McMullen v. Volkswagen of America

• Decision Date: 22 January 1976
• Citation: 545 P.2d 117,274 Or. 83
• Parties: Michael W. McMULLEN, personal representative of the Estate of Maria Consuelo Reynolds, Appellant, v. VOLKSWAGEN OF AMERICA, a New Jersey Domestic Corporation, et al., Respondents. Richard Everett REYNOLDS, personal representative of the Estate of Frank Everett Reynolds, Appellant, v. VOLKSWAGEN OF AMERICA, a New Jersey Domestic Corporation, et al., Respondents. Robert S. BOUCHER, by and through his guardian ad litem, Michael M. McMullen, Appellant, v. VOLKSWAGEN OF AMERICA, a New Jersey Domestic Corporation, et al., Respondents.
• Court: Oregon Supreme Court

Page 117

545 P.2d 117

274 Or. 83

Michael W. McMULLEN, personal representative of the Estate

of Maria Consuelo Reynolds, Appellant, v. VOLKSWAGEN OF AMERICA, a New Jersey Domestic Corporation, et

al., Respondents.

Richard Everett REYNOLDS, personal representative of the Estate of Frank Everett Reynolds, Appellant, v. VOLKSWAGEN OF AMERICA, a New Jersey Domestic Corporation, et

al., Respondents.

Robert S. BOUCHER, by and through his guardian ad litem, Michael M. McMullen, Appellant, v. VOLKSWAGEN OF AMERICA, a New Jersey Domestic Corporation, et

al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 1, 1975.

Decided Jan. 22, 1976.

Bruce W. Williams, Salem, argued the cause for appellants. With him on the briefs were Ralph C. Spooner, Daniel A. Ritter, Roy Harland, and Harland, Ritter & Haenny, Salem.

Malcolm F. Marsh, of Clark, Marsh & Lindauer, Salem, argued the cause for respondent Volkswagen of America. With him on the brief were Michael C. McClinton, Salem, and Herzfeld & Rubin, P.C. and Michael Hoenig, New York City. Also on the brief were Asa L. Lewelling, Salem, for respondent Eyerly Motors, Inc., and Jones, Lang, Klein, Wolf & Smith, Portland, for respondent Riviera Motors, Inc.

O'CONNELL, Chief Justice.

Three actions for personal injuries as a result of an automobile collision have been consolidated for the purpose of this appeal. The trial court sustained defendants' demurrers to plaintiffs' complaints and plaintiffs appeal. ¹ The facts are as follows:

Sometime prior to April 15, 1971, defendant Volkswagen of America sold a 1971 Volkswagen bus to defendant Riviera Motors, Inc., which in turn sold the same vehicle to Eyerly Motors, Inc. Eyerly Motors, Inc., supplied this vehicle to one of its employees, Frank Everett Reynolds, to use for business, pleasure and family purposes.

On April 15, 1971, the bus was involved in a collision with a 1968 Dodge automobile operated by Daniel M. Patzer. At the time Frank Reynolds was driving the Volkswagen, and Maria Reynolds and plaintiff Robert Boucher were passengers in the front and rear compartments respectively. As a result of the accident, Frank and Maria Reynolds suffered injuries resulting in their deaths. Robert Boucher suffered serious and permanent bodily injury.

Separate actions were brought against Daniel M. Patzer by the personal representatives of the estates of Frank and Maria Reynolds and by Robert S. Boucher through his guardian ad litem. Following an out of court settlement, these three actions were dismissed.

Thereafter, plaintiffs' complaints were amended to include the respondents on this appeal. The complaints were brought on the theory of negligence, strict liability, and implied warranties of merchantability and fitness for a particular purpose. It was alleged that each defendant was liable for one or more of the following: designing, manufacturing, distributing or selling the Volkswagen bus in a defective condition. In Reynolds v. Volkswagen, et al, and McMullen v. Volkswagen, et al, it was alleged that the Volkswagen was defective in that the design, construction and materials of the front seat assembly and anchoring tracks allowed the post assembly to become disengaged from the anchoring tracks upon impact. The complaint in Reynolds v. Volkswagen, et al, also alleged that the design, construction and materials of the steering wheel and column prevented it from collapsing or giving away upon impact with a passenger. In Boucher v. Volkswagen, et al, it was alleged that the design, construction, and materials of the rear seat assembly and seat belt and rear door latching and locking device were defective in that they failed to keep occupants of the rear seat from being thrown from the vehicle. It was alleged that these defects enhanced plaintiffs' injuries as a result of the collision.

Defendants filed demurrers to plaintiffs' complaints upon the ground that in each instance they did not state facts sufficient to constitute a cause of action. The trial judge, in a letter opinion, refused to recognize a duty to manufacture, distribute and sell a 'crashworthy' vehicle and sustained the demurrers.

Excellent briefs present to this court for the first time the question of whether the manufacturer or distributor is liable when a design defect does not cause the initial accident but merely enhances the plaintiff's injuries resulting from his collision inside the vehicle. Cases in which this occurs are sometimes referred to as the 'second collision' cases.

Two divergent lines of authority have developed in this class of cases; some courts holding that the defendant has no duty to make his product 'crashworthy'; others holding that there is such a duty. Some of the courts denying recovery to the injured plaintiff have done so on the ground that the defendant is liable only in those cases where the defect causes the Accident and that he has no duty to design his product so as to minimize injuries where the accident arises from causes other than a defect in the product.

We are unable to accept this analysis. As one author has expressed it, '(t) here seems to be no rational basis for splitting the event of the collision and allowing recovery only where the condition of the automobile caused the accident; the accident and injury are all part of the same happening in which defendant's failure to use reasonable care caused harm.' ² Other reasons are advanced by defendants for denying recovery in the present case. It is argued that the enactment of both federal and state laws establishing regulatory agencies charged with the duty of establishing product design safety standards constitutes a legislative pre-emption of the power to fix such standards. Alternatively, it is urged that even if the fixing of design standards is not pre-empted by legislative action, the courts should defer to the legislative branch in this field because the legislative process provides a better method for the complexities of establishing such safety standards. As further support for this position, it is contended that fairness dictates that manufacturers should be able to determine prior to sale whether a design meets minimum standards and that this can be accomplished only by pre-established standards fixed by a legislative agency.

The arguments advanced by defendants are not without support in some of the adjudicated cases and in several of the periodicals. ³ In Henderson, Jr., Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Colum.L.Rev. 1531, 1534 (1973), the author strongly presses the view that 'courts are not suited to the task of establishing specific product safety standards in the course of applying general reasonableness tests to determine the adequacy of allegedly defective products brought before them.' ⁴

The problem of determining whether in a particular case the design of a product meets the minimum standard of safety is without question very difficult and for that reason alone a court would understandably be tempted to unburden itself and the jury of the task of attempting to fix the standard. As tempting as this solution is, we are unable to find a basis for embracing it. There is nothing in the legislative history or in the text of either the federal or state product safety legislation indicating an intention to pre-empt the fixing of such standards. The federal st...