Jones v. White Motor Corp.

• Decision Date: 29 September 1978
• Citation: 401 N.E.2d 223,61 Ohio App.2d 162
• Parties: , 15 O.O.3d 292 JONES, Admx., Appellant, v. WHITE MOTOR CORP. et al., Appellees.
• Court: Ohio Court of Appeals

Page 162

61 Ohio App.2d 162

401 N.E.2d 223, 15 O.O.3d 292

JONES, Admx., Appellant, v. WHITE MOTOR CORP. et al., Appellees.

Court of Appeals of Ohio, Sixth District, Erie County.

Sept. 29, 1978.

Syllabus by the Court

1. In a products liability case, where a claim is asserted against a manufacturer for the defective design of its product, the strict liability principle of 2 Restatement of Torts 2d, Section 402(A) and the negligence principle of Section 398 merge; the standard of conduct required of the manufacturer is that of reasonable care in design and the manufacturer is liable to those whom it could expect to use the product as intended or be endangered by such use, including bystanders.

2. In a defective design products liability case, contributory negligence is a defense if the plaintiff discovered the defect and was aware of the danger, and nevertheless proceeded to use the product; contributory negligence is not a defense if the plaintiff merely failed to discover the defect or failed to guard against the possibility of its existence.

3. Obviousness of a defect in design is only a factor to be considered in determining whether such design is unreasonably dangerous.

Michael T. Murray, Sandusky, for appellant.

Herbert P. Eastman, Sandusky, for appellees.

POTTER, Presiding Judge.

This is a products liability case based on an alleged dangerous design. Bobby Jones died from injuries received when he was run over by a Euclid R-50, a large hauling vehicle, driven by appellee William Hale and manufactured by appellee Euclid, Inc., a wholly owned subsidiary of White Motor Corporation. The Euclid R-50 manufactured in 1971 is a large truck not for highway use but designed for use in quarries, mines and construction sites. It weighs approximately 85,000 pounds, has a capacity of 50 tons, is approximately 33 feet long and 13 feet wide, and has a height of 14 feet. It is used throughout the United States. The operator sits in a protected cab to the left of the hood. The hood is to the front of the truck and centered. The eight-foot hood protrudes forward causing a substantial blind area to the operator's right. The truck was sold to Sandusky Crushed Stone Company, Inc., to be used in its quarry operations. Plaintiff, the appellant herein, as administratrix of the estate of Bobby Jones, filed a wrongful death action against defendants Hale, White Motor Corporation and Euclid, Inc., the appellees. A jury trial resulted in a verdict in favor of defendants. Plaintiff's motion for a new trial was denied and she appeals to this court, filing the following assignments of error:

"1. It is reversible error and contra to plaintiff's requested jury instruction No. 4 to instruct the jury that Euclid, Inc. is under no duty to guard against injury from an obvious peril.

"2. When the jury instructions are read in a disjointed and confusing manner, and different sections of the charge contradict each other, neither plaintiffs nor defendants are accorded a fair, just, rational resolution of the dispute between them, according to law, necessitating a new trial.

"3. It is reversible error and contra to plaintiff's requested jury instruction No. 4 to instruct the jury that, 'If the defendant, Euclid, Inc., in the design of and on sales of its machine met the reasonable standards of safety in the industry in which it was operating and created no unreasonable risk of injury to the operators, you cannot find the defendant, Euclid, Inc., negligent' ".

"4. It is reversible error to instruct the jury that contributory negligence is a defense to an action based on a breach of implied warranty claim necessitating a defense verdict and then submit to the jury a list of special interrogatories, the first of which states, "Did Bobby Jones contribute to the accident by his own negligent act of stepping in front of the Euclid R-50 as it started forward?

"5. It was reversible error for the trial judge to exclude the testimony of Mr. Howard Bristow relating to the effect and purpose of a forward warning on the Euclid R-50: whether such systems were available in 1971; and his opinion as to whether or not the design was defective.

"6. The verdict was against the weight of the evidence.

"7. The court should not have permitted the interrogatories to be submitted to the jury in the form presented.

