Ferraro v. Ford Motor Co.

• Decision Date: 15 November 1966
• Citation: 423 Pa. 324,223 A.2d 746
• Parties: William G. FERRARO, Appellant, v. FORD MOTOR COMPANY, a corporation, and Toohey Motor Company, a corporation.
• Court: Pennsylvania Supreme Court

Page 746

223 A.2d 746

423 Pa. 324

William G. FERRARO, Appellant, v. FORD MOTOR COMPANY, a corporation, and Toohey Motor Company a corporation.

Supreme Court of Pennsylvania.

Nov. 15, 1966.

George M. Weis, Weis & Weis, Ralph T. Bell, Bell, Tamburo & White, Pittsburgh, for appellant.

David J. Armstrong, Raymond F. Sekula, Dickie, McCamey & Chilcote, Pittsburgh, for appellees.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.

OPINION

EAGEN, Justice.

William G. Ferraro instituted this action in trespass to recover damages for loss resulting from a unique automobile accident. The named defendants were the Ford Motor Company (Ford) and the Toohey Motor Company (Toohey). Since Toohey, a corporation, had been dissolved, service was never effected on this defendant. Ford was properly served, and the action proceeded against it alone.

After trial, the jury awarded the plaintiff the sum of $107,851. Ford filed motions for a new trial and judgment notwithstanding the verdict. The lower court granted the latter motion and directed the entry of judgment for the defendant. After judgment was so entered, the plaintiff, Ferraro, appealed.

The record discloses the following:

Ferraro, a contractor, purchased a new Ford dump truck, for use in the operation of his business, from Toohey, an authorized Ford dealer, on June 10, 1960. It was delivered on June 14, 1960. He used and operated the truck until August 22, 1960, or for a period in excess of two months (and a total of approximately 500 miles according to the odometer's registration), when the accident involved occurred. On that date, as Ferraro was engaged in operating the truck on a public highway and executing an extreme left-hand turn at an intersection, the left front wheel locked in the turned position. Ferraro attempted to apply the brake when his foot accidentally bumped the gas accelerator pedal, dislodging it from the ball socket underneath and causing the motor to race. The truck shot forward, left the highway, hit a house, and, as a result, Ferraro was seriously injured.

In his testimony Ferraro admitted that on two occasions prior to the day of the accident, he experienced similar instances of the front wheel locking as he executed a turn with the truck; the first such trouble occurring after the truck had been operated over one hundred miles. An examination disclosed that the tread on the inside perimeter of the tire wedged against a bolt on the side of the frame of the truck when the wheel was turned. He said the locking would be released by putting the truck in reverse. He also admitted experiencing trouble with the accelerator pedal dislodging before the day of the accident. This could be corrected temporarily by manually readjusting the ball under the pedal.

As a result of these known malfunctions, Ferraro brought the truck to the Toohey garage on at least three separate occasions before the day of the accident and complained about its condition. The first such instance was on the day he initially experienced the locking of the wheels. On each occasion he was reassured by employees of Toohey and told, that the malfunctions were not serious, dangerous or sufficient to worry about; that the worst he could do would be to rub a little rubber off the tire and once it rubs off, 'You're all right'; that Toohey didn't want him bringing the truck to the garage every week and to wait until he had more mileage on the truck and then bring it back for a thorough check and repairs. On these occasions Toohey did nothing to correct the locking problem, but an employee did show Ferraro how to install the displacement-prone ball underneath the gas pedal.

The lower court concluded that Ferraro was grossly negligent in continuing to operate the truck for a period of about six weeks after knowing of the existence of the malfunctions and the fact that they were not permanently remedied.

In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), this Court recently adopted Restatement (Second), Torts § 402A (1965), as the law of this Commonwealth in tort actions involving the liability of those who sell products in a defective condition. The question was not reached or ruled upon therein, as to whether or not contributory negligence or assumption of risk by the buyer would constitute a defense in such actions. After studied consideration, it appears to us that if the buyer knows of the defect and Voluntarily and Unreasonably proceeds to use the product or encounter a known danger, this should preclude recovery and constitute a complete defense to the action even in cases of strict liability. Cf., Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965); Restatement (Second), Torts § 402A, comment in (1965); Prosser, Torts § 95 at 656--57 (3d ed. 1964); 1 Frumer & Friedman, Products Liability § 16A(3)(a) (1964); Assumption of Products Risks, 19 Sw.L.J. 61 (1965); and, Manufacturers Liability to Remote Purchasers, 114 U.Pa.L.Rev. 539 (1966). We, therefore, adopt this as the law of...