Turner v. General Motors Corp.

• Decision Date: 11 September 1974
• Docket Number: No. 1005,1005
• Citation: 514 S.W.2d 497
• Parties: Robert TURNER, Appellant, v. GENERAL MOTORS CORPORATION, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 497

514 S.W.2d 497

Robert TURNER, Appellant, v. GENERAL MOTORS CORPORATION, Appellee.

No. 1005.

Court of Civil Appeals of Texas Houston (14th Dist.).

Sept. 11, 1974.

Rehearing Denied Oct. 9, 1974.

Ronald D. Krist, Harvill E. Weller, Jr., Krist & McConnico, Houston, for appellant.

B. Jeff Crane, Jr., Daniel A. Hyde, Vinson, Elkins, Searls, Connally & Smith, Houston, Ross L. Malone, Thomas W. Watkins, Detroit, Mich., for appellee.

COULSON, Justice.

This is an appeal from an order sustaining a plea of privilege in a products liability case. Appellant Robert Turner sued General Motors Corporation, appellee, and Raymond Kliesing d/b/a Kliesing Motor Company in strict liability in tort for personal injuries received when his car rolled over in an accident. Suit was brought in Brazoria County, where Turner purchased the automobile from Kliesing Motors. General Motors filed a plea of privilege to be sued in the county of its residence in Texas, Harris County. Turner filed a controverting affidavit asserting that venue for General Motors was proper in Brazoria County, on the basis of Subdivision 4 of Article 1995, Vernon's Tex.Rev.Civ.Stat.Ann. (1964). After a plea of privilege hearing, the trial judge sustained General Motors' plea and filed findings of fact and conclusions of law.

Subdivision 4 of Article 1995 states in pertinent part: 'If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.' The necessary venue facts under Subdivision 4 are: 1) one defendant resides in the county of suit; 2) the party making the plea of privilege is at least a proper party; 3) the plaintiff has a bona fide claim against the resident defendant. O. P. Leonard Trust v. Hare, 305 S.W.2d 833 (Tex.Civ.App. Texarkana 1957, writ dism'd). It is uncontested that the first two venue facts are present in this case. The third venue fact consists of proving by a preponderance of the evidence each element of a bona fide claim against the resident defendant. Stockyards Nat. Bank v. Maples, 95 S.W.2d 1300 (Tex.Comm'n App.1936, opinion adopted). Turner sued General Motors and Kliesing in strict liability in tort for a defectively designed roof on his automobile which enhanced his injuries, but did not cause the accident. The trial judge, in his findings of fact, found all the facts necessary for this alleged cause of action, if such a cause of action does exist; the sustaining of the plea of privilege was, in effect, a holding that no such cause of action exists in Texas.

The question here is whether a manufacturer and retailer may be held strictly liable in tort for a defectively designed automobile which enhances the injuries of plaintiff, but does not cause the accident.

At the plea of privilege hearing, Turner testified that in April of 1971 he was driving on a two-lane farm-to-market road in his 1969 four-door, Chevrolet Impala, hardtop sedan with a center post. He was following a truck, which started to pull onto the right shoulder . Turner accelerated to fifty or sixty miles per hour to pass the truck, but the truck attempted to make a left-hand turn when Turner came up to it. Turner pulled to the right to avoid a collision and left the road. When he attempted to return to the road, he overturned and the car landed on its top. Turner estimated his speed immediately before to roll-over at twenty to thirty miles per hour. Turner's seat belt was buckled, but the right-front portion of the roof collapsed and came into contact with his head. This contact paralyzed Turner's hands and legs.

Mr. James Barron, called as an expert witness by Turner, stated that he had worked as a design engineer for the Chevrolet Division of General Motors from 1963 to 1965, and had then worked in the same capacity for American Motors for over five years. Barron testified that General Motors designed for future production five years in advance and that he was involved in the design of the 1969 Impala. Barron informed his superiors at General Motors of the desirability of putting a roll bar in the roof of their cars, and Barron worked on a roll bar program. He testified that a roll bar would be expensive as an option, but relatively inexpensive if put on all cars at their birth on the assembly line. The roll bar program was discontinued, and Barron was told this was due 'primarily (to) cost reasons and cost in conjunction with the fact that the consumer could not see what he was paying for.' His supervisor told him that 'it is difficult to pass on something to the consumer and charge him money for it if he cannot see it.'

