Foster v. Ford Motor Co.

• Decision Date: 15 May 1980
• Docket Number: Nos. 77-2352,77-2770,s. 77-2352
• Parties: Larkin FOSTER, Plaintiff, v. FORD MOTOR COMPANY, Defendant-Third Party Plaintiff, Appellant, v. Horace F. CREW and Sonny Newkirk, Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1304

616 F.2d 1304

Larkin FOSTER, Plaintiff, v. FORD MOTOR COMPANY, Defendant-Third Party Plaintiff, Appellant, v. Horace F. CREW and Sonny Newkirk, Third-Party Defendants-Appellees.

Nos. 77-2352, 77-2770.

United States Court of Appeals, Fifth Circuit.

May 15, 1980.

Royal H. Brin, Jr., Dallas, Tex., for defendant-third party plaintiff, appellant.

Scott Baldwin, Marshall, Tex., Nicholas H. Patton, Texarkana, Ark., for Foster.

Norman C. Russell, Texarkana, Ark., Herbert Boyland, Longview, Tex., for Crew & Newkirk.

Appeals from the United States District Court for the Eastern District of Texas.

Before GOLDBERG, FAY and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Larkin Foster, while operating a Ford 5000 tractor, suffered personal injuries when a bale of hay slid off of the hayfork which had been attached to the tractor's front-end loader. Foster brought this diversity suit against Ford seeking damages The jury found Ford strictly liable in tort ¹, and awarded a verdict for Foster in the amount of $2,000,000, which was reduced by remittitur to $1,500,000. Ford's third-party action never reached the jury, the court having directed a verdict in favor of Crew and Newkirk at the close of all the evidence.

for the personal injuries. Ford filed a third-party complaint against Horace Crew, Foster's employer, and W. L. (Sonny) Newkirk, the builder of the hayfork, asking for indemnification or, alternatively, contribution.

From this judgment, only one appeal is before us ²: Ford appeals the directed verdict dismissing with prejudice its claim against Crew and Newkirk for indemnity or contribution. This appeal is controlled by the substantive law of Texas.

FACTS

Crew purchased the Ford 5000 tractor, manufactured and sold by Ford, equipped with a hydraulically controlled front-end loader. Subsequently, Crew employed Newkirk, a welder and owner of a repair shop, to design and build a hayfork. Crew explained to Newkirk that the hayfork would be attached to the front-end loader of a tractor ³ for use in lifting round bales of hay weighing 1500 pounds three or four feet off of the ground and onto a lowboy trailer.

Newkirk had built a "few" haylifting attachments in the past. Most of these attachments were designed for use at the rear end of tractors and, because of the construction of those tractors, could only be raised three feet off of the ground. Newkirk's design of Crew's hayfork was "basically the same" as those rear-end attachments. Newkirk did not consult with Crew or Ford concerning the hayfork's design. ⁴

Newkirk built the hayfork with two metal arms, five feet long, connected to a backplate, three feet tall. The hayfork was designed to tilt up and down; the tilt was controlled by the hydraulic system on the front-end loader. Newkirk's design did not include a clamp or other safety device to secure bales of hay to be lifted by the hayfork.

After the hayfork was built, Crew took it from Newkirk's shop and had it installed onto the front-end loader.

Foster safely lifted 80 to 85 bales of hay three or four feet off of the ground and onto a lowboy trailer ⁵ before the accident occurred. The accident happened when the front-end loader, while lifting a 1500 pound bale, did not stop after climbing three or four feet, but continued on to the top of its stroke, ten feet off of the ground. At that height, the hay rolled over the backplate of the hayfork, which was tilted up, and fell onto Foster's head. Foster testified that the front-end loader reached the top of its stroke because the hydraulic valve on the

tractor controlling the height of the loader got stuck. ⁶

INDEMNITY

Texas courts apply an "imaginary law suit" test in deciding whether one tortfeasor is entitled to indemnity from another. The test, authored in Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, 565 (1949), provides:

In order to determine whether the loss should be shifted from one tortfeasor to another the proper approach is to consider the one seeking indemnity as though he were a plaintiff suing the other in tort, and then determine whether such a one as plaintiff, though guilty of a wrong against a third person, is nevertheless entitled to recover against his co-tortfeasor.

