Ulmer v. Ford Motor Co.

• Decision Date: 20 March 1969
• Docket Number: No. 39053,39053
• Citation: 452 P.2d 729,75 Wn.2d 522
• Parties: Ann ULMER, Appellant, v. FORD MOTOR COMPANY, a corporation, Respondent.
• Court: Washington Supreme Court

Page 522

75 Wn.2d 522

452 P.2d 729

Ann ULMER, Appellant, v.FORD MOTOR COMPANY, a corporation, Respondent.

No. 39053.

Supreme Court of Washington, En Banc.

March 20, 1969.

Levinson & Friedman, Sam L. Levinson, Ronald J. Bland, Seattle, for appellant.

Merrick, Burgess & H. Roland Hofstedt, Seattle, for respondent.

ROSELLINI, Judge.

This is a suit against the manufacturer of an automobile which crashed against a concrete abutment as a result of which collision the plaintiff, a passenger, was injured.It was alleged in the complaint that the accident was caused by a defect in the automobile, for which the defendant manufactuer was responsible.The plaintiff appeals from a judgment entered on a verdict of the jury in favor of the defendant.

Error is assigned to the giving of a number of instructions.The first instructions complained of imposed upon the plaintiff the burden of proving negligence on the part of the defendant.The plaintiff's position is that it was only necessary for her to establish that the automobile, as manufactured by the defendant, was dangerously defective, and that the accident in which she was injured was attributable to the defect in the automobile.

The plaintiff's expert witness testified that a defectively installed 'A-frame' pivot bolt had come loose, allowing the 'A-frame' to drop and thereby render it impossible for the driver to control the direction in which the automobile was moving.She offered no evidence of any negligent act on the part of the defendant, unless it can be said that the fact of the defect raised an inference of negligence.

The defendant, on the other hand, offered testimony that it exercised care in the manufacture of its automobiles and that the bolt would have come loose much sooner than it did if it had been improperly installed at the factory.

The trial court gave the following instruction requested by the plaintiff:

INSTRUCTIONNO. 6

A manufacturer of an automobile is liable to any person if such person is injured due to a manufacturing defect in such automobile.

If you find that there was a defect in the manufacture of the automobile which existed at the time of the sale to Mr. Smith, and the plaintiff was injured as a proximate result of such defect, then I instruct you to find for the plaintiff and against the defendant.

This instruction, standing alone, makes the manufacturer strictly liable for harm caused by manufacturing defects in the product.However, the trial court also gave the following instructions to which error is assigned:

INSTRUCTIONNO. 5

'Negligence' is the failure to exercise reasonable care, and by the term 'reasonable and ordinary care' is meant that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances or conditions.Negligence may consist in the doing of some act which a reasonably prudent person would not do under the same or similar circumstances, or the failure to do something which a reasonably prudent person would have done under the same or similar circumstances and conditions.

INSTRUCTIONNO. 7

You are instructed that the duty of a manufacturer is to exercise reasonable care in the manufacture of an article which unless carefully made he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it was manufactured.If the manufacturer fails to exercise this reasonable care, he is liable for bodily harm caused to those who lawfully use the article in a manner and for a purpose for which it was manufactured.

INSTRUCTIONNO. 8

You are instructed that in determining whether or not a failure to exercise reasonable care by the Ford Motor Company, if any, was a proximate cause of the plaintiff's injuries, you may take into consideration the number of years that elapsed between the time of the sale of the vehicle and the accident, and the number of miles that the vehicle travelled during that period of time.

It is the contention of the plaintiff that she did not try her case upon the theory of negligence, that she did not offer evidence of negligence, and that the trial court improperly placed upon her the burden of proving what negligence of the defendant, if any, caused the defect in the installation of the pivot bolt.It is her theory that her right to recover was established if she showed that there was a defect and that it caused the accident in which she was injured.

This court has held that when the manufacturer of food products places upon the market products which are contaminated or impure, it is liable to any person who is injured thereby.The theory of liability has been that there is a warranty implied in law (and not dependent on the warranty provisions of the Uniform Sales Act, RCW 63.04.160¹) that such food products are fit for consumption.Pulley v. Pacific Coca-Cola Bottling Co., 68 Wash.2d 778, 415 P.2d 636(1966);La Hue v. Coca Cola Bottling Co., Inc., 50 Wash.2d 645, 314 P.2d 421(1957);Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 105 P.2d 76, 130 A.L.R. 606(1940).The warranty is not dependent on contract, does not require privity, and is available to all who may suffer damage by reason of the product's use in the legitimate channels of trade.It extends to a retailer whose business reputation is damaged because of the manufacturer's breach of duty.Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633(1913).

