Tеrri Lee DREISONSTOK, an infant, by her mother and next friend, Catherine A. Dreisonstok, and Catherine A. Dreisonstok, Appellees, v. VOLKSWAGENWERK, A.G., a/k/a Volkswagenwerk Aktiegesellschaft, a foreign corporation, and Volkswagen of America, Inc., a New York corporation, Appellants.
No. 73-1074.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 3, 1973. Decided Jan. 14, 1974.
489 F.2d 1066
Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.
Oren R. Lewis, Jr., Arlington, Va. (Gary R. Sheehan and Tolbert, Lewis & Fitzgerald, Ltd., Arlington, Va., on brief) for appellees.
DONALD RUSSELL, Circuit Judge:
The plaintiff, along with her mother, sues a car manufacturer for so-called “enhanced” injuries sustained by her when the Volkswagen microbus in which she was riding crashed into a telephone pole. The microbus had passеd the crest of a small hill and was proceeding down the grade at the time of the accident. When the vehicle passed the crest of the hill, the driver noted that his speed was about 40 miles an hour. As the vehicle continued down the hill, the bus began “picking up some speed, a little too much.” To reduce his speed, the driver attempted to downshift the vehicle.1 Because he had some difficulty in locating the gearshift lever, the driver took his “eyes off the road” and in some way “pulled the steering wheel” causing the vehicle to veer “to the right” into “the driveway“.
The correctness of the finding by the District Court that the defendant manufacturer was guilty of negligent design in this case depends on the determination of what extent a car manufacturer owes the duty to design and market a “crashworthy” vehicle, one which, in the event of a collision, resulting accidentally or negligently from the act of another and not from any defect or malfunction in the vehicle itself, protects against unreasonable risk of injury to the occupants.3 The existence and nature of such a duty is a legal issue, for resolution as a matter of law. So much all the authorities agree.4 There are, however, two fairly definite lines of conflicting authority on whether there is such a duty.5 One group of which Evans,6 is the leading authority, holds that no such duty rests on the manufacturer, since the “intended use” of an automobile does not extend to collisions. The other, while relieving the manufacturer of any duty to design an accident-proof vehicle, would impose a duty to use reasonable care in the design and manufacture of its product so as “to eliminate any unreasonable risk of foreseeable injury” as a result of a collision, for which the manufacturer may not be responsible. Larsen is the primary authority for this rule.7
This is a diversity case and, as such, the rights of the parties are governed by Virginia law.8 It is conceded that there is no binding Virginia precedent on a car manufacturer‘s duty to design a “crashworthy” vehicle. The plaintiffs argue, though, that the general trend of the decisions in Virginia, as evidenced by the opinion of this Court in Spruill v. Boyle-Midway, Incorporated (4th Cir. 1962) 308 F.2d 79, ranges Virginia with those jurisdictions imposing liability for negligent design in failing to take reasonable precautions against
In arguing in favor of liability, the appellees stress the foreseeability in this mechanical age of automobile collisions, as affirmed in numerous authorities, and would seemingly deduce from this a duty on the car manufacturer to design its vehicle so as to guard against injury from involvement of its vehicle in any such anticipated collisions. The mere fact, however, that automobile collisions are frequent enough to be foreseeable is not sufficient in and of itself to create a duty on the part of the manufacturer to design its car to withstand such collisions under any circumstances. Foreseeability, it has been many times repeated, is not to be equated with duty;9 it is, after all, but one factor, albeit an important one, to be weighed in determining the issue of duty.10 Were foreseeability of collision the absolute litmus test for establishing a duty on the part of the car manufacturer, the obligation of the manufacturer to design a crash-proof car would be absolute, a result that Larsen itself specifically repudiates.11 After all, “Nearly every accident situation, (involving an automobile) no matter how bizarre, is ‘foreseeable’ if only because in the last fifty years drivers have discovered just about every conceivable way of wrecking an automobile.”12
Applying the foregoing principles to the facts of this particular case, it is clear that there was no violation by the defendant of its duty of ordinary care in the design of its vehicle. The defendant‘s vehicle, described as “a van type multipurpose vehicle“,24 was of a special type and particular design. This design was uniquely developed in order to provide the owner with the maximum amount of either cargo or passenger
