Cryts v. Ford Motor Co.

• Citation: 571 S.W.2d 683
• Decision Date: 08 August 1978
• Docket Number: 39159,Nos. 39158,s. 39158
• Parties: David CRYTS, Plaintiff-Respondent, v. FORD MOTOR COMPANY and Robert Uttendorfer, Defendants-Appellants. . Louis District, Division Three
• Court: Court of Appeal of Missouri (US)

Page 683

571 S.W.2d 683

David CRYTS, Plaintiff-Respondent, v. FORD MOTOR COMPANY and Robert Uttendorfer, Defendants-Appellants.

Nos. 39158, 39159.

Missouri Court of Appeals, St. Louis District, Division Three.

Aug. 8, 1978.

Motion for Rehearing and/or Transfer Docket # 39159 Denied

Sept. 15, 1978.

Application To Transfer Docket # 39159 Denied Nov. 6, 1978.

Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Mark T. Stoll, R. A. Wegmann, Hillsboro, for defendants-appellants.

Ely & Wieland, Robert C. Ely, St. Louis, for Ford Motor Co.

Schurr, Inman & Graziani, Robert L. Inman, Clayton, for plaintiff-respondent.

GUNN, Presiding Judge.

This appeal arises from a civil action in tort based on a two car collision in which plaintiff, David Cryts, suffered paraplegia. The jury returned a verdict in the amount of $150,000, and the judgment was entered against defendants Ford Motor Company (Ford), the manufacturer of the car plaintiff was driving, and Robert Uttendorfer, the driver of the car with which he collided. Uttendorfer's liability is premised on negligence in the operation of his vehicle, while Ford's liability is premised on strict liability for a defectively designed armrest which caused plaintiff's back to be broken when he was thrown against his door in the collision. Each defendant has appealed. Ford argues that the armrest in question was not defective as a matter of law; that regardless of any alleged defect it cannot be held liable for injuries sustained in a collision when the cause of the collision is unrelated to the injury producing defect. Further, Ford and Uttendorfer argue that the verdict directing instructions were improper. Uttendorfer also urges that the trial court erred in refusing to permit the jury to view a film of the scene of the accident. We find no error and affirm the judgment.

The accident occurred in Jefferson County on June 3, 1967 at approximately 2:00 P.M. The weather was warm and clear. Uttendorfer was northbound on the two lane access road adjacent to Interstate 55 near his home on Maple Lane. Plaintiff, who was nineteen at the time, was southbound on the same road driving a 1957 Ford Thunderbird which he was taking to his home for repair. Immediately south of Maple Lane the access road is straight and flat. To the north the road is also straight, but there is a dip about 640 feet from Maple Lane which impairs the ability of northbound drivers to see oncoming traffic. Plaintiff first saw Uttendorfer's vehicle when it was approximately one quarter mile away. When both cars were about 150 feet from Maple Lane, plaintiff noticed Uttendorfer's car edging into the wrong lane. Plaintiff took his foot off of the accelerator but did not begin to brake until he saw that Uttendorfer had moved completely into the southbound lane of traffic. At that time he applied his brakes hard, causing his car to skid, and he steered left into Uttendorfer's lane of traffic. At the same time Uttendorfer saw plaintiff and swerved back into his proper lane. The two cars collided at the intersection of Maple Lane in Uttendorfer's lane of traffic. On impact, plaintiff was first pitched forward and right, then back into the armrest. He felt an excruciating pain in his back and was unable to move his legs to apply his brakes. Plaintiff went crashing into a chain link fence to halt the movement of his car.

A state trooper who arrived at the scene shortly after the accident occurred measured plaintiff's skid marks and estimated his speed to have been 50-60 m. p. h. Uttendorfer's car left no skid marks, but his speed was estimated to have been 5-15 m. p. h. Uttendorfer told the trooper that he was preparing to turn left into Maple Lane when plaintiff's car suddenly appeared, prompting him to swerve left. At trial he denied ever crossing into the wrong lane of traffic.

Plaintiff was taken to a hospital after the accident. He was found to have suffered a broken back resulting in permanent paraplegia. An orthopedic surgeon who treated plaintiff testified that the trauma to the spine was caused by an object striking him in his back. He was unable to state unequivocally that the armrest in the 1957 Thunderbird was the crippling object.

