Perez v. Ford Motor Company

• Decision Date: 07 October 1974
• Docket Number: No. 73-1805.,73-1805.
• Citation: 497 F.2d 82
• Parties: Roy Paul PEREZ, Individually, etc., et al., Plaintiffs-Appellants, v. FORD MOTOR COMPANY, Defendant-Appellee, Traders & General Insurance Company, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 82 (1974)

Roy Paul PEREZ, Individually, etc., et al., Plaintiffs-Appellants, v. FORD MOTOR COMPANY, Defendant-Appellee, Traders & General Insurance Company, Intervenor.

No. 73-1805.

United States Court of Appeals, Fifth Circuit.

July 17, 1974.

Rehearing and Rehearing Denied October 7, 1974.

COPYRIGHT MATERIAL OMITTED

Harvey J. Lewis, Samuel C. Gainsburgh, New Orleans, La., Jack B. Wise, Thibodaux, La., for plaintiffs-appellants.

Robert G. Hebert, New Orleans, La., for Truman Hendley, amicus curiae.

Allen R. Fontenot, William S. Penick, New Orleans, La., for defendant-appellee.

Ben W. Lightfoot, Baton Rouge, La., for intervenor.

Before TUTTLE, GEWIN and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied October 7, 1974.

RONEY, Circuit Judge :

Seven years ago Roy Paul Perez and his young daughter were seriously injured and his wife was killed when the cab or passenger compartment of a 1966 Ford F-100 pickup truck in which they were riding separated from the chassis and overturned after being struck from the rear by another Ford automobile. The District Court ruled, as a matter of Louisiana law, that this collision did not constitute "normal use" of the vehicle and therefore Ford Motor Company could not be liable for design and fabrication negligence in manufacturing the truck. We reverse, holding that the collision in this case does not legally preclude recovery based on Louisiana products liability concepts.

Perez introduced evidence that Ford secured the F-100's cab to its chassis with six sheet metal flanges, each approximately the thickness of a quarter. Should these flanges sever and the cab separate from the chassis by as much as one inch, the steering mechanism would be affected causing the driver to lose control of the truck. An expert witness testified that the rear-end collision occurred at a speed differential of approximately thirty miles per hour, which would be sufficient to sever the retainer flanges and free the cab from the chassis. Plaintiff contends the resulting loss of control of the truck compounded the injuries sustained by its passengers.

After four days of trial the District Court granted defendant Ford's motion for directed verdict. Understanding the latest statement on Louisiana products liability law to be that a plaintiff must prove the product to be "unreasonably dangerous to normal use," the District Court held as a matter of law that a rear-end collision at a thirty miles an hour speed differential was not "normal use" of the vehicle. The trial was aborted at this time because no party felt it necessary to go forward when the Court announced that it would, as a matter of law, exclude Ford from any liability for injuries which occurred in this accident.

On this appeal, Perez asserts three grounds for reversal : (1) error in holding that as a matter of law the collision involved in this case could not constitute "normal use" of the vehicle ; (2) error in not allowing plaintiff's negligence case to go to the jury after foreclosing his products liability theory ; and (3) error in excluding evidence establishing that the allegedly defective parts would have failed from comparable noncollision stresses.

I.

Largely unsettled in most jurisdictions is the current controversy in accident law concerning what is loosely termed the "crashworthiness" of automobiles. The question of whether the intended purpose for which an automobile is designed and manufactured includes the possibility of collisions has received conflicting treatment in various jurisdictions. Two polar opinions form the base of this dichotomy : Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966), cert. denied, 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1967), and Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968).

In Evans, the Court affirmed the dismissal of a complaint alleging negligence, breach of implied warranty, and strict liability flowing from the alleged defect in design of the automobile's frame because

the intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer\'s ability to foresee the possibility that such collisions may occur.

