Mitchell v. Ford Motor Co.

• Decision Date: 29 March 1976
• Docket Number: No. 75-1176,75-1176
• Citation: 533 F.2d 19
• Parties: Ernest F. MITCHELL, Jr., et al., Plaintiffs-Appellees, v. FORD MOTOR COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 19

533 F.2d 19

Ernest F. MITCHELL, Jr., et al., Plaintiffs-Appellees, v. FORD MOTOR COMPANY, Defendant-Appellant.

No. 75-1176.

United States Court of Appeals First Circuit.

March 29, 1976.

Eugene M. Van Loan, III, Manchester, N. H., with whom Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., was on brief, for appellant.

David J. Killkelley, Laconia, N. H., with whom Nighswander, Lord, Martin & Killkelley, Laconia, N. H., was on brief, for plaintiffs-appellees.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

ALDRICH, Senior Circuit Judge.

This is a diversity action brought in the District Court for the District of New Hampshire against a manufacturer for personal injury allegedly due to a defectively designed brake lever (handle) on a dump truck. The sole issue we reach is whether there was evidence to support the jury finding of liability.

On plaintiff's evidence plaintiff, a contractor, purchased the truck when it was a few months old, and had been driven about 5,000 miles. Approximately one year and 20,000 miles later, the accident occurred. Plaintiff was not the sole user of the truck, but he drove it regularly. On the day in question, while backing down a slight incline to connect with a trailer, he accidentally struck the trailer and started it down the incline. He stopped the truck, took the motor out of gear, pulled on the handbrake, left the truck, and pursued the trailer. The brake did not hold, and the truck backed over him. The brake would have held if it had been fully applied.

Plaintiff was 5'4 tall and, accordingly, drove the truck with the seat all the way forward. Because of brake wear, which increased the lever's "travel," if fully applied at the time of the accident the lever would have come to within three inches of the seat in the forward position. Plaintiff's experts testified that, because of its shortness, this made application awkward, especially if the user employed a particular grip or grasp, and that, in their opinion, a proper design would have provided a longer lever to clear the top of the seat. Although defendant asserted a reason for the supplied length, we accept plaintiff's experts' opinion, but subject to other established factors which have a bearing on the ultimate conclusion.

As manufactured, the lever did not come close to the seat. Anticipating wear, defendant had provided a compensatory adjustment. After the accident such an adjustment was made. It took but minutes. While not, of course, determinative, there was no affirmative evidence that defendant was ever aware of a handle problem. ¹

Before addressing basic principles, we must fault plaintiff's brief in two particulars. First, it says that the defect was not obvious. Secondly, it says plaintiff should not have to "continuously make an adjustment to the brake to fit his height" "every time (he) uses the truck." These are patent attempts to shift the facts to avoid the issues. Of course the defect if it was a defect was obvious. There was no suggestion that anything had gone suddenly wrong. Brake wear is gradual, and in the case of the handle's changed position, perceptible. We refrain from answering plaintiff's brief's other contention, that a condition that developed during 25,000 miles and had never been corrected, would require adjustment "every time he uses the truck."

Even the strict admiralty doctrine of unseaworthiness liability without fault does not require perfection. See Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941, 948; Doucette v. Vincent, 1 Cir., 1952, 194 F.2d 834, 837-38. There is probably little that could not be improved, or, at least, that some person having sufficient qualifications to be called an expert would not say could have been improved, selecting, after the event, which design would have been better. That, however, is not the test. As the court said in Weakley v. Fischbach & Moore, Inc., 5 Cir., 1975, 515 F.2d 1260, at 1267-68,

"(Plaintiffs) rely principally on an attempted showing that there were design alternatives which, had they been adopted, would have prevented the accident or minimized its consequences. Such a showing, by itself, is insufficient to establish liability. . . . It is one thing to show that the defendant might have designed a safer product; quite another to show that the product he did design was unreasonably dangerous. The defendant is not obliged to design the safest possible product, or one as safe as others make or a safer product than the one he has designed, so long as the design he has adopted is reasonably safe. W. Prosser, The Law of Torts § 96, at 645 (4th ed. 1971)."

In Brown v. General Motors Corp., 4 Cir., 1966, 355 F.2d 814, at 820, cert. denied, 386 U.S. 1036, 87 S.Ct. 1474, 18 L.Ed.2d 600, the court said,

"Failure to adopt the most modern, or even a better safeguard, did not render the manufacturer liable to the injured mechanic. . . . There is no indication in the evidence that the shield was not at least a reasonable preventive of injury."

Brown was cited with...