Ford Motor Co. v. Hill, s. 77-514
| Decision Date | 28 December 1979 |
| Docket Number | Nos. 77-514,77-1364,s. 77-514 |
| Citation | 381 So.2d 249 |
| Parties | FORD MOTOR COMPANY, a foreign corporation, doing business in the State of Florida, Appellant, v. Willie Lee HILL and Eloise Hill, his wife, Appellees. FORD MOTOR COMPANY, a foreign corporation, doing business in the State ofFlorida, Appellant, v. BARKETT OIL COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
James A. Dixon, Jr. and Aubrey V. Kendall of Dixon, Dixon, Hurst, Nicklaus & Webb; Timothy J. Norris of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for appellant.
Walter H. Beckham, Jr. and Robert Orseck of Podhurst, Orseck & Parks, P. A., Miami, and Simons & Schlesinger, Fort Lauderdale, for appellees Hill.
K. P. Jones of Law Offices of K. P. Jones, Fort Lauderdale, for appellee Barkett Oil Co.
This appeal stems from a products liability claim against Ford Motor Company following a single vehicle truck accident and injuries incurred as a result of an alleged "second collision" defect in truck design. The jury was instructed only on strict liability and no negligence instruction was given. We affirm.
The truckdriver was horribly injured, permanently paralyzed from the waist down suffering total loss of control over his bladder and bowels. The accident occurred when his tanker truck, overloaded and possessed of bald tires went out of control on a wet highway and spun around sliding backwards onto the median strip. The single unit truck carried over 4,000 pounds of gasoline and oil and when the rear wheels dug into the soft median, the tank tore loose gouging deeply into the soft median, then ground to a halt while the still moving cab slammed into it. This happenstance released two latch hooks securing the hinged cab and it snapped, whip-like, open and then shut again, causing the injuries.
There are more facts involving the history of how this Ford truck, sold as an "incomplete vehicle," came to have a second-hand tank on the frame, mounted by the driver's own employer, allegedly in a most negligent fashion; however those already stated are sufficient for our purpose here except as same may be augmented hereafter.
The original complaint, filed before the decision in West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla. 1976), contained no strict liability count. The West case was published in July of 1976 and the trial of this cause followed five (5) months later without any attempt to include such a count until the charge conference, when the defense counsel so noted and plaintiff's counsel responded:
There is no count required for strict liability. Read West . . . . Strict liability is a rule of law. It is not a rule of pleading. If it is necessary counsel, if you want to put it to the task I would move to amend the complaint . . . if you think that's necessary, but no way is that necessary.
To this, defense counsel made no applicable rejoinder and the trial judge no ruling.
We first decide that the above described colloquy was not sufficient to constitute a motion to amend or result in an actual amendment. However this conclusion is of little consequence inasmuch as labored study of the voluminous transcript convinces us that the issue of strict liability was tried at least by implied consent of all parties. In consequence we think there resulted an amendment to conform with the evidence by operation of Fla.R.Civ.P. 1.190(b).
Ford contends that an instruction to the jury on strict liability only was in error under the law of Ford Motor Company v. Evancho, 327 So.2d 201 (Fla. 1976). 1 Apart from those of a peripheral nature, the only "gut" instruction given was the standard P.L. 4 on strict liability 2 and such would be serious error if Evancho, supra, is still the law of second collision cases. However we do not think it can be, because it appears to us that the later case of West v. Caterpillar Tractor, supra, must apply to second collision cases because of its overpowering language. Yet we are troubled by the failure of the West court to even mention Evancho, decided but a few months earlier. Evancho quite clearly holds that in second collision cases the manufacturer's liability is not predicated on the doctrine of strict liability ". . . rather, it recognizes a duty of reasonable care on automobile manufacturers based on common law negligence," Evancho, supra, at 203. It may be that this Evancho language was employed only because at that time Florida had not officially adopted the doctrine of strict liability. (But see Nicolodi v. Harley-Davidson Motor Company, Inc., 370 So.2d 68 (Fla.2d DCA 1979)). However we must entertain the possibility that we are in error and do hereby certify the following question to the Supreme Court deeming it to be of great public interest:
IS THE COMMON LAW NEGLIGENCE THEORY IN SECOND COLLISION CASES SET FORTH IN EVANCHO STILL VIABLE DESPITE THE ADOPTION OF STRICT LIABILITY IN WEST v. CATERPILLAR TRACTOR COMPANY, INC.? 3
Finally, the dismissal with prejudice of Ford Motor Company's third party claim against the driver's employer is affirmed upon the authority of Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla. 1979); Stuart v. Hertz, 351 So.2d 703 (Fla. 1977) and Maybarduk v. Bustamente, 294 So.2d 374 (Fla.4th 1974).
The law on this question was not, and is not, a model of clarity. Formerly a third party complaint would lie if the third party plaintiff alleged mere passive negligence but would not lie if active negligence was involved. Thus it was that the courts had begun to see third party complaints containing the magic words "passive negligence" whether or not the negligence was of that variety.
Yet the understandable posture of Ford in the case at bar was that it was not negligent at all and that the sole proximate cause of the injuries was the negligence of the driver and his employer. It would appear that this posture would here preclude a third party complaint under the former passive/active negligence theory before the Houdaille, supra, decision. However Houdaille has cast aside this active/passive differentiation, holding instead that a third party complaint will lie where the liability if any is "solely vicarious, constructive, derivative or technical." We are not without difficulty in understanding the full extent of these quoted adjectives but we do not think a manufacturer's strict liability would be encompassed by them. The West case perceives a manufacturer's...
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Ford Motor Co. v. Hill
...IN EVANCHO STILL VIABLE DESPITE THE ADOPTION OF STRICT LIABILITY IN WEST v. CATERPILLAR TRACTOR COMPANY, INC.? Ford Motor Co. v. Hill, 381 So.2d 249, 251 (Fla. 4th DCA 1979). 1 We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the question by holding that a plaintiff may procee......
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...may only "lie where the liability if any is `solely vicarious, constructive, derivative or technical.'" Ford Motor Co. v. Hill, 381 So.2d 249, 251 (Fla. 4th DCA 1979), approved, 404 So.2d 1049 (Fla.1981). The court concluded "a defendant manufacturer's defective product, which proximately c......
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...v. Evancho, 327 So.2d 201 (Fla.1976), as well as strict liability, Ford Motor Co. v. Hill, 404 So.2d 1049 (Fla.1981), aff'g 381 So.2d 249 (Fla. 4th D.C.A. 1979). Furthermore, at least one Florida appellate court has found such actions cognizable where the vehicle was a motorcycle. Nicolodi ......
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