Polk v. Ford Motor Co.

• Decision Date: 01 June 1976
• Docket Number: 73--1256,Nos. 73--1255,s. 73--1255
• Parties: 1 Fed. R. Evid. Serv. 545 Thomas POLK, Appellee, v. FORD MOTOR COMPANY, Appellant. Ethel Lee MARSHALL, guardian, Appellee, v. FORD MOTOR COMPANY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 259

529 F.2d 259

1 Fed. R. Evid. Serv. 545

Thomas POLK, Appellee, v. FORD MOTOR COMPANY, Appellant.

Ethel Lee MARSHALL, guardian, Appellee, v. FORD MOTOR COMPANY, Appellant.

Nos. 73--1255, 73--1256.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 8, 1975.

Decided Jan. 9, 1976.

Rehearing Denied Feb. 19, 1976.

Certiorari Denied June 1, 1976.

See 96 S.Ct. 2229.

John M. Kilroy, Kansas City, Mo., for appellant.

Paul Scott Kelly, Jr., Kansas City, Mo., for appellee.

Before LAY, HEANEY, BRIGHT, ROSS, STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Once again this Court is called upon to forecast whether a state (this time Missouri) would apply the 'second collision' or 'enhanced injury' doctrine to a products liability case within its jurisdiction. A divided panel ¹ reversed a judgment in favor of plaintiffs, and this Court, deeming the issue to be of significance, reheard the case en banc.

The operative facts are well established by the record. On October 9, 1969, Thomas Polk was driving a 1970 Ford Maverick at approximately 45 to 50 miles per hour on Interstate 70 in Kansas City, Missouri. His passenger was Demple Martin. A car driven by Edward Farage in the same direction at a rate of speed estimated to be 90 to 100 miles per hour struck the Maverick at its right rear section, causing it to jump a nine-inch curb and strike a concrete retaining wall dividing the eastbound and westbound lanes. The Maverick rebounded from the retaining wall, overturned, and slid on its roof approximately 100 feet before coming to rest. The roof supports collapsed and the car burst into flames. Polk, who was thrown partially outside the car at the rear window on the driver's side, observed gasoline flowing toward him from the rear of the automobile. He was able to extricate himself from the automobile through the window. The serious burns which he suffered in the process were his only injuries. Martin was pinned in the Maverick and burned to death.

Polk and Ethel Marshall, the guardian of Demple Martin's minor children, each filed suit in the United States District Court for the Western District of Missouri against Ford Motor Company, the manufacturer of the 1970 Maverick. ² The complaints alleged negligence in the design of the 1970 Maverick, breach of warranty of merchantability, and strict liability in tort. The case was ultimately submitted to the jury on the theory of negligent failure to design and test and on the theory of strict liability which incorporated the 'second collision' or 'enhanced injury' concept, following rejection by the District Court of Ford's motion for a directed verdict. Following a jury verdict awarding $200,000 to Polk and $50,000 to Marshall as guardian, Ford filed alternative motions for judgment notwithstanding the verdict and for new trial, which were overruled. ³

The evidence at trial revealed that the 1970 Maverick used a flange-mounted fuel tank which was an integral part of the automobile's structure, its top constituting the floor of the trunk. In 1969, the year the 1970 Maverick was manufactured, all other American-made cars, excepting only Ford's low-priced compact models, used a strap-mounted fuel tank which was attached to the underbody of the car and was not an integral part of the car's structure. It was plaintiffs' contention that the flange-mounted fuel tanks were rigid on impact and more likely to produce a fire or explosion on impact from the rear, and that the collapsed roof supports contributed to the injuries of Polk and death of Martin by obstructing escape. In other words, the plaintiffs contended that the 1970 Maverick was unreasonably dangerous to the user.

