Henderson v. Ford Motor Co.

• Citation: 519 S.W.2d 87
• Decision Date: 20 November 1974
• Docket Number: No. B--4332,B--4332
• Parties: Irene S. HENDERSON et vir, Petitioners, v. FORD MOTOR COMPANY et al., Respondents.
• Court: Texas Supreme Court

Page 87

519 S.W.2d 87

Irene S. HENDERSON et vir, Petitioners, v. FORD MOTOR COMPANY et al., Respondents.

No. B--4332.

Supreme Court of Texas.

Nov. 20, 1974.

Rehearing Denied Feb. 19, 1975.

Kronzer, Abraham & Watkins, W. James Kronzer, Houston, for petitioners.

Vinson, Elkins, Searls, Connally & Smith, B. Jeff Crane, Jr., and Daniel A. Hyde, Baker & Botts, Finis E. Cowan, Houston, for respondents.

REAVLEY, Justice.

This is a products liability case which raises questions of proof of a defective design and the defense to strict liability when the injured claimant has continued to use the product after discovery of the risk of doing so. Irene S. Henderson was badly hurt when, because she could not reduce the speed of her automobile, she intentionally drove it into a metal pole. She brought this suit against the manufacturer (Ford Motor Company) and her dealer (Snelling Motor Company). Mrs. Henderson obtained judgment against the defendants in the trial court; the Court of Civil Appeals reversed that judgment and remanded the case for retrial. 500 S.W.2d 709. Mrs. Henderson comes here contending that retrial is not justified because the evidence raises no issue of her assumption of the risk and because issues as to her negligence constitute no defense to strict liability. Ford Motor Company (and Snelling) come here contending that no liability is justified because there is no evidence of defective design. All of the stated contentions are upheld by this Court.

On April 15, 1969 Mrs. Henderson was driving her 1968 Lincoln Continental in Houston city traffic. After accelerating to enter a freeway, she found that the speed of the car was not responsive to her control. Her first impression was that the problem was with the brakes. She drove the car from the freeway at the first exit and onto South Post Oak Road, continuing her efforts to stop. She determined that the accelerator pedal was not depressed. She pumped the brake and pushed with both feet against the brake pedal, but the speed continued. Seeing a busy intersection ahead and recognizing the peril to other persons, she drove onto the esplanade in the center of the street and finally crashed into the large signal light pole.

The Continental automobile had been purchased from Snelling Motor Company seven months earlier; it had been driven approximately 9,000 miles. When the wreckage was examined six days later by Dr. William Tonn, the accelerator linkage to the carburetor was found to be jammed as the result of the indentation of the pole into the engine area, but no pre-accident fault was indicated in the linkage. Two years later a mechanic, Levertt LaRue examined the wreckage. He found nothing wrong with the carburetor linkage but when he looked into the carburetor itself, he found a piece of rubber between the throttle blades and the bore of the chamber of the carburetor. The piece of rubber turned out to be part of the gasket which was originally installed around the bottom of the air filter housing where that housing was seated on top of the carburetor.

The purpose of the air filter is to prevent dirt and foreign objects from entering the carburetor as oxygen and fuel are being drawn into the combustion chambers of the engine. The lightweight filter housing requires some type of rubber or fibre gasket along the area where it fits upon the carburetor housing. In the engine installed in Mrs. Henderson's automobile, which Ford designated as model number 462, the gasket was glued into a trough or groove around the underside of the air filter housing. An alternative design, the one used on the successor model 460 Lincoln engine, substitutes a separate fibre gasket (on and around the carburetor housing at the place where the filter housing is seated) for the gasket previously fixed in the filter housing.

The chief contention of the plaintiff at the trial was that the gasket was not properly placed in its groove during manufacture, that it protruded from the groove when first sold to plaintiff and was finally cut free, that the piece then lodged in the carburetor and held open the gas feed during Mrs. Henderson's frightful ride. The jury, however, answered in the negative the issues of whether the gasket was defectively installed by Ford or defectively installed when sold by Snelling. The judgment for plaintiff was based upon jury findings that the design of the air filter housing was defective and that this design defect was the producing cause of Mrs. Henderson's damages.

