Roberts v. May, 77-714

• Decision Date: 11 May 1978
• Docket Number: No. 77-714,77-714
• Citation: 583 P.2d 305,41 Colo.App. 82
• Parties: James H. ROBERTS and Rita Roberts, Plaintiffs-Appellants, v. David Wayland MAY, and Daniel R. Peterson, Defendants, and Nissan Motor Corporation in U. S. A., a California Corporation, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 305

583 P.2d 305

41 Colo.App. 82

James H. ROBERTS and Rita Roberts, Plaintiffs-Appellants, v. David Wayland MAY, and Daniel R. Peterson, Defendants and Nissan Motor Corporation in U. S. A., a California Corporation, Defendant-Appellee.

No. 77-714.

Colorado Court of Appeals, Div. III.

May 11, 1978.

Rehearing Denied June 8, 1978.

Certiorari Denied Aug. 28, 1978.

Williams, Trine & Greenstein, P. C., Morris W. Sandstead, Jr., William A. Trine, Boulder, for plaintiffs-appellants.

Blunk, Johnson & Allspach, Donald G. Peterson, Forrest S. Blunk, Denver, for defendant-appellee.

PIERCE, Judge.

Plaintiff, Rita Roberts, brought this products liability action against defendant, Nissan Motor Corporation, in connection with injuries which she suffered as a passenger in a car manufactured by defendant. The trial court granted defendant's motion for summary judgment, and plaintiff appeals. We reverse.

Plaintiff and her husband were injured when a 1973 Datsun which the husband was driving collided with the rear of another vehicle. The Datsun was equipped with lap seat belts as well as shoulder restraints, but at the time of the accident plaintiff was wearing only the lap belt. She was thrown forward and her face struck the dashboard. The orbital rims of both eyes, her cheekbones, nose, and a number of other facial bones were fractured. Plaintiff and her husband brought this action against a number of defendants, including Nissan, on several theories, but only plaintiff's strict liability claim against Nissan survived early pretrial motions. That claim is the sole object of this appeal.

At the hearing on Nissan's motion for summary judgment, plaintiff introduced the depositions and reports of a number of experts. Essentially, these experts testified that the Datsun was defectively designed since 1) the lip below the glove compartment protruded enough so that a person of average height wearing only a lap belt would hit his face on it during a front end collision; and 2) the surface of this lip was so hard, and the angle of protrusion so acute, that upon impact, the bones of the face would normally fracture before the dashboard structure would yield.

Plaintiff's experts conceded that the automobile met all of the Department of Transportation's regulations for the 1973 manufacturing year, as well as the 1973 Society of Automotive Engineers (S.A.E.) recommendations. Specifically, the dashboard met the federal requirement that it yield to impacts of 80 g.'s or greater a figure which, according to S.A.E. test results, is the maximum force a human skull can withstand. Tests showed that the Datsun's dashboard would yield to forces in the 61-70 g. range. However, plaintiff's experts also pointed out that the S.A.E. tests indicated that a number of facial bones would fracture at forces as low as 40 g.'s, although these test results were not incorporated into the federal standards.

At the close of the hearing, at which defendant's expert also testified that the automobile met all 1973 federal design standards, the trial court granted defendant's motion for summary judgment.

I.

Our Supreme Court has adopted the doctrine of strict liability as stated in Restatement (Second) of Torts § 402(a). Hiigel v. General Motors Corp., Colo., 544 P.2d 983 (1975). Strict liability is applicable to an otherwise properly manufactured product if its Design renders it unreasonably dangerous. Pust v. Union Supply Co., Colo.App., 561 P.2d 355 (1976); Bradford v. Bendix-Westinghouse, 33 Colo.App. 99, 517 P.2d 406 (1973). The initial question which we must face here is whether § 402(a) liability attaches to an automobile design defect which, though not contributing to the collision itself, may have enhanced the injuries sustained. We hold that it does.

Courts of other states are divided over this so-called "second collision" or "crashworthiness" issue, though a commanding majority have held that such claims as this are actionable. ¹ We now adopt the majority position, which is based on the pragmatic observation that collisions and accidents are natural, foreseeable consequences of automobile use:

"No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called 'second collision' of the passenger with the interior part of the automobile, all are foreseeable. . . . The sole function of an automobile is not just to provide a means of transportation, it is to provide a means of safe transportation or as safe as is reasonably possible under the present state of the art." Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968).

Thus, manufacturers will not be insulated from liability by arguing that the initial collision was, as a matter of law, an unforeseeable intervening cause of the enhanced injuries.

The second collision doctrine, however, does not end the inquiry. Manufacturers are not required to produce automobiles with the "strength and crash-damage resistance features of an M-2 Army tank." Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir. 1976) (Bright, J., dissenting). The critical question is whether, under all of the surrounding circumstances, a manufacturer has created an unreasonable risk of increasing the harm in the event of the statistically inevitable collision. The principal issue here is whether the court erred in taking that question away from the jury by granting defendant's motion for summary judgment. We hold that it did.

Defendant's position is that since it met all of the 1973 Department of Transportation's standards for manufacture and design, its product was design defect free as a matter of law. We disagree. By the very terms of the Act under which those standards were promulgated, compliance "does not exempt any person from any liability under common law." 15 U.S.C. § 1397(c) (1970). Thus, the standards are statutory minima, and are not conclusive on the question of a manufacturer's liability. ² See Buccery v. General Motors Corp., 60 Cal.App.3d 533, 132 Cal.Rptr. 605 (1976).

Here, plaintiff's experts raised a factual question about the reasonableness of defendant's design strategies. This is not a case like Bruce v. Martin-Marietta Corp., 544 F.2d 442 (10th Cir. 1976), where defendant made an uncontradicted showing that the claimed defect could not have been corrected within the then existing state of the art. On the contrary, one of plaintiff's experts testified that he knew of several 1973 models whose dashboards were significantly less dangerous in terms of face-damaging protrusions than the automobile in question here. Under these circumstances, the drastic remedy of summary judgment was improper, and the issue of whether, under the 1973 state of the art, the design of the car unreasonably increased the risks of injury by collision should have been presented to the jury.

Because we reverse the trial court's summary judgment, we will address two issues which are likely to appear at trial.

II.

Defendant moved to amend its answer to add the affirmative defenses of misuse and unreasonable use with knowledge of the product's dangers. See Hiigel v. General Motors Corp., supra; Kinard v. Coats...