Hancock v. Paccar, Inc.Hancock v. Paccar, Inc.
Lead Opinion
Defendant (Paccar) appeals from a jury verdict entered in favor of plaintiff and against Paccar in the amount of $251,180 resulting from the death of plaintiff’s husband while operating a tractor-trailer on Interstate Highway No. 80 in York County, Nebraska. We first note that this case might have been entitled “Friedrich II.” See Friedrich v. Anderson,
The facts involved in this case disclose that about 5 a.m., on September 12, 1971, plaintiff’s husband, Lowell Burton Hancock (deceased), was operating a certain 1969 Kenworth cab-over tractor owned by Scott Truck Lines, Inc., in an easterly direction on interstate 80 in York County, Nebraska. The tractor was pulling a trailer loaded with about 35,000 pounds of fresh beef. At a location about 1 y2 miles east of the Waco, Nebraska, interchange, the tractor, which was then traveling at a speed of approximately 60 miles per hour, struck a deer on the highway. The impact of the deer on the truck was severe and resulted in the left side of the front bumper being bent backwards in a V-shape at the place where the bumper passed in front of the left front wheel. The bumper, as bent, was wedged between the inside of the left front wheel and the adjoining framerail. This forced the front wheel in a left turning position and locked it in place, which prеvented the deceased from controlling or steering the truck. The tractor and trailer turned in a left direction, left the highway, and entered the median adjacent to the highway. Upon its entry into the median, the unit rolled over and slid into a guardrail which protruded from a nearby bridge abutment. This impact resulted in the death of deceased.
The 1969 Kenworth cab-over tractor which deceased was driving at the time of his collision was manufactured and sold by Paccar in 1969. The front bumper on the tractor, which was only 5 inches in front of the wheel, extended the full width of the front of the tractor. It was made of lightweight aluminum and had several cutouts and holes in the face of the bumper directly in front of the wheel area. These holes were located exactly where the bumper bent after impact. The outer ends of the bumper were not braced to the body of the tractor and were simply cantilevered.
Plaintiff, by her third amended petition, sought recovery on two separate causes of action. The first cause of action was based upon a common law theory of negligence and alleged that Paccar was negligent with regard to the design of the front bumper because (1) the bumper was too long, (2) the bumper contained cutouts and holes, (3) the bumper was not braced at the ends, (4) the bumper was not made of alternative materials which would either not deform or would yield upon impact before blocking the steering, and (5) the bumper was not tested or inspected.
The second cause of action was based upon the doctrine of strict liability alleging that Paccar placed the bumper on the market without inspection at a time when the design was defective and not reasonably fit for ordinary and foreseeable uses. Paccar admitted that the collision occurred, but denied any liability. After trial the jury returned a verdict for plaintiff and against Paccar in the amount of $251,180.
Paccar assigns multiple errors, which for simplicity and convenience can best be summarized and grouped into several general categories. As so summarized and grouped, the assignments of error are as follows: (1) That the trial court erred in failing to direct a verdict in favor of Paccar and against plaintiff; (2) that the trial court erred in submitting certain instructions to the jury which were not supported in the evidence; (3) that the trial court erred in refusing to give certain instructions requested by Paccar; and (4) that the trial court erred in permitting the introduction of certain testimony. We shаll address the various groups in the order in which they are listed above.