359 F.2d at 825. Accord, Schemel v. General Motors Corp., 384 F.2d 802 (7th Cir. 1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1030, 19 L.Ed.2d 1134 (1968) ; Shumard v. General Motors Corp., 270 F.Supp. 311 (S.D.Ohio 1967) ; Willis v. Chrysler Corp., 264 F.Supp. 1010 (S.D. Tex.1967). See also Hoenig & Werber, Automobile "Crashworthiness" : An Untenable Doctrine, 20 Clev.St.L.Rev. 578 (1971).

The Larsen court took an opposite approach. Although recognizing that there was no duty on the automotive manufacturer to design an accident-proof vehicle, it held the manufacturer to a duty of "reasonable care in the design of its vehicle . . . in the event of a collision." 391 F.2d at 502. This duty was premised on the fact that collisions are within the normal use of an automobile :

While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. . .

. . . . . .

The intended use and purpose of an automobile is to travel on the streets and highways, which travel more often than not is in close proximity to other vehicles and at speeds that carry the possibility, probability, and potential of injury-producing impacts. The realities of the intended and actual use are well known to the manufacturer and to the public and these realities should be squarely faced by the manufacturer and the courts.

391 F.2d at 502, 503. Larsen and its progeny have recognized that collisions are a foreseeable and inevitable consequence of everyday automobile use given our nation's crowded highways and have imposed upon manufacturers "a duty to guard against needlessly aggravated injuries." Turcotte v. Ford Motor Corp., 494 F.2d 173, 182 (1st Cir. 1974). See also Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972) ; Grundmanis v. British Motor Corp., 308 F. Supp. 303 (E.D.Wis.1970) ; Dyson v. General Motors Corp., 298 F.Supp. 1064 (E.D.Pa.1968).

Although it is settled jurisprudence in Louisiana that a species of strict liability in tort is available against manufacturers for defects in their products,¹ the Louisiana courts have not decided the question of whether the intended use of an automobile includes the possibility of collisions. In fact, the Louisiana courts do not speak in terms of the "intended use" of any product, but rather in terms of the "normal use." Both sides rely on Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971) as a leading decision concerning Louisiana products liability law.

In Weber, the Louisiana Supreme Court established that a manufacturer is liable for injuries caused by a product which is unreasonably dangerous to normal use or defective by reason of its hazard to normal use. In the words of Justice Albert Tate, Jr.:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving the product was defective, i. e., unreasonably dangerous to normal use, and that plaintiff\'s injuries were caused by reason of the defect. . . .

If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.

250 So.2d at 755, 756.

The plaintiff's burden of proof in a products liability case, as stated by the court in Weber, is two-tiered. The plaintiff first must prove that the manufacturer's product was defective. In order to establish defectiveness, the plaintiff must show that the product was in normal use and that the product was unreasonably dangerous in that use. After proving that the product was defective for normal use, the plaintiff must then show that his injuries were caused by the defect. When, in the instant case, the District Court ruled against plaintiff Perez on the basis that the rear-end collision in question did not constitute a normal use of the manufacturer's product, the questions of the unreasonably dangerous nature of the construction, manufacture or design of the pickup truck and the causation of plaintiff's injuries remained unresolved.

In Weber, seven prize winning cattle were killed when sprayed with a cattle dip found to contain an excessive proportion of arsenic. After finding that the plaintiffs properly mixed the solution, the Court discussed the alleged improper use of the dip on a "hot day":

Likewise, the suggestion that untoward effects were produced by the spraying being done on a hot August day is not impressive. It is based upon one of the numerous directions as to use of the product, designed (according to its wording) to avoid "a burning of the skin." Nothing on the label indicated that the cows will die if sprayed on such a day.

250 So.2d at 758.

In another similar Louisiana case, Williams v. Allied Chemical Corp., 270 So.2d 157 (La.Ct.App.1972), more cattle were poisoned, this time through the "improper" feeding of a protein supplement. Plaintiff had dispensed the feed via "free choice" instead of the slower "lick wheel" method as depicted in the manufacturer's instructions. In holding the manufacturer liable, the court referred in the above passage in Weber and stated that

Nothing was indicated to plaintiff that if the feed was used other than by a lick wheel that his cows would die.

270 So.2d at 162.

The difficulty in...