Kallio v. Ford Motor Co., C4-85-2126

• Decision Date: 05 June 1987
• Docket Number: No. C4-85-2126,C4-85-2126
• Citation: 407 N.W.2d 92
• Parties: , Prod.Liab.Rep. (CCH) P 11,374 Robert KALLIO, Respondent, v. FORD MOTOR COMPANY, Petitioner, Appellant, Tomahawk Ford, Inc., Defendant.
• Court: Minnesota Supreme Court

Page 92

407 N.W.2d 92

55 USLW 860, Prod.Liab.Rep. (CCH) P 11,374

Robert KALLIO, Respondent, v. FORD MOTOR COMPANY, Petitioner, Appellant Tomahawk Ford, Inc., Defendant.

No. C4-85-2126.

Supreme Court of Minnesota.

June 5, 1987.

Syllabus by the Court

1. Although ordinarily in a products liability tort case based upon alleged defect in design existence of an alternative feasible safer design is a factor to be considered in determining whether the product was unreasonably dangerous, it is not a separate element necessarily to be proved in each case. In the instant case, sufficient evidence existed to prima facie establish existence of a feasible alternative safer design.

2. Normally in a products liability case based upon an alleged design defect, evidence of subsequent remedial actions taken by the manufacturer is inadmissible under Rule 407, Minn.R.Evid., if the defendant manufacturer concedes the feasibility of the alternate design at the time the product was manufactured.

3. Whether the manufacturer of an automatic transmission on a motor vehicle breached its duty to warn operators of the dangers of vehicular movement if the shift lever was not completely in the "park" position, and whether the breach was a cause of the accident and injury was for jury resolution.

Hildy Bowbeer, Minneapolis, John M. Thomas, Office of Gen. Counsel, Dearborn, Mich., for appellant.

Robert R. Johnson, Minneapolis, for respondent.

Karen Melling van Vliet, Minneapolis, MN Trial Lawyers Ass'n, William E. Jepsen, St. Paul, amicus for MN Defense Lawyers Assoc.

Heard, considered, and decided by the court en banc.

KELLEY, Justice.

In this products liability personal injury action, respondent Robert Kallio claims that a pickup truck owned by him and manufactured by appellant Ford Motor Co. (Ford) was defective due to (1) improper design of the automatic transmission shifting mechanism, and (2) failure to provide adequate warnings of potential danger arising from operator misuse. On appeal to the court of appeals from a judgment entered in respondent's favor, Ford claimed that the trial court erred in (1) denying Ford's requested instruction that in product design cases the plaintiff has the burden of showing a feasible safer alternative design to establish a prima facie case; (2) in permitting respondent to introduce evidence of subsequent remedial measures; and (3) in failing to direct a verdict, or to give Ford's requested instructions, on the duty to warn. A panel of the court of appeals rejected Ford's assertions. ¹ We concur in the result reached by the courts below and, therefore, affirm the judgment. We do not concur, in part at least, however, with the analysis employed by the court of appeals panel.

While driving his 1977 Ford F-150 pickup truck home from work, Robert Kallio pulled over to the side of the road, shifted the automatic transmission lever into the "park" position, and left the cab to cover some tools in the open truck bed that had become exposed to the rain. He neither shut off the engine nor set the parking brake. As he jumped on the bumper to cover the tools, he suddenly realized the truck was moving in reverse. He leaped to the ground and ran to the truck's cab, but before he was able to re-enter the truck, he slipped on the pavement, fell, and the truck ran over both of his legs and one of his hands before a passenger sitting in the cab succeeded in stopping it. His subsequent action against Ford was bottomed on allegations of defective design of the truck's shifting mechanism and on Ford's failure to warn of the propensity of the truck not to go completely into the "park" position. The jury concluded both that the truck was defective ² and that Kallio was negligent. ³

1. Because it claims that Kallio failed to demonstrate the existence of a feasible, practicable, and safer alternative automatic transmission shift design, Ford asserts the trial court erred in denying Ford's motion for a directed verdict. Alternatively, Ford argues the trial court erroneously refused to give Ford's requested Instruction No. 11 relating to the issue. ⁴

Whether the trial court erred in either case depends upon whether in a products liability alleged design defect case a plaintiff must establish as an element of his case that at the time of manufacture a safer, practicable, and technologically feasible alternative design existed--an issue of first impression for this court. Other courts of last resort, however, have addressed the issue. Ford buttresses its contention by reliance upon decisions from New York, Oregon, and Nebraska--all of which hold that in an alleged defective product design case, an element of plaintiff's case includes proof of the existence of a feasible, safer alternative design. These jurisdictions hold that initially the plaintiff has the onus of presenting evidence of the existence of substantial likelihood of harm and that when the product was manufactured, it was feasible to employ an alternative safer design. Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983); Wilson v. Piper Aircraft Corp., 282 Or. 61, 577 P.2d 1322 (1978) rehearing denied, 282 Or. 411, 579 P.2d 1287 (1978); Nerud v. Haybuster Mfg., Inc., 215 Neb. 604, 340 N.W.2d 369 (1983). This showing must be more than a "technical possibility [of the existence] of a safer design." Piper Aircraft, 282 Or. at 67-68, 577 P.2d at 1326.

