Phipps v. General Motors Corp., No. 6

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; ELDRIDGE
Citation363 A.2d 955,278 Md. 337
Parties, 20 UCC Rep.Serv. 312 James D. PHIPPS, etc., et al. v. GENERAL MOTORS CORPORATION. Misc.
Docket NumberNo. 6
Decision Date29 September 1976

Page 337

278 Md. 337
363 A.2d 955, 20 UCC Rep.Serv. 312
James D. PHIPPS, etc., et al.
v.
GENERAL MOTORS CORPORATION.
Misc. No. 6.
Court of Appeals of Maryland.
Sept. 29, 1976.

Page 338

Delverne A. Dressel, Baltimore (Dickerson, Nice, Sokol & Horn, Baltimore, on the brief), for appellants.

Edward S. Digges, Jr. and Francis B. Burch, Jr. (Joseph G. Finnerty, Jr. and Piper & Marbury, Baltimore, and Frazer F. Hilder, Gen. Counsel, Detroit, Mich., on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, LEVINE and ELDRIDGE, JJ.

ELDRIDGE, Judge.

We are here presented with two questions of law certified to this Court by the United States, District Court for the District of Maryland pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974), § 12-601 et seq. of the Courts and Judicial Proceedings Article.

The plaintiff, James D. Phipps, an employee in the service department of Marbert[363 A.2d 956] Motors, Inc., of Annapolis, Maryland, was injured on November 1, 1972, when a 1972

Page 339

Pontiac automobile which had been delivered to Marbert for servicing, and which Phipps was test driving in Annapolis, left the highway and crashed into a tree. A co-worker, Alexander F. Barchanowicz, who was a passenger in the automobile, was also injured.

James Phipps and his wife, Evalyn Phipps, instituted this action on October 31, 1975, in the United States District Court for the District of Maryland against the manufacturer of the automobile, General Motors Corporation. They alleged that the accident occurred when the accelerator of the automobile became stuck without warning, causing the automobile to accelerate suddenly at a high rate of speed and leave the road. It was further alleged that this malfunction of the automobile was caused by latent defects in the automobile's accelerator mechanism, in the carburetor and its components, and in the motor mounts.

The complaint contains six counts. In the first three counts, three separate causes of action are set forth. Count one alleges negligence in the design and manufacture of the automobile. Count two alleges breach of express and implied warrantices. Count three alleges that the automobile was in a defective condition rendering it 'not reasonably safe' when it left the control of the defendant and predicates liability upon the theory of strict liability in tort. 1 The final three counts of the complaint, in which James Phipps was joined by his wife, are each based upon the above theories respectively and seek damages for loss of consortium.

General Motors filed an answer to the complaint and also filed motions to dismiss both counts based upon the theory of strict liability in tort and the count seeking damages for loss of consortium caused by the alleged breach of warranty. In support of its motion to dismiss the strict liability counts, General Motors relied upon several prior cases of this Court which had declined, under the circumstances involved, to adopt the theory of strict liability in tort. General Motors argued that no such cause of action is recognized in this

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State. As to the loss of consortium count, General Motors relied upon Deems v. Western Maryland Ry., 247 Md. 95, 231 A.2d 514 (1967), in contending that an action for damages to sortium is actually an action for damages to the marriage relationship and not for damages sustained by an individual. Since a seller's warranty extends only to a non-purchaser who is a 'natural person' and who is 'injured in person' under § 2-318 of the Maryland Uniform Commercial Code, Maryland Code (1975), § 2-318 of the Commercial Law Article, General Motors argued that no action for loss of consortium could be brought by a non-buyer as the marriage relationship was not a 'natural person' who was 'injured in person.'

Phipps opposed both motions. Citing several trial court opinions, he argued that the courts of Maryland have recognized the theory of strict liability in cases where it would be applicable. Phipps also argued that a joint action for loss of consortium was proper where one spouse sustains bodily injury.

The United States District Court, finding that there were no controlling precedents in the decisions of this Court, certified the following two questions:

'1. Do the third and sixth counts of the Complaint (alleging that the defendant manufactured and placed on the market an automobile in a defective condition which condition rendered the automobile not reasonably safe for its intended use) state causes of action under Maryland law by a person who allegedly sustained [363 A.2d 957] bodily injuries by reason of the defective condition?

'2. Does the fifth count of the Complaint (alleging injury to a marital relationship by reason of breaches of express and implied warranties) state a cause of action under Maryland law?'

(1)

The theory of strict liability is set forth in the Restatement (Second) of Torts § 402A (1965):

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'Special Liability of Seller of Product for Physical Harm to User or consumer

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

'(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

As the Official Reporter's Notes to this section indicate, the rule stated in § 402A was based upon a developing body of case law expanding the liability of manufacturers for injury caused by defective products. Early cases in several jurisdictions created an exception to the general rule that a supplier of chattels was not liable to a third person in the absence of negligence or privity of contract where food products were involved. Liability was generally premised upon an 'implied warranty' which arose from the seller's representation in placing the food on the market that it was fit for human consumption. Although employing warranty language, the strict liability theory was essentially an action in tort dispensing with the traditional requirement of privity in contract actions. E.g., Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633 (1913); Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305 (1927). Strict liability without privity was slowly extended to products other than food for human consumption, such as animal food, McAfee v. Cargill, Inc., 121 F.Supp. 5 (S.D.Cal.1954); Midwest

