Cornelius v. Bay Motors Inc.

CourtSupreme Court of Oregon
Writing for the CourtTONGUE; O'CONNELL
Citation258 Or. 564,484 P.2d 299
Parties, 54 A.L.R.3d 340 Herman Valrie CORNELIUS, Respondent, v. BAY MOTORS INC., a corporation, Appellant.
Decision Date29 April 1971

Page 299

484 P.2d 299
258 Or. 564, 54 A.L.R.3d 340
Herman Valrie CORNELIUS, Respondent,
BAY MOTORS INC., a corporation, Appellant.
Supreme Court of Oregon, In Banc.
Argued and Submitted Jan. 5, 1971.
Decided April 29, 1971.

[258 Or. 566]

Page 300

John T. Foss, Coos Bay, argued the cause for appellant. With him on the briefs were McKeown, Newhouse & Johansen, Coos Bay.

Lawrence F. Cooley, Eugene, argued the cause for respondent. With him on the brief were Sahlstrom, Starr & Vinson, Eugene.

TONGUE, Justice.

This is an action in strict liability for personal injuries sustained by the driver of an automobile which was 'rear-ended' by an automobile with defective brakes and which had been sold by defendant as a used car on the very morning of the day of the accident. 1 Defendant appeals from an order granting plaintiff's motion for a new trial after entry of a judgment based upon a jury verdict for defendant. Plaintiff's motion for a new trial was based primarily upon the ground that the court had erred in denying plaintiff's motion for a directed verdict on the issue of liability. 2

Page 301

Three questions are presented on this appeal:

1. Does strict liability under Restatement (Second) of Torts § 402A, include sellers of used automobiles? 3

[258 Or. 567] 2. Does strict liability under § 402A extend to persons other than 'users or consumers' of defective products?

3. Was the question whether the used car in question was in a 'defective condition unreasonably dangerous,' within the meaning of § 402A, properly submitted to the jury as a question of fact under an instruction that 'unreasonably' in this context means 'dangerous to an extent beyond that which would be contemplated by the ordinary purchaser?' Conversely, should the trial court have decided that question as a matter of law?

The determination of these questions depends largely upon the following facts.

On June 1, 1968, Gregory Keylock purchased for his daughter from defendant, an automobile dealer, a used 1961 Plymouth Valiant automobile, with approximately 50,000 miles of use, for $500. Mr. Keylock operated several trucks in his business and was a qualified aircraft mechanic. Defendant's salesman had previously sold some 20 cars or trucks to Mr. Keylock.

This seven-year old used car had been in on a trade and was in 'real topnotch shape' at that time, according to its former owner. Some two years previously the master brake cylinder had been replaced, although it does not appear that this was known to [258 Or. 568] Mr. Keylock. The previous owner also testified that he had no previous brake trouble.

Defendant's salesman testified that he was also a qualified aircraft mechanic and that before selling this car to Mr. Keylock he 'checked the tires, engine, transmission, etc.,' put it 'through a pretty severe brake test' and drove it about 20 miles, during which he had no trouble with the brakes. He admitted that the level of brake fluid could have been checked, but that he did not do so. He testified, however, that if brake fluid had been leaking from the master cylinder there would have been fluid on the 'fire wall' and that he also would have been able to smell the brake fluid inside the car, but that there was no smell of brake fluid prior to selling the car and nothing to indicate that the level of the brake fluid was low or that it was leaking at that time.

Mr Keylock, the purchaser, testified that the car was sold to him with an 'O.K. sticker,' meaning that it had been 'checked,' and that the salesman said that it was in good condition. Before the car was delivered to his daughter, however, he drove it two or three miles to test, it, including a 'brake test.' He looked underneath the car and saw no evidence of leaking brake fluid or of other defects in the brakes. He also did not check the level of the brake fluid, but testified that there was no indication that the brake fluid was low when he drove the car. He testified that when he tested the car it appeared to have 'very good' brakes, but that a car 'could have a brake failure without any prior warning for this sort of thing.'

Page 302

Laurie Keylock, the daughter of the purchaser, then picked up the car and drove it for several miles over a period of two hours, including stops for a music [258 Or. 569] lesson, to visit friends and to visit a root beer stand. During that period she used the brakes 'several times' and they operated normally.

