Bradford v. Bendix-Westinghouse Automotive Air Brake Co.

• Decision Date: 24 October 1973
• Docket Number: No. 72--395,BENDIX-WESTINGHOUSE,72--395
• Citation: 33 Colo.App. 99,517 P.2d 406
• Parties: Mary Jo BRADFORD and Hartford Accident and Indemnity Company, Plaintiffs-Appellees, v.AUTOMOTIVE AIR BRAKE COMPANY, a corporation, Defendant-Appellant, v. CHRISTENSEN BROTHERS TRUCKING AND EXCAVATING COMPANY, Third-Party Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 406

517 P.2d 406

33 Colo.App. 99

Mary Jo BRADFORD and Hartford Accident and Indemnity

Company, Plaintiffs-Appellees, v. BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE COMPANY, a corporation, Defendant-Appellant, v. CHRISTENSEN BROTHERS TRUCKING AND EXCAVATING COMPANY,

Third-Party Defendant-Appellee.

No. 72--395.

Colorado Court of Appeals, Div. I.

Oct. 24, 1973.

As Modified on Denial of Rehearing Nov. 20, 1973.

Certiorari Denied Jan. 14, 1974.

Alperstein, Plaut & Barnes, Frank Plaut, Lakewood, for plaintiffs-appellees

Weller, Friedrich, Hickisch & Hazlitt, William H. Hazlitt, Thomas H. Barrows, Denver, for defendant-appellant.

Wood, Ris & Hames, Eugene S. Hames, Denver, for third-party defendant-appellee.

PIERCE, Judge.

This is a products liability case involving a claim against Bendix-Westinghouse Automotive Air Brake Co. (Bendix) arising out of the failure of a brake pedal assembly produced by it. The assembly was installed as original equipment in a 1955 Mack Truck which was owned and operated by the third-party defendant, Christensen Brothers Trucking and Excavating Company (Christensen), from the time it was purchased until it was involved in an accident in 1969 as a result of which plaintiff Mary Jo Bradford incurred bodily injuries.

Initially, plaintiff Bradford and her insurance carrier sued both Bendix and Christensen. Following negotiations between Christensen and the plaintiffs, Christensen was dismissed from the suit. Thereafter, Bendix joined Christensen as a third-party defendant claiming indemnification from Christensen for the amount of any judgment which might be rendered against Bendix.

The complaint alleged claims for relief based on two theories of recovery: Bendix's negligence 'in its design, manufacture, sale and servicing' of the brake pedal assembly, and the theory of strict liability in tort. The trial court submitted the case to a jury with instructions on both theories after dismissing the third-party complaint for failure to state a proper claim for relief. Judgment was entered on a verdict in favor of plaintiffs, and Bendix brings this appeal on several grounds.

The accident occurred when the Christensen dump truck lost its air brake power while descending an incline on a Denver street. The truck then struck several automobiles, including one which plaintiff Bradford was driving. The evidence is not in dispute that the base of the brake pedal assembly had broken causing the brake pedal to become disconnected from the base and rendering it completely inoperative. The efforts of the truck driver to apply the emergency brake were unsuccessful in stopping the truck before impact. The evidence further establishes that it was necessary for a combination of mechanical failures in the brake pedal assembly to occur before the brake pedal could become disconnected from its base and therefore become inoperative. The assembly consisted of four basic parts: The assembly base, the brake pedal, the fulcrum pin, which held the brake pedal to the assembly base, and the cotter key which anchored the fulcrum pin by means of holes drilled through the left ear of the assembly base and the fulcrum pin. (See figure 1).

Figure 1

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The plaintiffs' theory of the case was that at the time of the accident the cotter key anchoring the fulcrum pin had come out of the assembly allowing the fulcrum pin to shift to the right so that it was no longer engaged in the left ear of the assembly base. (See figure 2). This situation resulted in unusual leverage exerted in the right ear of the assembly base with each application of the brake pedal. There was also testimony that the metal in the right ear of the assembly base contained a defect known as a 'cold-shut', a spot in the metal which did not properly fuse when the pedal base was cast. Apparently, at the time of the accident, the driver applied the brakes several times attempting to slow the speed of the vehicle and the right ear of the assembly base fractured, (see figure 3), permitting the fulcrum pin to become totally disengaged from the assembly base and making it impossible thereafter for him to apply the air brakes. The expert testimony presented was conflicting as to the adequacy of the design of the brake pedal assembly, particularly with regard to the sufficiency of the cotter pin device used to anchor the fulcrum pin, and also as to the severity of the alleged 'cold-shut' imperfection and its causal Figure 2

connection to the breakdown of the assembly.