The rule of strict liability in tort found in Restatement (Second) of Torts § 402(A) (1965) had its genesis more than 20 years ago. Almost since the rule's inception, courts have tended to borrow common law concepts of negligence in determining whether a manufactured product, as designed, is unreasonably dangerous. See, e.g., Wade, Strict Tort Liability of Manufacturers, 19 Sw. L.J. 5, 17 (1965); see also Keeton, Product Liability and the Meaning of Defect, 5 St. Mary's L.J. 30 (1973); Steenson, The Anatomy of Products Liability in Minnesota, 6 Wm. Mitchell L.Rev. 1, 23-25 (1980); Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825 (1973).

The design defect products liability cases arising in the three jurisdictions relied upon by Ford employ the negligence reasonable care test which requires the trier of fact to balance the product's risks against its utility and cost in determining whether it has been defectively designed. See, e.g., Micallef v. Miehle Co., 39 N.Y.2d 376, 386, 384 N.Y.S.2d 115, 121, 348 N.E.2d 571, 577-78 (1976); Wilson v. Piper Aircraft Corp., 282 Or. 61, 66, 577 P.2d 1322, 1325-26 (1978); Nerud v. Haybuster Mfg., Inc., 215 Neb. at 614, 340 N.W.2d at 375. We have likewise adopted a similar approach citing with approval Micallef v. Miehle Co. in Holm v. Sponco Manufacturing, Inc., 324 N.W.2d 207, 212 (Minn.1982). ⁵ Later, in Bilotta v. Kelley Co., 346 N.W.2d 616 (Minn.1984), we reaffirmed our Holm holding that we had adopted the reasonable care balancing test. Id. at 622. Because this court in Holm v. Sponco Manufacturing, Inc. and in Bilotta v. Kelley Co. specifically adopted the reasonable care balancing test in design cases in reliance upon the analysis of the New York Court of Appeals in Micallef v. Miehle Co., Ford here argues that we should likewise extend the reasonable care balancing test reasoning, as New York has done, to require preliminarily that a plaintiff must present evidence of the existence of a safer, feasible alternative design. On the other hand, Kallio urges that we should follow Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978), which held that the burden of proving the nonexistence of a safer design should rest with the manufacturer.

We decline respondent's invitation to follow Barker. Instead, we concur in the observation made by the Oregon Supreme Court when, in the course of denying a petition for rehearing in Wilson v. Piper Aircraft Corp., urging it to adopt the Barker rationale, it stated:

Under that decision [Barker ] it appears that a design defect case will always go to the jury if only the plaintiff can show that the product caused the injury. In this jurisdiction, however, it is part of plaintiff's case to show that a product which caused an injury was dangerously defective.

282 Or. at 413, 579 P.2d at 1287-88.

Unlike California, which in Barker specifically removed "unreasonable" as a limitation of the compensable dangerousness of a product, see 20 Cal.3d at 417, 573 P.2d at 446, 143 Cal.Rptr. at 228, Minnesota, like Oregon, maintains the requirement in a strict liability products case that a plaintiff must establish not only that the product was in a defective condition, but also that it was unreasonably dangerous. O'Laughlin v. Minnesota Natural Gas Co., 253 N.W.2d 826, 832 (1977), Bilotta v. Kelley Co., 346 N.W.2d at 622. Obviously, a factor bearing upon the latter requirement will be the existence or nonexistence of a feasible alternative design. To satisfy that requirement, the plaintiff ordinarily has the burden of showing the existence of an alternative design that was safer. ⁶ If the manufacturer presents evidence disputing the contention, the trier of fact will resolve the "unreasonably dangerous" issue. As in other tort cases, plaintiffs asserting a strict liability tort claim based upon alleged defective design of a product ultimately have the burden to prove the elements of the asserted claim. Generally in a case based upon alleged improper design, one of those elements requires production of evidence that the design employed was unreasonably dangerous. To establish a prima facie case that it was unreasonably dangerous normally requires production of evidence of the existence of a feasible, alternative safer design.

In this case the trial court instructed the jury using JIG 117, 4 Minn.Dist. Judges Ass'n, Minnesota Practice, JIG III CIVIL (3d ed. 1986). ⁷ Additionally the court's instructions elaborated on other factors the jury could...