575 F.2d 774 (10th Cir. 1978), 76-1636, Fox v. Ford Motor Co.

Docket Nº:76-1636.
Citation:575 F.2d 774
Party Name:Ralph D. FOX, as Administrator of the Estate of Mary Elaine Fox, Deceased, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant. John H. SMITH, as Administrator of the Estate of Diane W. Smith, Deceased, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
Case Date:April 13, 1978
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 774

575 F.2d 774 (10th Cir. 1978)

Ralph D. FOX, as Administrator of the Estate of Mary Elaine

Fox, Deceased, Plaintiff-Appellee,

v.

FORD MOTOR COMPANY, Defendant-Appellant.

John H. SMITH, as Administrator of the Estate of Diane W.

Smith, Deceased, Plaintiff-Appellee,

v.

FORD MOTOR COMPANY, Defendant-Appellant.

No. 76-1636.

United States Court of Appeals, Tenth Circuit

April 13, 1978

Submitted Sept. 27, 1977.

Rehearing Denied May 9, 1978.

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[Copyrighted Material Omitted]

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G. L. Spence and Edward P. Moriarity of Spence & Moriarity, Casper, Wyo., and John R. Hursh of Hamilton, Hursh & Crofts, P. C., Riverton, Wyo., for plaintiff-appellee.

Gordon G. Greiner of Holland & Hart, Denver, Colo. (G. G. Greenlee of Murane, Bostwick, McDaniel, Scott, Greenlee & Owens, Casper, Wyo., on brief), for defendant-appellant.

Before SETH, Chief Judge, and DOYLE, Circuit Judge, and STANLEY, District Judge. [*]

WILLIAM E. DOYLE, Circuit Judge.

I.

The basic question in this case is whether Ford Motor Company is to be held liable for

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deaths which were caused when a car of its manufacture was struck head-on by a vehicle crossing the center line. The actions were for wrongful death under Wyoming law. The cases were first filed in Wyoming courts and were removed to the United States District Court for Wyoming. Trial was to a jury. It was divided, and after liability for the deaths was established, damage awards were made. The estate of Mary Elaine Fox was awarded $350,000.00 and the estate of Diane W. Smith received $300,000.00.

Plaintiffs' theory of the case was that the automobile, a 1970 Thunderbird, was improperly designed. Plaintiffs contended that the rear seats were improperly designed in relationship to the backs of the front seats; that there was a failure to cushion the backs of the front seats in anticipation of an impact causing the passengers to strike their heads against the backs of these seats; that the seat belts were not designed so as to contain passengers against jackknifing forward against the backs of the front seats and so as to protect passengers from suffering lethal internal injuries as a result of being jackknifed forward.

Three theories of liability are alleged in the complaint: negligence, strict liability and breach of warranty.

The collision occurred on January 20, 1973, on an icy highway at a place 40 miles east of Dubois, Wyoming. A west-bound pickup truck crossed over the center line and struck nearly head-on the east-bound Thunderbird automobile of the decedent and Ralph D. Fox. Other passengers in the car were Diane W. Smith, deceased, and her husband, John H. Smith.

All four passengers were wearing seat belts, but not shoulder belts. There were shoulder belts in the front, but not in the back where the two women were riding. The husbands survived, although they were not wearing shoulder belts. The wives in the back suffered similar fatal injuries.

The vehicles were not traveling at high speed. Prior to the impact, the Thunderbird had been going 45-50 miles per hour. There was evidence from which the jury could find it had slowed to 30 m. p. h. at the time of the impact. There were indications that the pickup truck which crossed over and collided with the Thunderbird was going at approximately the same speed as the Thunderbird. The evidence was that the damage of the vehicles evidenced a relatively low speed collision.

II.

Mr. Fox drove the Thunderbird. Mr. Smith sat in the passenger seat alongside Fox. The wives sat in the rear seat, Mrs. Fox being in the seat immediately behind her husband and Mrs. Smith occupying the place behind Mr. Smith.

Mrs. Fox died shortly after the accident. The autopsy showed severe seat belt damage in the abdominal area above the iliac crest, this being part of the hip bone. The autopsy also showed a fracture of the twelfth thoracic vertebra in addition to the neck fracture and dislocation. Mrs. Fox also was shown to have had a cut in her head and lesions of the brain.