Paccar’s right to a directed verdict, made either at the close of the plaintiff’s case or after all of the evidence, could only be sustained if one of two situations existed: (1) If there was insufficient evidence to
We first address the legal theories. If the plaintiff could prove that Paccar did in fact design a bumper in a negligent manner and the negligence was the proximate cause of deceased’s injury and death, then under a common law theory of negligence, plaintiff could recover. “ ‘A manufacturer who fails to exercise reasonable care in the manufacture of a chattel 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 is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.’ ” Rose v. Buffalo Air Service,
“ ‘In principle, a manufacturer or other person owning or controlling a thing that is dangerous in its nature or is in a dangerous condition, either to his knowledge or as a result of his want of reasonable care in manufacture or inspection, who deals with or disposes of that thing in a way that he foresees or in the exercise of reasonable care ought to foresee will probably carry that thing into contact with some person, known or unknown, who will probably be ignorant of the danger, owes a legal duty to every such person to use reasonable care to prevent injury to him. * * * In the application of the principle it is immaterial whether or not the conduct of a defendant amounted to a breach of the contract between him and the immediate buyer from him. The duty is not created by contract, but is an instance of the general human duty not to injure another through disregard of his safety.’ ” Colvin v. Powell & Co., Inc.,
The question of liability under a theory of strict liability poses a different question but in the final analysis the same result. In the case of Friedrich v. Anderson,
In declaring in Friedrich v. Anderson, supra, a rule we recognized to be of first impression in Nebraska, wе called attention to the two federal cases which appeared to have set up the two extremes with regard to employing the doctrine of strict liability in a design accident case. The first which narrowed and limited liability was Evans v. General Motors Corporation,
Time and the realities of life, however, have narrowed the differences between Evans v. General Motors Corporation, supra, and Larsen v. General Motors Corporation, supra, until in 1977 the Circuit Court of Appeals for the Seventh Circuit, in the case of Huff v. White Motor Corp.,
Such result, based upon either simple logic or the law, makes sense. It would be a strange result if we said that a manufacturer who carefully designs a product and thereafter negligently produces it should be held liable, but a. manufacturer who negligently designs the product and thereafter carefully produces it pursuant to the negligent design should be relieved of liability.
Further, the clear meaning of section 402 A of Restatement, Torts 2d, p. 347, leads to the conclusion expressed in Larsen v. General Motors Corporation, supra, and now Huff v. White Motor Corp., supra. The Restatement section reads as follows: “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his propеrty, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
We think comment d following is particularly appropriate: ‘‘The rule stated in this Section is not limited to the sale of food for human consumption, or other products for intimate bodily use, although it will obviously include them. It extends to any product sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate user or consumer. Thus the rule stated apрlies to an automobile, a tire, an airplane, a grinding wheel, a water heater, a gas stove, a power tool, a riveting machine, a chair, and an insecticide. * * *” Restatement, Torts 2d, § 402 A, p. 350.
Paccar’s argument that strict liability cannot apply because plaintiff must prove that the defect existed at the time the product left the manufacturer fails to recognize that the defective design, if as a matter of fact it did exist, was created and completed when the manufacturer designed the bumper and assembled it on the truck. If in fact the design was defective, it was defective when it was designed. That act occurred while it was still in the hands of the manufacturer and under his control. The requirements necessary to bring the actions within the definition of strict liability exist. No good reason exists for not applying the doctrine of strict liability to a case where the defective design results in an enhanced injury to the plaintiff even though the product designed did not cause the initial collision. See Comment, Manufacturer’s Liability for Defective Automobile Design, 42 Wash. L. Rev. 601.
Liability has been imposed in all variety of cases where the defective design did not proximately cause the collision but did result in an enhanced injury to the driver. The cases range from a severe lacerating injury to a plaintiff’s leg which came in contact with unshielded metal flanges protruding outward from the base of a wheel cover of an automobile following an initial impact between the vehicle and the left handlebar of a motorcycle, Passwaters v. General Motors Corporation,
While it is true and we have said that an automobile manufacturer does not insure that its product is incapable of producing injury from a design viewpoint, Friеdrich v. Anderson,
Paccar was aware that the tractor-trailer might strike an animal on the highway while traveling at a high speed. Such events are common enough that the various departments of roads of several states frequently post warnings to drivers to watch for animals, especially deer crossing the road. Furthermore, Paccar knew that the makeup of the bumper was such that, upon severe impact, the bumper would bend backward wherever such bending was not otherwise prevented. With that knowledge, it was not unreasonable to expect that the manufacturer had taken steps and made tests to be sure that the steering was not impaired upon impact. The trial court therefore was not in error in refusing to direct a verdict for Paccar based on a claim that plaintiff could not recover under a theory of strict liability for a defective design which resulted in an enhanced injury. Indeed, if the evidence was sufficient, plaintiff could recover.
Paccar further argues, however, that even if some right of recovery existed under the law, the evidence was insufficient to create a question of fact sufficient to submit this case to the jury.
