Burkhard v. Short

• Decision Date: 04 August 1971
• Parties: , 57 O.O.2d 215 BURKHARD et al., Appellants, v. SHORT, Admr., et al., General Motors Corp., Appellee.
• Court: Ohio Court of Appeals

Page 141

28 Ohio App.2d 141

275 N.E.2d 632, 57 O.O.2d 215

BURKHARD et al., Appellants, v. SHORT, Admr., et al., General Motors Corp., Appellee.

Court of Appeals of Ohio, Sixth District, Williams County.

Aug. 4, 1971.

Syllabus by the Court

1. Within the meaning of Section 402(A), Restatement of the Law, Torts 2d, a plainly visible unpadded steel cowl, sometimes known as a dash or dashboard, projecting toward the passenger's seat in a 1965 Chevrolet automobile, which is not shown to be unusual or unique in design as a departure from the design of all other automobile manufacturers or of all other automobiles by the same manufacturer, cannot be considered unreasonably dangerous.

2. A manufacturer of automobiles has no duty to a passenger injured by contact with an obviously unpadded cowl which could have been made 'safer' by padding and by recessing the same.

Thomas E. Hackett, Springfield, for appellants.

William A. Bish, Hogue, Dwyer & Bish, Bryan, for administrator Short.

Finn, Manahan & Pietrykowski and John Pietrykowski, Toledo, for appellee General Motors Corporation.

WILEY, Judge.

Plaintiff's claim herein is for personal injuries sustained by her while a passenger in a motor vehicle which was involved in an accident with another motor vehicle at the interesection of U. S. Route 127 and Williams County Road K.

The trial court granted the motion for summary judgment filed on behalf of the defendant General Motors Corporation and it is from that judgment of the trial court that the appeal herein was taken.

On July 13, 1968, plaintiff, Susan A. Burkhard, age 16, was a passenger in the front seat of a 1965 Chevrolet automobile involved in a collision with an automobile operated by defendant Short, now deceased. The cause of the collision was unrelated to the alleged defect in design. An unpadded steel cowl (dashboard) projected toward the passenger's seat and, on impact, plaintiff was thrown forward, striking her face upon the steel cowl, causing severe injuries.

The trial judge for the Court of Common Pleas of Williams County granted the motion for summary judgment on behalf of defendant General Motors Corporation.

Plaintiff filed a notice of appeal, and an assignment of error in this court on the one single statement that the judgment of the trial court was contrary to law.

The specific point involved in this case is the duty of the manufacturer as it relates to negligent design, as distinguished from negligent construction. There is no claim in this case that the materials were faulty or defective in themselves, or defective in construction.

In the Restatement of the Law by the American Law Institute, Torts 2d., Section 398, Chattel Made Under Dangerous Plan or Design, the general rule is stated:

'A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others * * *.'

Section 402A, relating to special liability of the seller of a product, applicable to a manufacturer also, states as follows:

'(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 * * *.'

Is a manufacturer liable for injury sustained by a passenger in an automobile as a result of a collision not caused by the alleged defect in design of the automobile in which the passenger was riding? No, say the courts in the following cases: Evans v. General Motors Corp. (7 Cir., 1966), 359 F.2d 822; Kahn v. Chrysler Corp. (D.C. 1963), 221 F.Supp. 677; Enders v. Volkswagenwerk (1968), CCH Products Liability, 5930; Walz v. Erie-Lackawanna Rd. Co., CCH Products Liability, 5722; and Biavaschi v. Frost, CCH Products Liability Reporter No. 2, Manufacturers, Distributors, Retailers Current Decisions No. 6547, in the Superior Court of New Jersey, Law Division, Bergen County, dated June 5, 1970.

In Biavaschi, the court held that the widow of a motorist, who sustained fatal injuries when the steering wheel of his Corvair struck him in the head after he was involved in a 50-mile-per-hour rearend collision with another vehicle, had no actionable claim against the manufacturer of her husband's car, the court stating that no liability follows where alleged faulty or defective design is not a proximate cause of the accident. The trial court cited the cases of Larsen v. General Motors Corp. (8 Cir., 1968), 391 F.2d 495; Dyson v. General Motors Corp. (D.C., 1969), 298 F.Supp. 1064; and Mikcle v. Blackmon (S.C.1969), 166 S.E.2d 173.

