Act for the deaths of the husbands of the named plaintiffs. Each of the decedents had died from inhalation of massive quantities of carbon monoxide claimed by plaintiffs to be legally attributable to GMC through negligent design and marketing of the subject truck. Certain of the facts are not in dispute.

The truck was specifically advertised by GMC as one suitable for the installation and carrying of a camper unit. The purchaser, decedent Van Lewen had installed such a unit, purchasing it new from Colorado Camp-R-Land. That company installed the camper in standard fashion by drilling holes through the truck bed and securing the unit to the bed with bolts, washers and blocks. The camper was basically a wood frame covered with plywood on the inside and aluminum sheeting on the exposed outside walls. The unit contained a dinette area, an upper bunk, two sinks, a propane gas stove and oven, a propane gas light, and some cupboards. GMC makes no claim of liability avoidance through the fact of the camper addition or its installation.

On October 31, 1969, decedents went on a weekend hunting trip in Grand County, Colorado, anticipating a return to their homes on Sunday evening, November 2. They did not return. On November 5, the pickup camper was found by searchers parked alongside Beaver Creek Road at an elevation of 8800 feet. The ignition was 'on', the gears were in neutral, the gas gauge read empty, and the car battery was dead. Inside the camper the stove was off, the propane light was on but fuel exhaustion was so complete as to allow only an occasional flickering, and the windows were closed. The men were inside the camper, two seated at the table with unfinished cups of coffee and the third partially on the cot. Each was dead.

Plaintiffs' basic claim to liability has no complexities as such. The subject truck was equipped at the time of sale and at the time of decedents' deaths with a tail pipe that discharged engine en haust at a point beneath the approximate center of the truck bed and thus directly under the camper. They claim a defective design as the proximate cause of the deaths. GMC argues that plaintiffs failed to prove either a defective design or causation by competent proof or at all. We have no difficulty in rejecting the latter aspect of GMC's claim of error.

Following a month-long trial, the jury was instructed on three theories of recovery advanced by the plaintiffs: (1) GMC's negligence in regard to the design of the truck's exhaust port location; (2) GMC's breach of warranty in regard to the suitability of the truck for camper installation and use; (3) GMC's breach of its duty in strict liability. We conclude that each theory is legally acceptable under the evidence.

Defective Design and Causation

In our consideration the verdict of the jury is entitled to that view of the evidence most favorable to plaintiffs, drawing all reasonable inferences and resolving all factual conflicts in accord with support for the verdicts. ¹ Westing-house Credit Corp. v. Green, 10 Cir., 384 F.2d 298, 301; Union Carbide & Carbon Corp. v. Nisley, 10 Cir., 300 F.2d 561, 590, appeal dismissed sub nom., Wade v. Union Carbide & Carbon Corp., 371 U.S. 801, 83 S.Ct. 13, 9 L.Ed.2d 46. In addition to the undisputed facts recited other evidence gives basic support to plaintiffs' case. Eleven inches of snow surrounded the camper with a much lesser amount underneath the vehicle. Carbon monoxide is odorless, invisible, extremely lethal, and of light density, thus causing it to rise. The floor of the camper was sufficiently porous to allow seepage and the heat of the camper combined with the partial trappage of the gas below tended to create a drawing action. The propane light was not capable of creating sufficient carbon monoxide to cause the tragedy. Motor exhaust carries a high incidence of the deadly fumes. An exhaust pipe carrying the gases to a point beyond the perimeter of the camper would have prevented the accident.

Much of plaintiffs' case was of necessity based on the conclusions and opinions of expert witnesses. So, too, were GMC's defenses. In fact, GMC's argument that plaintiffs made no case at all is based on counter evidence that this was the only incident of its kind although thousands of trucks with similar short tail exhausts had been marketed by it and other manufacturers; that the results of its comprehensive post-accident tests showed conclusively that under no version of the meteorologic conditions and other existent circumstances could sufficient exhaust carbon monoxide enter the camper to cause death. GMC's evidence was certainly relevant to negative defective design and causation but, at this point, is simply a renewal of a jury argument. GMC is liable for the first accident as well as any other if caused by faulty design. So, too, the test results of GMC could be rejected by the jury by simply refusing an artificial facsimile in favor of an admitted fact. Massive amounts of carbon monoxide did enter the camper and did kill the decedents. We conclude that plaintiffs' evidence was clearly sufficient to support defective design and causation as a jury issue and equally sufficient to premise liability under breach of warranty and the doctrine of strict liability.

Trial Errors, Evidence and Instructions

Prominent among GMC's claim of trial error is the...