An examination of the entire record, however, would appear to create questions of fact on either cause of action. Plaintiff’s expert testified that in his opinion the bumper was negligently and defectively designed in a number of ways, any one of which, if believed by the jury, could have established the proximate cause of the injury. It was at best a “t’is and t’aint” argument and for the jury to resolve. On appeal we should not second guess the jury or seek to impose our notion of the facts as opposed to theirs. In determining the sufficiency of the evidence to sustain a verdict, it must be considered most favorably to the successful party and every controverted fact resolved in his favor and he must have the benefit of inferences as reasonably deducible from it. Marquardt v. Nehawka Farmers Coop. Co.,
Paccar further maintains that the evidence was insufficient to prove several essential elements of the causes of action and therefore even though plaintiff offered evidence which established certain elements of the causes of action, she failed nevertheless to meet her entire burden. In particular, Paccar claims plaintiff failed to prove: (1) That Paccar did not comply with the “state
Paccar’s position with regard to the state of the art apparently is that no one was designing or manufacturing a bumper that was any different from that which Paccar designed and manufactured. Furthermore, Paccar contends there was no evidence indicating the state of the art was such that anything more was being done.
We believe, however, that Paccar misconstrues what constitutes the state of the art and how it applies in a strict liability case. While the jury may consider, as evidence of the state of the art, the fact that no manufacturer is doing that which it is claimed cоuld be done, such evidence will not establish conclusively the state of the art. Obviously, the inaction of all the manufacturers in an area should not be the standard by which the state of the art should be determined. Whether the design represents the state of the art is still a question of fact to be determined by the jury.
Judge Learned Hand in the case of The T. J. Hooper,
The question therefore is not whether anyone else was doing more, although that may be considered, but whether the evidence disclosed that anything more could reasonably and economically be done. Northwest Airlines v. Glenn L. Martin Company,
With regard to the question of proximate cause, Paccar argues that plaintiff failed to prove that, the accident would not have happened “but for” the bumper and therefore failed to prove the proximate cause.
In support of that position, Paccar argues that there was evidence that even if the bumper had not extended the full width of the tractor, the deer might have gotten into the wheel and caused a similar injury. Paccar fails to recognize that plaintiff’s obligation is to prove by a preponderance of the evidence that the alleged negligence of Paccar was the proximate cause of the injuries for which damages are sought to be recovered. Frerichs v. Eastern Nebraska Public Power Dist.,
Paccar further argues that the plaintiff failed to prove the bumper was unreasonably dangerous. This argument appears to be tied to the argument that the defect was obvious to the deceased. Paccar argues the evidence failed to establish that full length bumpers had a propensity for causing physical harm beyond that which would be contemplated by drivers of such tractors.
The evidence failed to disclose that the alleged defect was obvious. It is true that if the deceased knew all of the possibilities that might occur if the truck struck a deer with a lightweight aluminum bumper, located 5 inches from the wheel, and the bumper bent and wedged in between the wheel and the framerail, the defect might be obvious. However, the evidence did not disclose that those possibilities were obvious. Nor does speculation create an obvious defect. Certainly, if one thought about any of the possibilities which might occur in an accident, one might realize a potential defect. The law, however, does not require a plaintiff to speculate on injury in order to recognize a possible defect. Had the bumper already been bent before the deceased started to move the vehicle, the argument with regard to an obvious defect might be made. In that absence, such argument does not seem appropriate.
In Nanda v. Ford Motor Company,
Likewise, in Melia v. Ford Motor Company,
Again, it can be argued that if the drivers had thought about all of the consequences the defect would be obvious. That, of course, is not what is meant by an obvious defect. An examination of all the various cases that have been brought to our attention concerning strict liability and enhanced injury fails to disclose any obligation or requirement on the plaintiff’s part
Paccar correctly notes that we have not yet had an opportunity to define what is meant by ‘‘unreasonably dangerous” in a strict liability case. The trial court instructed the jury in this case that the term “unreasonably dangerous” meant that “thе product had a propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consumer who purchases it, with the ordinary knowledge common to the foreseeable class of users as to its characteristics.” This was a correct statement of the law and we so adopt it as the definition of “unreasonably dangerous” in a strict liability case.