The District Court, however, seems to have accepted plaintiffs’ theory, though expressing it somewhat differently from the standard stated by the plaintiffs in their brief. It stated the standard of ordinary care in design to require that a vehicle be able to withstand a “head-on” collision at 40 miles an hour31 without a violation of “the integrity of the passenger compartment“, and held that the defendant had “violated” its duty in failing to meet this standard. Accepting the principle that a manufacturer must anticipate that its product will likely at some point in its use be involved in a collision, does ordinary care demand that, in taking precautions, it must provide against impacts at a speed of 40 miles per hour? Is this the “reasonable risk“, as it has been defined in the authorities quoted supra, against which the manufacturer must provide protection? And why “40 miles an hour” as the standard anyway? This standard was adopted, it seems clear from the District Court‘s order, because the plaintiffs contended that a “standard American passenger car” had sufficient “crash space” that its passenger compartment would not have been invaded in a 40 mile impact. This conclusion rests on some measurements made by the plaintiffs’ experts in comparing the “crashability” of a microbus and that of a 1966 Ford passenger car. No tests were made by these experts to confirm experimentally these conclusions. The plaintiffs’ experts merely measured the distance from the exact front of the microbus and the point where the plaintiff had collided with the interior of the van and compared that distance with the distance
It, perhaps, may not be amiss to note that there is not substantial evidence to sustain a finding that as a result of the design of the microbus the plaintiff‘s injuries were enhanced. Cf., Yetter v. Rajeski, supra, at pp. 108-109. In fact, the record seems clear that in any event the plaintiff, who hаd made no endeavor to protect herself with a seat belt, would have received severe injuries, irrespective of the type of vehicle she may have been riding in. There was testimony-- which was not seriously questioned-- that experiments conducted under the auspices of the Department of Transportation indicated that “the average barrier equipment velocity for fatalities, the mean velocity is only 33 miles per hour * * *.”32 It may be that in every case the injuries may be somewhat different but any “head-on” collision at a speed of 40 miles an hour or more will result in severe injuries to the occupants of a vehicle and, certainly in 1968, no design short of an impraсtical and exorbitantly expensive tank-like vehicle (see, Alexander v. Seaboard Air Line Railroad Company, supra, 346 F.Supp. 320) could have protected against such injuries; in fact, it is doubtful that even such a vehicle could have. Can it be said that a manufacturer in 1968 must have, in its design, so built its vehicle as to protect against such an “unreasonable risk of injury“? We think not.
Reversed and remanded with directions to the District Court to enter judgment in favor of the appellants-defendants.
Notes
“The term ‘crashworthiness‘, as defined in the Motor Vehicle Information and Cost Savings Act, ‘means the protection that a passenger motor vehicle affords its passengers against personal injury or death as a result of a motor vehicle accident.’
Crashworthiness has, also, been defined as “the relative ability of an automobile to protect its passengers from the second collision.” Note, Liability for Negligent Automobile Design, 52 Iowa L.Rev. 953, 957 (1967).
Another definition of crashworthiness is phrased as the “second collision doctrine” which “seeks to impose common law liability upon the automobile industry for injurious consequences of automobile collisions despite the fact that no defect or malfunction in the vehicle causes the mishap.” Hoenig & Werber, Automobile ‘Crashworthiness‘: An Untenable Doctrine, 1971 Ins.L.Journal 583.
The term “second collision” in these definitions refers to the collision “of the passenger with the interior part of the automobile” after the initial impact or collision, in this case, the collision of the van with the telephone pole. Larsen, p. 502; Note, 80 Harv.L.Rev. 688. And, “Courts have described enhanced injuries as ‘second accident’ injuries-- those injuries that occur after the initial accident.” Note, Torts-- Strict Liability-- Automobile Manufacturer Liable for Defective Design that Enhanced Injury After Initial Accident, 24 Vand.L.Rev. 862, 864 (1971).
Compare, Evans v. General Motors Corporation, supra, with Larsen v. General Motors Corporation, supra, and Alexander v. Seaboard Air Line Railroad Company (D.C.N.C.1971) 346 F.Supp. 320, 322, with Grundmanis v. British Motor Corрoration (D.C.Wis.1970) 308 F.Supp. 303, 306
The conflicting authorities are set forth in the Annotation, 42 A.L.R.3d 560.
The point is well expressed in Goldberg v. Housing Authority (1962) 38 N.J. 578, 186 A.2d 291, 293:
“The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.”
See, also, 289, comment b, 2d Restatement of Torts:
“* * * In order that an act may be negligent it is necessary that the actor should realize that it involves a risk of causing harm to some interest of another, such as the interest in bodily security, which is protected against unintended invasion. But this of itself is not sufficient to make the act negligent. Not only must thе act involve a risk which the actor realizes or should realize, but the risk which is realized or should be realized must be unreasonable, as to which see 291-293.” The editor in 42 Notre Dame L.Rev. 111, 115 (1967) puts it:
“Foreseeability alone, however, creates no duty. If such were the case, a manufacturer of hammers, foreseeing injured fingers and thumbs, would be liable for every such injury. Thus, duty is established as a matter of social policy-- as a means to an end.”
