Elliott v. General Motors Corporation

• Decision Date: 14 December 1961
• Docket Number: No. 13353.,13353.
• Citation: 296 F.2d 125
• Parties: Loraine ELLIOTT, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

296 F.2d 125 (1961)

Loraine ELLIOTT, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant-Appellee.

No. 13353.

United States Court of Appeals Seventh Circuit.

November 8, 1961.

Rehearing Denied December 14, 1961.

Leon D. Cline, Columbus, Ind., Howard S. Young, Jr., Indianapolis, Ind., for appellant.

Hugh E. Reynolds, Lloyd H. Milliken, Jr., Indianapolis, Ind., for defendant-appellee; Locke, Reynolds, Boyd & Weisell, Indianapolis, Ind., of counsel.

Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Loraine Elliott, plaintiff, has appealed from an order of the district court dismissing his action for damages against General Motors Corporation, a Delaware corporation, thereby sustaining defendant's contention that plaintiff's complaint failed to state a claim against defendant upon which relief can be granted.

So far as here relevant, the complaint alleges that defendant, a manufacturer and distributor of passenger automobiles, manufactured and assembled a certain Chevrolet automobile, and as a part thereof a splash shield was bolted and attached to the underneath side of the automobile near the front end, which shield was a single sheet of metal approximately 28 inches by 12 inches in size with an opening approximately 11 inches by 7 inches, which opening was designed to permit mechanics to insert their hand and arm through the opening and perform necessary work or labor, and gain entrance to the automobile's engine and oil pan from beneath the automobile. The shield in question was defective, hazardous and dangerous in that the edge of the opening was so pressed or formed that it had a sharp knife-like cutting edge, which condition was concealed from view. Said Chevrolet was then sold to a named distributor of Columbus, Indiana, who sold it to William Weisner. On December 3, 1958 Weisner took the automobile to the distributor for repairs by having the engine's piston rings replaced, while plaintiff was employed by the distributor as a mechanic. He was assigned to the job. While plaintiff lay on his back underneath said automobile with his hand extended through said splash shield opening, removing fan pulley bolts and loosening connecting rod bolts with a socket wrench, his hand slipped from the wrench throwing the wrist of his right arm into and against the sharp dangerous and defective edge of said splash shield opening causing the wrist and tendons to be severely cut, and there was severance of the median nerve, flexor tendons of the hand, muscles, and arteries of the right arm. His right hand and arm have been permanently disabled and he has not been able to carry on his trade as a mechanic. Past and future loss of wages, and hospital and medical expenses are also alleged.

The complaint charges that these injuries solely and proximately resulted from the following negligent and careless acts and omissions of defendant, referred to as G.M.C.:

(1) G.M.C. negligently and carelessly assembled said defective splash shield with the edge of its opening in a sharp rather than blunt condition, knowing that said opening was designed for and would be used by mechanics, such as this plaintiff, in making various engine repairs, and when it further knew that the hands, arms and wrists of such mechanics would be in close proximity to said sharp and hazardous opening which would cause injuries thereby.

(2) At the time said automobile was sold by G.M.C., the opening of said splash shield had an extremely sharp edge and thereby was dangerous and unsafe for mechanics to use to gain access to the underneath side of the automobile engine, which was the purpose for which said shield and its opening was designed; and at that time G.M.C. knew, or by the exercise of ordinary care could have known, of said dangerous and unsafe condition of said splash shield, but wholly failed to notify and warn the purchaser of such defect.

(3) That G.M.C. negligently and carelessly manufactured and assembled said defective splash shield to said automobile, knowing that the opening thereon was designed for and would be used by mechanics and other persons, such as this plaintiff, in gaining access to the underneath side of the vehicle\'s engine in making various repairs thereto, and when said G.M.C. further knew that the hands, arms and wrists of such persons would be in close proximity to the sharp and hazardous opening of said splash shield and that the same was imminently dangerous and would cause injuries to the persons so using said opening.

(4) That G.M.C. knew, or by the exercise of ordinary care could have known, of the defective condition of said splash shield, and that G.M.C. carelessly and negligently sold and delivered said automobile when it was in such negligent defective condition as to be imminently dangerous to persons so using said splash shield and its opening.

(5) That G.M.C. carelessly and negligently failed to inspect said splash shield before assembling the same on said automobile when it knew that a splash shield, such as herein described, would be imminently dangerous to persons using the same.

(6) That G.M.C. distributed service manuals throughout the state to its service garages for use by mechanics, including one used by this plaintiff, instructing mechanics to use said splash shield opening in doing work such as this plaintiff was engaged sic at the time of his injury, wherein a picture was contained misrepresenting said splash shield by showing its edge to be blunt and safe for use, whereas it was in fact in a hazardous and unsafe condition imminently dangerous to persons using it as heretofore set out, and said G.M.C. having knowledge of all these facts, negligently and carelessly failed to notify this plaintiff, a mechanic at its said authorized service garage, of said dangerous and defective splash shield and warn against using its said opening as required by the instructions in said service manual.

In this court, defendant contends that, in Indiana, in order for one to recover for injury suffered as a result of the negligent manufacture of a product, he must prove that he is in privity of contract with the manufacturer, or that he is entitled to recover under one of the well-defined exceptions to the privity rule.

On the other hand, it is the theory of plaintiff that the question of liability arising from the negligent manufacture of products is not limited to the presence or absence of privity of contract between the injured party and the manufacturer, but rather is a matter of whether is it foreseeable that injuries would naturally and probably flow from the negligence charged.

1. Neither party claims that plaintiff was in privity with defendant and such a claim would find no basis in the facts. Therefore, it is clear that we should not be diverted by any purposeless discussion of the law of privity from considering if we have here a simple case of a person who, according to the complaint, was injured by the tortious conduct of the defendant. It is elementary that a tort-feasor may be liable to anyone proximately injured by his negligent conduct, unless the latter is contributorially negligent. That the injured person may be an employee of one who has rights under contract or warranty against the tort-feasor is irrelevant in a suit by the injured person. The injured person might even be, for instance, a pedestrian or a traffic policeman.

The briefs are concerned with the applicability of the rule established by Justice Cardozo in the leading case of MacPherson v. Buick Motor Co., 1916, 217 N. Y. 382, 111 N.E. 1050, L.R.A.1916F, 696.

In MacPherson, plaintiff was injured when an automobile in which he was riding suddenly collapsed, due to a defective wheel. He sued the manufacturer of the automobile on a charge of negligence. Plaintiff had bought the car from a retail dealer. The wheel had been made by another and sold to the manufacturer who failed to inspect it. The court said, at 1053 of 111 N.E.:

"* * * If the nature of a thing is such that it is

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