The case is before the court on defendant’s motion for summary judgment. Suit was originally brought against Chrysler Corporation by David Allen Kahn, a minor, acting by and through his father and next friend, Leоnard C. Kahn. Jurisdiction is founded on diversity of citizenship, the plaintiff being a citizen and resident of Texas, and the defendant being a foreign corporation licensed to do businеss in Texas.
The facts as follow are undisputed. On September 25, 1960, plaintiff, David Kahn, a minor of seven years age, was operating his bicycle on a street in Houston. While so doing, he drove the bike into the rear of a 1957 Dodge vehicle, manufactured and designed by the defendant. The child was thrown upon the vehicle, his right front temple region striking the left rear fin of the vehicle, and causing substantial injury to the minor. It is alleged, and this is the basis of the suit, that those injuries were proximately caused by the negligence of defendant, Chrysler Cоrporation, in creating and designing the vehicle “in such a manner that the fins of said vehicle were elongated. and protruded past the remainder of the vehicle and made of sharp metal capable of cutting.” It is *678 further alleged that the defendant knew, or reasonably should have known, that the fins of the 1957 vehicle would be capable of causing such injuries as those which occurred to the minor plaintiff.
Defendant moves for summary judgment under Rule 56, Federal Rules of Civil Procedure, the relevant parts of whiсh are set out in footnote 1 . It is clear that the court must first determine whether there is a genuine issue as to any material fact. Only after it has been affirmatively established by thе movant that no such issue exists is the question reached of whether judgment should be granted as a matter of law. Plaintiff opposes the motion for summary judgment on the grounds that the question of whether or not the defendant was negligent in the manufacture and design of the vehicle is a sufficient disputed fact to defeat the motion. In short, there is no dispute over what occurred, but only over the legal significance of the occurrence.
This is a diversity case, and as such the court must look to the substantive law of the statе in which it sits. Erie R. R. Co. v. Tompkins,
However, who is to determine if a duty exists? Is this a matter of law or a disputed fact question itself? Certainly there is disagreement in the instant case over whether or nоt the defendant had a duty to so design his vehicles that an accident like that under consideration could not happen. The very essence of plaintiff’s complaint is that the defendant owed to the plaintiff a duty to manufacture an automobile with which it was safe to collide. But this is not sufficient to constitute a disputed fact issue, for this is a question of law to be determined by the court. Whether or not a legal duty exists on a given state of facts and circumstances so as to give rise to actionable negligеnce on breach thereof, as well as the nature and extent of the duty, if any, is always essentially a question of law. City of Austin v. Schmedes,
This brings us to the final question— was there a duty in the instаnt case ? If so, then there is the factual dispute over whether or not it was breached. On the other hand, if no duty exists, then the motion for summary judgment should be granted. There is no Texаs case dealing explicitly with this problem. Muncy v. General Motors Corp.,
A case extremely similar factually to the instant case arose in California, and the court dismissed the suit due to the absence of a duty owing to the plaintiff. This dismissal was upheld by the California Court of Appeals in Hatch v. Ford Motor Co.,
“The facts here do not present the question as to whether defendant owed to the public a duty to so design its automobile as to lessen [the] severity of injuries that might be caused by it if it were negligently operated on the highways of this State but only the question as to whether it owed to the public, including the plaintiff, the duty above stated, i. e., to so design the vehicles sold by it as to prevent the type of injury sustained by the plaintiff when said automobile was at rest, properly pаrked upon the highway. Counsel for the plaintiff have not cited us to any authorities which uphold their contention that the defendant owed any such duty and our own research hаs not disclosed any.”
This court is in accord with the views of the California court, and feels that the Texas courts would hold likewise. This case would seem almost a fortiori when juxtaposеd with the GMC case discussed earlier. Chrysler Corporation should not be required to anticipate all the possible ways in which a person may injure himself by falling against an automobile, nor should they have a duty to protect against such possible injuries. The duty of the automobile manufacturer extends to the ordinary use of the vehicle, and may even be such as to cover certain situations when the automobile is being negligently used. But the manufacturer has no obligation to so design his automobile that it will be safe for a child to ride his bicycle into it while the car is parked.
Defendant’s motion for summary judgment will be granted. The clerk will notify counsel to draft and submit judgment accordingly.
Notes
. “(b) A party against whom а claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
“ (c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, shоw that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * ”
. “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 portable 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.”