Hancock v. Paccar, Inc.

• Decision Date: 04 September 1979
• Docket Number: No. 41938,41938
• Citation: 204 Neb. 468,283 N.W.2d 25
• Parties: , 5 A.L.R.4th 462 Virginia R. HANCOCK, Administratrix of the Estate of Lowell Burton Hancock, Deceased, Appellee, v. PACCAR, INC., a Delaware Corporation, and Transport Indemnity Insurance Company, a corporation, Appellants.
• Court: Nebraska Supreme Court

Page 25

283 N.W.2d 25

204 Neb. 468, 5 A.L.R.4th 462

Virginia R. HANCOCK, Administratrix of the Estate of Lowell Burton Hancock, Deceased, Appellee, v. PACCAR, INC., a Delaware Corporation, and Transport Indemnity Insurance Company, a corporation, Appellants.

No. 41938.

Supreme Court of Nebraska.

Sept. 4, 1979.

Syllabus by the Court

1. Torts: Negligence: Strict Liability. A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.

2. Torts: Negligence: Strict Liability. In principle, a manufacturer or other person owning or controlling a thing that is dangerous in its nature or is in a dangerous condition, either to his knowledge or as a result of his want of reasonable care in manufacture or inspection, who deals with or disposes of that thing in a way that he foresees or in the exercise of reasonable care ought to foresee will probably carry that thing into contact with some person, known or unknown, who will probably be ignorant of the danger, owes a legal duty to every such person to use reasonable care to prevent injury to him. In the application of the principle it is immaterial whether or not the conduct of a defendant amounted to a breach of the contract between him and the immediate buyer from him. The duty is not created by contract, but is an instance of the general human duty not to injure another through disregard of his safety.

3. Torts: Negligence: Strict Liability: Motor Vehicles. A manufacturer of goods has a duty to use reasonable care in the design of goods to protect those who will use the goods from unreasonable risk of harm while the goods are being used for their intended purpose or any purpose which could be reasonably expected. The subjection of an automobile to accidental collision with another automobile or object while being used for its intended purpose is a use which a manufacturer should reasonably expect.

4. Torts: Negligence: Strict Liability: Motor Vehicles. One who is injured as a result of a mechanical defect in a motor vehicle should be protected under the doctrine of strict liability even though the defect was not the cause of the collision which precipitated the injury. There is no rational basis for limiting the manufacturer's liability to those instances where a structural defect has caused the collision and resulting injury. This is so because even if a collision is not caused by a structural defect, a collision may precipitate the malfunction of a defective part and cause injury. In that circumstance, the collision, the defect, and the injury are interdependent and should be viewed as a combined event. Such an event is the foreseeable risk that a manufacturer should assume. Since collisions for whatever cause are foreseeable events, the scope of liability should be commensurate with the scope of the foreseeable risks.

5. Judgments: Evidence. In determining the sufficiency of the evidence to sustain a verdict, it must be considered most favorably to the successful party and every controverted fact resolved in his favor and he must have the benefit of inferences as reasonably deducible from it.

6. Jury: Evidence. While the jury may consider, as evidence of the state of the art, the fact that no manufacturer is doing that which it is claimed could be done, such evidence will not establish conclusively the state of the art. The inaction of all the manufacturers in an area should not be the standard by which the state of the art should be determined. Whether the design represents the state of the art is still a question of fact to be determined by the jury.

7. Strict Liability: Words and Phrases. In a strict liability case "unreasonably dangerous" means that the product had a propensity for causing physical harm beyond that which could be contemplated by the ordinary user or consumer who purchases it, with the ordinary knowledge common to the foreseeable class of users as to its characteristics.

8. Torts: Negligence. Contributory negligence, in the sense of a failure to discover a defect or to guard against it, is not a defense to a suit in strict tort. Assumption of risk and misuse of the product are.

9. Burden of Proof: Evidence. The fundamental principle of the law of evidence is to the effect the burden of proof in any cause rests upon the party who asserts the matter.

10. Negligence: Burden of Proof. Assumption of risk, when imposed to defeat recovery, is an affirmative defense and the burden is upon the defendant to establish such defense.