For the reasons we have already suggested with regard to “obvious defects” we find that there was sufficient evidence from which the jury could reasonably conclude that the design of the bumper was “unreasonably dangerous.” Paccar knew the wheel was unprotected from the bumper. It also knew it had not designed the bumper to protect the wheel from large objects, likely to be struck by the truck at high speeds, which, upon impact, might bend the bumper impairing steering. Yet no action was taken by the manufacturer to protect the wheel from such impairments. That was sufficient to raise a question of fact as to whether the bumper in its present condition was unreasonably dangerous.
It is not reasonable to assume that an ordinary person with ordinary knowledge as to the characteristics of a bumper would know that if the truck in question, with the bumper in question, struck a deer at 60 miles per hour, the bumper would bend into the wheel and cause the tractor to lose control. Section 402 A of Restatement, Torts 2d, p. 352, when talking about a product being “unreasonably dangerous,” refers in terms of the “ordinary consumer” with “ordinary knowledge common to the community.” The section does not refer to experts. There was sufficient evidence from which the jury could determine that the design of the bumper was “unreasonably dangerous.”
Finally, Paccar argues that plaintiff failed to prove that deceased was not aware of the defect. In support of this position Paccar cites the cases of Waegli v. Caterpillar Tractor Co.,
A reading of Kohler discloses that the matter of the plaintiff’s knowledge was not directly passed upon. The court did approve an instruction which contained as an item of proof that “the plaintiff was unaware of the claimed defect.” However, no ruling on that portion of the instruction was madе.
Later in Hawkins Constr. Co. v. Matthews Co., Inc.,
Paccar further claims that the trial court erred in submitting to the jury instruction No. 2, which set out the various claims of negligence made by plaintiff, because the claims were unsupported in the evidence. This assignment must fail for two reasons. In the first instance, the instructions were submitted to counsel and no objections were made to the instructions. We have previously held that the failure to object to instructions after they have been submitted to counsel for review will preclude raising an objection on appeal. Libbey-Owens Ford Glass Co. v. L & M Paper Co.,
Specifically, Paccar objects now to those portions of the instructions given by the trial court which advised the jury that plaintiff maintained Paccar was negligent in that the bumper contained cutouts and holes; in that thе bumper was not properly braced; in that Paccar did not utilize alternate materials which were either stronger or of a brittle nature which, upon sufficient impact, would break away rather than deform in a permanent manner; and in that Paccar was negligent in failing to conduct tests, inspections, and calculations necessary to determine the capacity of the bumper to yield upon impact. While again the jury need not have accepted any of those matters, there was sufficient evidence introduced by the plaintiff which would at least have raised the issue in the manner in which it was submitted to the jury by the court. There is no error in this regard.
Paccar further assigns as error the court’s failure to instruct the jury on two requested instructions sought by it. Those instructions read as follows: “A manufacturer does not have a duty to design аnd manufacture a product which represents the ultimate in safety or design.” A trial court is not required to give a proffered instruction which unduly emphasizes a part of the evidence in the case. First Mid America, Inc. v. Palmer, supra. While the trial court did refuse that request, the trial court did in instruction No. 10 advise the jury: “* * * [A] manufacturer is not an insurer that the product is, from a design viewpoint, incapable of producing injury.” The language may not be identical; however, reading all of the instructions together as we are required to do, we do not believe the failure of the trial court to give requested instruction No. 3, in view of the entire instructions given, resulted in any prejudicial error to Paccar. Moreover, there was no evidence introduced by the parties to prove that the evidence introduced by plaintiff as a possible alternative design did in fact represent the ultimate in safety or design. Under the circumstances and evidence in the case, the refusal to instruct the jury in accordance with Paccar’s requested instruction No. 3 was not error.
