Elsasser v. American Motors Corp.

• Citation: 265 N.W.2d 339,81 Mich.App. 379
• Decision Date: 22 February 1978
• Docket Number: Docket No. 27725
• Parties: Richard ELSASSER and Gayle Elsasser, Plaintiffs-Appellees, v. AMERICAN MOTORS CORPORATION, a Maryland Corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 339

265 N.W.2d 339

81 Mich.App. 379

Richard ELSASSER and Gayle Elsasser, Plaintiffs-Appellees, v. AMERICAN MOTORS CORPORATION, a Maryland Corporation Defendant-Appellant.

Docket No. 27725.

Court of Appeals of Michigan.

Feb. 22, 1978.

Released for Publication May 10, 1978.

Ronald R. Pawlak, P. C. by David W. Moore, Southfield, for defendant-appellant.

Barry D. Boughton, Lansing, for plaintiffs-appellees.

Before D. E. HOLBROOK, Jr., P. J., and ALLEN and FREEMAN, ^* JJ.

FREEMAN, Judge.

In this product liability case defendant appeals a jury verdict of $300,000 to plaintiff Gayle Elsasser and $175,000 to plaintiff Richard Elsasser. Following the November 6, 1975 jury verdict, defendant moved for a new trial, a judgment notwithstanding the verdict, and remittitur. These motions were denied in an opinion and order dated February 24, 1976.

On December 11, 1970, plaintiffs were driving on I-94 in their 1971 AMC Gremlin which they had purchased new from an American Motors Corporation (hereinafter AMC), dealer about two months before. Due to inclement weather the driving conditions were very poor. A car was blocking one of the lanes. Jerome Burg, a motorist who had previously stopped, was flagging down traffic in the area of the blocked expressway lane. After seeing Burg, Richard Elsasser brought the plaintiffs' car to a halt and joined several other cars in the congestion caused by the blocked lane. Susan Leighton, operating a 1970 Plymouth Duster, approached the scene and saw Burg but did not see the line of stopped cars until a few short moments before she collided with the rear of plaintiffs' stopped vehicle. The parties disagreed as to the speed of the Leighton vehicle at impact, and testimony at trial gave estimates ranging from 20 miles per hour to 55 miles per hour.

The impact from the collision drove plaintiffs' car forward into the car in front of it. The Leighton car struck plaintiffs' car in the rear, to the left of center, and crushed plaintiffs' car approximately 30 inches on the left side. The gas tank of plaintiffs' car ruptured and the floor pan separated from the left side of the automobile. A fire broke out inside and outside of the plaintiffs' car.

Richard Elsasser escaped through a window. Gayle Elsasser, apparently dazed by the collision, was pulled from the burning car by bystanders. Both plaintiffs received severe burns, including burns to their hands and faces. Neither plaintiff was permanently disabled, although both were scarred and suffered severe pain. Plaintiffs' injuries required substantial surgery. Susan Leighton received only a superficial injury to her nose, which struck her steering wheel.

Plaintiffs sued defendant AMC for breach of implied warranty and Susan Leighton for negligence. Plaintiffs alleged four design defects improperly located gasoline tank which was too large for the vehicle, inadequate protection of the gas tank, an inadequate connecting flange on the floor pan and inadequate fire wall protection between the gas tank and passenger compartment and one workmanship defect defective welds on the left side of the floor pan. Plaintiffs contended that gasoline from the ruptured tank entered the passenger compartment through the vacancy caused by separation of the floor pan from the side of the Gremlin. According to plaintiffs, the separation was the result of the defective welding.

During the course of the trial, plaintiffs reached a settlement with Susan Leighton in the amount of $75,000. All of the parties involved, including AMC, agreed that the jury would determine the damages necessary to compensate plaintiffs in full. From any such award the trial court would credit AMC with $50,000 against any judgment for Gayle Elsasser, and with $25,000 against any judgment for Richard Elsasser, reflecting the $75,000 settlement with Susan Leighton.