"8. The court improperly dismissed White Motors as a defendant."

We find assignments of error Nos. 1, 2, 3, 4, and 7 well taken for the reasons and to the extent hereinafter set forth. The judgment as to White Motor Corporation is affirmed for the reasons set forth under assignment of error No. 8. It is also affirmed as to William Hale, since this appeal has not been directed to him. The judgment is reversed as to Euclid Incorporated.

Bobby Jones was employed as a mechanic by Sandusky Crushed Stone for approximately six years. On June 26, 1973, Mr. Jones reported to work as usual and went into the clock house, where the time cards for most, if not all employees, were kept. Lined up in the roadway near the clock house were five Euclid R-50's, all with their engines running. It was the general practice for the Euclid operators to park these vehicles in front of the clock house and to leave them running while the driver went inside to punch their time cards. Mr. Jones, like all of the workers in the machine shop, had to cross the roadway where the vehicles were parked in order to get from the clock house to the machine shop. On this particular day, quarry foreman, Burley Burkhardt was sitting in a pickup truck about 250 feet to the southeast of the clock house. Mr. Burkhardt saw Mr. Jones just as he was walking around the right front corner of the first Euclid R-50. According to Mr. Burkhardt, the Euclid R-50 started to move forward just as Mr. Jones was stepping in front of it, Mr. Jones was struck by the right front bumper and run over by the front and back wheels of the vehicle. Euclid argues that the evidence warrants an inference that the decedent, wearing dress shoes, may have slipped and fallen into the path of the vehicle. The vehicle which struck Mr. Jones was driven by William Hale, who testified at trial that he did not see Mr. Jones and did not know that an accident had happened until someone flagged him down after Mr. Jones was struck.

Plaintiff claimed that the Euclid R-50 was defective in that it was manufactured according to an unreasonably unsafe design and that the defective condition of the vehicle was the proximate cause of Mr. Jones' death. Plaintiff's expert witnesses testified that it was feasible to use outside mirrors on the vehicle to substantially reduce the blind area and, or, to equip the vehicle with an automatic forward horn or other warning system. Defense witnesses disputed the feasibility of changes in the design of the 1971 Euclid R-50 and testified that in the design of a vehicle to haul fifty tons of stone over a variety of terrain and conditions, concern must be had for the operator and his protection, the weight distribution, the suspension system, and pitch mode of the vehicle, its stability etc., and the best position of the cab for visibility, considering all factors. They also testified as to the absence of governmental regulations or rules which would require the changes in design urged by plaintiff. In effect, this was a conscious design choice of the manufacturer. See Back v. Wickes Corp. (1978), --- Mass. ---, 378 N.E.2d 964.

At the close of plaintiff's case, the court granted a defense motion to dismiss White Motor Corporation as a party defendant, but denied a motion for a directed verdict in favor of Euclid, Inc. After the presentation of defendants' case, the cause went to the jury, which answered interrogatories and returned a verdict in favor of defendants Hale and Euclid.

On other occasions, we have noted that the area of products liability is a turbulent one. We are aware that we are about to chart an uncertain course across a troubled sea, but our uncertain course results from the emerging and uncertain law in products liability, not only in Ohio but across the country. See annotation 76 A.L.R.2d 91; annotation 46 A.L.R.3d 240; annotation 33 A.L.R.3d 415; 63 American Jurisprudence 2d 9, Products Liability, Section 1; 25 Vanderbilt L. Rev., where a number of articles are presented.

Our travail results in the case sub judice, in particular from the application of 2 Restatement of Torts 2d 347, Section 402A (1965), which has been adopted in Ohio (see Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267) and 2 Restatement of Torts 2d 336, Section 398 (1965), as both apply to an "active" as compared to a "passive" bystander. (Many cases refer to a passive bystander as the "innocent" bystander. See Lamendola v. Mizell (1971), 115 N.J.Super. 514, 280 A.2d 241.) These sections read as follows:

"398. Chattel Made Under Dangerous Plan or Design. A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design."

"402A. 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...