Clary v. Fifth Ave. Chrysler Center, Inc.

• Decision Date: 05 May 1969
• Docket Number: No. 946,946
• Citation: 454 P.2d 244
• Parties: 6 UCC Rep.Serv. 664 Grace I. CLARY, Appellant, v. FIFTH AVENUE CHRYSLER CENTER, INC., and Chrysler Corporation, Appellees.
• Court: Alaska Supreme Court

Page 244

454 P.2d 244

6 UCC Rep.Serv. 664

Grace I. CLARY, Appellant, v. FIFTH AVENUE CHRYSLER CENTER, INC., and Chrysler Corporation, Appellees.

No. 946.

Supreme Court of Alaska.

May 5, 1969.

Theodore R. Dunn, Warren W. Matthews, Jr., of Burr, Boney & Pease, Anchorage, for appellant.

James J. Delaney, Jr., Delaney, Wiles, Moore & Hays, Charles W. Hagans, Hagans & Opland, James K. Singleton, Anchorage, for appellees.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

OPINION

NESBETT, Chief Justice.

The question presented is whether this court should adopt for Alaska the doctrine of strict liability in tort in product liability cases.

Appellant purchased a new Plymouth Fury I station wagon automobile from appellee Fifth Avenue Chrysler Center, Inc., which had been manufactured by appellee Chrysler Corporation. Some three weeks after she had taken delivery appellant became ill after she had had occasion to sit in the automobile for an extended period of time with the engine running, with the heater on full force, and with the side window rolled partially down.

In her complaint appellant alleged that she had suffered brain damage from carbon monoxide poisoning as the result of various defects in the design and manufacture of the automobile.

At the close of appellant's case the trial court entered a directed verdict against her and in favor of appellees with respect to that portion of her suit which would have imposed strict liability in tort upon both appellees. The trial court found that appellant had produced sufficient evidence to present a jury question on the issues of negligence and breach of warranty, but had failed to present evidence sufficient to present a jury question on the issue of strict liability.

The trial court instructed the jury on negligence and warranty, but refused to give appellant's proposed instruction number 21 which listed 16 duties of a manufacturer with respect to carbon monoxide; appellant's proposed instruction number 5 which would have instructed the jury that:

A manufacturer is strictly liable when an article he places on the market proves to have a defect that causes injury to a human being.

and appellant's proposed instruction number 6 which would have instructed the jury that a

retailer is strictly liable when he sells an article which proves to have a defect that causes injury to a human being.

We are of the opinion that the the trial court should have given appellant's proposed instructions numbered 5 and 6. Appellant had introduced evidence that certain body drain plugs had been found to be missing from the automobile and that a loose clamp was found on the exhaust line after an inspection made after the incident alleged to have caused carbon monoxide poisoning. There was testimony that these defects could have permitted carbon monoxide to enter the passenger compartment. There was also evidence that the rear window would occasionally fall open due to some undetermined defect, although there was no evidence that this window was open or down at the time appellant was alleged to have been poisoned. The evidence disclosed that the car had been in appellant's possession something more than two weeks and had been driven about 1,000 miles at the time of the incident complained of.

In granting appellees' motions for directed verdict on the issue of strict liability the court stated in part:

It seems to me that when we have a new car and we have it going through the hands of Chrysler Sales Corporation whatever it is and through Fifth Avenue Chrysler, it makes no difference, we're still putting a new car into commerce and if the defect existed and if the defect caused the damage, that the damage-that the manufacturer is not insulated by the reason of the fact that it went through the hands of the sales organization and of the dealer. However, we have here a period of at least two weeks between the time that this car was delivered and the time of the alleged incident. What happened to the car in that two weeks I don't know. Whether or not the drain plug dropped out during that period of time when they were in there properly, I don't know. Whether or not the clamp came loose, I don't know. Whether or not the window did or didn't come down when it shouldn't, I don't know. There isn't any evidence at all on any of those points. It seems to me then that under this doctrine of strict liability, it's absolutely essential, in order to rely on that doctrine that you've got to show that the-that the vehicle in question here was in the same condition it was at least at the time that it left the Fifth Avenue Chrysler. There hadn't been any evidence at all along that line that I can find and I don't think that the inferences Mr. Matthews has asked me to draw are valid and as of this time I do not intend to put the case to the jury on the issue of strict liability. I do intend to put it to the jury on the issue of negligence. (Emphasis supplied).

The court then granted a directed verdict to Chrysler Corporation on the issue of strict liability.

Later in the proceedings however, when discussing implied warranty of fitness, the following took place:

MR. DELANEY: Your Honor, ah, we would like to inquire with regard to Chrysler Corporation. It's my understanding that an essential element of a breach of warranty is that a defect exist also at the time of, ah-it was sold.

THE COURT: I'm starting out with the idea that this defect did, at least if there was sufficient evidence to go to the jury as to whether or not the defect existed at the time it was sold by Chrysler, by Chrysler Sales Corporation and by Fifth Avenue Chrysler. I'm satisfied with a new car like this that, we just wouldn't have gotten the result that we got unless there's something wrong with it.

We are of the view that the same evidence which the trial judge found sufficient to take the case to the jury on the issue of negligence was sufficient in this instance to warrant giving the case to the jury on the issue of strict liability.

The facts before us are similar in many respects to those considered by the Supreme Court of California in Vandermark v. Ford Motor Co. ¹ There appellant was severely injured when the new automobile he had purchased some six weeks and 1,500 miles earlier went out of control on the highway and crashed into a telephone pole. Appellant's expert witness on the operation of hydraulic automobile brakes testified that in his opinion the brakes of the automobile applied themselves because of a failure of the piston in the master cylinder to operate as intended. The trial court struck the testimony of the possible causes of the failure of the hydraulic system on the ground that there was no direct evidence that any one or more of the causes existed and it rejected plaintiff's offer to prove that all of the possible causes were attributable to defendants. The supreme court held that the ruling was error on the ground that appellants were entitled to establish the existence of a defect and of appellee's responsibility for the defect by circumstantial evidence in view of the fact that the damage to the automobile in the collision prevented determining whether or not the hydraulic master cylinder assembly had been properly installed and adjusted before the accident.

In so holding the court reaffirmed its rule of Greenman v. Yuba Power Products, Inc.: ²

A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.

The court went on to hold that since appellants had also introduced evidence that the defect was caused by some negligent conduct for which the Ford dealer was responsible, that the trial court erred in granting a non-suit with respect to the retailer stating:

Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. * * * 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. Accordingly, as a retailer engaged in the business of distributing goods to the public, Maywood Bell is strictly liable in tort for personal injuries caused by defects in cars sold by it. ³

The states that have judicially embraced strict tort liability are divided between the approaches of Greenman and the Restatement of (Second) of Torts section 402A (1965). ⁴ Five states, Nevada, Oklahoma, New Jersey, New York, and Florida appear to follow Greenman. ⁵ Twelve jurisdictions follow the Restatement: Arizona, Connecticut, Kentucky, Mississippi, Missouri, Pennsylvania, Tennessee, Texas, Wisconsin, Oregon, and Illinois. ⁶ In addition, several federal courts, in the absence of controlling state decisions, have adopted the Restatement as the law which would be applied by the state courts of Colorado, Montana, South Dakota, and Indiana. ⁷ Minnesota has adopted strict tort liability but has not yet distinguished between Greenman and the Restatement. ⁸

As in Greenman and Vandermark, appellees herein have urged the application of statutory provisions governing sales warranties. ⁹ The argument is that the law of sales contract warranties as construed by the courts affords the same protection to the consumer as that...