Plaintiff relied on the testimony of Wallace Diboll, associate professor of mechanized engineering at Washington University, to establish the defective condition and design of the Thunderbird's armrest. Diboll testified regarding his studies of methods of energy absorption to lessen the effect of second collisions the first collision being between the automobile and another object and the second collision being between the automobile's occupant and a part within the automobile. Diboll concluded that there are two basic methods of energy absorption. The first requires the use of padded materials within the vehicle's interior to absorb energy by distributing the force of impact over an area rather than a concentration at one point. The second method would be to remove any protruding or sharp objects, thereby avoiding concentration of high stress energy at a narrow point. Mr. Diboll testified that his examination of the Thunderbird armrest revealed that it was manufactured from hard plastic with minimal energy absorption capacity and that the thickness of the prophylactic padding over the plastic was only .11 of an inch. He found further that the armrest's pointed shape did not provide a good distribution of force but concentrated energy absorbed by the body. Mr. Diboll stated that there were current designs which would be more effective in lessening the potential for second collision injuries.

Ford presented evidence concerning the safety of the design and condition of its 1957 Thunderbird. Ford's witness testified that the purpose of the Thunderbird armrest was to provide a handle to close the door, to serve as an armrest and, in a collision, to prevent the driver from making contact with the car door hardware. The Ford expert testified that the alternative armrest suggested by Mr. Diboll would not provide these functions nor conform with federal regulations in effect at the time of trial. The federal regulations did not exist at the time the 1957 Thunderbird was manufactured and were not introduced into evidence.

Plaintiff predicates his theory of recovery on the principle of strict liability in tort for the defective design and condition of the 1957 Thunderbird armrest as applied in the so-called "second collision" or "injury enhancement" doctrine. See generally: Annot. 42 A.L.R.3d 560 (1972). While the second collision doctrine is a new concept to Missouri state law, there is ample precedent for its application found elsewhere. ¹ And for the reasons which follow, we believe that its application should receive our cachet of acceptance here.

In Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969), the rule of strict liability in tort embodied by Restatement (Second) of Torts § 402A (1965) was adopted by the Missouri Supreme Court ² and is the matrix shaping the second collision doctrine. The second collision doctrine merely extends the scope of liability of a manufacturer to the situations in which the construction or design of its product has caused separate or enhanced injuries in the course of an initial accident brought about by an independent cause. Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir. banc 1976); Dreisonstak v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974). In this case, the second collision was plaintiff's body striking the armrest after the first collision between the Thunderbird and the Uttendorfer vehicle. The second collision doctrine differs from the typical § 402A case, in that the defect would not have produced any injury in the absence of an intervening cause which sets the injury producing cycle into action. The source of the original or intervening cause is irrelevant so long as the plaintiff's particular use of the product is reasonably foreseeable. Nanda v. Ford Motor Co., 509 F.2d 213 (7th Cir. 1974). The Eighth Circuit, in applying Missouri law and in adopting the second collision doctrine, specifically held that a manufacturer could be held liable for injuries shown to have been caused or enhanced by the defective condition of its product which was being used in a manner reasonably anticipated in the course of an accident brought about by an independent cause. Polk v. Ford Motor Co., supra.

The policy considerations supporting the application of § 402A strict liability to the second collision doctrine are congruent and compelling. The doctrine is based on the public policy that the costs of injuries from defective products are to be borne as a cost of business by the manufacturer who placed the product in the stream of commerce, and not by the injured parties who are unable to protect themselves. Keener v. Dayton Electric Manufacturing Co., supra; Polk v. Ford Motor Co., supra; Restatement (Second) of Torts § 402A, comment (c) (1965).

"(T)he rule of strict liability is an economic theory applicable to persons engaged in the business of selling products for use or consumption, where the concepts of care, wrong, fault, and negligence in general, are no longer the determinants of liability; and a case has been said to be one of strict liability in tort, when neither care nor negligence, neither good nor bad faith, and neither knowledge nor ignorance will save a defendant." 72 C.J.S. Supplement Products Liability § 7.

The seminal case in the second collision area is Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). The court recognized that while a manufacturer's duty could rest upon general negligence principles, each state should feel free to supplement the common law with a doctrine of strict liability in tort as a matter of social policy. Id. at 502, n.5. Missouri has adopted the strict liability formulation. Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977); Keener v. Dayton...