However, the New Jersey court also cited Evans v. General Motors Corp., supra, and other cases cited in the defendant's briefs herein, and came to the conclusion that Evans and Shumard, infra, reflect the majority view and are consonant with the law of New Jersey.

In Evans, the 'defect' was an X-frame which allegedly permitted the left side of the automobile to collapse when it was struck broadside by another automobile. The court stated that the manufacturer had 'a duty to test its frame only to ensure that it was reasonably fit for its intended purpose.' (Defect not obvious.)

In Kahn, it was stated that the duty of a manufacturer extends to 'ordinary use of the vehicle' and that the manufacturer has no obligation to so design his automobile that it would be safe for a child to ride his bicycle into same while the automobile was parked. (Obvious situation.)

In Enders, a motorist, injured in a head-on collision while driving a Volkswagen automobile, claimed that the injury, not the collision, was caused by failure of the design to guard against the effects of a collision. (The defendant there was a retailer, but the statement of the court is applicable.) The manufacturer had no duty, under the circumstances described, to the operator of the Volkswagen. The court, in the Enders case, stated as follows:

'This court is in no position to impose upon the automotive or any other industry a requirement or duty of vehicle design to minimize the effects of head-on collisions. * * * to impose the duty of preparing inexpensive cars against head-on collisions seems beyond the realm of sensible public policy.'

In the Walz case, supra, the Federal District Court in Indiana indicated that the manufacturer had no duty to make a vehicle which was safe to collide with trains, indicating further that if such requirements were to be imposed the policy-making bodies should decide, not the courts.

In cases referring to Ohio law, or decided by Ohio courts, the same results have been reached. Gossett v. Chrysler Corp. (C.C.A.6, 1966), 359 F.2d 84; Shumard v. General Motors Corp. (S.D.Ohio Ed., 1967), 270 F.Supp. 311; Blissenbach v. Yanko (1951), 90 Ohio App. 557, 107 N.E.2d 409; Snipes v. General Motors Corp., CCH Product Liability, 6037 (Ohio, C.P.Clark County 1968).

In Gossett, the facts indicated that the hood of an sutomobile opened in travel and that the latch would close securely unless the safety device was manually out of place. It was stated that the duty of the manufacturer in designing his product was to fairly meet any emergency of use reasonably anticipated. The court stated further that the manufacturer was not an insurer, insuring that his product, from design view-point, was incapable of producing injury. The cause was remanded to the District Court, with instructions to dismiss the complaint.

In Shumard, Chief Judge Weinman did cite with approval Evans v. General Motors Corp., supra, indicating that the issue of alleged negligence in design was identical to that in Evans. The facts in Shumard indicated that the plaintiff's decedent was in an automobile collision with another vehicle and was killed while in a 1962 Corvair automobile which erupted into flames arising after the collision. Judge Weinman dismissed the complaint on motion of the defendant, General Motors Corporation, for the reason that the complaint failed to state a claim against the defendant upon which relief could be granted. Blissenbach, supra, was cited in the opinion of Judge Weinman. The second paragraph of the syllabus of Blissenbach is as follows:

'A vaporizer is not per se a dangerous instrumentality, and where there is no hidden or latent defect in its construction, liability for injury to a purchaser-user thereof cannot be predicated upon the mere fact that such article is equipped with a loose and easily removable lid which is designed to act as a natural safety outlet in the event the aperture provided for escaping steam becomes clogged.'

In the Court of Common Pleas of Clark County, Ohio, in the case of Snipes, supra, the trial judge, Goldman, in an opinion citing many of the cases submitted by the defendant herein, sustained the demurrer of defendant, General Motors Corporation, stating:

'* * * it is quite clear that no liability follows where such faulty or defective design was not a proximate cause of the accident which caused the injuries complained of * * *. Whether or not the boundaries of liability should be expanded to the extent urged upon this court by the plaintiffs is a...