Terri 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, Volkswagen of America, Inc., a New York Corporation,
Appellants
No. 73-1074
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
489 F.2d 1066;
1974 U.S. App. LEXIS 10580
October 3, 1973, Argued
January 14, 1974, Decided
PRIOR HISTORY:
[**1]
Appeal from the United States District Court for the Eastern District of
Virginia, at Alexandria. Albert V. Bryan, Jr., District Judge.
COUNSEL: Alexander H. Slaughter, (Rosewell Page, II, McGuire Woods, and Battle,
Herbert, Rubin, Michael Hoenig and Herzfeld and Rubin, P. C., on brief) for
appellants.
Oren R. Lewis, Jr., (Gary R. Sheehan and Tolbert, Lewis and Fitzgerald, Ltd.,
on brief) for appellees.
JUDGES: Haynsworth, Chief Judge, Boreman, Senior Circuit Judge, and Russell, Circuit
Judge.
OPINIONBY: RUSSELL
OPINION:
[*1068] 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 passed 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. n1 Because he had some difficulty in
locating the
[**2] 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 plaintiff screamed, causing the
driver to look up. As the
driver did, he
"saw a
telephone pole headed right toward us". He tried to cut back into the road but there
"was an oncoming vehicle the other way, so it was either the
telephone pole or another vehicle." He chose the
telephone pole. The bus hit the pole on its right
front. The plaintiff was seated in the center of the seat, next to the
driver, with her left leg under her. As a result of the impact, her right leg was
caught between the back of the seat and the dashboard of the
van and she was apparently thrown forward. She sustained severe injuries to her
ankle and femur. She seeks to recover for her injuries, and her mother for
medical expenses, from the vehicle
manufacturer, contending that the latter was guilty of
negligent design in the location of the gearshift in its vehicle and in the want of
crashworthiness of its vehicle. The action was tried without a jury. The District Court
dismissed the claim relating to the gearshift but concluded that the defendant
[**3]
manufacturer had been guilty of negligence n2 in failing to use due care in the design of
its vehicle by providing
"sufficient energy-absorbing materials
[*1069] or devices or 'crush
space,' if you will, so that at 40
miles an hour the integrity of the
passenger compartment would not be violated", and that, as a result, the injuries of the plaintiff were enhanced
"over and above those injuries which the plaintiff might have incurred." From judgment entered on the basis of that conclusion in favor of the
plaintiff and her mother, the defendants have appealed. We reverse.
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n1 As the
driver, in his testimony, explained it,
"For the simple reason I was picking up too much
speed and I was coming down a
hill, and my father had always taught me to downshift whenever I had the chance to,
to save on the brakes."
n2 As in
Larsen v. General Motors Corporation (8th Cir. 1968) 391 F.2d 495, 506, the Court based its decision on ordinary negligence principles rather than
warranty or strict liability. It has been intimated that this is the correct
basis in design cases.
See
Brown v. General Motors Corporation (4th Cir. 1966) 355 F.2d 814, 821, cert. denied
386 U.S. 1036, 18 L. Ed. 2d 600, 87 S. Ct. 1474;
Gray v. General Motors Corporation (8th Cir. 1970) 434 F.2d 110, 114; Note,
1966 Utah L. Rev. 698, 705. It would appear, however, that it makes little or no real difference whether
liability is asserted on grounds of negligence, warranty or strict liability;
the applicable principles are roughly the same in any case.
Chestnut v. Ford Motor Company (4th Cir. 1971) 445 F.2d 967, 968-9; Note,
24 Vanderbilt L. Rev. 862, 863.
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[**4]
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. n3 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. n4 There are, however, two fairly definite lines of
conflicting authority on whether there is such a
duty. n5 One group, of which
Evans, n6 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
[**5] 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. n7
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n3
"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." Section 1901(14), 15 U.S.C.
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 (391 F.2d); 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).
[**6]
n4
Larsen v. General Motors Corporation,
supra (391 F.2d p. 498);
Evans v. General Motors Corporation, (7th Cir. 1966) 359 F.2d 822, 824, cert. denied
385 U.S. 836, 17 L. Ed. 2d 70, 87 S. Ct. 83.
n5
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 Corporation (D.C.Wis. 1970) 308 F. Supp. 303, 306.