A similar liability has been imposed by this court on manufacturers of other products which have caused injuries.In Esborg v. Bailey Drug Co., 61 Wash.2d 347, 378 P.2d 298(1963), we held that the manufacturer of a hair coloring product impliedly warranted that his product was fit for use for its intended purpose.We held further in that case that the manufacturer would be liable to the plaintiff even though she was allergic or hypersensitive to the product, if she could show that the product contained a harmful ingredient, hat the ingredient was harmful to a reasonably foreseeable and appreciable number or class of potential users, and that she was innocently injured while using the product in the manner and for the purpose intended.In other words, we held that the manufacturer would be liable if the product carried with it an unreasonable risk of harm to potential users, even when carefully manufactured.

In Brewer v. Oriard Powder Co., 66 Wash.2d 187, 401 P.2d 844(1965), we held that a manufacturer of dynamite impliedly warranted to the Employee of a purchaser that the product was fit for use for its intended purpose.In Brown v. General Motors Corp., 67 Wash.2d 278, 407 P.2d 461(1965), we held that, where the plaintiff's evidence tended to show that the wheels of an automobile manufactured by the defendant became locked due to defective manufacture, or a foreign object in the power vacuum unit, it was proper to submit the issues to the jury on the theory of implied warranty.²

In Baxter v. Ford Motor Co., 168 Wash. 456, 462, 12 P.2d 409, 412, (1932), we permitted recovery against a manufacturer who had made express representations about the non-shatterable glass in its windshield in its advertising matter, although there was no privity between the manufacturer and the consumer.This court said:

The rule in such cases does not rest upon contractual obligations, but rather on the principle that the original act of delivering an article is wrong, when, because of the lack of those qualities which the manufacturer represented it as having, the absence of which could not be readily detected by the consumer, the article is not safe for the purposes for which the consumer would ordinarily use it.

Since these cases were decided on a theory of warranty, in none of them was the plaintiff required to prove negligence on the part of the defendant.It is true that this common law implied warranty is grounded in tort, rather than contract, and that the element of foreseeability is often discussed in the cases; but it was not suggested in any of them that the burden is on the plaintiff in such a case to prove that the manufacturer did something which a reasonably prudent manufacturer would not have done, or that it failed to do something which a reasonably prudent manufacturer would have done.

On the contrary, in Pulley v. Pacific Coca-Cola Bottling Co., Supra, we held that the trial court properly excluded evidence offered by the defendant to show that it exercised great care in its bottling process, saying that its care or lack of care was not at issue.And in Brown v. General Motors Corp., Supra, we observed that the theory of implied warranty carries with it an 'omen of liability without fault.'

Concurrently with these decisions, this court has recognized the applicability of negligence principles in other cases.Bock v. Truck & Tractor, Inc., 18 Wash.2d 458, 139 P.2d 706(1943)(negligent overhauling by second-hand dealer);Sutton v. Diimmel, 55 Wash.2d 592, 349 P.2d 226(1960)(defective brake fluid hose);Reusch v. Ford Motor Co., 196 Wash. 213, 82 P.2d 556(1938)(alleged defect in construction of auto truck, judgment for defendant affirmed on ground of insufficient evidence of causation).

We have said that recovery may be had on either theory.Brown v. General Motors Corp., Supra;Nelson v. West Coast Dairy Co., Supra.We have also implied, for example, in Wise v. Hayes, 58 Wash.2d 106, 361 P.2d 171(1961), and in Dipangrazio v. Salamonsen, 64 Wash.2d 720, 725, 393 P.2d 936(1964), that the two are indistinguishable.In the latter case, the plaintiff, a 10-year old boy, was injured when he crashed through a glass door which had been manufactured by one of the defendants.Insofar as the opinion reveals the only evidence of negligence was the condition of the door itself.In regard to the liability of that defendant, we said that the theory was one of breach of implied warranty, sounding in tort rather than contract.This court sai...