Ellithorpe v. Ford Motor Co.

• Decision Date: 17 September 1973
• Citation: 503 S.W.2d 516
• Parties: Ann D. ELLITHORPE v. FORD MOTOR COMPANY et al.
• Court: Tennessee Supreme Court

Page 516

503 S.W.2d 516

Ann D. ELLITHORPE v. FORD MOTOR COMPANY et al.

Supreme Court of Tennessee.

Sept. 17, 1973.

Dennis L. Tomlin, Nashville, for plaintiff-appellant.

John K. Maddin, Jr., Nashville, for Ford Motor Co.

W. W. McNeilly, Jr., Nashville, for George Busby Ford, Inc., and Bob Frensley Ford, Inc.

OPINION

McCANLESS, Justice.

This is a suit for the recovery for injuries to the plaintiff, Ann D. Ellithorpe, which she incurred after her automobile collided with another vehicle. The plaintiff filed suit against the defendants, the manufacturer and the sellers of the automobile, a 1969 Ford Falcon, seeking $12,000.00 damages. The defendants filed motions to dismiss in accordance with Section 12.02(6) of the Rules of Civil Procedure on the ground that the complaint had failed to state a claim upon which relief could be granted, alleging that it shows on its face that complainant's own negligence in driving her automobile into the rear of another stopped automobile was the sole and proximate cause of her injuries and damage. The Circuit Court after oral argument granted the motion to dismiss and, thereafter, denied the plaintiff's motion for a new trial. The plaintiff has appealed seeking a reversal of the judgment of the Circuit Court and the remand of the case for a trial on the merits.

The plaintiff filed a number of assignments of error. The first, and to which the others are corollary, is that the trial court erred in dismissing the cause on motion to dismiss and without a trial on the merits. We sustain this assignment for the reasons we shall set forth in this opinion.

The complaint charges that the plaintiff bought a new Ford Falcon automobile from the defendant, George Busby Ford, Inc., later acquired by defendant, Bob Frensley Ford, Inc., on November 18, 1969. The hub of the steering wheel was padded but in the middle of the padding the manufacturer, the defendant, Ford Motor Company, had inserted a plastic Ford emblem, from which protruded three sharp prongs. The emblem with the prongs extended above the surface of the padding. On June 21, 1971, while the plaintiff was driving her car in the rain and on a wet road, it collided with the rear of another automobile which had stopped in front of her. She was wearing her lap seat belt around her hips. The impact caused plaintiff's upper body to go forward resulting in injuries when her face struck the insignia on the steering wheel.

Defendants' motion to dismiss was based on the following statement, set forth in the complaint:

'On or about the 21st day of June, 1971, the plaintiff was driving her 1969 Ford Falcon north on Gallatin Road, and as she reached the intersection of Gallatin Road and Haysboro Drive, another vehicle stopped or was stopped in front of the plaintiff intending to turn left. The road was wet and it was raining. The plaintiff did not realize until it was too late that the other automobile was stopped in front of her, and her automobile collided with the rear of the other automobile.'

We note first that it is questionable whether the plaintiff admitted contributory negligence in her complaint. Reasonable minds could differ as to whether her conduct was negligent. See Ewing v. Birthright, 60 Tenn.App. 454, 448 S.W.2d 71 (1969). The facts averred are not sufficient to raise a presumption of contributory negligence to the exclusion of any other reasonable inference. McCampbell v. Central of Georgia Ry. Co., 194 Tenn. 594, 253 S.W.2d 763 (1952). The question was one for the jury to decide.

Defendants contend that the plaintiff's conduct bars recovery (1) on the basis of contributory negligence, if plintiff should prevail on the ground of negligence; or (2) on the basis of abnormal use and assumption of risk, if plaintiff should prevail on the ground of strict liability in tort.

We do not get to the negligence count, since this a case governed by the law of strict liability in tort. Tennessee has adopted the strict liability rule set forth in Restatement (Second) of Torts, Sec. 402A (1965). Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966); Olney v. Beaman Bottling Co., 220 Tenn. 459, 418 S.W.2d 430 (1967). The doctrine has been applied to automobiles. Carney v. Ford Motor Co., CCH Products Liability Reports, para. 6306 (Tenn.App.1970). The text of Section 402A is:

'402A. Special Liability of Seller of Product for Physical Harm to User or Consumer.

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.'

