Ford v. Rupple

• Decision Date: 18 December 1972
• Docket Number: No. 12186,12186
• Citation: 161 Mont. 56,504 P.2d 686
• Parties: J. L. FORD, Guardian ad litem of Jay Ford, a minor, Plaintiff and Appellant, v. Henry RUPPLE et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 686

504 P.2d 686

161 Mont. 56

J. L. FORD, Guardian ad litem of Jay Ford, a minor Plaintiff and Appellant, v. Henry RUPPLE et al., Defendants and Respondents.

No. 12186.

Supreme Court of Montana.

Submitted May 17, 1972.

Decided Dec. 18, 1972.

Edward D. Yelsa argued, Anaconda, for plaintiff and appellant.

Poore, McKenzie & Roth, Butte, Robert A. Poore, argued, Butte, James P. Melican, Jr., argued, Detroit, Mich., for defendants and respondents.

DAILY, Justice.

This appeal is from a summary judgment in favor of the defendant General Motors, Inc. entered in the district court of the second judicial district, county of Silver Bow, Hon. John B. McClernan, presiding.

On October 25, 1969, plaintiff Ford, 19 years of age, was a sleeping passenger in a 1968 Corvette automobile, the subject of this litigation. The Corvette was being driven by defendant William Firebaugh. It was manufactured by defendant General Motors, Inc. The Corvette had just left Butte and was proceeding south on Highway 91, approaching Melrose, along a narrow winding roadway when it became involved in a sideswipe collision with a vehicle driven by defendant Henry Rupple. The Corvette went out of control and collided head-on with an oncoming vehicle, which resulted in personal injuries and extensive damage to the Corvette.

Following the accident, a personal injury action was filed on January 8, 1971 by plaintiff Ford against all defendants, Firebaugh, Rupple, and General Motors, based on the fact that Ford was unaware of the events before or during the accident which caused his injuries. Defendant Firebaugh was never served. General Motors was served through its designated agent on January 18, 1971. Defendant Rupple was served on March 31, 1971. Prior to service on Rupple, General Motors had moved the cause to the federal district court, Butte, on February 8, 1971, on the basis of diversity of citizenship.

After Rupple, as a Montana resident, appeared in the federal district court on April 22, 1971, the diversity of citizenship was defeated pursuant to the rule of Jensen v. Safeway Stores, D.C., 24 F.Supp. 585. On June 15, 1971, the parties stipulated that the action be remanded to Department I of the second judicial district, county of Silver Bow, where the action had originated.

On March 8, 1971, General Motors submitted its interrogatories to plaintiff, to which plaintiff responded on March 29, 1971. Following remand by the federal district court to the second judicial district, on July 27, 1971 defendant Rupple submitted a lengthy set of interrogatories to plaintiff, which were never answered by plaintiff. On July 12, 1971, plaintiff noticed the deposition of defendant Rupple for August 6, 1971. At the appointed time General Motors' counsel attended, but neither plaintiff, his counsel, nor the witnesses appeared. Subsequently, General Motors' counsel was advised by plaintiff's counsel to be in Anaconda for the taking of Rupple's deposition on October 6, 1971, but on that appointed date Rupple did not appear and no deposition was taken. In separate legal proceedings defendant Rupple, the motorist involved in the initial sideswipe with the Corvette, obtained a summary judgment against plaintiff Ford.

In September 1971, the district court set the instant case for trial on October 18, 1971.

On September 13, 1971, Genmeral Motors filed its motion for summary judgment with notice of hearing of its motion set for September 24, 1971. General Motors' motion for summary judgment was based upon the theory that a car manufacturer has no duty to manufacture a car which is safe from collisions such as the one involved here, and defendant General Motors was entitled to judgment as a matter of law.

On September 16, 1971, plaintiff submitted interrogatories and requests for admissions of fact to General Motors which were directed to determining the design, manufacturing processes, and specifications of the fiberglass body of the Corvette. Plaintiff's interrogatories and admissions were predicated on the theory of plaintiff's complaint against General Motors, that General Motors 'so negligently and carelessly constructed, manufactured, assembled, and inspected said automobile (Corvette) as to endanger the occupants therein in the event of collision.'

