Bendorf v. Volkswagenwerk Aktiengeselischaft, 1651

• Decision Date: 06 August 1975
• Docket Number: No. 1651,1651
• Citation: 88 N.M. 355,540 P.2d 835,1975 NMCA 100
• Parties: Dwaine BENDORF, Plaintiff-Appellant, v. VOLKSWAGENWERK AKTIENGESELISCHAFT, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 835

540 P.2d 835

88 N.M. 355

Dwaine BENDORF, Plaintiff-Appellant, v. VOLKSWAGENWERK AKTIENGESELISCHAFT, Defendant-Appellee.

No. 1651.

Court of Appeals of New Mexico.

Aug. 6, 1975.

Rehearing Denied Aug. 22, 1975.

Certiorari Denied Sept. 23, 1975.

Lorenzo A. Chavez, James H. Foley, Albuquerque, for plaintiff-appellant

John A. Klecan, Klecan & Roach, P.A., Albuquerque, for defendant-appellee.

OPINION

HENDLEY, Judge.

Plaintiff sued defendant, the manufacturer of plaintiff's automobile, for injuries sustained in an automobile accident. Plaintiff's automobile went through a red light and collided with an automobile that had entered the intersection in accordance with the traffic signals from a direction perpendicular to plaintiff's direction of travel. Plaintiff claimed that the collision occurred because of a defect in the seat assembly of his automobile, which caused him to lose control of his car. Plaintiff alleged and introduced proof of the following facts: (1) As he approached the intersection and saw the light change to yellow, he applied his brakes in preparation of stopping for the anticipated red light. (2) When he did this, the seat mechanism slipped, causing the seat to shoot forward. (3) The forward movement of the seat caused his foot to slide off the brake pedal, which resulted in his running the red light and colliding with the other vehicle. Plaintiff ultimately rested his claim on the theory of strict liability of the manufacturer of a defective product as set forth in Restatement, Torts 2d, § 402(A) (1965), at 347--48.

Defendant presented two theories of the case to the jury. It denied that the auto seat assembly was defective and alternatively claimed that even if it was defective, the defect was not the proximate cause of the collision. Defendant alleged and introduced proof of the following facts: (1) As plaintiff approached the intersection, his son, who was seated on the passenger side of the vehicle, had fallen from the passenger seat onto the floor of the car. (2) Plaintiff was attending to his son and did not see the traffic light change color. (3) For this reason, he did not apply his brakes in time to stop for the light, causing him to collide with the oncoming vehicle in the intersection. In other words, defendant's contention was that the proximate cause of the collision was plaintiff's inattentive driving.

The trial court instructed the jury that:

'The plaintiff claims that he sustained damages and that the proximate cause thereof was one or more of the following acts:

'* * * (A)s he was driving across I--40 traffic conditions made it necessary for him to apply the brakes as would be expected under the then existing conditions and as he did so, the seat began to move causing plaintiff to lose control of his car collide with another car, * * *.

'* * *

'* * * (T)he defendant asserts the following affirmative defense:

'The plaintiff was contributorily negligent in that:

'1. Plaintiff failed to keep a proper lookout * * *.

'2. That the plaintiff failed to yield the right of way * * *.

'3. That the plaintiff failed to stop in obedience to the traffic signals * * *.

'4. That the plaintiff failed to keep his car under proper control * * *.

'If you find that plaintiff has proved those claims required of him and that defendant's affirmative defense has not been proved, then your verdict should be for the plaintiff.

'If on the other hand, you find that any one of the claims required to be proved by plaintiff has not been proved or that defendant's affirmative defense has been proved, then your verdict should be for the defendant.' (Trial Court's Instruction 1)

In addition, the trial court gave ten other challenged instructions which attempted to elucidate the concepts of negligence, contributory negligence, the duty to use ordinary care and the duty to keep a proper lookout and control over one's own car. Included in these instructions was one to the effect the failure to stop in accordance with traffic signals was contributory negligence as a matter of law and another to the effect that contributory negligence meant negligence on the part of the plaintiff that proximately contributed to cause his damages.

