Hiigel v. General Motors Corp.

• Decision Date: 15 December 1975
• Docket Number: No. C--548,C--548
• Citation: 544 P.2d 983,190 Colo. 57
• Parties: , 18 UCC Rep.Serv. 901 Fred HIIGEL, Petitioner, v. GENERAL MOTORS CORPORATION et al., Respondents.
• Court: Colorado Supreme Court

Page 983

544 P.2d 983

190 Colo. 57, 18 UCC Rep.Serv. 901

Fred HIIGEL, Petitioner, v. GENERAL MOTORS CORPORATION et al., Respondents.

No. C--548.

Supreme Court of Colorado, En Banc.

Dec. 15, 1975.

As Modified on Denial of Rehearing and Clarification Feb. 9, 1976.

H. D. Reed, Denver, for petitioner.

Davis, Graham & Stubbs, Randall Weeks, Charles D. Calvin, Denver, for respondent General Motors Corp., Chevrolet Motor Div.

Williams, Trine & Greenstein, P.C., LeRoy D. Warkentine, Charles E. Williams, Boulder, for respondents, Aspen Coach Corp. and Eldon Martin, d/b/a Martin Motor Co.

GROVES, Justice.

This is a products liability case in which plaintiff appeals from an affirmance by the court of appeals, Hiigel v. General Motors Corp., 34 Colo.App. 145, 525 P.2d 1198 (1974), of a judgment in the trial court favorable to the defendants. We reverse and remand for further proceedings.

In January, 1971, plaintiff purchased a 25-foot motor home from a retailer, Martin Motor Co. (Martin). The unit had been manufactured and assembled by defendant Aspen Coach Corporation (Aspen), and mounted on a Chevrolet truck chassis manufactured by defendant General Motors Corporation (GMC).

In April and again in May 1971, plaintiff made two business trips in the motor home. On each occasion, after traveling about 500 miles, the lug bolts on the wheels sheared off, one time on the left and one time on the right, causing the dual rear wheels to part company with the vehicle. Evidence shows that Hiigel attempted from the time of the first failure to have the unit repaired. He talked with several Chevrolet dealer personnel, one of whom told him the wheels had been too loose, another of whom told him the wheels had been too tight. After each failure, plaintiff made oral and written complaint and demand upon all defendants, all of whom disclaimed any liability incurred as a result of the wheel failures. ¹

Plaintiff eventually replaced the Chevrolet chassis with a heavier duty rear end Chevrolet assembly in July 1972, at the cost of $1,910.00. The lawsuit instituted by the plaintiff sought recovery of this and related repair expenses, together with a loss of business use of the vehicle. The claims for relief against all three defendants were based on strict liability in tort, breach of implied warranty of merchantability, and breach of express warranty.

The crucial issues for purposes of this appeal involve the fact that the wheel attachment system of the unit was designed to be functional only when 75 to 110 foot pounds of 'torque' were applied to the wheel stud bolts, and that it was necessary to test the torque pressure at specific intervals of mileage driven. Undisputed evidence at trial showed that the wheel detachments occurred because the manufacturer's specifications as to torque had not been maintained. According to testimony of two experts, the torque range was a critical one, so that 'under-torquing' at 60 pounds or less, or 'overtorquing' at 150 pounds or more, would cause the stud bolts to shear, and the wheels to break loose while the vehicle was in operation.

The 'owner's manual' which customarily accompanies each chassis supplied by General Motors contains the requirements as to 'torque' as well as mileage intervals of application as follows:

'WHEELS

'Wheel Nut Torques--10--30 Series

'On a new vehicle or after the wheel has been changed, the wheel nut torque must be checked at 100, 1,000 and 6,000 miles and every 6,000 miles thereafter.

'Retorque wheel nuts to 55--75 ft. lbs. on 10 Series and 65 to 90 ft. lbs. for 20--30 Series models.

'Heavy Duty Wheels on 30 Series

'On a new vehicle or after the wheel has been changed, the wheel nut torque must be checked at 100, 500, and 1,000 miles and every 1,000 miles thereafter.

'Torque wheel nuts 200--250 lbs. ft. on 30 Series trucks with 11,000 lb. rear axles, RPO H--22, on 10--30 series, PRO RO5, torque 75--110 ft. lbs.'