See, also, Passwaters v. General Motors Corporation (8th Cir. 1972) 454 F.2d 1270, 1275, n. 5.
“Foreseeability” does provide the formula for determining “intended use“. Gardner v. Q.H.S., Inc. (4th Cir. 1971) 448 F.2d 238, 242.
See, Green, Foreseeability in Negligence Law, 61 Col.L.Rev. 1401, 1418 (1961):
“There are many factors other than foreseeability that may condition a judge‘s imposing or not imposing a duty in the particular case.”
See, also, Note, Foreseeability in Product Design and Duty to Warn Cases-- Distinctions and Misconceptions, 1968 Wis.L.Rev. 228, 224:
“* * * anticipation of harm, of course, is by no means the only factor involved. Other aspects of social policy find crystallization in other doctrinal developments.”
See, Note, 42 Notre Dame L.Rev. 111, 114, quoting from 2 Harper & James, Torts, sec. 28.6:
“Obviously the maker of goods is bound to foresee and guard against only unreasonable risks which result from some use of his product which a reasonable manufacturer would anticipate as likely enough to be taken into account.”
Hoenig & Werber, Automobile ‘Crashworthiness‘: An Untenable Doctrine, supra (1971 Wis.L.Journal at 595)
See, Yetter v. Rajeski (D.C.N.J.1973) 364 F.Supp. 105, 108:
“* * * It is obvious, of course, that automobiles are unhappily and almost continuously colliding with other motor vehicles, with trees, with culverts, with locomotives, and with every imaginable type of object, either moving or fixed; that they are, indeed, driven off bridges, driven into water, and driven over cliffs; they are, in fact, involved in collisions of limitless variety.”
This is made clear by the sаme Court that decided Larsen in the subsequent decision of Schneider v. Chrysler Motors Corporation (8th Cir. 1968) 401 F.2d 549, 558. In that case, the Court said that the duty there found rested on the obligation to avoid the “creation of an unreasonable risk of harm“, and, restated the rule of Larsen, that the users of the vehicle were only subjected “to an unreasonable risk of harm when the automobiles were being used for the purpose intended” (at p. 556)
See, Note, Foreseeability in Product Design and Duty to Warn Cases-- Distinctions and Misconceptions, 1968, Wis.L.Rev. 228, 229:
“The apparent emphasis on foreseeability (in automobile cases) is misleading because it blurs the more important policy bases of decision.”
Again, at p. 245:
“In fact, however, the term ‘foreseeability’ has become a lop-sided doctrinal vehicle which leads the reader, trying to follow its course, to believe that the prudent manufacturer ought to anticipate the carelessness and ignorance of the public; that he is liable because he is in some way more at fault. The term has been expanded to such an extent as to become no more than a grotesque of its denotative meaning.”
See, Prosser on Torts (3rd Ed. 1964), p. 149:
“In the light of the recognizable risk, the conduct, to be negligent, must be unreasonable.”
Prosser on Torts (3rd Ed., 1964) p. 151; Note, Liability for Negligent Automobilе Design, 52 Iowa L.Rev. 953, 959
The determination of whether conduct is negligent or not always involves the weighing of interests, the balancing of “the magnitude of the risk” against “the value which the law attaches to the conduct which involves it.” See, Section 283, comment e, 2d Restatement Torts; Tobin v. Grossman (1969) 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, 422-423.
Ibid, 71 Yale L.J. at p. 836
Larsen itself underscores this point, stating (p. 501):
“Accepting, therefore the principle that a manufacturer‘s duty of design and construction extends to producing a product that is reasonably fit for its intended use and free of hidden defects that could render it unsafe for such use, the issue narrows on the proper interpretation of ‘intended use‘.”
Cf., Schemel v. General Motors Corporation (7th Cir. 1967) 384 F.2d 802, 805, cert. denied 390 U.S. 945, 88 S.Ct. 1030, 19 L.Ed.2d 1134 which follows Evans, but on this point may perhaps not be different from Larsen:
“The manufacturer is not an insurer. His duty is to avoid hidden defects and latent or concealed dangers (citing cases). He is not bound to anticipate and guard against grossly careless misuse of his product by reckless drivers. The dangers attendant on excessive and unlawful speed are neither latent nor concealed.”
See, also, Re Bruns Volkswagen Garage, Inc. (1968 Wis. C.C.) CCH Products Liability Reporter, 5930, where, in absolving manufacturer of liability arising out of a collision, by reason of a claim of want of crashworthiness, it was held that “so long as the buyer was aware or made aware of the danger, * * * no warning was required * * *, because it must have been perfectly clear to the purchaser when he bought a Volkswagen that a head-on collision in such a small car would be very hazardous.” 42 A.L.R.3d at p. 586.