11. Torts: Strict Liability: Pleadings. A plaintiff in a strict tort liability case is not required to plead and prove he was unaware of the defect.

12. Instructions: Evidence. A trial court is not required to give a proffered instruction which unduly emphasizes a part of the evidence in the case.

13. Torts: Strict Liability. In a strict tort liability case it is not incumbent upon a plaintiff to discover a defect.

James M. Bausch of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellants.

Asa A. Christensen and Donald J. Pepperl of Christensen Law Offices, P. C., and Robert I. Eberly, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

Defendant (Paccar) appeals from a jury verdict entered in favor of plaintiff and against Paccar in the amount of $251,180 resulting from the death of plaintiff's husband while operating a tractor trailer on Interstate Highway No. 80 in York County, Nebraska. We first note that this case might have been entitled "Friedrich II." See Friedrich v. Anderson, 191 Neb. 724, 217 N.W.2d 831. To a large extent, the review in this case, as in Friedrich v. Anderson, supra, requires an examination of the doctrine of strict liability as it applies to an alleged defective design and the effect such defect may have within the concept of "an enhanced injury." We have made such a review, together with a review of other errors assigned by defendant in this case, and conclude that the verdict of the jury should be affirmed.

The facts involved in this case disclose that about 5 a. m., on September 12, 1971, plaintiff's husband, Lowell Burton Hancock (deceased), was operating a certain 1969 Kenworth cab-over tractor owned by Scott Truck Lines, Inc., in an easterly direction on interstate 80 in York County, Nebraska. The tractor was pulling a trailer loaded with about 35,000 pounds of fresh beef. At a location about 11/2 miles east of the Waco, Nebraska, interchange, the tractor, which was then traveling at a speed of approximately 60 miles per hour, struck a deer on the highway. The impact of the deer on the truck was severe and resulted in the left side of the front bumper being bent backwards in a V-shape at the place where the bumper passed in front of the left front wheel. The bumper, as bent, was wedged between the inside of the left front wheel and the adjoining framerail. This forced the front wheel in a left turning position and locked it in place, which prevented the deceased from controlling or steering the truck. The tractor and trailer turned in a left direction, left the highway, and entered the median adjacent to the highway. Upon its entry into the median, the unit rolled over and slid into a quardrail which protruded from a nearby bridge abutment. This impact resulted in the death of deceased.

The 1969 Kenworth cab-over tractor which deceased was driving at the time of his collision was manufactured and sold by Paccar in 1969. The front bumper on the tractor, which was only 5 inches in front of the wheel, extended the full width of the front of the tractor. It was made of lightweight aluminum and had several cutouts and holes in the face of the bumper directly in front of the wheel area. These holes were located exactly where the bumper bent after impact. The outer ends of the bumper were not braced to the body of the tractor and were simply cantilevered.

Plaintiff, by her third amended petition, sought recovery on two separate causes of action. The first cause of action was based upon a common law theory of negligence and alleged that Paccar was negligent with regard to the design of the front bumper because (1) the bumper was too long, (2) the bumper contained cutouts and holes, (3) the bumper was not braced at the ends, (4) the bumper was not made of alternative materials which would either not deform or would yield upon impact before blocking the steering, and (5) the bumper was not tested or inspected.

The second cause of action was based upon the doctrine of strict liability alleging that Paccar placed the bumper on the market without inspection at a time when the design was defective and not reasonably fit for ordinary and foreseeable uses. Paccar admitted that the collision occurred, but denied any liability. After trial the jury returned a verdict for plaintiff and against Paccar in the amount of $251,180.

Paccar assigns multiple errors, which for simplicity and convenience can best be summarized and grouped into several general categories. As so summarized and grouped, the assignments of error are as follows: (1) That the trial court erred in failing to direct a verdict in favor of Paccar and against plaintiff; (2) that the trial court erred in submitting certain instructions to the jury which were not supported in the evidence; (3) that the trial court erred in refusing to give certain instructions requested by Paccar; and (4) that the trial court erred in permitting the introduction of certain testimony. We shall address the...