Wright v. Newman

Decision Date05 June 1984
Docket NumberNo. 83-1401,83-1401
Citation735 F.2d 1073
PartiesCarol Rae WRIGHT; Bonnie Lynn Wright; the Estate of Tina Marie Wright, deceased, by her Personal Representative, Patricia Wright, Appellants, v. Daniel Paul NEWMAN; John Scheall, American Auto Shippers, Inc., a New York Corporation; Phil Long Ford, Inc., a Colorado Corporation; General Motors Acceptance Corporation, a New York Corporation; and Ford Motor Credit Company, a Delaware Corporation, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Thomas Strong, Mathew W. Placzek, Rebecca B. Myers, Strong, Placzek & Wooddell, P.C., Springfield, Mo., for appellants.

Griffin Smith, Smith & Nixon, Little Rock, Ark., for appellees.

Before HEANEY, Circuit Judge; HENLEY, Senior Circuit Judge; and COLLINSON, Senior District Judge. *

HEANEY, Circuit Judge.

Carol Rae Wright, Bonnie Lynn Wright, and Patricia Wright, as personal representative of the estate of Tina Marie Wright, appeal the district court's 1 grant of summary judgment in favor of appellee Ford Motor Credit Company (FMCC). The Wrights maintain that genuine issues of material fact exist as to FMCC's liability under the tort theories of strict liability and negligence. Because we believe the facts alleged do not, as a matter of law, relieve FMCC of possible liability for negligence, we reverse the grant of summary judgment and remand to the district court for further proceedings.


The Wrights' cause of action arises out of a fatal car accident that occurred in Missouri. On March 4, 1980, Bonnie, Lynn, and Tina Wright were driving from their parents' home in Joplin, Missouri, to the University of Arkansas in Fayetteville, Arkansas. They were traveling southbound on Highway 71, near Anderson, Missouri. At the same time, Daniel Paul Newman was driving a 1978 Ford pickup northbound on Highway 71 and was towing a 1977 Pontiac Firebird. Newman was heading downhill and negotiating a righthand curve when he heard a chain drop. Looking in the rear view mirror, he saw that the car he had been towing had broken loose and was traveling into the opposite lane of traffic. The car collided head-on with the Wrights' automobile.

Tina Wright was killed instantly. Carol Rae Wright suffered a serious skull fracture which damaged her hypothalamus and which necessitated surgical removal of a part of her brain. Due to the accident, her IQ has decreased, her personality has changed, and the right side of her face is deformed. Bonnie Wright sustained a broken arm and numerous cuts on her face.

At the time of the accident, Newman was employed by John Scheall as a driver for Scheall Driveaway Company. FMCC had contracted with Scheall to transport the Ford pickup from Fayetteville to Phil Long Ford, Inc., in Denver, Colorado. FMCC had purchased the finance contract on the pickup from Phil Long Ford. When the purchaser of the pickup defaulted on the sales contract, FMCC had the responsibility, pursuant to the dealer purchase agreement, to repossess the pickup and transport it back to Phil Long Ford for resale. The accident occurred while the pickup was in transit back to the dealer.

The Firebird had been repossessed by General Motors Acceptance Corporation and was being transported by Scheall to Arizona under an agreement similar to that between Scheall and FMCC. Newman had picked up the Firebird in Fort Smith, and had driven it to Fayetteville where he took charge of the pickup. He attached the Firebird to the pickup towing ball.

The Wrights instituted a diversity action on April 29, 1981, in the United States District Court for the Western District of Arkansas. In their amended complaint, the Wrights named as defendants Newman; his employer, Scheall Driveaway; its principal, American Auto Shippers, Inc.; the company that had repossessed the Pontiac Firebird, General Motor Acceptance Corporation; Phil Long Ford, Inc.; and FMCC. On May 13, 1982, the district court granted summary judgment in favor of the latter three companies. Wright v. Newman, 539 F.Supp. 1331 (W.D.Ark.1982).

On September 21, 1982, the case was transferred to the United States District Court for the Western District of Missouri. The court tried the case against the remaining defendants on February 10 and 11, 1983. On February 17, 1983, the court entered judgment for Carol Wright in the amount of $5 million, for Bonnie Wright in the amount of $250,000, and for the estate of Tina Wright in the amount of $525,000, for a total damage award of $5,775,000. Apparently only $300,000, the collision limits of Scheall Driveaway's insurance coverage, has been collected to date.