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Game Company v. M.F.A. Milling Company, 320 S.W.2d 547 (Mo.1959). Products involving intimate bodily use were brought within the strict liability rule, e.g., Graham v. Bottenfield's, Inc., 176 Kan. 68, 269 P.2d 413 (1954) (hair dye); Markovich v. McKesson & Robbins, Inc., 106 Ohio App. 265, 149 N.E.2d 181 (1958) (permanent wave solution). Finally, strict liability for defective products other than foor or those involving intimate bodily contact was imposed without privity or a showing of negligence beyond the defect in the product. Spence v. Three Rivers Builders & Masonry Supply, 353 Mich. 120, 90 N.W.2d 873 (1958) (cinder building blocks); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960) (automobile); Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1962) (combination power tool). Greenman was the leading case expressly recognizing that the basis for strict liability for defective products was tort rather than contract. Justice Traynor there stated for the Supreme Court of California (377 P.2d at 901):

'Although in these cases strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a [363 A.2d 958] contract between them, the recognition that the liability is not assumed by agreement but imposed by law (see e.g., Graham v. Bottenfield's, Inc., 176 Kan. 68, 269 P.2d 413, 418; . . .), and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products (Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 84-96; . . .) make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort. Accordingly, rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer's liability to those injured by their defective products

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unless those rules also serve the purposes for which such liability is imposed.' 2

Various justifications for imposing strict liability in tort on manufacturers have been advanced by the courts. It has been said that the cost of injuries caused by defective products should in equity be 'borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves' and that 'warranties serve this purpose fitfully at best.' Greenman v. Yuba Power Products, Inc., supra, 377 P.2d at 901. It has also been suggested that imposing strict liability on manufacturers for defective products in equitable because it shifts the risk of loss to those better able financially to bear the loss. Seely v. White Motor Company, 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145, 151 (1965). Another reason advanced is that a consumer relies upon the seller in expecting that a product is safe for the uses for which it has been marketed, and that this expectation is better fulfilled by the...

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190 practice notes
  • Suter v. San Angelo Foundry & Mach. Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1979
    ...161, 164 (Ky.1978); Chappuis v. Sears, Roebuck & Co., 358 So.2d 926, 929 (La.1978) (Code equivalent); Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955, 958-60 (Ct.App.1976) (Statutory equivalent); Lovelace v. Astra Trading Corp., 439 F.Supp. 752, 757 (S.D.Miss.1977); O'Laughlin v. ......
  • Ellsworth v. Sherne Lingerie, Inc., No. 130
    • United States
    • Court of Appeals of Maryland
    • September 1, 1984
    ...of time, [which] cannot seriously be considered a reasonably foreseeable manner of use." This Court, in Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976) first applied the doctrine of strict liability in tort as expressed in the Restatement (Second) of Torts § 402 A. 2 Under ......
  • Kelley v. R.G. Industries, Inc., No. 20
    • United States
    • Court of Appeals of Maryland
    • September 1, 1983
    ...the product from or entered into any contractual relation with the seller." Maryland adopted § 402A in Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976). In so doing, this Court held that in order for a plaintiff to recover under this theory, he must establish that: "(1) the ......
  • Crickenberger v. Hyundai, No. 81, Sept. Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • March 21, 2008
    ...when a new vehicle malfunctions, a reasonable inference of a defect may be drawn from the circumstances. See Phipps v. Gen. Motors Corp., 278 Md. 337, 345-46, 363 A.2d 955, 959 (1976) ("[T]he steering mechanism of a new automobile should not cause the car to swerve off the road ...; the dri......
  • Request a trial to view additional results
189 cases
  • Suter v. San Angelo Foundry & Mach. Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1979
    ...161, 164 (Ky.1978); Chappuis v. Sears, Roebuck & Co., 358 So.2d 926, 929 (La.1978) (Code equivalent); Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955, 958-60 (Ct.App.1976) (Statutory equivalent); Lovelace v. Astra Trading Corp., 439 F.Supp. 752, 757 (S.D.Miss.1977); O'Laughlin v. ......
  • Ellsworth v. Sherne Lingerie, Inc., No. 130
    • United States
    • Court of Appeals of Maryland
    • September 1, 1984
    ...of time, [which] cannot seriously be considered a reasonably foreseeable manner of use." This Court, in Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976) first applied the doctrine of strict liability in tort as expressed in the Restatement (Second) of Torts § 402 A. 2 Under ......
  • Kelley v. R.G. Industries, Inc., No. 20
    • United States
    • Court of Appeals of Maryland
    • September 1, 1983
    ...the product from or entered into any contractual relation with the seller." Maryland adopted § 402A in Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976). In so doing, this Court held that in order for a plaintiff to recover under this theory, he must establish that: "(1) the ......
  • Crickenberger v. Hyundai, No. 81, Sept. Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • March 21, 2008
    ...when a new vehicle malfunctions, a reasonable inference of a defect may be drawn from the circumstances. See Phipps v. Gen. Motors Corp., 278 Md. 337, 345-46, 363 A.2d 955, 959 (1976) ("[T]he steering mechanism of a new automobile should not cause the car to swerve off the road ...; the dri......
  • Request a trial to view additional results
1 firm's commentaries
  • Split Decision
    • United States
    • LexBlog United States
    • March 31, 2022
    ...user or consumer, or to his property. . . . Restatement (Second) of Torts §402A (1965), as quoted in Phipps v. General Motors Corp., 363 A.2d 955, 957 (Md. 1976) (emphasis added). “Physical harm” is right there in the title; it’s not even necessary to read the comments. This utterly unsuppo......

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