Accord, General Motors Corp. v. Simmons, 558 S.W.2d 855, 859 (Tex.1977); Butler v. Henry, 589 S.W.2d 190, 193 (Tex.Civ.App.1979, writ ref'd n. r. e.); Vergott v. Deseret Pharmaceutical Co., Inc., 463 F.2d 12, 16-17 (5th Cir. 1972) (applying Texas law).

Ford fails the test: it would not recover in an imaginary tort suit against Crew and Newkirk. Although the conduct of the third-party defendants in connection with the hayfork may have violated a duty owing to Foster ⁷, Ford has not proved that their conduct violated a duty owing to Ford. See, e. g., General Motors Corp. v. Simmons, supra, 558 S.W.2d at 860-61 (no indemnity because indemnitee did not breach duty running to indemnitor); Vergott v. Deseret Pharmaceutical Co., Inc., supra, 463 F.2d at 16-17 (same). Accordingly, we affirm the district court's rejection of Ford's plea for indemnity. ⁸

CONTRIBUTION

In Texas, the right of contribution among joint tortfeasors is solely a statutory right. See Austin Road Co. v. Pope, supra, 216 S.W.2d at 564-65. The statute applicable to this case is Article 2212, Tex.Rev.Civ.Stat.Ann. (Vernon 1971), ⁹ which provides:

Art. 2212. Contribution between tortfeasors

Any person against whom, with one or more others, a judgment is rendered in any suit on an action arising out of, or based on tort, except in causes wherein the right of contribution or of indemnity, or of recovery, over, by and between the defendants is given by statute or exists under the common law, shall, upon payment of said judgment, have a right of action against his co-defendant or co-defendants and may recover from each a sum equal to the proportion of all of the defendants named in said judgment rendered to the whole amount of said judgment. . . .

In order to obtain contribution against Newkirk and Crew under Article 2212, Ford must establish liability on their part to Foster. See Austin Road Co., supra, 216 S.W.2d at 565-66. Ford contends that Newkirk and Crew were liable to Foster under theories of strict liability and negligence because the hayfork built by Newkirk at the instance of Crew was negligently designed and defective. The district court held that Ford failed to present sufficient evidence to establish a prima facie case against Newkirk or Crew under any theory, and granted a directed verdict in their favor.

We agree with the district judge that the question of Crew's strict liability

                should not have gone to the jury; but, we hold that the question of Crew's negligence as well as the questions of Newkirk's negligence and strict liability should have gone to the jury under the rule of Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc).  10  Accordingly, we reverse the district court's directed verdict dismissing Ford's third-party action for contribution and remand for a new trial against Crew and Newkirk.  11
                

1. Newkirk Strict Liability

Ford's contention that Newkirk was strictly liable to Foster is grounded on Newkirk's allegedly defective design of the hayfork. Ford's criticism of the hayfork's design is that it does not include a high enough backplate or a clamp to secure bales of hay that might be lifted above the tractor operator's head.

Strict liability actions in Texas are governed by the rule stated in Restatement (Second) of Torts § 402A (1966). McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 788-90 (Tex.1967). Section 402A provides:

402 A. 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.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

In applying section 402A to an action based on defective product design, the crucial question is whether the product "is unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use." Turner v. General Motors Corp., 584 S.W.2d 844, 847 n. 1 (Tex.1979). A product may be found to have an unreasonably dangerous design because of the absence of a safety device. Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex.1978).

Uncontradicted evidence shows that the hayfork was designed, and intended by all parties, to be used for the purpose of lifting round bales of hay three or four feet off of the ground and onto a lowboy trailer, and that the hayfork was safe for use if limited to that height. This evidence, Newkirk urges, dictates a holding that the hayfork was not unreasonably dangerous for its intended use. We disagree. A manufacturer's duty as to product design is "to guard against reasonably foreseeable risks of harm that are engendered by the intended use of his product." Otis Elevator Co. v. Wood, 436 S.W.2d 324, 328 (Tex.1968); Ford Motor Co. v. Russell & Smith Ford Co., 474 S.W.2d 549, 557-58 (Tex.Civ.App.1971); R. Hirsh and H. Bailey, 2 American Law of Products Liability § 9:3 (2d ed. 1974). Thus, the issue is not whether the hayfork was safe at the height of three or four feet, but, rather, whether the possibility that the hayfork would be lifted above the operator's head was a reasonably foreseeable risk involved in the loading of hay onto the lowboy...