Garst v. General Motors Corp.

• Decision Date: 10 April 1971
• Docket Number: No. 45893,45893
• Citation: 484 P.2d 47,207 Kan. 2
• Parties: Shirley J. GARST, Tina Marie Garst, Kelli LaNay Garst, by and through their mother, Shirley J. Garst, their duly appointed guardian and conservator, John Roy Benton, Jerry Hancock, Liberty Mutual Insurance Company, a Corporation, Appellees, v. GENERAL MOTORS CORPORATION, Appellant, and Lyle Baskins, Defendant.
• Court: Kansas Supreme Court

Page 47

484 P.2d 47

207 Kan. 2

Shirley J. GARST, Tina Marie Garst, Kelli LaNay Garst, by and through their mother, Shirley J. Garst, their duly appointed guardian and conservator, John Roy Benton, Jerry Hancock, Liberty Mutual Insurance Company, a Corporation, Appellees, v. GENERAL MOTORS CORPORATION, Appellant and Lyle Baskins, Defendant.

No. 45893.

Supreme Court of Kansas.

April 10, 1971.

Syllabus by the Court

1. A manufacturer has the duty to use reasonable care in the design of his products so that they will be reasonably safe for their intended use, including any emergencies of use which can reasonably be anticipated.

2. A manufacturer is not, however, required to design products so that they are foolproof or incapable of producing injury. Neither is he required to incorporate only features representing the ultimate in safety in his design.

3. The duty of a manufacturer in the design of his product is that of reasonable care, but the manufacturer is not an insurer that his product, from a design standpoint, be accident-proof or incapable of producing injury.

4. In a products liability case where a manufacturer is charged with negligence in the design of his product, it is insufficient merely to assert that a different design would have alleviated or averted the plaintiff's injuries, since it may be assumed that any particular accident involving man and machine might have been avoided through a variation in the design of the machine.

5. In a products liability case where a manufacturer is charged with negligence in the design of his product, negligence is not proved merely because someone later demonstrates that there would have been a better way. Reasonable care does not require prescience nor is it measured with the benefit of hindsight.

6. In a products liability case where a manufacturer is charged with negligence in the design of his product, the determination as to whether or not a manufacturer has in fact exercised due care in the design of his product requires the consideration of several matters. A significant factor is whether others in the field are using the same design, or a safer design. Other factors to be considered are whether a safer design not yet in use is known to be feasible, and whether in the case of a new product there has been adequate testing.

7. In a products liability case where a manufacturer is charged with negligence in the design of his product, what usually is done by others in the design of the same or a similar product may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.

8. In a products liability case charging General Motors Corporation with the negligent design of the braking and steering systems on a 40-ton 'Euclid' earth mover manufactured by General Motors Corporation, the plaintiffs recovered a verdict for injuries sustained in an accident with the earth mover, and on appeal it is held: When the purpose for which the earth mover was intended and the environment in which it was to be operated are considered, there was no substantial competent evidence, as a matter of law, upon which the jury could find General Motors negligent in designing the braking and steering systems of the earth mover.

Thomas V. Koykka, of Arter & Hadden, Cleveland, Ohio, argued the cause, and Richard C. Hite, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, was with him on the brief for appellant.

Donald Newkirk, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause, and Philip Kassebaum, Wichita, Arthur Relihan and T. D. Relihan, of Relihan, Relihan & Relihan, Smith Center, and John Prather, Wichita, were with him on the brief for appellees.

SCHROEDER, Justice:

This is a products liability case wherein the plaintiffs in the trial court won a verdict in the total sum of $118,401.54 for death and injuries caused by the operation of a 40-ton 'Euclid' earth mover manufactured by General Motors Corporation.

The issue tried in the lower court, material to the appeal, is whether General Motors was guilty of negligence in designing the braking and steering systems on the 'Euclid' earth mover.

The question on appeal is whether there is any substantial competent evidence to support the jury's finding that General Motors was negligent in designing the braking and steering systems on the 'Euclid' earth mover.

The law upon which the foregoing issue was tried in the lower court is given in instruction No. 8 as follows:

'A manufacturer has the duty to use reasonable care in the design of his products so that they will be reasonably safe for their intended use, including any emergencies of use which can reasonably be anticipated.

