Maxted v. Pacific Car & Foundry Co.

• Decision Date: 30 October 1974
• Docket Number: No. 4358,4358
• Citation: 527 P.2d 832
• Parties: Jack MAXTED, Appellant (Plaintiff below), v. PACIFIC CAR & FOUNDRY COMPANY, a corporation, et al., Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 832

527 P.2d 832

Jack MAXTED, Appellant (Plaintiff below), v. PACIFIC CAR & FOUNDRY COMPANY, a corporation, et al., Appellees (Defendants below).

No. 4358.

Supreme Court of Wyoming.

Oct. 30, 1974.

Mayne W. Miller and John W. Burk, Casper, for appellant.

R. R. Bostwick, Murane, Bostwick, McDaniel, Scott, Greenlee & Owens, Casper, for appellees.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

Plaintiff, appellant herein, filed his amended complaint, containing four counts, seeking recovery against these defendants, and appeals from the judgment denying his recovery.

This claim arose from an accident occurring on August 30, 1968, upon the highway between Burgess Junction and Ranchester, Wyoming. Plaintiff was the driver of a logging unit consisting of a tractor and trailer, and while proceeding upon this road, in order to avoid a car which had intruded into his traffic lane and while on a slight curve, pulled the tractor to the extreme right side of the road. The trailer was loaded with logs and the right rear wheels of the trailer went off the road and as a result the driver lost control of the unit, and after a 'jack-knifing' occurred the truck rolled over, thereby injuring the plaintiff. Plaintiff filed this suit against Pacific Car & Foundry Company, as manufacturer of the tractor, and Peterbilt Truck Sales & Service and Chopping Motors, Inc., as distributors of the truck. Fruehauf Company is joined as a manufacturer of the trailer. The record shows the trailer was designed or built in 1963 and the tractor in 1967.

The amended complaint in Counts 1 and 2 asserts a claim of negligent design and bases this claim upon both warranty in the first count and strict liability in the second count, and as a basis therefor alleges the design defect to be that of a failure to provide 'an adequate roll-bar and the padding necessary' so that the cab would not have been crushed in and upon plaintiff, nor would he have been injured in that manner if these had been provided. Upon the trial of these two counts the jury returned a verdict for the defendants and judgment was entered thereon.

Counts 3 and 4 were based upon a claim of negligent design, alleging in summary the failure to place a device with which the driver could jettison the trailer or the load upon this unit in the event of such emergency. The first of these counts asserted the theory of warranty and the second was under that of strict liability. However, in both instances this matter was presented upon the theory of strict liability without objection of plaintiff.

Prior to the trial the court entered a partial summary judgment against defendants on Counts 3 and 4 and ordered that no mention be made of or reference be made to any facts or evidence in support thereof during the trial.

The undisputed facts will be sketched from the affidavits and depositions on file at the time the trial court made this disposal. No attack is made upon the coupling device or method used to connect the tractor and trailer at the time of the sale, which is significant. ¹ No suggestion appears in the evidence that this was any different or less safe than that employed on all such units at that time. No suggestion is made that this in any manner violated any statutory or recognized standards, or any Interstate Commerce Commission or other safety regulations. No suggestion is made that any such units had ever been equipped with any such device or that the 'jettison device' was employed in any Appellant's experts, in their depositions, concede that such device was not employed in the industry nor had they ever heard it suggested or seen any such device. Kelsey, a trucker with much experience in hauling logs, confirms this. He further stated that he wanted the same type coupling as here because he considered it the safest. Although Cady by deposition stated he believed such device could be designed and produced, he had not completed his studies in that field. Appellant's sole support for his position rests in the deposition of the expert Feder, who also concedes that he had never heard or thought of such device until inquiry was made by a lawyer of plaintiff sometime in April 1972 and has never seen such device being used, although he has inspected other logging trucks. The thrust of his entire testimony must be considered upon the background of an answer appearing in his deposition:

manner in any part of the trucking industry.

