Gann v. International Harvester Co. of Canada, Ltd.

• Citation: 712 S.W.2d 100,75 A.L.R.4th 301
• Parties: Gary Gene GANN, et al., Plaintiffs-Appellants, v. INTERNATIONAL HARVESTER COMPANY OF CANADA, LTD., et al., Defendants-Appellees. 712 S.W.2d 100, 75 A.L.R.4th 301
• Decision Date: 02 June 1986
• Court: Supreme Court of Tennessee

Page 100

712 S.W.2d 100

Gary Gene GANN, et al., Plaintiffs-Appellants, v. INTERNATIONAL HARVESTER COMPANY OF CANADA, LTD., et al Defendants-Appellees.

712 S.W.2d 100, 75 A.L.R.4th 301

Supreme Court of Tennessee at Knoxville.

June 2, 1986.

Bruce A. Anderson, McCampbell & Young, Joseph B. Yancey, Yancey, Webb, Jackson & Merriman, Knoxville, for plaintiffs-appellants.

Robert R. Campbell, Hodges, Doughty & Carson, L. Anderson Galyon, III, Kennerly, Montgomery & Finley, Knoxville, for defendants-appellees.

OPINION

FONES, Justice.

This is a products liability case wherein plaintiff contends that the International Harvester Crawler Tractor which he was operating when it rolled over and severely injured him, was defective and unreasonably dangerous because it did not have a roll-over protective structure [ROPS] and a seat belt.

The trial judge submitted the case to the jury after overruling motions for directed verdicts by the manufacturer and the dealer. The jury could not agree upon a verdict and a mistrial was declared. Thereafter the trial judge sustained defendants' motion for directed verdicts and dismissed the complaint, as authorized in T.R.C.P. 50.02. The Court of Appeals affirmed, finding that plaintiff had failed to prove that the tractor left the seller's hands in a defective condition, and unreasonably dangerous to the consumer, as those terms are defined in Section 402A of the Restatement 2d, Comments (g) and (i). We are of the opinion that plaintiff's proof was sufficient to require submission of that issue to the jury and therefore reverse.

Plaintiff continues to insist that we should overrule long-standing precedent in this State involving the elements that are the necessary prerequisites to the application of the doctrine of collateral estoppel and thus grant plaintiff a summary judgment on the issue of liability. Plaintiff predicates this insistence upon the case of Wagner v. International Harvester Co., 611 F.2d 224 (8th Cir.1979). In that case a Minnesota jury found International Harvester liable for failure to install a ROPS as standard equipment on the same type of crawler tractor involved in this case. The Court of Appeals correctly dealt with that issue, citing the absence of the requirement of identity of parties mandated in Cole v. Arnold, 545 S.W.2d 95 (Tenn.1977). In addition, we find it completely untenable to sanction a result that would allow a jury in Minnesota to establish as a matter of law in Tennessee the standard for determining a product's defective condition and the standard for determining whether it is unreasonably dangerous to a Tennessee consumer, "who purchases it, with the ordinary knowledge common to the community as to its characteristics." Section 402(A) Restatement 2d, comment (i).

I.

In September, 1972, one Quillen purchased an International Harvester 500C Crawler Tractor from defendant Power Equipment Company for use on his farm in Jefferson County, Tennessee. International Harvester offered a ROPS as optional equipment at that time and the salesman informed Quillen of the price but Quillen declined to purchase it. In February, 1973, International Harvester began including a ROPS as standard equipment on the 500C Crawler Tractor. The price for the ROPS offered to Quillen was $445 but he told the salesman that he could put one on for less money.

The Gann family farm was adjacent to the Quillen farm and at the time of the accident in January 1977, Gary Gann's father was operating both farms. Gary was almost seventeen years of age and had operated the 500C Tractor forty to fifty hours, spreading fertilizer, grading roads and bush-hogging. He knew the tractor would turn over on steep slopes and that there were some places on the farm too steep for safe operation of the tractor. He also knew that if the tractor turned over the driver would likely be seriously hurt. Gary's cousin, Garland Gann, instructed him in the operation of the tractor. Garland had worked on the Gann farm for more than twenty years and testified that, after the 500C Tractor was delivered to the farm, he told Quillen that it should have some roll over protection on it.