The jury returned a verdict for the defendant. Plaintiff appeals contending that the trial court erred in instructing the jury on contributory negligence because ordinary negligence on the part of the plaintiff is not a permissible defense to a § 402(A) liability cause of action. Incorporated in this contention is an allegation that the trial court's instructions bound the jury to find for the defendant without regard to what caused the accident. Causation was one of the most closely contested issues in the lawsuit. Defendant responds that it is entitled to have the jury instructed on its theory of the case, and that the disputed instructions on contributory negligence were thus necessary to apprise the jury of defendant's theory. While we agree with the defendant that it was entitled to instructions on its theory, we also agree with the plaintiff that under the instructions as given, the jury could have found that regardless of a defect which (set into motion the chain of events) which caused the collision, plaintiff drove negligently; and although such negligence was caused by the defect, he was barred from recovery. We accordingly, reverse and remand for a new trial.

The plaintiff's brief primarily addresses itself to the proposition that is set forth in Comment (n) to § 402(A) of the Restatement of Torts 2d, supra:

'* * * (T)he liability with which this Section deals is not based upon negligence of the seller, but is strict liability * * *. 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 of 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 plaintiff thus argues that the only allowable negligence defense in a § 402(A) cause of action is that form of contributory negligence contained in Restatement, Torts 2d, supra, § 466(a)--an intentional, unreasonable exposure to a known danger. Plaintiff tendered to the trial court an instruction in accordance with Comment (n), supra.

New Mexico has recognized the theory of a manufacturer's strict liability under § 402(A) since Stang v. Hertz Corporation, 83 N.M. 730, 497 P.2d 732 (1972). However, the issue of proper defenses to a § 402(A) case is one of first impression here. Justice Oman alluded to the confusion in the area of available defenses to § 402(A) cases in Garrett v. Nissen Corporation, 84 N.M. 16, 498 P.2d 1359 (1972) and explicitly refrained from judgment thereon.

In this appeal, the respective positions of the parties and the choice of cases cited in support thereof have done little to clarify the matter. Two problems are immediately apparent: (1) Comment (n), supra, does not purport to be an exhaustive catalogue of all possible defenses grounded in plaintiff's negligent conduct to § 402(A) causes of action and (2) defendant's theory of the case, or its defense, is not properly denominated an affirmative defense; rather it amounts to a denial of one element of the plaintiff's case, viz. causation. Defendant's theory thus involves a suggestion of an alternative to the plaintiff's allegation of proximate causation. In addressing ourselves to the reasons for reversing the instant case, it is necessary to understand what this case is not. We here set out a brief catalogue of possible negligent conduct on the part of the plaintiff that may or may not bar recovery in a § 402(A) case to that end.

We stress, however, that an affirmative defense is that state of facts provable by defendant which will bar plaintiff's recovery once plaintiff's right to recover is otherwise established. It is a 'descendant of the common law plea in 'confession and avoidance,' which permitted a defendant who was willing to admit that plaintiff's declaration (or proof) demonstrated a prima facie case to then go on and allege (or prove) additional new material that would defeat plaintiff's otherwise valid cause of action.' 5 Wright and Miller, Federal Practice and Procedure, § 1270 (1969). In the field of products liability, or § 402(A), litigation, courts have generally recognized three types of plaintiff conduct that should be considered as possible bars to recovery once plaintiff's right to recover is otherwise established. See Annot., 46 A.L.R. 240 (1972).

The first of these is a negligent failure to discover the defective condition of defendant's product, or to guard against the possibility of its existence. This defense, if available to a manufacturer, would defeat plaintiff's recovery in spite of the fact that plaintiff is able to establish a prima facie case under Restatement, Torts 2d, § 402(A). It would be an affirmative defense in the sense that it avoids a liability otherwise established. However, many jurisdictions throughout the country have removed this defense from the manufacturer's arsenal when the plaintiff pleads under a special liability theory. Restatement, Torts 2d, § 402(A), Comment (n), supra; Williams v. Ford Motor Company, 454 S.W.2d 611 (Mo.App.1970); Devaney v. Sarno, 125 N.J.Super. 414, 311 A.2d 208 (A.D.1973); Ford Motor Company v. Henderson, 500 S.W.2d 709 (Tex.Civ.App.1973); Annot., 46 A.L.R.3d 240 (1972); Annot., 13 A.L.R.3d 1057 (1969). We note pursuant to our desire to make clear what this case is not about, that defendant herein neither alleged nor...