McClung v. Ford Motor Company, 72-1257.

• Decision Date: 26 January 1973
• Docket Number: No. 72-1257.,72-1257.
• Citation: 472 F.2d 240
• Parties: Robert R. McCLUNG, Appellant, v. FORD MOTOR COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

472 F.2d 240 (1973)

Robert R. McCLUNG, Appellant, v. FORD MOTOR COMPANY, a corporation, Appellee.

No. 72-1257.

United States Court of Appeals, Fourth Circuit.

Argued October 4, 1972.

Decided January 26, 1973.

Donald R. Wilson, Charleston, W. Va. (Preiser & Wilson, Charleston, W. Va., on brief), for appellant.

Donald D. Hodson, Beckley, W. Va. (Bowers, File, Hodson & Payne, Beckley, W. Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.

PER CURIAM:

We affirm for the reasons stated by the District Court. 333 F.Supp. 17 (S. D.W.Va.1971).

In this diversity case, we are not free to fashion a rule for West Virginia which accords with our preferences. We must examine available materials to predict, as best we can, what the West Virginia Supreme Court would do if presented with this same question.

That court has not considered an automobile manufacturer's liability for the aggravation of injuries caused by a defect in the vehicle when the defect was not a contributing cause of the initial collision. Prior to the adoption of the Uniform Commercial Code, however, that court had held there was no liability in tort or contract for personal injuries even though the defect in the vehicle caused the initial collision, if there was an express warranty limited to the replacement of defective parts. Payne v. Valley Motor Sales, Inc., 146 W. Va. 1063, 124 S.E.2d 622; Williams v. Chrysler Corporation, 148 W.Va. 655, 137 S.E.2d 225.

A court with so restrictive an approach to the allowance of damages for personal injuries when the defect in the vehicle was the immediate and direct cause of them is not likely to embrace a doctrine of recovery for enhancement of injuries in "second collision" situations when the alleged defect played no causative part in the initial collision.

Affirmed.

ALBERT V. BRYAN, Senior Circuit Judge (dissenting):

An automobile manufacturer's alleged liability to a purchaser of its car for personal injuries due to a deficiency in the interior design of the car does not present a justiciable issue, the appellee contends and the majority holds. It is not actionable, they say, unless the deficiency was in a feature of design required for the normal functioning of the car or by statute — that only a legislative direction for the inclusion of the feature would render its omission a dereliction of obligation. Because of the absence of such an operational defect or statutory requirement here, summary judgment went for the manufacturer.

This concept to me is altogether mistaken, for the conceded common law duty of a manufacturer to use reasonable care to produce a reasonably safe car is not limited to the car's operation, locomotion or carriage. The present plaintiff was seriously hurt by the manufacturer's omission from the car's structure of adequate provision for the driver's protection from the foreseeable hazards of collision.

To avoid misunderstanding of my contention, it is well to state what I do not assert:

My thesis readily acknowledges:

(1) That the car in suit was not in any aspect lacking in functional capability.

(2) No defect in the car caused or contributed to cause the collision in which the plaintiff was hurt.

(3) A manufacturer is not an insurer of its product against injury to the driver.

(4) The manufacturer does not warrant an automobile to be accident immune.

(5) I do not say that the plaintiff on the bare present showing alone is entitled to recover; I do say that he is entitled to go to the jury on common law negligence or breach of warranty; and that the claim does not present an issue of law.

My point is that the maker of the car is liable for an injury attributable to its failure to exercise reasonable diligence to see that the interior of the car is so designed as to minimize, and not increase, the probability of injury resulting from collisions which are universally incident to the every day use of an automobile. The common law abundantly lends itself to this standard. The suggestion that legislation is needed to create the manufacturer's duty ignores the flexibility of the common law.

The setting of the issue is precisely depicted by the District Judge in his opinion:

"The complaint asserts the plaintiff appellant Robert R. McClung was involved in a collision with another vehicle in January, 1966, . . . and that as a result of the defendant\'s negligent design of the vehicle plaintiff was driving, plaintiff was severely injured. . . . Plaintiff stated that the 1965 Ford Mustang driven by the plaintiff had the following defects

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