General Motors filed objections to plaintiff's interrogatories and requests for admissions contending that the request for admissions and interrogatories pertained to the same basic issue to which General Motors directed its motion for summary judgment and that if defendant's motion for summary judgment was meritorious then the request for admissions and interrogatories was irrelevant. Hearing on General Motors' objections was set to be heard on the same day as its motion for summary judgment, September 24, 1971.

After hearing oral arguments and receiving briefs, the destrict court held that there was no duty of General Motors owed to plaintiff and entered judgment dismissing plaintiff's complaint against General Motors. From that judgment, plaintiff appeals.

Plaintiff contends the primary issue on appeal is the question of whether or not an absence of a genuine issue of negligence was presented to a sufficient degree to justify the granting of summary judgment to General Motors.

Essentially, the issue is whether the district court was correct in granting defendant General Motors summary judgment. The issue of substantive law in this determination is-did the defendant, General Motors, breach any duty owed the plaintiff, proximately causing plaintiff's injuries?

The authority for granting summary judgment is Rule 56(c), M.R.Civ.P., which provides in pertinent part:

'* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'

In determining the burden of proof, this Court in Kober (Kyriss) v. Stewart (Billings Deac. Hosp.), 148 Mont. 117, 121, 417 P.2d 476, 478, quoted with approval 6 Moore's Federal Practice, § 56.15(3), p. 2335:

"* * * the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law."

See also: Byrne v. Plante, 154 Mont. 6, 459 P.2d 266.

Plaintiff argues that since general negligence was pleaded against all defendants, further discovery, such as defendant Rupple's deposition, must be taken to dispose of all material facts concerning the effect of the initial sideswipe on the maneuverability of the Corvette, prior to the head-on impact. This contention is not correct for two reasons, (1) defendant General Motors can only be held in the lawsuit if there is a duty to the plaintiff which has been breached, and (2) the discovery, including plaintiff's deposition, has effectively confined the issue to the singular legal determination of whether or not defendant General Motors owed plaintiff a duty of reasonable care in design of the Corvette, so as not to subject plaintiff to unreasonable risk of injury or an enhancement of injury in the event of a head-on collision with another vehicle. There is no disagreement that this is an issue of law for court determination.

In more simple and concise terms, this lawsuit involves the 'second collision' theory of negligence, i.e. the collision of the passenger with the interior part of the automobile which follows the automobile collision. Impact and causation of the initial collision is not part of the consideration of fault or duty in the 'second collision'; and damages are generally enhancement of injury due to alleged faulty design or construction.

The legal community in recent years has signaled the rise of the theory of negligence encompassing the 'second collision'. Two cases are standard-bearers for divergent legal attitudes regarding the duty of automobile manufacturers: (1) Evans v. General Motors Corporation, (1966 C.A.7th), 359 F.2d 822, 824, 825, cert. den. 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70, for the restrictive view, and (2) Larsen v. General Motors Corporation, (1968 C.A.8th), 391 F.2d 495, 502, 503, for the expansive view. See also annotation 42 A.L.R.3d 560.

In Evans, the plaintiff alleged that General Motors was negligent in designing the frame of its 1961 Chevrolet station wagon. The car was manufactured without perimeter frame rails which were being used in many other cars. The complaint alleged that because the 'X' type frame would not adequately protect occupants during a side impact collision, defendant had created an unreasonable risk of serious injury. The court stated:

'A manufacturer is not under a duty to make his automobile accident-proof or fool-proof * * *'.

The court held as a matter of law on the duty aspect, that the manufacturer's duty did not extend to the particular design precaution which plaintiff deemed to be unreasonable. It further held that the danger to be avoided was obvious to all, since the intended purpose of an automobile did not include its participation in collisions with other objects, despite the manufacturer's ability to foresee the possibility that such collisions may occur.

In Larsen, the steering column of plaintiff's Corvair protruded beyond the forward surface of the front tires. Plaintiff complained that the rearward displacement of the steering shaft in a head-on collision was much greater on the Corvair than on cars designed to protect against such displacement. Defendant, General Motors, relied on the Evans 'crashproof' argument to rebut the contention. Although the court in Larsen agreed...