'The challenge, if you please, was whether or not there was a conceivable way to develop an original work that would effect the separation of these components.' ²

This statement in and of itself strongly suggests the fact that this was an entirely new idea and obviously not available in 1967-some five years earlier. ³

Plaintiff relies upon the drawings of such a device and a small model to demonstrate its operation, but no prototype has ever been constructed nor has it ever been installed on any trucking unit. To apparently strengthen or cure this lack of proof appearing in the depositions appellant filed an affidavit from Feder, setting out that in his professional judgment 'in the year 1963 and before it was feasible and well within the state of the art for the breakaway device he has testified to in his deposition to have been installed on tractor-trailer logging units similar to the one involved herein.' If categorical assertions of ultimate facts without supporting evidence could be used to defeat summary judgment this procedure would have no viability and would be contrary to the philosophy of Rule 56(e), W.R.C.P., and Clouser v. Spaniol Ford, Inc., Wyo., 522 P.2d 1360, 1363. We have heretofore held the whole purpose of summary judgment would be defeated if the case could be forced to trial by a mere assertion that an issue exists, McCamon v. Darnall Realty, Wyo., 444 P.2d 623, 625; and that a party may not rely upon conclusions nor can they be employed in disposing of a motion for summary judgment, McClure v. Watson, Wyo., 490 P.2d 1059, 1061-1062.

Appellant raises two questions in this appeal. First, the propriety of the grant of summary judgment and accompanying grant of a motion in limine as to certain evidence which might be produced, and second, the question of the propriety of an instruction which was refused and is hereinafter set out. The issues are extremely narrow and this decision will be based upon the narrow factual situation in this case. The brief and argument and authorities cited appear to be an attempt to elicit or at least tempt the court to articulate and recognize certain general propositions in connection with produce liability cases in this State. This is particularly inappropriate because of the fact that these are not directly posed nor completely argued and a careless or misunderstood word or phrase might inhibit the orderly and proper growth of this field of the law, which is dynamic and expanding.

SUMMARY JUDGMENT

The briefs and arguments herein tend to confuse or overlook the dual requirement for any recovery in negligence '* * * Before any duty, or any standard of conduct may be set, there must first be proof of facts which give rise to it; and once the standard is fixed, there must be proof that the actor has departed from it. * * *'

cases. This is stated most simply and understandably in Prosser, Law of Torts, § 37, p. 205 (4th Ed.):

Until there is some establishment by evidence of a standard of conduct or duty, there can be no question of 'conflict of material facts.' Recovery for negligence rests upon a legal duty owed by defendant to plaintiff, Brubaker v. Glenrock Lodge International Order of Odd Fellows, Wyo., 526 P.2d 52, 58; Guinand v. Atlantic Richfield Company, 10 Cir., 485 F.2d 414, 417. The determination of the standard of care or duty is a matter of law and not the province of the jury, Evans v. General Motors Corporation, 7 Cir., 359 F.2d 822, 824, certiorari denied, 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70. Both parties conceded this rule in Larsen v. General Motors Corporation, 8 Cir., 391 F.2d 495, 498, but it states, 'The decisional law is in accord' when referring to this proposition. Further see Prosser, Law of Torts, supra. If the rule were otherwise the standard would rest in the whim and personal views of the jurors. The establishment of such duty is upon the plaintiff, Hatch v. Ford Motor Company, 163 Cal.App.2d 393, 329 P.2d 605, 607. This, then, poses the question, What was the duty of Fruehauf and Pacific Car & Foundry Company in manufacturing these items insofar as the design defect was concerned? A.L.I. Restatement of the Law Second, Torts 2d, § 402A, p. 347 (1965), carries its own definition which is particularly appropriate because appellant is seeking to proceed thereunder:

'* * * any product in a defective condition unreasonably dangerous to the user or consumer * * *'

However, Restatement, supra, subsection (h), p. 351, states the following:

'A product is not...