Barron testified that it would be impossible to design a crash proof car. He defined the term 'crashworthiness' as the ability of a car 'to withstand normal hazard conditions.' Crashworthiness was broken down into the following categories: the structural integrity of the car's shell; the elimination of sharp or protruding objects in the interior; passenger restraint devices; and the elimination of post-crash fire. Barron estimated that, in the context of all possible types of accidents, roll-overs occur in twenty percent of all accidents involving 'principal' injuries.

Barron drew a diagram of the Impala's roof structure and termed the roof 'cosmetic,' in that it provided protection from sun and rain, but it would not provide adequate protection in an overturn regardless of the speed. He categorized the roof as definitely defective, 'uncommonly dangerous,' and 'unreasonably dangerous.' The design of the Impala's roof was called perhaps the weakest way to design a roof, and Barron said that all of the roof structure in this Impala had collapsed. There was nothing in the roof of the car which would support the car in an overturn.

Barron suggested that there were many alternative ways to design a roof more safely and specifically proposed the roll bar or roll cage (the latter is, in effect, a connected double roll bar forming a rectangle with a bar at each corner attaching the frame to the body of the car). Roll bars and roll cages had been known to Barron since 1952, and he stated that General Motors put them on test cars and racing cars. In Mr. Barron's opinion, roll bars would greatly minimize roll-over injuries. Barron admitted that no mass-produced automobile in the United States had ever come equipped with a roll bar or roll cage and conceded that the Impala's roof was no more dangerous than the roof in any other car produced at that time. He frankly stated that he considered the roofs on all American cars defectively designed, including those currently manufactured (West Germany's Porsche Targa was the only production car cited by Barron as being equipped with a roll bar).

Raymond Kliesing, the defendant dealer, testified that, based upon his forty-five years of sales experience, the average consumer believes that a sedan vehicle will be a reasonably safe product in a roll-over.

The trial judge sustained General Motors' plea of privilege and filed findings of fact and conclusions of law. The trial judge found that Kliesing was an authorized General Motors dealer, that Turner's roof collapsed and injured him in the accident, and that the auto immediately before the accident was in substantially the same condition it was in when sold. The court's crucial finding is that the car was

defectively designed in that the roof was not a sufficient structural support to prevent the roof from collapsing and thereby injuriously encroaching into the passenger compartment in the event of an overturn of the automobile and this defective design rendered the automobile unreasonably dangerous to the user or consumer, i.e., dangerous to an extent beyond that which would be contemplated by the ordinary user or consumer with the knowledge available to him as to the characteristics of a 1969 Chevrolet four-door sedan with a center post.

The defect was found by the trial judge to be a proximate and producing cause of the injuries, and the possibility of overturn accidents was held to be clearly foreseeable by General Motors.

The trial judge's sustaining of General Motors' plea of privilege was a ruling, in effect, that Turner had failed to prove a bona fide claim against Kliesing. In light of the trial judge's findings of fact, it is clear that his implicit conclusion of law was that strict tort liability in Texas does not encompass the liability of a manufacturer or retailer or a defective product when the defect enhances the injuries of a plaintiff, but plays no role in causing the accident. The question thus presented is one of first impression in Texas.

The genesis of this issue can be found in Evans v. General Motors Corporation, 359 F.2d 822 (7th Cir. 1966) (applying Indiana law), cert. den. 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70. There the plaintiff sued under general negligence, strict liability, and implied warranty principles with the argument that the manufacturer of his automobile should be liable for his enhanced injuries due to the 'X' frame without side rails on his car, despite the fact that this defect had not caused the collision. The Seventh Circuit held that the manufacturer owed no duty to design or make an accident-proof or fool-proof car. The court also said that the intended purpose of a car does not include its participation in collisions. In Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968) (applying Michigan law), the plaintiff claimed under negligence principles that his car was defectively designed in that the steering shaft protruded in front of the axle so that his injuries were enhanced when his car was struck in the left front. The Eighth Circuit said that an auto manufacturer has a duty to design and construct its product to be reasonably fit for its intended use and free of hidden defects which would render it unsafe for that use. The court found that the real issue was one of intended use and said that the intended...