Where the dangerous element in an article is latent, the usual basis for liability rests on failure to warn. This was the real rationale for the decisions in Spruill v. Boyle-Midway, Incorporated, supra, and Gardner v. Q.H.S., Inc., supra.
Cf., Willis v. Chrysler Corporation (D.C.Tex.1967) 264 F.Supp. 1010, 1012, which, though adopting the Evans rule, used language which it would seem would be equally applicable to a decision following Larsen; i.e., that a car manufacturer is under no duty in the ordinary case “to design an automobile that could withstand a high speed collisions and maintain its structural integrity.”
In Bratton v. Chrysler Motors Corp., an unreported decision from the Western District of Texas, 1972, the instructions of the District Court, as set forth in 4 St. Mary‘s L.J. 303, at p. 312, defines “unreasonable risk” in the design as one which is “dangerous to an extent beyond that which would be contemplated by an ordinary consumer who purchases the vehicle with the ordinary knowledge common to the community as to the characteristics of a product of the type purchased.”
Cf., however, Note, 80 Harv.L.Rev. 688, 691, where, in indicating why Courts may in design cases be influenced to deny liability, the editor states that, “it may be that while the consumer is unable to discover product defects by inspection, he is in a position to choose among different designs. But perhaps even in instances where information as to product design is available, this argument may attribute to most consumers a higher degree of awareness and sophistication than is realistic. Further, in view of the resulting injuries which could have been avoided, a court may not wish to leave completely open the alternative of sacrificing safety to other considerations, to whatever extent consumers consciously make such a choice.”
See, Enders v. Volkswagenwerk, A.G., CCH Prod.Liab.Rep., 5930 (Wis.Cir.Ct., 1968), quoted in Hoenig & Werber, supra, at p. 538:
“When a G.M.C. tractor and a Mack tractor in head-on collisions do not furnish enough protection to prevent deaths of the respective drivers * * * to impose the duty of preparing inexpensive cars against head-on collisions seems beyond the realm of sensible public policy * * *.”
In the Note, 52 Iowa L.Rev. 953, 972, it is stated that a basis for a claim of liability on account of defective design involves consideration of whether the manufacturer “could obviate or mitigate the injury by an alternate known design or device at no substantial increase in price.”
Ibid., 52 Iowa L.Rev. 972
See, also, Hoppe v. Midwest Conveyor Company, Inc. (8th Cir. 1973) 485 F.2d 1196, 1202:
“Liability alleged from defective design encompasses many factors not generally relevant to ordinary negligence in tort cases. The comparative design with similar and competitive machinery in the field, alternative designs and post accident modification of the machine, the frequency or infrequency of use of the same product with or without mishap, and the relative cost and feasibility in adopting other design are all relevant to proof of defective design. * * *”
See Mieher v. Brown (Ill.1973) 301 N.E.2d 307, 310 (reversing 3 Ill.App.3d 802, 278 N.E.2d 869):
“Although the injury complained of may have been, in a sense, foreseeable, we do not consider that the alleged defective design created an unreasonable danger or an unreasonable risk of injury. In the words of section 435(2) of the Restatement (Sеcond) of Torts, ‘looking back from the harm to the actor‘s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm’ for which recovery is now sought. Public policy and the social requirements do not require that a duty be placed upon the manufacturer of this truck to design his vehicle so as to prevent injuries from the extraordinary occurrences of this case.”
The circumstances of the collision must be considered in any determination whether the event was such as it was proper and reasonable-- or even feasible-- for it to guard against. See Kahn v. Chrysler Corporation (D.C.Tex.1963) 221 F.Supp. 677, 679; Hentschel v. Baby Bathinette Corp. (2d Cir. 1954) 215 F.2d 102, 105, cert. denied 349 U.S. 923, 75 S.Ct. 663, 99 L.Ed. 1254 and Alexander v. Seaboard Air Line Railroad Company, supra (346 F.Supp. at 327).
In describing the character of this van, a witness for the defendant testified:
“It was designed to transport passengers and goods in a higher amount than the normal sedan on the same space which this vehicle would need in normal traffic.” (app. at 521).
In the direct examination of one of plaintiffs’ expert witnesses, this point was made perfectly clear:
“Q. So that you are making your comparison between a 1966 Ford and a 1968 Volkswagen Type 2?
“A. That is correct.” (App. at 207).
The other expert witnesses of the plaintiffs did likewise.