The injuries complained of did not occur until after the Maverick had come to rest, upside down, and caught fire. Thus, the issue presented for decision is whether Ford may be liable to plaintiffs under the 'second collision' or 'enhanced injury' doctrine. On appeal, Ford contends that it was error to submit the case to the jury on this theory because (1) liability thereunder is not in accord with the law of Missouri and (2) there was insufficient evidence of defective design. Ford further contends that the instructions were prejudicially erroneous. Additional trial errors are also asserted. We reject these contentions and affirm the judgment of the District Court. ⁴

I Application of the Enhanced Injury Doctrine in Missouri

In undertaking the sometimes thankless task of anticipating the predispositions of a state court on an issue of state law not yet determined, we are admonished

* * * to have regard for any persuasive data that is available, such as compelling inferences or logical implications from other related adjudications and considered pronouncements. The responsibility of the federal courts, in matters of local law, is not to formulate the legal mind of the state, but merely to ascertain and apply it. Any convincing manifestation of local law, having a clear root in judicial conscience and responsibility, whether resting in direct expression or obvious implication and inference, should accordingly be given appropriate heed.

Yoder v. Nu-Enamel Corp., 117 F.2d 488, 489 (8th Cir. 1941).

The second collision doctrine, enhanced injury doctrine, or defect-enhancing doctrine, as it is variously called, is the legal concept which imposes liability based on the construction or design of a product which causes enhanced or greater injuries in the course of or following an initial accident or collision brought about by some independent cause. The landmark decision Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968), adopted the enhanced liability doctrine in a Michigan diversity case and held:

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. We perceive of no sound reason, either in logic or experience, nor any command in precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents. The manufacturers are not insurers but should be held to a standard of reasonable care in design to provide a reasonably safe vehicle in which to travel.

391 F.2d at 502--03.

A growing number of courts have adopted the enhanced liability doctrine, ⁵ but other courts have either rejected or restricted its application. ⁶ The quantum of opposing cases alone does not aid our inquiry since (1) some of the cases cited have rejected the doctrine as applied to the particular facts before them and (2) some have considered the doctrine under various theories of recovery, i.e., common law negligence, breach of implied warranty, and strict liability in tort. ⁷ The critical issue in negligence cases is whether the manufacturer has a duty to design its cars so that injuries to occupants involved in accidents will not be enhanced because of some defect in the automobile. Courts rejecting the theory have usually done so by declining to impose a duty to design against enhancing injuries and declaring (1) the particular collision was not reasonably foreseeable by the manufacturer or (2) a collision is not a use for which the auto was intended. ⁸

In 1969, the Supreme Court of Missouri embraced the view of strict liability in its entirety for defective products set forth in Restatement (Second) of Torts § 402A (1965). ⁹ Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 364 (Mo.1969). In succeeding years the courts of Missouri have reinforced that commitment at every opportunity. ¹⁰ Most recently, the Missouri Supreme Court extended the protection of the rule of strict liability to bystanders, thus making a complete break with any vestigial concepts of privity derived from theories of strict liability based upon warranty. Giberson v. Ford Motor Co., 504 S.W.2d 8 (Mo.1974).

It is true that some pre-Keener cases speak of the manufacturer as not being 'an insurer', Stevens v. Durbin-Durco, Inc., 377 S.W.2d 343, 346 (Mo.1964), and as not 'required to contemplate * * * misuse', Hays v. Western Auto Supply Co., 405 S.W.2d 877, 884 (Mo.1966). But these cases found their basis in the law of simple negligence and implied warranty, not strict liability, and in Keener the court expressly turned to the Restatement to avoid such confining concepts. 445 S.W.2d at 364.

In a post-Keener case, the Missouri Court of Appeals held that under appropriate facts misuse may fall within the area of reasonable anticipation. In Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943, 948 (Mo.App.1970), the court said:

Keener * * * directs this issue (of misuse) to be submitted in language hypothesizing the use of the article 'in a manner reasonably anticipated'. The statement to the effect defendants are not liable for injuries resulting from abnormal use is only true if such abnormal use was not reasonably foreseeable. 'The issue is one of foreseeability, and misuse may be foreseeable.' Products Liability, Frumer & Friedman, § 15.01. Foreseeable use may be different from its intended use and includes any particular use which should be known to a reasonably prudent manufacturer.

In each post-Keener case, the Missouri courts have reaffirmed their purpose, originally stated in Keener, 'to insure that the costs of injuries resulting from defective products are borne by the manufacturers (and sellers) that put such products on the market rather than by the injured persons who are powerless to protect themselves.' Keener, supra, 445 S.W.2d at 364, quoting Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 701...