The Wrights appeal the grant of summary judgment in favor of FMCC. They contend that summary judgment was improper because the facts alleged raise the issue of FMCC's liability under the strict liability doctrine. They allege that a defective towing ball attached to the repossessed Ford pickup caused the accident, and that FMCC should be on the same footing as a manufacturer or retail seller that places a defective product on the market. The Wrights further argue that FMCC is liable under a negligence theory because it furnished Scheall Driveaway with an unsafe vehicle. We reject the former theory but find a remand to be necessary on the latter.


In order to resolve the state law issues before us, we must first determine which state law applies. In granting summary judgment, the district court sitting in Arkansas determined that Arkansas courts would apply the law of Colorado, the state where the finance contract was made. The district court viewed FMCC's possible liability as predicated solely on the doctrine of respondeat superior. It therefore applied the conflict of law rule applicable to contract cases, reasoning that the nature of the contractual relationship between FMCC and Scheall Driveaway was the crucial issue for resolution. The court then ruled that the most significant contacts between Scheall and FMCC took place in Colorado and applied the law of that state. 2

The issues urged before us on appeal do not hinge on the contractual relationship between FMCC and Scheall Driveaway, but rather on the possibly negligent acts or omissions of FMCC and on whether its position in the Ford pickup's chain of distribution warrants the imposition of strict liability. Arkansas does not appear to have developed specific principles governing the choice of law in strict or product liability cases. See French v. Grove Manufacturing Co., 656 F.2d 295, 297 (8th Cir.1981); Parker v. Seaboard Coastline R.R., 573 F.2d 1004, 1010 (8th Cir.1978) (applying Arkansas strict liability statute against corporate defendants where accident occurred in Arkansas). We therefore look to the factors determining the choice of law in tort cases generally.

The parties agree that either Arkansas or Missouri law applies in this case. Missouri was the situs of the accident and under Arkansas' old rule, Missouri's law would control by virtue of that fact alone. McGinty v. Ballentine Produce, Inc., 241 Ark. 533, 408 S.W.2d 891, 893 (1966). Arkansas has adopted a more flexible approach in recent years, however, which requires attention to the following "choice-influencing" considerations: (1) predictability of results, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum government's interests, and (5) application of the better rule of law. Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453, 456 (1977) (en banc). This more flexible approach makes the application of Arkansas law a viable alternative in this case because the three young women injured in the accident were citizens of Arkansas at the time, and the negligent act or omission which may have caused the accident could have occurred in Arkansas.

The factor analysis seems to lead back to the old rule, however, in a case like this where the substantive law is not appreciably different in the optional jurisdictions. If the substantive law governing the issues raised is substantially the same in Arkansas and Missouri, Arkansas' governmental interests are not advanced by application of its own law; and neither is there an interest in applying a better rule of law. On the other hand, predictability of results and simplification of the judicial task are served by simply applying the law of the state where the accident occurred--Missouri. We thus conclude the Arkansas courts would apply the law of Missouri in resolving the issues, although this conclusion is primarily grounded on the perception that the result would be no different under Arkansas law.

A. Strict Liability.

As a threshold matter, FMCC opposes our consideration of the strict liability issue on the ground that it was not raised before the district court. In their amended complaint, the Wrights alleged the negligent acts of the driver of the pickup truck were imputed to his "employers and principals," including FMCC. In addition, the Wrights alleged FMCC was "guilty of negligence and willful and wanton conduct in disregard of the rights and safety of others" in (1) allowing the pickup and defective towing ball to be operated when FMCC knew or should have known of the unsafe condition, (2) failing to inspect the towing equipment and pickup for defects, (3) failing to provide Newman with proper towing instructions and equipment, and (4) negligently entrusting the pickup to Newman. Nowhere in their complaint do the Wrights explicitly advance a theory of strict liability, and the district court did not discuss strict liability in granting FMCC summary judgment.

As a general rule, we do not consider arguments or theories on appeal that were not advanced in the proceedings below. Korgel v. United States, 619 F.2d 16, 18 (8th Cir.1980); Kapp v. Naturelle, Inc., 611 F.2d 703, 709 (8th Cir.1979). This rule has less appeal, however, in a case such as this one in which the...

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