On January 31, 1977, Gary Gann and a friend, Terry Henry, went to the barn to check on the feed for the cows. They found that two calves had frozen to death and to bury them Gary had to drive the 500C Tractor out of the barn and hitch a wooden sled behind it. To reach the location of the sled from where the tractor was located in the barn, Gary had to drive out of the barn, turn 180? and drive over what was referred to at the trial as the "vehicle path" along the outside of the barn. The barn was located on the crest of a hill and it, and the vehicle path that came up from the valley and ran along side of it, were on ground that was almost level with only a slight slope. Beyond the vehicle path the slope of the hill gradually increased to a steep slope where the cows had made trails walking perpendicular to the direction of the slope. Vegetation covered the hill except for some bare ground visible in the two tracks of the vehicle path.

Just as Gary cleared the opposite end of the barn from the exit, the tractor began to slide sideways away from the barn on the frozen ground, and when it reached the steep slope where the cow trails were, it turned over with Gary still in the driver's seat. He testified that it happened so fast he had no chance to jump clear of the tractor. Gary did not know that the ground was frozen. Garland Gann went to the scene of the accident shortly after it happened and testified that the ground did not appear to be frozen, and that he would have had no hesitation in driving the tractor over the vehicle path as Gary had done.

Gary's left arm was severed at the shoulder and his right hand was so badly mangled it had to be amputated. He had severe internal injuries, lost a great deal of blood and contracted hepatitis.

II.

Plaintiff presented three expert witnesses, a professor of mechanical engineering, a consulting safety engineer and an engineer who had worked for International Harvester for more than twenty years, Earnest Carlson. All three testified about the awareness that existed in the nineteen sixties and earlier of the danger of serious injury or death when tractors rolled over, the recommendations of professional societies that tractors be equipped with ROPS and safety belts, and the frequency of such accidents. The record reflects that the International Harvester Farm Magazine reported that in 1969 farm accidents caused 7,000 deaths, 600,000 injuries and two billion dollars in financial losses. The article continued as follows:

"Machinery-related accidents account for almost 42% of all injuries and deaths. And nearly half of those involved tractor overturns, a strong argument for protective frames."

Thus, roll-over farm accidents accounted for 14,070 deaths and 126,000 injuries in 1969, a rate per day of 4 deaths and 345 injuries.

The experts expressed the opinion that the 500C Crawler Tractor was defective and unreasonably dangerous without a ROPS and a seat belt. Doctor Richardson, the professor, testified that a warning of the hazard was insufficient, but should have been given in the absence of the ROPS and seat belt, and that he had examined the operator's manual and found no warning. The safety engineer testified that offering a ROPS as optional equipment was insufficient; that in effect the average consumer did not recognize the hazard.

Mr. Carlson testified that while employed by International Harvester he was chairman of the industrial section of a trade association of manufacturers of farm and industrial equipment. He testified about his committee's efforts to formulate a standard for safe roll-over protective structures in the nineteen sixties. Mr. Carlson authored an article that was published in the National Safety News in March, 1968, entitled "Tractor Roll Over Frames." The article reviewed Carlson's committee's work in gathering statistics and its efforts to promote inclusion of a safe structure to reduce death and injuries in the event of tractor roll-over accidents. Carlson clearly indicated in the article that it was generally known in the industry, prior to 1968, that roll-overs involved a very great risk of serious injury or death to operators if the tractor was not equipped with a protective structure and seat belt. The article concluded with the following comment:

"[a]s far as tractor operations are concerned, there is common agreement that some type of sturdy structural frame enclosing the operator will considerably reduce fatalities and injuries when accidental tractor upsets occur."

Mr. Carlson also testified as follows:

"Q. When you were a design engineer for International Harvester, did you rely on the fact that the consumer would discover and understand the hazards that were involved in the use of a particular product that you may be designing?

A. Well, a roll of a piece of equipment like that is such an insidious thing that unless you really have experience with it, unless you have done something with it you have the attitude, it can't happen to me, anyway. But you don't understand what is involved and what causes a roll. And most people think that a roll only occurs on a very steep hill and that is not true. Rolls have occurred on relatively flat ground given the proper conditions."

Mr. Carlson expressed the opinion that the 500C Crawler Tractor was defective and unreasonably dangerous without a ROPS as standard equipment; that offering a ROPS as optional equipment was insufficient. With respect to warnings he testified as follows:

"A. I don't think a warning is sufficient. This hazard and this risk is too great and I know, in my case, I don't necessarily read warning signs. You have to have the frame in place and you have to really educate a person to convince him that rolls can and will happen on relatively flat...