The conflicting authorities are set forth in the Annotation,
42 A.L.R. 3d 560.
n6
359 F.2d 822.
n7
391 F.2d at 503.
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This is a diversity case and, as such, the rights of the parties are governed
by Virginia law. n8 It is conceded that there is no binding Virginia precedent
on
[**7] 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
[*1070] unreasonable risks of harm to
passengers by reason of a
collision. For purposes of this decision, it may be assumed that this is the trend of the
Virginia decisions. Assuming it to be applicable to the facts of this case,
however, the
Larsen rule will not support recovery by the plaintiffs.
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n8
Landrum v. Massey-Ferguson, Inc. (5th Cir. 1973) 473 F.2d 543, 544.
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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
[**8] 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; n9 it is, after all, but one factor, albeit an important one, to be weighed in
determining the issue of
duty. n10 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. n11 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." n12
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n9 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 the 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.
[**9]
n10
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, 244:
"* * * * 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."
n11
Larsen states the rule to be that
"an automobile
manufacturer is under no
duty to design an accident-proof or fool-proof vehicle * * * *, but such
manufacturer is under a
duty to use reasonable care in the design of its vehicle to avoid subjecting the
user to an
unreasonable risk of injury in the event of a
collision."(Page 502, 391 F.2d).
[**10]
n12 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."
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[*1071] The key phrase in the statement of the
Larsen rule is
"
unreasonable risk of injury in the event of a
collision", not
foreseeability of
collision. n13 The latter circumstance is assumed in
collision cases under the
Larsen principle; it is the element of
"unreasonable risk" that is uncertain in such cases and on which the determination of liability or
no liability will rest. n14
[**11] It would patently be unreasonable
"to require the
manufacturer to provide for every conceivable use or unuse of a car." Nader
& Page, Automobile Design and the Judicial Process,
55 Cal. L. Rev. 645, 646. Liability for
negligent design thus
"is imposed only when an unreasonable danger is created. Whether or not this has
occurred should be determined by general negligence principles, which involve a
balancing of the likelihood of harm, and the gravity of harm if it happens
against the burden of the precautions which would be effective to avoid the
harm." n15 In short, against the likelihood and gravity of harm
"must be balanced in every case the utility of the type of conduct in question." n16 The likelihood of harm is tied in with the obviousness of the danger,
whether
latent or patent, since it is frequently stated
"that a design is not unreasonably dangerous because the risk is one which any
one immediately would recognize and avoid.
[**12]
" n17 The purposes and intended use of the article is an even more important
[*1072] factor to be considered. After all, it is a commonplace that utility of design
and attractiveness of the style of the car are elements which car
manufacturers seek after and by which buyers are influenced in their selections. n18 In
every case, the utility and purpose of the particular type of vehicle will
govern in varying degree the standards of safety to be observed in its design.
This was recognized in the Traffic and Motor Vehicle Safety Act, which
undertakes
"to establish motor vehicle safety standards for motor vehicles."
15 U.S.C., 1381 et seq. In prescribing such standards, the Secretary is directed to
"consider whether any such proposed standard is
reasonable, practicable and appropriate for the particular type of motor vehicle * * * *." Section 1392(f)(3). (Italics added.) Stated somewhat differently, the safety
of every type of vehicle is to be evaluated under this Act in connection with
what is
"reasonable, practicable and appropriate" for its special type. And
[**13] this is the same rule that has been judicially applied, even in
Larsen type cases. n19 Thus, in
Dyson v. General Motors Corporation (D.C. Pa. 1969) 298 F. Supp. 1064, 1073, a case which followed and applied the
Larsen rule, the Court emphasized that design safety must take account of
"differentiation between various models of automobile" and involves
"a recognition of the inherent characteristics of each." It pointed out that a
convertible could not be made
"as safe in roll-over accidents as a standard four-door sedan with center posts
and full-door frames." The
convertible was only required to be as reasonably safe as its intended use would allow and
"not appreciably less safe than other
convertibles." Price is, also, a
[*1073] factor to be considered, for, if a change in design would appreciably add to
cost, add little to safety, and take an article out of the price range of the
market to which it was intended to appeal, it may be
"unreasonable" as well as
"impractical" for the Courts to require the
manufacturer to adopt such change. n20 Of course, if an article
[**14] can be made safer and the hazard of harm may be mitigated
"by an alternate design or device at no substantial increase in price", then the
manufacturer has a
duty to adopt such a design n21 but a Cadillac may be expected to include more in
the way of both conveniences and
"crashworthiness" than the economy car. Moreover, in a
"crashworthy" case, it is necessary to consider the circumstances of the accident itself.
