521 P.2d 1353 (Okla. 1974), 45016, Kirkland v. General Motors Corp.

Docket Nº:45016.
Citation:521 P.2d 1353
Party Name:Benita Helen KIRKLAND, Appellant, v. GENERAL MOTORS CORPORATION, a foreign corporation, Appellee.
Case Date:April 23, 1974
Court:Supreme Court of Oklahoma

Page 1353

521 P.2d 1353 (Okla. 1974)

Benita Helen KIRKLAND, Appellant,

v.

GENERAL MOTORS CORPORATION, a foreign corporation, Appellee.

No. 45016.

Supreme Court of Oklahoma.

April 23, 1974.

Page 1354

[Copyrighted Material Omitted]

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Syllabus by the Court

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer is strictly liable for physical harm to his person or his property caused thereby, and this Manufacturers' Products Liability is not based on any contractual relationship in the nature of implied warranty not on common law begligence.

2. Because of the tortious origin and nature of the theory or remedy of Manufacturers' Products Liability, and its independence of any contractual liability based on implied warranty, the applicable limitation period is two (2) years, as designated in 12 O.S.1971 § 95 'third' for actions for injury to the rights of another or to personal property, and limitation commences to run from date of injury.

3. To maintain a cause of action in Manufacturers' Products Liability the plaintiff must prove that the product was the cause of the injury, that the defect existed in the product at the time it left the possession and control of the manufacturer, assembler or supplier and that the defect made the product unreasonably dangerous to the user or his property.

4. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

5. The plaintiff may prove his cause of action in Manufacturers' Products Liability by circumstantial evidence and proper inferences drawn therefrom, since actual or absolute proof of the defect in a sophisticated product may be within the peculiar knowledge or possession of the defendant.

6. The defendant's due care and quality control may be rebuttal evidence to the conclusions attempted or established by the plaintiff's circumstantial evidence.

7. The theory of implied warranty recovery for injuries to person heretofore existing in this jurisdiction is merged into the theory and doctrine of manufacturers' products liability, and except for Uniform Commercial Code application, is no longer viable.

8. Common law defenses used in connection with negligence and implied warranty recovery such as lack of privity, assumption of risk, and contributory negligence, used in their traditional common law sense are not applicable to Manufacturers' Products Liability recovery.

9. Responsibility for a defect resulting in harm to plaintiff must be proved by plaintiff and if two or more defendants are named in an action for Manufacturers' Products Liability, particular, individual or joint responsibility resulting in harm to plaintiff must be proved and the determination of which defendant, if one or more is responsible for the defect in processing, assembling or distribution of a product, is made subject to proof of fact by the trial court and jury.

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10. The doctrine of Manufacturers' Products Liability extends the liability for a defective product to any user or consumer using the product for its intended use, and to any third party injured as a result of the defect.

11. A showing that the injury to the plaintiff or his property was not caused by the defective product, but by some conduct of the plaintiff is an available defense to preclude the plaintiff from recovery in a Manufacturers' Products Liability action.

12. An injury to the plaintiff resulting from the abnormal use of the product by the plaintiff is an available defense which precludes the plaintiff from recovery in a Manufacturers' Products Liability action. A showing that the plaintiff knew of a defect, unreasonably dangerous in nature, yet voluntarily used the product, is an available defense to preclude the plaintiff from recovery for personal injuries and property damage resulting from such use in a Manufacturers' Products Liability action.

Appeal from the District Court of Creek County; G. B. Chuck Coryell, Trial Judge.

Action by plaintiff, Benita Helen Kirkland, against the defendant, General Motors Corporation, for damages for personal injury. Appeal from a judgment of the district court of Creek County for defendant by plaintiff.

Affirmed.

C. B. Savage, Tulsa, and Doyle Watson, Drumright, for appellant.

Rhodes, Hieronymous, Holloway & Wilson by Bert M. Jones, Tulsa, for appellee.

DOOLIN, Justice.

