Caruth v. Mariani

• Decision Date: 04 September 1969
• Docket Number: CA-CIV,No. 2,2
• Citation: 10 Ariz.App. 277,458 P.2d 371
• Parties: Clifton W. CARUTH and Mary E. Caruth, husband and wife, Appellants, v. John MARIANI and Rosetta Mariani, husband and wife; Young Buick Company, an Arizona corporation; and General Motors Corporation, a Delaware corporation, Appellees. 633.
• Court: Arizona Court of Appeals

Page 371

458 P.2d 371

10 Ariz.App. 277

Clifton W. CARUTH and Mary E. Caruth, husband and wife, Appellants, v. John MARIANI and Rosetta Mariani, husband and wife; Young Buick Company, an Arizona corporation; and General Motors Corporation, a Delaware corporation, Appellees.

No. 2 CA-CIV 633.

Court of Appeals of Arizona, Division 2.

Sept. 4, 1969.

Holesapple, Conner, Jones, McFall & Johnson, by Blair D. Benjamin, Tucson, for appellants.

Chandler, Tullar, Udall & Richmond, by James L. Richmond, Tucson, for appellees Mariani.

Murphy & Vinson, by John U. Vinson, Tucson, for appellee Young Buick Co.

Lesher, Scruggs, Rucker, Kimble & Lindamood, by William Kimble, Tucson, for appellee General Motors Corp.

MOLLOY, Chief Judge.

This is an appeal from judgment entered on verdicts directed by the trial court against the plaintiffs and in favor of all three defendants to an action brought by plaintiffs for injuries received when the plaintiffs' car was struck in the rear-end by a 1964 Buick station wagon. The cause of the accident was a brake failure of the Buick.

The defendants, Mariani, had purchased this car 'new' from the defendant, Young Buick, on July 29, 1964. The accident occurred on October 22, 1964 (less than four months after purchase). Between the time of purchase and the time of accident, Young Buick had performed all maintenance on the automobile and no work had been performed on the brakes. The defendant, General Motors Corporation, is the manufacturer of the car. There is no suggestion in the record of any failure on the part of the defendants, Mariani, to use ordinary prudence in the maintenance of their automobile. When hit, the plaintiffs were stopped in traffic, waiting for a car ahead to make a left turn. There is no contention that the plaintiffs were negligent in any respect.

The cause of the brake failure was a rupture in a steel tube containing hydraulic fluid. Evidence as to why this steel tube ruptured is sparse but significant. After the accident, repair was made by defendant, Young Buick, and its records, admitted in evidence, indicate that the brake line '* * * rubed (sic) through on body.' Mrs. Mariani testified that she saw the tube at Young Buick immediately after the accident and that there was a 'hole' in the line '* * * like it had been rubbed, oblong, like a little football, about a quarter of an inch.'

An accident investigator, employed by the defendant, General Motors, testified:

'* * * it (the hole) was just forward of where the floor pan on the back makes an upward bend * * *'

This expert testified that there was evidence of wear in the area of this hole, larger than the hole itself, and it was his opinion that this worn area would Not have been visible from the underneath side of the automobile. This witness opined that the pressure of the brake pedal immediately prior to the accident caused this worn spot to rupture, resulting in the brake failure.

The steel tube involved was not available at the time of trial. General Motors' accident investigator stated that he 'thought' he had taken possession of it after the accident but he later searched for it and was unable to find it. The Buick had been driven slightly more than 10,000 miles at the time of this accident.

At the conclusion of the plaintiffs' case, which included the foregoing on the issue of liability and a great deal more on the issue of damages, the court directed a verdict in favor of the defendants, General Motors and Young Buick. At the conclusion of all the evidence, which added nothing more on the issue of liability other than an opinion of the plaintiffs that defective design on the part of General Motors caused this brake failure, the court directed a verdict in favor of the defendants, Mariani. This appeal questions the propriety of the three directed verdicts.