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Figure 3

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STRICT LIABILITY

The paramount issue presented concerns the availability and application of the doctrine of strict liability under Colorado law. While we have acknowledged the availability of this doctrine under the law of this state and have given it tacit approval, See Ford Motor v. Conrardy, 29 Colo.App. 577, 488 P.2d 219, and Wright v. Creative Corp., 30 Colo.App. 575, 498 P.2d 1179, we have not heretofore delineated its principles and applied them to a specific fact situation

While Bendix maintains that Wright v. Creative Corp., Supra, is authority for the rejection of strict liability, we were careful there to point out that 'there are important differences between strict liability as applied to manufactured products and as applied to building construction situations.' Thus, contrary to Bendix's suggestion, that case suggests an implicit approval of the doctrine of strict liability with regard to cases involving manufactured products.

We find the doctrine correctly defined in Restatement (Second) of Torst § 402A, which provides:

'(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.'

Under this formulation, a plaintiff must show that the product in question was sold in a defective condition unreasonably dangerous to the user; that the injury to the ultimate user was caused by the defective condition; and that the product reached the user without substantial changes in the condition in which it was sold.

PRIVITY

Assuming the elements stated in 402A are established, the only bar to application of the strict liability in tort in this case would be the lack of privity of contract between Bradford and Bendix. While the Restatement, as presently drafted, extends only to the 'ultimate user or consumer,' the drafters have stated a caveat as to whether it should be extended to others within the zone of injury. See Restatement (Second) of Torts § 402A, Comment Caveat (1). Furthermore, we have not discovered any Colorado cases requiring privity of contract in the products liability context, whether the theory asserted be negligence, implied warranty, or strict liability. While two early federal cases, speculating as to what the law of Colorado might be, imposed the privity requirement in pre-Uniform Commercial Code warranty cases, See White v. Rose, 241 F.2d 94 (10th Cir. 1957), Senter v. B. F. Goodrich Co., 127 F.Supp. 705 (D.Colo.1954), the only Colorado cases which have imposed the privity requirements were cases dealing with implied warranties of merchantability by builder-vendors of newly constructed buildings. See Bolas Enterprises v. Zarlengo, 156 Colo. 530, 400 P.2d 447 and Wright v. Creative Corp., Supra. In other cases where the privity argument has been raised, the policy has been to exclude the requirement from that particular type of transaction, E.g., Gonzales v. Safeway Stores, Inc., 147 Colo. 358, 363 P.2d 667. Therefore, in the absence of controlling Colorado authority to the contrary, we hold that, in a products liability case, privity

of contract is not a prerequisite to recovery under the strict liability theory. For authority from other jurisdictions in accord with this ruling, see Caruth v. Mariani, 11 Ariz.App. 188, 463 P.2d 83; Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84; Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N.W.2d 129; Comment, Strict Products Liability to the Bystander: A Study in Common Law Determinism, 38 U.Chi.L.Rev. 625, passim.

DEFECTIVE CONDITION

Bendix further argues that even if strict liability under Section 402A is applicable, the facts before us do not establish the first element which is, a 'defective condition unreasonably dangerous to the user.' While a single all-inclusive definition of this phrase of Section 402A has not been formulated (See Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn.L.Rev. 363), the word 'defective' in that phrase does encompass imperfections in manufacture such as the 'cold-shut' in this case. See Lunt v. Brady Mfg. Co., 13 Ariz.App. 305, 475 P.2d 964. It has also been established that a defect in manufacture consisting of the use of a material which may not be safely used for the purpose intended is also within the purview of § 402A, Fanning v. Lemay, 78 Ill.App.2d 166, 222 N.E.2d 815, and that a properly manufactured product is defective if its design is unreasonably dangerous. Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229; Berkebile v. Brantly Helicopter Corp., 219 Pa.Super. 479, 281 A.2d 707. See generally W. Prosser, Law of Torts § 99 (4th ed.). From the record before us, a jury...