General Motors Corp. v. Turner, 8026

• Decision Date: 27 April 1978
• Docket Number: No. 8026,8026
• Citation: 567 S.W.2d 812
• Parties: GENERAL MOTORS CORPORATION et al., Appellants, v. Robert A. TURNER, Appellee.
• Court: Texas Court of Appeals

Page 812

567 S.W.2d 812

GENERAL MOTORS CORPORATION et al., Appellants, v. Robert A. TURNER, Appellee.

No. 8026.

Court of Civil Appeals of Texas,Beaumont.

April 27, 1978.

Rehearing Denied June 1, 1978.

Raybourne Thompson, James B. Sales, Houston, for appellants.

Ronald Krist, Harvill E. Weller, Houston, for appellee.

KEITH, Justice.

Defendants below appeal from an adverse judgment rendered in a products liability suit involving the doctrine of "crashworthiness" and we will designate the parties as they appeared in the trial court or by their descriptive names.

In an earlier venue appeal of this cause it was said:

"The question here is whether a manufacturer and retailer may be held strictly liable in tort for a defectively designed automobile which enhances the injuries of plaintiff, but does not cause the accident."

The court also held that the question presented was one of first impression. Turner v. General Motors Corporation, 514 S.W.2d 497, 499 (Tex.Civ.App. Houston (14th Dist.) 1974, writ ref'd n. r. e.). We note that the court made an extensive statement of the underlying facts and we find no reason to recite again the events leading up to the wreck and the trial on the merits involving the doctrine of "crashworthiness." ¹

For the purposes of this opinion it is sufficient to state that plaintiff, while seeking to avoid a collision with a truck, overturned his car when it left the road. The car rolled over and the roof was deformed when it came in contact with the ground. Plaintiff received a crushed vertebra in the accident which resulted in his paralysis. It is not contended, and there is no evidence in the record that the design of the automobile or the roof thereof had any part in causing the accident which produced plaintiff's injuries.

The judgment which we review rests entirely upon a finding of strict liability in tort, the liability issue and accompanying instruction being set out in the margin. ²

The jury found that the roof structure of the Chevrolet was defectively designed and that this was a producing cause of his injury. The third and final issue fixed the amount of plaintiff's damages. A joint and several judgment was entered against the two defendants, and dealer Kliesing was granted a judgment for full indemnity against General Motors. Both defendants have appealed urging a myriad of points of error, both substantive and procedural. We reverse and remand for the reasons now to be stated.

At the outset of our discussion, we pause to express our general agreement with this language found in Self v. General Motors Corporation, 42 Cal.App.3d 1, 7, 116 Cal.Rptr. 575, 579 (1974): "(P)rosecution of a lawsuit is a poor way to design a motor vehicle, for the suit will almost invariably emphasize a single aspect of design to the total exclusion of all others." Some argue that, "(a)s in the case of food and drugs, the imposition of safety standards on the automobile industry can most likely be achieved better by a consistent application of regulatory standards drawn up by experts and kept current by research, rather than by ad hoc decisions of inexpert judges and juries." J. O'Connell, "Taming the Automobile," 58 N.W.U.L.Rev. 299, 375 (1963), suggesting federal government regulation as the practical approach to the problem. But, we do not write upon a clean slate. ³

1. The Charge

We are of the opinion that the definition of "unreasonably dangerous" used by the court was erroneous. Plaintiff points out the obvious fact that it is in substantially the same language used by the court in General Motors Corp. v. Hopkins, 548 S.W.2d 344, 347, fn. 1 (Tex.1977). Hopkins and Henderson v. Ford Motor Co., 519 S.W.2d 87, 92 (Tex.1974), both involved carburetors which were, according to the contentions of the plaintiffs, defectively designed; moreover, and more importantly, defects in the carburetors actually caused or contributed to cause the accident in each suit. Likewise, design of the step involved in Caterpillar Tractor Co. v. Gonzales,562 S.W.2d 573 (Tex.Civ.App. El Paso 1977, writ pending), was a producing cause of the injury of plaintiff. Assuming as we must the correctness and propriety of such an instruction where the defective design produces or contributes to causing the accident and consequent injury, we are of the opinion that such a charge is not proper in a crashworthiness case wherein the alleged defect had no part in causing the accident.