This case involves the liability of a manufacturer for so-called 'second accident' injuries; those which result from bodily contact with the interior of an automobile after the initial impact. Defendants set up as a defense a form of contributory fault known as abnormal use, or misuse. The thrust of this argument is that collisions are not within the intended and normal use of an automobile. Holding the manufacturer liable for injuries resulting from an accident which he did not cause would unjustly force him to build 'accident-proof' automobiles. Defendants rely on cases of which the leading one is Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966). For a list of cases fllowing the Evans rule, see Noel, 'Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk,' 25 Vand.L.Rev. 93, n. 21 at 98 (1972). The Evans rule, however, has come under sharp criticism. See 118 U. of Pa.L.Rev. 299 (1969); 80 Harv.L.Rev. 688 (1966); Prosser, The Law of Torts, Section 96 at 646 (4th ed. 1971); and see commentary cited in Dyson v. General Motors Corp., 298 F.Supp. 1064, n. 4 at 1067 (E.D.Pa.1969).

We reject the Evans rule and adopt the reasoning of Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). The court there held that collisions are clearly foreseeable by the manufacturer and that he therefore has a duty to minimize the harm of inevitable accidents by utilizing reasonably safe design. This does not require construction and design of an automobile that will be absolutely safe in a collision. It does require the manufacturer to design an automobile which, in the event of an accident, is 'as safe as is reasonably possible under the present state of the art.' Larsen v. General Motors Corp., supra. We agree with defendant that abnormal use of a product is generally a defense in strict liability cases. Higgins v. Paul Hardeman Inc., 457 S.W.2d 943 (Mo.App.1970). However, the use of the product will not bar recovery if it is reasonably foreseeable by the manufacturer. Thomas v. General Motors Corp., 13 Cal.App.3d 81, 91 Cal.Rptr. 301 (1970); McLaughlin v Sears, Roebuck & Co., 281 A.2d 587 (N.H.1971); Noel, supra, 25 Vand.L.Rev. at 96; Prosser, The Law of Torts, Sec. 102 at 669. The plaintiff here was using her car for transportation in the environment in which it was intended to be used and during such use an accident occurred. As the court in Larsen opinion noted,

'Collisions with or without fault of the user are clearly foreseeable by the manufacturer and are statistically inevitable.

'The intended use and purpose of an automobile is to travel on the streets and highways, which travel more often than not is in close proximity to other vehicles and at speeds that carry the possibility, probability and potential of injuryproducing impacts. The realities of the intended and actual use are well known to the manufacturer and the public and these realities should be squarely faced by the manufacturer and the courts.' Larsen v. General Motors Corp., supra.

Statistics indicate that between one-fourth and two-thirds of all automobiles during their use are eventually involved in an accident producing injury or death. O'Connell, 'Taming the Automobile,' 58 Nw.U.L.Rev. 299, 348 (1963), cited in Larsen v. General Motors Corp., supra. The manufacturers have acknowledged the foreseeability of collisions in public statements. Larsen v. General Motors Corp., supra, n. 7, 391 F.2d at 504. Generally, the question of foreseeability of use is one for the jury, but courts will decide it as a matter of law when reasonable minds could not disagree. McLaughlin v. Sears, Roebuck & Co., supra; Johnson v. Standard Brands Paint Co., 274 Cal.App.2d 331, 79 Cal.Rptr. 194, 198--199 (Cal.App.1969); Lifritz v. Sears, Roebuck & Co., 472 S.W.2d 28 (Mo.App.1971); 2 Harper & James, The Law of Torts, Sec. 28.6 at 1546 (1956); 13 A.L.R.3d 1057, 1088.

Our holding is in keeping with the policy considerations which underlie the doctrine of strict liability in tort. One of these is to encourage manufacturers to place only safe products on the market. 33 Tenn.L.Rev. 341, 346 (1966). That policy is not carried out by court decisions which would hold the manufacturer liable for design defects which cause accidents, but arbitrarily absolve him of liability for injuries which his defects in design cause after the accident occurs. Larsen v. General Motors, supra 391 F.2d at 502. To so rule would be to allow the manufacturer to emphasize style over safety in design.

The Larsen decision was based on negligence rather than strict liability, and as such has been followed in a line of cases listed in Noel, supra, 25 Vand.L.Rev., n. 21 at 98. The Larsen court noted, however, that the same reasoning would apply to strict liability in states where that doctrine had been adopted. Larsen v. General Motors Corp., supra, n. 5, 391 F.2d at 503. Cases applying the Larsen rule in strict liability jurisdictions include Badorek v. General Motors Corp., 11 Cal.App.2d 902, 90 Cal.Rptr. 305 (1970); Dyson v. General Mtors Corp., supra; Engberg v. Ford Motor Co., 205...