If a purchaser received the manual, and was familiar with the type of chassis owned by him--as a result of checking the chassis rating plate located under the steering column below the dash--he would know the required torque and mileage interval of application. Nowhere in the manual was any warning given as to dangers to be anticipated if the torque requirements were not met.

At trial, the president of Aspen testified that the manual was in the unit before its delivery to Martin. Martin did not know if it was in the unit upon his delivery of the motor home to the plaintiff. The plaintiff testified that the manual was not delivered to him with the unit; that, after delivery of the unit to him, he made two telephone calls to Aspen requesting the manual; that he was promised on both occasions that it would be sent to him; and that he did not receive the manual until after he had incurred the costs of repair and replacement.

The plaintiff had maintained and tightened the stud nuts by use of a socket wrench with leverage supplied by a two-foot long pipe handle to a tension by which he felt, by 'experience,' that the nuts were 'snug' and 'tight.' He testified that he had tightened them in this manner immediately before each of the two attempted trips. Also admitted was the plaintiff's experience in wheel maintenance gained from working in his father's automobile and truck repair business forty years earlier. It was undisputed that the plaintiff made no attempt to keep the bolts within the manufacturer's required 75 to 110 foot pounds of torque.

As mentioned, the trial court ruled adversely to the plaintiff on his three theories of liability: strict liability, breach of implied warranty and breach of express warranty. The court's ruling under the claim of strict liability was a ruling in tort and was predicated upon the court's interpretation of Restatement (Second) of Torts § 402A. That portion of the Restatement reads as follows:

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

'(a) the seller is engaged in the business of selling such a product, and

'(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

'(2) The rule stated in Subsection (1) applies although

'(a) the seller has exercised all possible care in the preparation and sale of his product, and

'(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

The trial court's rulings under consideration here came at the close of the plaintiff's case. As to the claim of strict liability in tort, the court based its ruling on the theory that Restatement § 402A applies only to personal injjury or damage to the consumer's property other than to that property which proves to be defective; and in this case, damage to the vehicle itself would not be covered by 402A. The trial court also dismissed the other claims against GMC (breach of implied and of express warranties) upon the basis that the evidence failed to establish a 'defect' at the time it left the latter's control. It also dismissed the implied warranty claim as against Martin on the basis that he was merely a 'sales agent' for Aspen and therefore gave no warranty. At the close of all the evidence, the court denied recovery based upon the wheel-attachment failures, noting that plaintiff had failed to prove that the manual had not been delivered. The court further found that the motor home was of merchantable quality and was adequate for the plaintiff's purposes.

The court of appeals affirmed the trial court, holding that it could not disturb on review the finding that the plaintiff failed to prove that the manual had not been delivered. Further, the court of appeals ruled that, assuming that the instructions from GMC were not sufficient to warn the ordinary consumer of the danger associated with the critical wheel maintenance, the plaintiff's own testimony--concerning his experience with the necessity for maintaining proper torque requirements--precluded him from complaining that he did not receive instructions and warnings. On the issue of strict liability, the court of appeals held that the question of damages was moot, since the trial court's finding that the motor home was merchantable (under the theory of implied warranty) was tantamount to a finding that the vehicle was not at that time defective within the meaning of Restatement (Second) of Torts § 402A.

I

This court has not heretofore expressly adopted § 402A. However, the Colorado Court of Appeals in Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973), Cert. denied (1974), declared that the doctrine of strict liability under § 402A is available under the law of this state. The court in that case delineated the principles of strict liability. We hereby expressly adopt the doctrine of strict liability in tort which is stated in § 402A.

Under § 402A, a product must be defective before liability will inure. The major issue to be addressed by this court is whether a failure to warn adequately can render a product, otherwise free of defect, defective for purposes of § 402A. We answer this question in the affirmative. Restatement (Second) of Torts § 402A, Comment j, states:

'In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.'

This comment has been used by other courts as a basis of liability for failure to warn. Jackson v. Coast Paint and Lacquer Co., 499 F.2d 809 (9th Cir. 1974); Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 46 Cal.Rptr. 552 (1965); Crane v. Sears Roebuck & Co., 218 Cal.App.2d 855, 32 Cal.Rptr. 754 (1963).

In this case, evidence shows that wheel detachment was inevitable, in the absence of the critically...