Vanek v. Kirby

• Decision Date: 13 February 1969
• Citation: 450 P.2d 778,253 Or. 494
• Parties: Keith Frank VANEK, Appellant, v. Lynn KIRBY, dba Lynn Kirby Ford, and Ford Motor Company, a Delaware corporation, Respondents.
• Court: Oregon Supreme Court

Page 778

450 P.2d 778

253 Or. 494

Keith Frank VANEK, Appellant, v. Lynn KIRBY, dba Lynn Kirby Ford, and Ford Motor Company, a Delaware corporation, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 10, 1968.

Decided Feb. 13, 1969.

Ralph C. Barker, Portland, argued the cause for appellant. With him on the briefs were Buss, Leichner, Lindstedt, Rose & Sipprell, Portland.

Roland F. Banks, Jr., Portland, argued the cause for respondent Ford Motor Co. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before PERRY, C.J., and O'CONNELL, DENECKE, LUSK ^* and MENGLER, JJ.

O'CONNELL, Justice.

This is an action to recover damages for personal injuries suffered by plaintiff when a car in which he was riding left the road and struck a power pole. A motion for a voluntary nonsuit was granted with respect to the action against Lynn Kirby Ford. Plaintiff appeals from a judgment on the pleadings entered in favor of defendant Ford Motor Company.

Plaintiff's complaint, as finally amended, contained the following allegations:

'IV

'That prior to December 10, 1964, one Terrence Crogg had purchased from the defendants a Ford automobile. That said automobile on or about December 10, 1964, was returned to the Lynn Kirby Ford premises for repairs, and a new 1965 Ford automobile was entrusted to said Terrence Crogg for use while the automobile purchased by Terrence Crogg was being repaired.

'V

'The defendants, Ford Motor Company and Lynn Kirby, supplying for distribution and sale to the general public said 1965 automobile impliedly warranted that it was of merchantable quality and reasonably fit and suitable for its general purpose and ordinary use, to-wit: use as a vehicle for transportation.

'VI

'That on or about December 10, 1964, at approximately 9:30 p.m. the plaintiff was riding as a passenger in said 1965 Ford referred to above being operated by Terrence Crogg on Millplain Boulevard near Andresen Road in Vancouver, Washington, when said vehicle became uncontrollable in normal operation by said Terrence Crogg, and said vehicle left said highway, striking a power pole, causing the permanent, painful personal injuries to the plaintiff hereinafter more particularly set forth * * *.

'VII

'Said vehicle was not, in fact, of merchantable quality or fit for its general purpose as warranted by the defendants, and each of them, in that said vehicle could not be kept on said highway during its normal use as a vehicle for transportation.

'VIII

'That on or about December 10, 1964, and numerous times thereafter, defendants were notified that the aforesaid automobile was not of the quality warranted.

'SECOND COUNT

'Plaintiff realleges and incorporates by reference as if here fully set forth, paragraphs I, II, III, IV, and VI inclusive of the First Count of this Complaint.

'I

'That the defendants, and each of them, through their agents and employees had knowledge, or should have known, that said vehicle was defective, and were negligent, careless and reckless in delivering said defective vehicle to said Terrence Crogg when in the exercise of reasonable care, they should have known that said vehicle could not be safely operated.'

The foregoing complaint represents plaintiffs final effort to state a cause of action against defendant. In his first amended complaint plaintiff alleged that 'the steering mechanism of said automobile was in defective condition and unsafe.' In the second amended complaint it was alleged that the vehicle was defective in the following particulars:

'(a) Its wheels were out of alignment;

'(b) The rear suspension was defective;

'(c) The rear sway bar was absent;

'(d) The rear left lower suspension arm was absent;

'(e) The defendant, Lynn Kirby, had failed to reinforce the rear suspension lower arm bracket pursuant to a special service letter addressed to Lynn Kirby dated Oct. 2, 1964, by the defendant, Ford Motor Company.'

Various motions were filed against the second amended complaint but before the motions were ruled upon plaintiff filed the third amended complaint set out above. Defendant moved for an order to make the third amended complaint more definite and certain. The motion was granted whereupon plaintiff filed a fourth amended complaint in which he alleged that the 'vehicle was defective by manufacture and design in that the combined effect of coil spring rear suspension and power steering rendered the vehicle's steering uncontrollable during normal operation as a vehicle for transportation.' Later plaintiff moved to withdraw the fourth amended complaint and to substitute the third amended complaint for the stated reason that he could not make his complaint any more definite and certain. He advised the court that he would not plead further. The court granted his motion to reinstate the third amended complaint. The trial court then entered a judgment on the pleadings in favor of defendants.

Plaintiff summarizes his position as follows: 'In the type of case in which there is no evidence, direct or circumstantial, available to prove exactly what sort of manufacturing flaw existed, or exactly how the design was deficient, the plaintiff may nonetheless be able to establish his right to recover, by proving that the product did not perform in keeping with the reasonable expectations of the user. When it is shown that a product failed to meet the reasonable expectations of the user, the inference is that there was some sort of defect, a precise definition of which is unnecessary.'

In support of this contention, plaintiff relies upon the following statement in Heaton v. Ford Motor Company, 85 Or.Adv.Sh. 823, 435 P.2d 806 (1967):

'In the type of case in which there is no evidence, direct or circumstantial, available to prove exactly what sort of manufacturing flaw existed, or exactly how the design was deficient, the plaintiff may nonetheless be able to establish his right to recover, by proving that the product did not perform in keeping with the reasonable expectations of the user. When it is shown that a product failed to meet the reasonable expectations of the user the inference is that there was some sort of defect, a precise definition of which is unnecessary. If the product failed under conditions concerning which an average consumer of that product could have fairly definite expectations, then the jury would have a basis for making an informed judgment upon the existence of a defect. * * *' Id. at 826, 435 P.2d at 808.

Plaintiff's reliance on Heaton is misplaced. That case was concerned with the characteristics which a product must have in order to be classified as unreasonably dangerous within the meaning of Restatement of Torts (Second) § 402A. ¹ In the present case we are instead concerned with the specificity with which the plaintiff must plead and prove that his injury was caused by a defendant's product rather than by some other cause.

If plaintiff had alleged (as he did in the first and second amended complaints) the specific defects causing the vehicle to become uncontrollable so that it could not be kept on the highway, the complaint would have stated a cause of action. Apparently plaintiff discovered that he could not obtain evidence identifying the defect which caused the car to leave the highway and so he resorted to...