I

Defendant first contends that there is no duty owed by a manufacturer to build an automobile fit for a collision. Defendant urges us to adopt a rule, expressed in Evans v. General Motors Corp., 359 F.2d 822 (CA 7, 1966), and its progeny, that a manufacturer need only produce a vehicle fit for its intended use, which does not include collisions, despite the foreseeability of such collisions. We think a better rule was set forth in Larsen v. General Motors Corp., 391 F.2d 495 (CA 8, 1968), which was adopted in Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 400, 231 N.W.2d 413, 417 (1975), lv. granted, 394 Mich. 823 (1975):

"Agreeing with Larsen, we hold that a manufacturer of any automobile has a duty to so design and manufacture his product as to eliminate any unreasonable risk of foreseeable injury to its occupants as a result of a collision for which the manufacturer may not be responsible. For the lack of reasonable care in the face of such duty, he may be answerable in a negligence action; and for the sale of a vehicle defective in such respect, he may be answerable for breach of implied warranty."

Larsen dealt with a negligence cause of action. Its reasoning, however, lends itself equally well to an implied warranty suit, as noted by the Rutherford Court. Adoption of the Larsen reasoning was not the dramatic judicial step that defendant indicates it was. Rutherford was consistent with the trend of prior Michigan cases holding that misuse of a product may be within the intended or foreseeable use giving rise to a cause of action for defective design or manufacturing. Coger v. Mackinaw Products Co., 48 Mich.App. 113, 210 N.W.2d 124 (1973); Byrnes v. Economic Machinery Co., 41 Mich.App. 192, 200 N.W.2d 104 (1972). Under Larsen and Rutherford, a manufacturer must recognize the existence of accidents. A manufacturer is not required to manufacture a "crash proof" automobile, but rather one that is reasonably fit in case of a collision.

A product liability suit based on an implied warranty theory requires proof of a defect in manufacturing or design and injury caused by or resulting from the defect. Piercefield v. Remington Arms Co., 375 Mich. 85, 96, 133 N.W.2d 129 (1965). Under the implied warranty theory a defect is established by proof that the product is not reasonably fit for its intended, anticipated or reasonably foreseeable use. Dooms v. Stewart Bolling & Co., 68 Mich.App. 5, 14, 241 N.W.2d 738 (1976), lv. den. 397 Mich. 862 (1976).

In the instant case plaintiffs alleged design defects and a manufacturing defect. These alleged defects arose from a failure on the part of defendant to eliminate unreasonable risks of injury in light of the intended and foreseeable use of the product. This blurring of the distinction between the concepts of implied warranty and negligence is not uncommon in product liability cases. See, for example, Dooms v. Stewart Bolling & Co., supra; Smith v. E. R. Squibb & Sons, Inc., 69 Mich.App. 375, 245 N.W.2d 52 (1976), lv. den., 399 Mich. 804 (1977), and Rutherford v. Chrysler Motors Corp., supra. Defendant had a duty to produce a reasonably fit product under both negligence and implied warranty concepts.

II

Defendant's second contention is that the evidence presented by plaintiffs was insufficient to show a breach of an implied warranty or a legal duty.

Proofs were presented by plaintiffs to show that faulty welding and a flange of inadequate design permitted gasoline to enter the passenger compartment and cause plaintiffs' injuries. Plaintiffs showed that defendant was aware or should have been aware of the safety problems and the suggested remedies. Defendant produced countervailing testimony and evidence which, among other things, showed that some of plaintiffs' arguments (e. g., the use of a fire wall) were impractical. Defendant also contends that plaintiffs failed to show the prevailing "state of the art".

The questions of foreseeability of the injury and reasonableness of the protective and preventive measures taken are questions for the jury. Casey v. Gifford Wood Co., 61 Mich.App. 208, 217-218, 232 N.W.2d 360 (1975), lv. den., 395 Mich. 810 (1975). We find that plaintiffs presented the issues of defect and injury therefrom in a sufficient manner for the questions of unreasonableness of the defect and foreseeability of the risk to go to the jury. Plaintiffs presented a prima facie case, Smith v. E. R. Squibb & Sons, Inc., supra, 69 Mich.App. at 380, 245 N.W.2d 52, absent any inquiry concerning proximate cause. Since plaintiffs needed to establish only that the defect was a proximate cause and not the proximate cause, their proofs were sufficient to go to the jury. Dooms v. Stewart Bolling & Co., supra, 68 Mich.App. at 17-18, 241 N.W.2d 738.

A comment should be made concerning the "state of the art" or industry custom as evidence. It is hornbook law that a manufacturer may show compliance with industry standards to indicate reasonableness, but the industry standard itself is always open to the question of reasonableness. Prosser, Torts (4th Ed.), §§ 33, 96, pp. 166-168, 645. Reasonableness is ultimately a question for the jury.

III

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