Rossell v. Volkswagen of America

• Decision Date: 28 October 1985
• Docket Number: No. 17778-PR,17778-PR
• Citation: 147 Ariz. 160,709 P.2d 517
• Parties: , Prod.Liab.Rep. (CCH) P 10,752 Phyllis A. ROSSELL, Guardian ad litem of Julie Ann Kennon, a minor, Plaintiff- Appellee, v. VOLKSWAGEN OF AMERICA, a corporation; Volkswagenwerk A.G., a corporation; Black Corporations I through V, Defendants-Appellants.
• Court: Arizona Supreme Court

Page 517

709 P.2d 517

147 Ariz. 160, Prod.Liab.Rep. (CCH) P 10,752

Phyllis A. ROSSELL, Guardian ad litem of Julie Ann Kennon, a minor, Plaintiff- Appellee, v. VOLKSWAGEN OF AMERICA, a corporation; Volkswagenwerk A.G., a corporation; Black Corporations I through V, Defendants-Appellants.

No. 17778-PR.

Supreme Court of Arizona, In Banc.

Oct. 28, 1985.

Reconsideration Denied Dec. 17, 1985.

Langerman, Begam, Lewis & Marks by Richard W. Langerman, Amy Langerman, Phoenix, Leonard Sacks, Encino, Cal., Shernoff & Levine by William M. Shernoff, Mallery, Stern & Warford by Richard C. Mallery, Claremont, Cal., Peter G. Dunn, Phoenix, for appellee.

Fennemore, Craig, von Ammon, Udall & Powers by Philip E. von Ammon, Ruth V. McGregor, Nancy L. Rowen, Phoenix, for appellants.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Larry L. Smith, Phoenix, for amici curiae Motor Vehicle Manufacturers Association.

FELDMAN, Justice.

This is a product liability action brought by Phyllis A. Rossell, as guardian ad litem on behalf of her daughter, Julie Ann Kennon (plaintiff), against the manufacturer and the North American distributor of Volkswagen automobiles. The defendants will be referred to collectively as "Volkswagen." The case involves the design of the battery system in the model of the Volkswagen automobile popularly known as the "Beetle" or "Bug." The jury found for the plaintiff and awarded damages in the sum of $1,500,000. The court of appeals held that the plaintiff had failed to establish a prima facie case of either negligence or proximate cause and that the trial judge had erred in denying Volkswagen's motion for judgment n.o.v. (Rossell v. Volkswagen of America, 147 Ariz.App. 176, 709 P.2d 533 (1984.) Believing that the court of appeals had incorrectly stated the applicable law with respect to both issues, we granted review. Rule 23, Ariz.R.Civ.App.P., 17A A.R.S. We have jurisdiction under Arizona Constitution art. 6, § 5(3) and A.R.S. § 12-120.24.

FACTS

We view the facts in the light most favorable to the party who prevailed at trial. McFarlin v. Hall, 127 Ariz. 220, 224, 619 P.2d 729, 733 (1980). This action arises from a 1970, one-vehicle accident. At the time of the accident Julie, then eleven months old, was sleeping in the front passenger seat of a 1958 Volkswagen driven by her mother. At approximately 11:00 p.m., on State Route 93, Ms. Rossell fell asleep and the vehicle drifted to the right, off the paved roadway. The sound of the car hitting a sign awakened Rossell, and she attempted to correct the path of the car, but oversteered. The car flipped over, skidded off the road and landed on its roof at the bottom of a cement culvert. The force of the accident dislodged and fractured the battery which was located inside the passenger compartment. In the seven hours it took Rossell to regain full consciousness and then extract herself and her daughter from the car, the broken battery slowly dripped sulfuric acid on Julie. The acid severly burned her face, chest, arm, neck, part of her back and shoulder, and both hands. Since the accident Julie has undergone extensive corrective surgery but remains seriously disfigured and in need of additional surgery.

Plaintiff filed the complaint in May, 1978. She alleged four theories of recovery: negligent design of the battery system and strict liability for the defective design of the battery system, the heating system and for the propensity of the vehicle to roll over. Prior to trial, the court entered partial summary judgment for Volkswagen on the theory of strict liability for battery system design. This ruling was based on the replacement of the original battery with a larger battery which did not fit the designed restraints and which the court felt constituted "a substantial change in the condition in which the vehicle was sold." See Restatement (Second) of Torts 402A(b) (1965) (hereafter Restatement, § ____). The summary judgment order preserved the claim based on negligent design for placement of the battery. After the close of the plaintiff's case, the court granted a directed verdict on the issues involving heating system design and roll-over propensity. Plaintiff has not taken a cross-appeal from these rulings. Thus, the case was submitted to the jury only on the question of Volkswagen's negligence in locating the battery inside the passenger compartment.