The issue for us in this case is the present and the future of products liability litigation in Oklahoma. Much we do in this case may set the pattern of such litigation in Oklahoma and may determine whether this young, vigorous and progressive State shall now meet the challenge of the mass advertising of today, its hypnosis, and the pace and flow of the economics of the late twentieth century. Most of us were born in the waning days of the use of either animal or steam power and today we find ourselves anticipating the wonders of an age of jets, rockets, genetic science, and atomic energy. The law, likewise, finds itself confronted with the problems of change, not only in the field of torts, but probably in all of its many and broad areas.

So be it.

The facts in the case before us are as follows:

Plaintiff was injured in an automobile accident occurring as she entered I--44 in Tulsa County at approximately 3:00 a.m. on August 9, 1969, while driving her roommate's 1969 Buick Opel, which had been manufactured by General Motors (GM) shortly before the accident. It developed that GM had mailed, on September 29, 1969, a notice to all owners of Opels a 'recall' letter indicating 'the seat back adjustment mechanism on your 1969 Opel may develop excessive clearance between the gears of the adjustor.' She testified that on the night of the accident as she entered I--44 the following occurred:

'After I accelerated, I was driving casually along, very slowly, down the Skelly By-pass and suddenly the Opel went out of control on me. It seemed that I had no support behind me and I fell backward and I was looking at the ceiling and I did not know where I was going. I could not control the car.'

She further indicated that after falling backward she could not reach the steering wheel and did not remember the head-on impact with an automobile in the opposite lane, recalling only the bump or jar as the Opel struck the median.

During the trial GM introduced the seat from the automobile which Plaintiff was driving and its use was demonstrated before the jury; an expert for the Defendant company testified that in his opinion the seat was not defective and explained why. The defendant company also introduced

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evidence of five witnesses--two policemen, a fireman, an ambulance driver, and a wrecker operator--that within a short time of the accident there was 'a strong odor of alcohol' in the Plaintiff's car, about her person, and in the closed ambulance. Plaintiff admitted she had drunk two beers about 5:30 p.m., a vodka and tonic about 8:30 p.m. and another vodka and tonic about 1:00 a.m., prior to the accident.

Plaintiff's pleadings contain no allegation as to negligence of GM as such; she alleged that her injuries were proximately caused by the defective seat adjustment present in the automobile in question. She further alleged the automobile was being used for the purpose for which it was intended and that a breach of implied warranty of fitness on GM's part was the direct and proximate cause of her injuries.

By was of answer, GM filed general and specific denial of liability and raised the affirmative defenses of Plaintiff's contributory negligence in several particulars, including driving while intoxicated and excessive speed at the time of the accident, and that Plaintiff was guilty of assumption of risk by her misuse of the product.

Plaintiff's reply denied any and all negligence on her part, further denied that she was driving while intoxicated, or at an excessive speed.

Trial proceeded and the jury returned Defendant's verdict.

We deal with products liability and in Marathon Battery Company v. Kilpatrick, Okl., 418 P.2d 900 (1965), have taken the next to the last step in adopting a strict liability theory for products other than food and drink, broadening even more the traditional approaches of negligence and warranty recovery. 1

Judge Murrah, then Chief Judge of the Tenth Federal Circuit, in Schenfeld v. Norton Company, 391 F.2d 420 (10th Cir., 1968), capsulized the development of the theory of strict liability as follows:

'Before considering the propriety of the trial judge's dismissal of Schenfeld's implied warranty claim, it seems appropriate to quickly review the development and present status of the various potential recovery routes open to a claimant injured by a defective product. One such avenue of redress is, of course, an action for negligence. Since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, it is no longer doubted that The supplier of a chattel negligently made is liable foreseeable harm To anyone injured, regardless of privity. See Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1100--1103 (1960).

Independently of the negligence route, recovery has been traditionally allowed for breach of an Express or implied warranty. Such a warranty was considered to be a part of the contract between the seller and buyer and thus had its basis in contract law. See Dagley v. Armstrong Rubber Co., 7 Cir., 344 F.2d 245. With the advent of the Uniform Sales Act, now replaced in the vast majority of states by the Uniform Commercial Code, 2 recovery became...

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