Brown v. Ford Motor Company, 73-1604.
| Decision Date | 12 March 1974 |
| Docket Number | No. 73-1604.,73-1604. |
| Citation | 494 F.2d 418 |
| Parties | Geneva BROWN, Individually and as Administratrix of the Estate of Thomas J. Brown, Deceased, Plaintiff-Appellant, v. FORD MOTOR COMPANY, a corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles W. Stubbs, Oklahoma City, Okl., for plaintiff-appellant.
Wm. G. Smith, Oklahoma City, Okl., for defendant-appellee.
Before HILL, HOLLOWAY and BARRETT, Circuit Judges.
In this removed action,1 based on diversity, appellant Geneva Brown brought suit against appellee Ford Motor Company for the wrongful death of her husband. The complaint alleges the deceased was attempting to step up on the tailgate of a pickup truck manufactured by appellee, that the tailgate came unlatched, and that the deceased was thrown to the ground, sustaining head injuries causing his eventual death. It is claimed that the tailgate's locking device was defectively manufactured and installed, constituting a breach of implied warranty of fitness.
Based upon the pleadings, depositions, affidavits and other discovery, the district court for the Western District of Oklahoma granted appellee's motion for summary judgment. We have carefully examined the record in the light most favorable to the party opposing the motion, as we must, and find that no genuine issue exists as to any material fact. Accordingly, we affirm.
The record discloses the following relevant facts. Appellant, her husband, and a son, Tom, were on a fishing trip in Mexico in November, 1968. They were travelling in Tom's vehicle, a 1968 Ford pickup truck, with a homemade camper shell mounted on the back. While in Mexico, and enroute to their destination, the Browns parked the vehicle on the shoulder of the highway for a moment's rest. Upon attempting to reenter the highway, the vehicle became stuck in some sand. Appellant and Tom remained in the cab while the deceased climbed on the rear of the vehicle in an effort to obtain more traction. Upon freeing the vehicle Tom, who was driving, glanced in the rear view mirror and observed his father sprawled out on the highway. Approximately four months later, the deceased died as a result of a bilateral subdural hemotoma, caused by a blow or blows to the head.
Although appellant claims the accident was caused when the tailgate came unlatched as the vehicle was moving onto the highway, throwing the deceased to the ground, the record does not support this allegation. Appellant candidly admitted, in her deposition, that she did not observe the accident. She does not know what part of the vehicle the deceased was riding on, what he was holding on to, how the accident happened, or if the tailgate was open or closed immediately following the accident. The deposition of the Brown's insurance agent sheds the only light on this question. Upon inquiring as to the cause of the accident in order to initiate a claim, he was informed the deceased was riding on the open tailgate and was knocked off when the vehicle hit a small bump.
Our search of the record also fails to reveal any evidence substantiating appellant's contention that the tailgate was defective. Appellant had no knowledge, before the accident, that the tailgate would not close properly. In fact, she had never attempted to open or close it because she did not know how. She had, however, observed her husband and son opening and closing the tailgate on several occasions, and testified that it always fastened. She concluded the tailgate was defective because her son, Tom, told her so shortly after the accident, although he had never mentioned it before. The record discloses that service and repair work was performed on the vehicle by authorized Ford dealers both before the accident and while the deceased was in the hospital, but that Tom did not complain of any problems with the tailgate on either occasion.
Furthermore, a physicist with a background in metallurgy conducted experiments on the...
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