Plaintiff argued at trial that battery placement within the passenger compartment created an unreasonable risk of harm and that alternative designs were available and practicable. In their trial motions and later motion for judgment n.o.v., Volkswagen argued that plaintiff had failed to make a prima facie case. First, it claimed that in a negligent design case the defendant must comply with the standard of a reasonably prudent designer of automobiles and that

knowledge of automobile design principles and engineering practices often is beyond the knowledge of laymen, [so that] plaintiff in a case such as this must produce expert testimony establishing the minimum standard of care and deviation therefrom in designing the automobile....

(Defendant's Supplemental Brief at 11.) Concluding its argument, Volkswagen pointed out that plaintiff produced no testimony

expert or otherwise, [to] describe what was expected of [or done by] a reasonable automobile designer or manufacturer in 1958 or ... that defendants failed to meet [that] standard of care.

(Id. at 14.)

DID PLAINTIFF MAKE A PRIMA FACIE CASE OF NEGLIGENCE?

Legal Principles Applicable to a Negligent Design Case

The trial judge characterized Volkswagen's position as a contention that plaintiff could not prevail in the absence of testimony ... from a qualified expert as opposed to simply permitting the jury to infer it, ... that the standard of care required of a prudent manufacturer would require that the battery be placed elsewhere [or that] it was negligent ... not to have placed it outside of the passenger compartment.

(Transcript of January 29, 1980.)

The trial judge disagreed with Volkswagen and denied the motion for judgment n.o.v. However, a majority of the court of appeals held that such evidence was required for a prima facie case. That court held

[i]n order to establish the duty element of its negligence theory, [plaintiff] would have to provide expert witness testimony regarding the expert's opinion concerning the battery system design of ordinary careful manufacturers of automobiles in 1957. This was not done.

(Slip op. at 9.)

* * *

* * *

The ... state of the art can be established by expert testimony.... Here the questions were not asked, and this aspect of duty was not established by the evidence.

(Id. at 12.)

We do not agree with the views expressed by the court of appeals. First, the concept of "duty," mentioned twice by the court's majority, is irrelevant to the issues presented by this case. Duty, of course, is a necessary element in a negligence case. To satisfy that element, the court must find that the relation between plaintiff and defendant was such that it imposed upon the latter a legal obligation to use some degree of care for the protection of the former. Coburn v. City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984), quoting W. Prosser & W. Keeton, THE LAW OF TORTS § 53 at 356 (5th ed. 1984). Ever since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) it has been accepted that even in the absence of privity of contract an automobile manufacturer is under a duty of care to those who use the automobile. MacPherson is still the rule in Arizona. Crouse v. Wilbur-Ellis Co., 77 Ariz. 359, 366, 272 P.2d 352, 357 (1954).

Intimations about limitations of duty based on unforeseeability also appear in the majority opinion. (Slip op. at 12.) Palsgraf v. Long Island Railway Co., 248 N.Y. 339, 162 N.E. 99 (1928), teaches that the duty of care does not extend to potential victims outside the zone of foreseeable risk. Palsgraf is the law in Arizona. See McFarlin v. Hall, supra; West v. Cruz, 75 Ariz. 13, 251 P.2d 311 (1952). However, a passenger in a motor vehicle is not an "unforeseeable plaintiff" as to the manufacturer of that vehicle. Palsgraf has no application to the present case. In short, we see no duty issue here and note that Volkswagen has raised none. Its primary argument is directed to problems connected with the standard of care applied when duty does exist. ¹

We turn, then, to the central issue presented. What type of proof must plaintiff produce in order to make a prima facie case of negligent design against a product manufacturer? What is the standard of care? In the ordinary negligence case, tried under the familiar rubric of "reasonable care," plaintiff's proof must provide facts from which the jury may conclude that defendant's behavior fell below the "reasonable man" standard. Prosser, supra § 31 at 169. This question is ordinarily decided without providing the jury with any direct evidence about the details of what may or may not comply with the standard of care. ² The risk/benefit analysis involved in deciding what is reasonable care under the circumstances is generally left to the jury, id. at 173,

... and the function of the jury in fixing the standard of reasonable conduct is so closely related to law that it amounts to a mere filling in of the details of the legal standard.

Prosser, supra § 37, at 238.

Thus, in the usual negligence case the jury is left to reach its own conclusion on whether defendant's conduct complied with the legal standard of reasonable care. There need be no opinion testimony on the subject; the jury is encouraged, under proper instruction, to consider the circumstances, use its own experience and apply community standards in deciding what is or is not negligence. Id. at 237; § 32, at 173-74.

Volkswagen claims that negligent design cases are an exception. They contend that product manufacturers are held to an expert's standard of...