Approaching a stop light, however, at a speed of between 25 and 35 miles per hour, and when about three or four car lengths from cars ahead of her, she applied her brakes, but found that the 'pedal went to the floor' and that the brakes 'went out completely.' As a result, her car 'rear-ended' plaintiff's car. Defendant's salesman then arrived, tested the brakes, and found that there were 'no brakes,' with 'no tension at all.'

The car was then repaired by a mechanic, who testified as a witness on behalf of the plaintiff that the rubber 'cups' in the master brake cylinder were 'deteriorated enough to let the fluid through' and that when the car came to him the fluid was 'leaking out the back end of the master cylinder.' He also testified that to discover the deterioration of these rubber 'cups' it would have been necessary to disassemble the master brake cylinder. He testified, however, that once these rubber 'cups' start to leak, such a deteriorated condition then 'accelerates so that the 'cups' fail rapidly or can fail rapidly,' with the result that 'all of a sudden you step on your brakes and you don't have any.'

Thus, the mechanic also testified that once the rubber 'cups' start to leak, even 30 to 35 applications of the brakes could 'eject' sufficient fluid to cause such a brake failure. As a result, he said that it was possible that the rubber 'cups' in the master cylinder did not start to leak until the day of the accident (after sale of the car that morning) and after 20 to 35 additional applications of the brake. To the same effect, [258 Or. 570] he testified that the brake fluid could have been at a normal level that morning and could have been 'pumped dry' later that same day.

The mechanic testified at one point that an examination of matting in the fire wall the day before the sale 'probably' would have revealed a leak in the brake fluid. At another point, however, he testified that the brake fluid has a distinctive odor and, if leaking, would create an odor inside the car. As previously noted, the salesman testified that prior to the sale of the car (including his test drive with the purchaser that morning) there was no such odor. He also testified that when he picked up the car after the brakes had 'gone out' and had been repaired there was a 'very strong' odor of brake fluid. Although admitting that in replacing the brake fluid, some might have been spilled in pouring, he said that was unlikely.

Upon conclusion of the testimony defendant moved for a directed verdict. Plaintiff also moved for a directed verdict on the issue of liability, contending that the brakes were 'unreasonably dangerous in that they were dangerous to an extent beyond that which would be contemplated by the ordinary purchaser.' Both motions were denied.

The case was then submitted to the jury under instructions which included the following:

'A product is dangerously defective when it is in a condition unreasonably dangerous to the user. 'Unreasonably' in this regard means dangerous to an extent beyond that which would be contemplated by the ordinary purchaser of this type of product in the community.

'* * * 'Unreasonably,' in this context, means [258 Or. 571] dangerous to an extent beyond that which would be contemplated by the ordinary purchaser.'

No exceptions were taken by plaintiff to the form of these instructions.

For the purposes of this case we may assume, without deciding, that the rule of Restatement (Second) of Torts § 402A, as expressly adopted by this court in Heaton v. Ford Motor Company, 248 Or. 467, 470, 435 P.2d 806 (1967), is binding upon dealers

Page 303

in used motor vehicles and also that the benefits of that rule extend to 'bystanders' or other third parties injured by defective motor vehicles. Indeed, we expressly reserve ruling upon both of those questions. 4

Regardless of the application of § 402A to dealers in used automobiles and to 'bystanders' and other third parties, we hold that the facts of this case [258 Or. 572] were such that the jury could have properly found that there was no liability under § 402A in this case.

By the terms of § 402A, the rule of strict liability is applicable to the sale of a 'defective product Unreasonably dangerous to the user or consumer.' According to Comment i under § 402A:

'* * * The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.'

This court, in Heaton v. Ford Motor Company, Supra, held that the application of this test under § 402A is ordinarily a question of fact to be decided by a jury. Thus, at 248 Or. p. 472, 435 P.2d p. 808, we said that:

'* * * it is for the jury rather than the court to say in the ordinary case whether a given product failed to meet the standard.'

and, at 474, 435 P.2d at 809:

'The jury is supposed to determine the basically factual question of what reasonable consumers do expect from the product.'

To the same effect, as stated by the dissenting opinion in Heaton, at p. 478, 435 P.2d at p. 811:

'The members of the jury draw upon their experiences and observations and set up some kind of a standard as a measure against which to appraise the defendant's conduct in the particular case.'

See also Storey v. Exhaust Specialties, 255 Or. 151, 464 P.2d 831 (1970). 5

[258 Or. 573] Plaintiff contends that the seven-year old used car in this case was not only clearly defective, but that it was...

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