'A manufacturer is not, however, required to design products so that they are foolproof or incapable of producing injury. Neither is he required to incorporate only features representing the ultimate in safety in his design.

'It is for the jury to determine from all the evidence in a case, whether or not a manufacturer used reasonable care under the circumstances then existing to design its product in such a way that it did not create an unreasonable risk of injury to the user or others, when used in a reasonably anticipated manner.'

General Motors' challenge to this instruction in its motion for a new trial was overruled by the trial court, but the law stated in the first two paragraphs of the instruction is not challenged on appeal. The first two paragraphs of instruction No. 8, therefore, become the law of the case.

Negligent design was considered by this court in Winn v. Sampson Construction Co., 194 Kan. 136, 398 P.2d 272.

The facts material to our review are not in dispute.

The vehicle involved in the accident is an earth-moving scraper, referred to also as the TS-24, or as the General Motors Euclid scraper, shown in the photograph.

The vehicle is of enormous proportions, being at the outer limits of size presently designed for earth-moving equipment. It measures 44 feet 3 1/2 inches long, is 11 feet 10 inches wide, is 11 feet 3 1/2 inches tall, and weighs approximately 40 tons empty. When filled to capacity with earth, it weighs approximately 80 tons. This vehicle will be referred to as the scraper.

The Cook Construction Company was engaged in the performance of the earth-moving contract at the Glen Elder Dam in the Missouri River Basin near Beloit, Kansas. Work on the project had started in December, 1964. By the time of the accident, May 17, 1965, excavation for the dam, referred to as the 'core trench,' had been carried 40 feet below the ground level. Excavation was to go still farther down to firm shale to form the bottom or foundation of the dam. The excavation was already well below the ground water table, and as a consequence, the core trench, through which the scraper was required to travel in carrying on the excavation work, was a slurry of mud and water. On the day of the accident the mud was so deep that the scraper, traveling through it, would sink down to its front bumper. This was approximately 4 feet deep. Although the scraper was powered by two motors, one for the tractor unit and one for the trailer unit, at times the scraper would have to be pulled through the trench for loading.

To alleviate the water problem the Cofferdam Unwatering Company, a subcontractor, undertook the job of 'unwatering' the excavation. It did this by laying pipe in the excavation to permit the water to be pumped out. Three employees of the Cofferdam Unwatering Company were involved in the accident here in question.

Baskins, an employee of the Cook Construction Company, was operating the scraper at the time of the accident.

Two berm roads were constructed and used on the sloping edge of the project to remove earth taken from the excavation.

On the day of the accident a crane was located at the outer edge of the first berm roadway up from the bottom of the excavation. This crane was used by the Cofferdam Unwatering Company to lower pipe into the excavation.

At 1:45 p. m. on May 17, 1965, the three employees of the Cofferdam Unwatering Company were going south from the crane on the berm road toward a pipe trailer which was 65 feet south of the crane. They were going to the trailer to get more pipe and were walking in single file, Jerry Hancock leading the way, John Roy Benton behind him, and Guy Garst, the employee who died of his injuries, bringing up the rear.

Baskins, operating the scraper, was going in the same direction on the berm road. He had taken a load of earth out of the excavation and was returning for a fresh load.

The three employees had been working on the berm road where the accident occurred since 10 o'clock that morning. They knew the scraper was using the same roadway. In that period Baskins, before the accident, had made eight or ten trips on the same roadway.

The berm road was not of sufficient width to permit Baskins to pass the crane with the scraper without turning out partially up the slope and going around. As he approached the crane he turned his scraper, as he had before, slightly to his right to pass the crane. As Baskins passed the crane he turned to look back 'to check the clearance' and then 'cut it back to the left to get back to the haul road.' When Baskins next looked forward he, for the first time, saw the three workmen walking to the pipe trailer.

Baskins was moving 10 or 12 m. p. h. in third gear, of the four at his disposal. He immediately turned the steering wheel of the scraper to the right, applied the brakes, dropped the bowl or pan of the scraper to provide additional braking action, downshifted from third to second gear, and from second to first. (The order in which these actions were taken is not clear from the evidence.) Measurements showed the pan dragged from the point where it was dropped 'a distance of six feet' to the point where the machine stopped.

In spite of these...