n22 As
Dyson puts it,
"it could not reasonably be argued that a car
manufacturer should be held liable because its vehicle collapsed when involved in a
head-on
collision with a large truck, at high
speed." n23 In summary, every case such as this involves a delicate balancing of many
factors in order to determine whether the
manufacturer has used ordinary care in designing a car, which, giving consideration to the
market purposes and utility of the vehicle, did not involve
unreasonable risk of injury to
occupants within the range of its
"intended use".
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n13 This is made clear by the same 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" (Italics Court's) (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."
[**15]
n14
See, Prosser on Torts (3rd Ed. 1964), p. 149:
"In the light of the recognizable risk, the conduct, to be negligent, must be
unreasonable."
n15
Larsen, p. 502, n. 3, quoting from Noel,
Manufacturer's Negligence of Design or Directions for Use of A Product,
71 Yale L.J. 816, 818 (1962).
n16 Prosser on Torts (3rd Ed., 1964) p. 151; Note, Liability for Negligent
Automobile 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, 249 N.E. 2d 419, 422-3, 301 N.Y.S.2d 554.
n17
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'." (Italics added.)
Cf.,
Schemel v. General Motors Corporation (7th Cir. 1967) 384 F.2d 802, 805, cert. denied
390 U.S. 945, 19 L. Ed. 2d 1134, 88 S. Ct. 1030, 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
collision and maintain its structural integrity."
[**16]
n18 Of course, safety may not be sacrificed unreasonably and any vehicle should
be made as safe as it reasonably can, considering its special purpose and
"intended use"; but standards of safety themselves must take into account the utility of the
vehicle.
n19 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."
[**17]
n20
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." (Italics added).
n21
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, alternate 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. * * * *"
[**18]
n22
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 (Second) 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."
n23
298 F. Supp. at 1073.
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, 99 L. Ed. 1254, 75 S. Ct. 663,; and
Alexander v. Seaboard Air Line Railroad Company,
supra (346 F. Supp. at 327).
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[**19]
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", n24 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
[*1074]
space in a vehicle inexpensively priced and of such dimensions as to make possible
easy maneuverability. n25 To achieve this, it advanced the
driver's seat forward, bringing such seat in close proximity to the
front of the vehicle, thereby adding to the
cargo or
passenger
space. This, of course, reduced considerably the
space between the exact
front of the vehicle and the
driver's compartment. All of this was readily discernible to any one using the vehicle;
in fact, it was, as we have said, the unique feature of the vehicle. The
usefulness of the design is vouchsafed by the popularity of the type. n26 It
was of special utility as a
van for the transportation of light
cargo, as a family camper, as a station wagon and for use by
passenger groups too
[**20] large for the average
passenger car. It was a design that had been adopted by other
manufacturers, including American. It was a design duplicated in the construction of the
large trucking tractors, where there was the same purpose of extending the
cargo
space without unduly lengthening the tractor-trailer coupling. There was no evidence
in the record that there was any practical way of improving the
"crashability" of the vehicle that would have been consistent with the peculiar purposes of
its design. The only theory on which the plaintiffs posited their claim of
negligent design was, to quote the language of their brief in this Court, that
"The 1968 Volkswagen station wagon did not provide the protection for the
front seat
passengers as did the 'normal' or standard
passenger car." The
"normal or standard
passenger car", to which, under the plaintiffs' argument, the vehicle was required to conform
if it was to meet the test of reasonable design, was defined by the plaintiffs
on one occasion as
"a standard American made vehicle, which is a configuration with the
passengers in the middle and the motor in the
front" and on another as
"a
passenger car with an engine in
front and with a
[**21] long hood * * * *." n28 And all of their expert testimony was to this point. These experts offered
by the plaintiffs concededly made no attempt to compare for safety of design or
for any other purpose defendant's special type of vehicle with similar types
made by other
manufacturers or indicated any way in which safety in such vehicles could have been
improved, given the peculiar purpose of the vehicle. They completely
disregarded the rule developed in
Dyson, supra, and the standards developed by Congress in the Traffic and Motor Vehicle
Safety Act, which would compare vehicles of the same type in determining safety