Mrs. Smith's spine was fractured in two places. One of these was the same as Mrs. Fox's lower fracture, and she was paralyzed from the waist down after the accident. She had, in addition, internal injuries consisting of broken ribs, ruptures of the small bowel, diaphragm, spleen and lungs. Her intestines had been forced up into her chest area, and she died about two weeks after the accident of a pulmonary embolism which resulted from the injuries.

The liability evidence was largely concerned with the alleged defective seat belts. It showed that (as a matter of custom) no domestic auto manufacturer installed rear shoulder belts in 1970 cars. There was also testimony that shoulder belts would have restricted the jackknifing forward movement which the two women had experienced. Also, it would have prevented Mrs. Fox from hitting the seat in front of her. Ford's expert even admitted that it was common knowledge in the industry that a shoulder harness was capable of minimizing

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abdominal injuries by preventing violent forward movement, and that a three-point or combined shoulder-lap belt was the most effective restraint system.

The backs of the front seats were padded high up, but were not padded below. Mrs. Fox's head struck below the padding. There was evidence that Ford had not considered the fact that the padding was not protective of persons of shorter stature. There was also evidence that Mrs. Fox would not have broken her neck had she come into contact with a padded surface. She might, however, have died, according to one expert, from other injuries. Evidence was offered that there were suitable materials for padding the back of the front seat area which is known to be subject to impact. Particularly, this is true because the front seats tend to move forward in a crash. The result is the rear seat passenger strikes at a lower spot.

Films of crash tests which Ford carried out were shown. Three involved 1970 Thunderbirds, but these did not have dummies in the rear. There were no such crash tests made on 1970 four-door Thunderbirds with dummies in the rear seat. There was a crash test film for 1967 Fords similar to the 1970 Thunderbird. This did have a seat belted dummy in the rear seat. In this car, however, the front seat was welded in place so that it could not move forward, although it would likely move in a real accident. In that test the dummy jackknifed forward and its head hit the top or the back of the front seat.

The main thrust of the plaintiffs' case is directed to the allegedly defective design of the rear seat belts. The complaint is that the hip belts approached being on a horizontal plane rather than on a vertical one which would hold the hips down. The result was that the entire force of the accident was absorbed by the abdomen, a part of the body which is particularly vulnerable. The theory was that if the seat belts had been placed so as to hold the hips down, there would have been preventive force exerted designed to prevent injuries to the lower body. The absence of shoulder belts subjects the upper body to the risk of injury.

The women passengers suffered extensive abdominal injuries and fractured spines in substantially the same places. The doctor examining Mrs. Smith testified that her abdominal injuries were caused because the seat belt was worn too high; that if the force had been exerted lower she would have not injured her back or injured her spleen and liver; that the injuries were different from typical seat belt injuries which generally occur at a lower level and are less severe. Another expert witness testified that there was insufficient restraint on the hip area and that the belts were at an improper angle.

An expert on behalf of Ford, on the other hand, said that the belts were in the proper position; that the severe injuries were due to the high speed at impact; and that the angle of the belts did not make much difference as far as the nature of the injuries was concerned.

From the evidence it would appear that the rear seat belts were anchored to the "floor pan" behind the back seat cushion. They threaded over the seat bottom frame bar and up through the intersection of the seat and back cushions. When this car was made there was a Federal Motor Vehicle Safety Standard No. 209, 32 Fed.Reg. 2415 (2-3-67), which provided:

A seat belt assembly shall provide pelvic restraint whether or not upper torso restraint is provided and the pelvic restraint shall be designed to remain on the pelvis under all conditions, including collision. . . .

Federal Motor Vehicle Safety Standard No. 210 dealt with the angle of a seat belt in relationship to the person's body as follows:

§ 4. 3. 1. 2. For installations in which the belt passes through the springs or over the seat frame, . . . the angle between the horizontal and the line of the belt from the occupant's "H" point with the belt snug, but not loaded, shall be as near as practicable to 45 degrees.

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The "H point" or "seating reference point" is defined as "the mechanically hinged hip point of a manikin which simulates the actual pivot center of the human torso and thigh." 32 Fed.Reg. 2408 (2-3-67).

The plaintiff was allowed, over defendant's objection, to present testimony of an investigator who sought to locate the "H points" of women similar in size to the decedents. He then measured the angle from the anchorage (with the seat cushions removed). He calculated an angle of six degrees. The judge permitted this procedure on the basis that the federal standards sought to establish only a minimum standard.

There was also evidence offered by plaintiffs to the effect that the belt anchor plates were...

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