Paccar further alleges that the trial court erred in refusing to give its requested instruction No. 6 which read: “The law does not require that a manufacturer guard against an injury from a danger
Paccar further assigns as error the trial court’s permitting plaintiff’s witnesses to testify as to the availability of a breakaway bumper in 1976, although the vehicle was manufactured in 1969. As pointed up by plaintiff, the purpose of the testimony was to show that there were subsequent remedial measures taken and that the necessary material was available in 1969. Paccar must further keep in mind that plaintiff sought recovery on two separate theories: (1) Common law negligence; and (2) strict liability. In a negligence action such evidence may be relevant to show that a different and safer design of a product was feasible at the time the product in question was designed, particularly if the defendant claims otherwise. Farner v. Paccar, Inc.,
Finally, Paccar contends that the trial court erred in permitting the plaintiff’s expert witness, John Hill, to testify concerning the alleged effectiveness of the bumper because he was not familiar with the state of the art in 1969 with regard to bumper design. We believe what we have above said with regard to the state of the art applies here. Again, it is because Paccar believes if it is shown that no one in the field was taking necessary steps, it is a complete defense to strict liability. While it may aid in establishing what was reasonable, it is not conclusive. For reasons already pointed out, we do not believe the trial court committed error in not striking the plaintiff’s expert witness testimony. The credibility of witnesses and the weight to be given their testimony were for the jury. Merten v. Pedersen,
For the reasons therefore given, we find that no error was committed and that the verdict of the jury and judgment entered by the trial court must in all respects be affirmed.
Affirmed.
Dissenting Opinion
dissenting.
I dissent because I believe the undisputed facts did not establish a cause of action under either strict liаbility in tort or negligent design under the prior decision of this court. I deem it unwise, for reasons which are hereafter set forth, to extend the doctrines to the point that the majority opinion does, i.e., although without saying so it essentially makes the manufacturer an insurer.
The essence of the majority opinion is that the mere opinion of an expert, rendered after the fact, is sufficient to make a prima facie case admissible to the jury. Such an opinion may or may not be sufficient for that purpose. When legal doctrines are being extended it is for the court to define the extent of the growth. It is not a factual question to be determined by testimony, expert or otherwise.
The purpose of a bumper on a motor vehicle is not to guard against damage to either persons or property on high speed impacts. The bumper in this case was neither negligently designed nor was it unreasonably dangerous. It had no propensity to cause harm. This is not the case as in Kohler v. Ford Motor Co.,
What the plaintiff has argued and what the court has accepted in this case is the contention that if a device is constructed in a different way, e.g., stronger, then liability follows because an injury happening in a particular fashion might have been avoided, even though the injury .might have occurred in any event had the circumstances of the action been different. The plaintiff has argued that either the bumper should have been shorter, not projecting in front of the wheel; or it should have been a breakaway bumper, which would not wedge; or it should have been stronger, so that it would not impinge on the wheel. However, in each of these alternatives it is clearly possible that the same result could have occurred even though through a different mechanism. In the case of the short bumper or the breakaway bumper the animal might have lodged between the wheel thus restricting steerability, or if the object struck had been some sizable hard or sharp object it might have deflated a tire and made the truck difficult to steer. If the object had been a hog it could have passed under a strong bumper, under the wheel, and thus put the truck out of control. If the object struck had been a horse or a moose, it might have, regardless of the bumper, been propelled upward into the windshield injuring the driver. In such cases ought the manufacturer to have designed and furnished a bumper of a type which would have prevented that particular kind of accident? Clearly that could be done.
In this case the truck owner selected the particular bumper which he wanted, one of light weight which reduced the total weight of the truck. No statute or design requirement of the law prohibits any of the alternatives which were available to the purchaser. Let us give another example. Instantly inflatable airbags for passenger compartments in motor vehicles are available- and are feasible. Are manufacturers liable because they are not furnished or because the user prefers not to have one?
What the court does in this case is devise a theory, after the fact, to afford liability for a particular accident happening in a particular way. This can be done in almost every case. It is probably possible by hindsight to design machines or parts which will avoid particular types of accidents. It is not reasonably possible to design something which will avoid injury in every case in every circumstance.
If the court’s purpose is one of social policy to assure that all injuries are to be compensated, then that should be done by the Legislature and the costs spread over the widest possible base.
A manufacturer does not have a duty to design a product which represents the ultimate in safety or design, but rather, has a duty to design a product which is reasonably sаfe. Mitchell v. Machinery Center, Inc.,
In Kohler v. Ford Motor Co., supra, this court applied the principles of Restatement, Torts 2d, § 402 A, p. 347, at p. 352. Comment i to that section states in part: “The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. . . . The article