STRICT LIABILITY

Among the plaintiffs' contentions is that of strict liability. Our Supreme Court has adopted § 402(A), Restatement (Second) of Torts as the law of this state. O. S. Stapley Company v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968). This rule imposes liability upon a seller, regularly engaged in selling the particular product, for any product sold '* * * in a defective condition unreasonably dangerous to the user or consumer or to his property * * * for physical harm thereby caused To the ultimate user or consumer, or to his property * * *' (Emphasis added.) The Restatement rule issues a caveat as to whether such liability extends '* * * to persons other than users or consumers * * *'

In a continuation of the trend towards a judicial shifting of the loss resulting from accidental injuries, a number of recent cases have extended the doctrine of strict liability to give protection to non-consumers, such as these plaintiffs, whom the seller should have foreseen might be endangered by the defective product. Elmore v. American Motors Corporation, 70 A.C. 615, 75 Cal.Rptr. 652, 451 P.2d 84 (1969); Mitchell v. Miller, 26 Conn.Sup. 142, 214 A.2d 694 (1965); Piercefield v. Remington Arms Company, 375 Mich. 85, 133 N.W.2d 129 (1965); Darryl v. Ford Motor Company 440 S.W.2d 630 (Tex.1969). The rationale for these decisions varies. In Elmore, the court said:

'In Greenman v. Yuba Power Products, Inc., Supra, 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901, we pointed out that the purpose of strict liability upon the manufacturer in tort is to insure that 'the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves."

'In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. In other cases the retailer himself may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end; the retailer's strict liability thus serves as an added incentive to safety. Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship.'

75 Cal.Rptr. at 656, 657, 451 P.2d at 88, 89.

In Darryl, the court said:

'There is no adequate rationale or theoretical explanation why non-users and non-consumers should be denied recovery against the manufacturer of a defective product. The reason for extending the strict liability doctrine to innocent bystanders is the desire to minimize risks of personal injury and/or property damage.'

440 S.W.2d at 633.

In Mitchell, the court said:

'The search for correct principles to delineate manufacturers' responsibility to consumers has found expression in the doctrine of tort and strict liability.

'The public policy which protects the user and consumer should also protect the innocent bystander. * * * There seems to be no sound public policy to bar a trial upon the issues raised in the complaint.'

214 A.2d at 697, 699.

In Piercefield, the court said:

'* * * the developing weight of authority, the essence of which is that the manufacturer is best able to control dangers arising from defects of manufacturer * * *'

133 N.W.2d at 134.

We see a common thread running through these decisions. A sense of social justice has induced each of these courts to adopt the rule which they conceive will pass on to manufacturers the loss from accidental injuries resulting from defective products. If the doctrine were confined to manufacturers, this court would have no uneasiness about extending the doctrine to bystanders, because, insofar as manufacturers are concerned, there is very little distinction between the strict liability doctrine and liability based upon fault. As the majority states in Piercefield:

'Some quibbler may allege that this is liability without fault. It is not. As made clear above, a plaintiff relying upon the rule must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product.'

133 N.W.2d at 135.

But these assaults upon the citadel do not stop here, as indicated by the encompassing view taken by Elmore. Once a court loses sight of the lodestar of liability based on fault, it becomes easy to impress liability upon others, who have done nothing wrong, and who may be subjected to financial ruin because of judicial insistence upon '* * * maximum protection to the injured plaintiff * * *' The situation in this case, of course, presents a poor opportunity for pointing out the hazards of extending this doctrine. Here, we have a retailer which is a carefully selected distributor of the product of the manufacturer, and there is a '* * * continuing business relationship' which will permit adjustment of any liability imposed upon the retailer under this beguiling new doctrine. And the plaintiffs here are obviously innocent of any contributory negligence, so that those sitting in judgment, whose natural inclinations may be to let the loss fall upon those most at fault, will feel no qualms of conscience in imposing liability upon Young Buick.

But, if the judiciary is to make new law, and discard the old because it is inconsistent, the least it can do is to select law which is not itself impregnated with inconsistency. The rule which we are asked to extend here is one that imposes liability upon the seller, regardless of contributory negligence of a plaintiff (leaving aside assumption of risk), Stapley, supra, 103 Ariz. at 561, 447 P.2d 248, and regardless of whether there is a '* * * continuing business relationship' between the retailer and the manufacturer. See § 402(A), Restatement (Second) of Torts. As to retailers who have purchased defective products from...