standards. These experts contented themselves with arriving at the reasonable
design of the defendant's vehicle by one test and that was by comparing it with
the 1966 midsized Ford
passenger car. n29 In short, the plaintiffs' theory of
negligent design and the thrust of all their expert testimony on such point was that, to meet
the test of ordinary care in design so as to avoid
[*1075]
"unreasonable risk" of injury, the vehicle of the defendant had to conform with the configuration
of the standard American
passenger car, vintage 1966,
i.e., its
[**22] motor must be in
front, not in the rear; its
passenger compartment must be
"in the middle"; and the
space in
front of the
passenger compartment must be approximately the same as that in a
"standard American
passenger car." Under this standard, any rear engine car would be
"inherently dangerous"; any
microbus or front-end tractor--both in wide use in 1968 and now--would be declared
"inherently dangerous". n30 To avoid liability for
negligent design, no
manufacturer could introduce any innovative or unique design, even though reasonably
calculated to provide some special advantage such as greater roominess. Such a
strait-jacket on design is not imposed, whether the rule applied is that of
Evans or of
Larsen. If a person purchases a
convertible, as SIDyson makes clear, he cannot expect--and the Court may not impose on the
manufacturer the
duty to provide him with--the exact kind of protection in a roll-over accident as
in the
"standard American
passenger car". The situation is similar when he purchases a
microbus: The
distance between the
front and the
passenger compartment is minified in order to provide additional
cargo or
passenger
space just as the
convertible is designed
[**23] to provide openness. It is entirely impermissible to predicate a conclusion
of
negligent design simply because a vehicle, having a distinctive purpose, such as the
microbus, does not conform to the design of another type of vehicle, such as a standard
passenger car, having a different nature and utility. As a matter of fact, the defendant
offered evidence--unrefuted in the testimony--that its design, at least so far
as
"crash
space" between the
front and the
passenger compartment, was equal to or superior to that of other vehicles of like type.
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n24 App. at 519.
n25 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).
n26 The popularity of the model was strikingly illustrated by the fact that the
father of the
driver of the
microbus involved in this accident immediately purchased a new one to replace the one
damaged in this accident. This is extremely persuasive evidence that the
purchaser of the
van did not regard it, in its design and manufacture, to involve any
"unreasonable risk" of harm as a result of its unique design to
occupants.
[**24]
n27 App. at 171.
n28 App. at 509.
n29 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.
n30 The phrases
"conduct involving
unreasonable risk" of injury and
"unreasonably dangerous conduct" are synonymous. See Section 282, Comment c, 2d Restatement of Torts.
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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 hour n31 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
[**25] 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
[*1076] between the
front and
passenger seat of a 1966 Ford
passenger car; and because the
distance in the latter instance was greater than
[**26] in the former, they concluded that, had the plaintiff been riding in a 1966
Ford
passenger car, she would have escaped injury. But, as we have already seen, in determining
whether a vehicle has been negligently designed so far as safety is concerned,
the special purpose and character of the particular type of vehicle must be
considered, and a
microbus is no more to be compared with a standard 1966
passenger type car than the
convertible instanced in
Dyson is to be compared with a standard hard-top
passenger car. Both the plaintiffs and the District Court employed an improper standard in
determining whether the defendant had been guilty of
negligent design.
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n31 The
van was undoubtedly proceeding at a greater rate of
speed than 40
miles an hour at impact. When the
van went over the crest of the
hill, its
speed was 40
miles an hour but, as it proceeded down the
hill to the point of impact, it gathered
speed--to such an extent that the
driver felt it imperative that he endeavor to slow its
speed.
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It, perhaps,
[**27] 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. 108-9 (364 F. Supp.). In fact, the record seems clear that in any event the
plaintiff, who had 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 * * * *." n32 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 impractical 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,
[**28] 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.
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n32 App. at 429, 430.
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Reversed and remanded with directions to the District Court to enter judgment
in favor of the appellants-defendants.