The trial court did not incorporate into the charge any of the suggested "balancing tests" mentioned in the venue appeal of this cause. And, it may be added, when only the reasonable expectation of the consumer test was submitted to the jury, in essence the jury was told that the doctrine of crashworthiness made the manufacturer an insurer; yet the Turner Court specifically noted that the application of the "balancing test" which it adopted would prevent the manufacturer from being held to be an insurer.

Even the leading case upon the subject, Larsen v. General Motors Corp., 391 F.2d 495, 502 (8th Cir. 1968), ⁴ which was adopted in the venue appeal, holds:

"(A)n automobile manufacturer is under no duty to design an accident-proof or fool-proof vehicle or even one that floats on water, but such manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision."

This concept is not to be found in the charge used in this case.

Although the balancing test suggested in Turner is somewhat difficult to articulate, under the specific holding in Turner the cause must be tried under a theory which "involves a traditional balancing of the gravity and likelihood of harm against the burden of precautions to avoid the harm. Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974) (applying Virginia law)." ⁵ Turner, supra (514 S.W.2d at 504). We note at this point that Turner was not mentioned in either Henderson or Hopkins.

As indicated by the charge submitted, plaintiff carries all of his eggs in one basket that his case is one governed by Restatement of Torts (Second) § 402A (1965) and maintains that he may prevail by a finding of the alternate consumer expectation test laid down in Hopkins, supra. In taking this position, plaintiff has ignored completely the thrust of the opinion in the venue appeal the balancing tests mentioned therein.

Even a cursory examination of Turner reveals that the holding is not based solely upon the concept of strict liability under § 402A, but the court relied heavily upon the common law concepts embraced in Larsen and Dreisonstok.

We are of the opinion that the terms "reasonable consumer" (and his expectations) and "prudent manufacturer" (and his awareness of risks) have no place in an instruction to the jury considering a crashworthiness case. ⁶ Each term has already acquired a fairly clear meaning in the ordinary strict liability case, i. e., those involving a product defectively produced. These terms, when we come to apply a balancing test as we must do under Turner, Larsen, Dreisonstok, and Huff ⁷ are purely subjective in nature and do not place before the jury the true elements making up either a cause of action or a defense thereto in a crashworthiness case.

We are of the opinion that the language found in J. Sales & J. Perdue, "The Law of Strict Tort Liability in Texas," 14 Houston L.Rev. 1, 13 (1976-77), relying heavily upon the authors' analysis of language in Rourke v. Garza, 530 S.W.2d 794 (Tex.1975), and Dean Wade's law review article "Strict Tort Liability of Manufacturers," 19 SW.L.J. 5, 17 (1965), ⁸ correctly enumerates some of the factors to be included in a charge to be used in such cases as the one now under review. We quote:

"The court (in Rourke v. Garza, supra) reduced the issue of defective design to a determination of whether the boards were unreasonably dangerous. In ascertaining whether the scaffolding was unreasonably dangerous, a balancing of the risk of harm against the utility of the product as designed was determinative. In judging the utility of the product, consideration of a number of factors was important. These factors included the burden imposed on the manufacturer to change the design, the expense of the change, and the effect on the usefulness of the product by the change in design."

The authors then list the seven factors posited by Dean Wade in his law review article noted above. ⁹ While we are in accord with all of Dean Wade's balancing factors, as applied to a defectively manufactured product, we are unwilling to accept the entire list when considering a crashworthiness case involving an automobile. ¹⁰

Dean Wade prefaces his list of seven balancing factors with this sentence: "We have here again the problem of balancing the utility of the risk against the magnitude of the risk. Factors involved . . . include . . . (1) the usefulness and desirability of the product . . . ." When we consider an automobile, we must realize that its utility cannot be balanced with any alternative form of transportation available for the myriad of uses to which an automobile is adapted.

To adopt this first test of Dean Wade as one of the factors would mean that if a reasonable consumer had the information available to weigh accurately the risk of harm from the use of the automobile against the utility of its use, he might find the risk so great that he would stop using the car rather than take the risk. Few of us would walk or ride bicycles because of a known risk in using our own automobile.

Rather, we should consider how a changed design of the automobile would affect the admittedly high utility of the automobile. ¹¹

We are of the opinion that the following factors should be balanced, as directed by Turner, in making the determination of whether the design is or is not defective: (1) the utility of the product to the user and to the public as a whole weighed against...