The Court of Civil Appeals majority held that the defendants were entitled to have the jury determine issues as to Mrs. Henderson's contributorily negligent conduct following her discovery that the car was not functioning correctly. Under that holding if the jury determined that a person in the exercise of ordinary care would have avoided injury by stopping the car earlier through the proper use of the brakes or by shifting the transmission control to neutral or by turning off the ignition, the defendants would not then be liable. This holding is understandable because of the writing of this Court in Shamrock Fuel & Oil Sales Co., Inc. v. Tunks, 416 S.W.2d 779 (Tex.1967). This writ was granted for the purpose of resolving some of the uncertainty as to the defenses to strict liability when predicated upon conduct of the complainant following discovery of the defect.

CONTRIBUTORY NEGLIGENCE

Some courts allow contributory negligence of the user as a defense to strict liability in tort against the manufacturer of a defective product, and no distinction is made as to whether the negligent conduct occurs before or after discovery of the defect by the user. In those states the failure to discover or foresee dangers which the ordinarily careful person would have discovered or foreseen, as well as negligent conduct after discovery of the danger and in the use of the product, constitutes a defense to an action based on strict liability. Stephan v. Sears, Roebuck & Co., 110 N.H. 248, 266 A.2d 855 (1970); Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). This Court has rejected for Texas the defense of negligent failure to discover a defect or to foresee the danger. Shamrock Fuel & Oil Sales Co. v. Tunks,supra; McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). We reaffirm that holding and believe it to be the prevailing view. See: Williams v. Brown Mfg. Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970); 2 Frumer and Friedman, Products Liability, § 16A(5)(f).

This Court in 1967 left open the question of whether contributory negligence would be a defense if the subpar conduct of the user followed discovery of the defect. We now hold that contributory negligence is not a defense under those circumstances in a strict liability action. In a recent opinion, delivered after the Court of Civil Appeals opinion in the instant case, this Court held that contributory negligence on the part of a claimant is no defense in a strict liability action for damages caused by a vicious animal. Marshall v. Ranne, 511 S.W.2d 255 (Tex.1974). No distinction was made there between a failure to discover the nature of the animal and a careless encounter with its viciousness after discovery. The conduct in question in that particular case occurred after full knowledge of the viciousness of the beast. We will apply the same rule for the defense of strict liability whether the risk encountered is a dangerous animal or a defective product.

ASSUMPTION OF RISK

Assumption of the risk, or volenti non fit injuria, remains a proper defense in a strict liability action. The prevailing trend of the courts seems to be to follow Comment N of § 402A of the Restatement Second, Torts, which states:

N. Contributory negligence. Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases . . . applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.

The Restatement here joins subjective appreciation of the danger with objective lack of care in unreasonably continuing use of the product. It is not unusual for assumption of risk and contributory negligence to be treated as overlapping. 2 Harper and James, Torts, 1162 (1956); Keeton, Assumption of Risk in Products Liability Cases, 22 Louisiana L.Rev. 122, 131, 143 (1962). The overlapping may have some relation to a dislike for the defense of assumption of the risk and the efforts to have it abolished. See generally: Prosser, Torts, 454 (4th ed. 1971). When the rule described in Comment N of § 402A of the Restatement, above, is followed, the courts which do so are justified in saying that it makes no difference whether the defense is labeled contributory negligence or assumption of the risk. See Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973); Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966). Neither label would be entirely appropriate under previous Texas decisions.

The Restatement rule requires the defendant to prove more than contributory negligence after discovery that some defect exists. It requires proof of the elements of assumption of risk, or volenti non fit injuria as that defense is known in the Texas cases, with the additional proof that the plaintiff's voluntary exposure to the risk was unreasonable. To illustrate, let us suppose that plain...