Leichtamer v. American Motors Corp.

Holmes, J.,

dissenting. Since I fundamentally disagree with not only the analysis of the majority of this court, but also the analysis of the Court of Appeals, I am compelled to dissent. I dissent as to the award of both compensatory and punitive damages.

Taking first the basis of the Court of Appeals’ decision as to compensatory damages, that court’s reasoning is not substantiated by the evidence in this case. The Court of Appeals based its review upon answers to interrogatories made by the jury in response to a question explaining its award of punitive damages. The jury said:

“Wilfully suggestive advertising depicting Jeeps going up and down steep and rugged terrain without any risk or warning,

“Grossly neglected to test roll bar support system for foreseeable roll-overs and/or foreseeable pitch-overs.”

Upon these statements, the Court of Appeals based its judgment affirming not only the award of punitive damages, but also the award of compensatory damages.

That court’s theory was that the appellants’ advertising, including the name of the vehicle, “Renegade,” would induce a consumer to use the vehicle in the manner in which it was used in the present case. Such use, according to the Court of Appeals’ determination, will tend to increase the risk of pitch-overs. Concomitantly, there is an implied representation that this can be done safely because of the roll bar’s added safety. 3

*478 Even assuming all of this is true, the shortcoming of this reasoning is that there is not sufficient evidence in the record to support a finding that either the appellees, who were passengers, or the driver relied upon such a representation. In order to recover under such a theory, it was necessary for the appellees to have proved that their injuries were caused by justifiable reliance upon the added protection of the roll bar. See Section 402B of Restatement of Torts 2d. This they did not do.

The majority herein, however, supports its affirmance of compensatory damages for different reasons than the Court of Appeals. The majority reaches its decision by virtue of the application in a second collision case of the doctrine of strict liability as contained in Section 402A of the Restatement of Torts 2d.

I am unable to join in this analysis. In a products liability action based upon an alleged design defect of the product, which allegedly has enhanced the plaintiffs injuries, I feel that the manufacturer should be held liable only when the plaintiff is able to prove that the manufacturer was negligent in adopting his chosen design. See, e.g., Volkswagen of America v. Young (1974), 272 Md. 201 , 321 A. 2d 737 ; Frericks v. General Motors Corp. (1975), 274 Md. 288 , 336 A. 2d 118 .

It is my view that the proper rule to be applied in crashworthiness cases is set forth in Larsen v. General Motors Corp. (C.A. 8, 1968), 391 F. 2d 495, 503 , as follows:

“***The manufacturers are not insurers but should be held to a standard of reasonable care in design to provide a reasonably safe vehicle in which to travel* * *.

“This duty of reasonable care in design rests on common law negligence that a manufacturer of an article should use reasonable care in the design and manufacture of his product to eliminate any unreasonable risk of foreseeable injury.”

See, also, Shumard v. General Motors Corp. (D.C. S.D. Ohio, E.D. 1967), 270 F. Supp. 311 .

There should be no requirements in the law that manufacturers must design their automotive products to withstand ex *479 traordinary accidents of unusual circumstance or severity. Accordingly, Larsen v. General Motors, supra, states, at page 502, that, “an automobile manufacturer is under no duty to design an accident-proof or fool-proof vehicle***.” Clearly, the manufacturer cannot reasonably be required to design a car to withstand all collisions under any and all circumstances. Jeng v. Witters (D.C. M.D. Pa. 1978), 452 F. Supp. 1349 .

The application of the standard of reasonable care imposes upon the manufacturer the duty to design a product not necessarily to make it accident-proof, but to make it safe for its intended use. This is the standard as set forth in Sections 395 and 398 Restatement of Torts 2d as to the test of negligent design in product liability cases.

My belief that these enhanced injury cases should be determined upon negligence principles rather than upon strict liability, or implied warranty principles, is based upon a number of reasons. I do not feel that the standards for imposition of liability under Section 402A provide sufficient guidance to the jury. Rather, I agree with the position taken by one commentator:

“***What is needed is a system which works well for design cases by permitting jurors to consider all relevant factors in ascertaining whether a particular design is one for which liability should be imposed. Such a system, which is in practice today, and which would require little adaptation, is the theory of negligence.” Hoenig, Product Designs and Strict Tort Liability: Is There a Better Approach? 8 Sw. U. L. Rev. 109 , 122 (footnote omitted). 4

Additionally, courts have seemingly had a difficult time defining what Section 402A means. Section 402A, and the majority, would impose liability when a product is in “a defective condition unreasonably dangerous.” The problem is the lack of *480 uniformity and understanding of those terms. 5 See, e.g., Caterpillar Tractor Co. v. Beck (Alaska 1979), 593 P. 2d 871 (where the court lists four tests, in addition to the Restatement “test,” that courts have developed to determine product effectiveness). On the other hand, courts, lawyers and jurors are familiar with concepts of negligence. These concepts are also uniformly applied.

Here, the only substantive instruction of law given by the trial court to the jury in the instant case defined the manufacturer’s duty in terms of strict liability as follows:

“The doctrine of ‘breach of implied warranty’ as charged in the Complaint does not depend on proof of fault. * * *

“To recover for a breach of implied warranty, to provide a product free of defect in design and reasonably safe for the use for which it was intended, a plaintiff need not prove that any part of the product broke, fell apart, wore out or malfunctioned. The issue is not the degree of care exercised in the design and manufacture of the product, but rather the degree of safety of the ultimate product itself. * * * ”

The Court of Appeals held that such an instruction was harmless error in that the express fact findings of the jury showed the verdict was based upon willful misconduct and gross negligence, and not strict liability or breach of implied warranty. I am unable to accept this conclusion in that the findings were not supported by the evidence, and as stated, the findings were in response to the punitive damage issue.

Applying the appropriate standard to the facts in this case, the plaintiff, in addition to proof of specific knowledge of, and reliance upon, any claims of protective security offered by the roll bars in instances of Jeep pitch-overs, would have to prove that the accident was one reasonably foreseeable and not an extraordinary accident, or of unusual circumstance or severity. Also, the plaintiff would have to prove that there was a safer alternative design available, practicable under the circumstances.

As stated, there was a significant absence of specific proof *481 as to any reliance by these plaintiffs upon the capability of the roll bar in a pitch-over situation or otherwise. Additionally, there was an insufficiency of proof that this type of an accident, involving a pitch-over of a Jeep, was a common accident and one reasonably foreseeable. In fact, the evidence would tend to controvert such a finding in that there was testimony from both plaintiffs’ and defense witnesses that pitch-overs are rare events which occur infrequently and only if the specific conditions necessary to bring it about exist.

American Motors presented testimony that the roll bars were installed on these Jeeps to aid in the protection of occupants in roll-over situations, not pitch-over accidents as was occasioned here. In support of this concept, the company attempted at trial to introduce “Exhibit F” which was a movie showing roll bar tests with a Jeep CJ-5. The film was offered to show that there had been such tests on the roll bar prior to putting the roll bars into production. The trial court refused admission of such film as evidence.

There also was a failure of proof here as to any alternate safer design practicable under the circumstances of a pitch-over rather than a roll-over, and absence of any proof of any lessened or differential injuries that might have been sustained had an alternate design been installed in this jeep.

As stated, in the application of the proper standards here, the manufacturer’s duty is to exercise reasonable care in the design of its product to eliminate any reasonable risk of foreseeable injury, but it need not be designed to make the vehicle accident-proof. The liability of this defendant under the facts should have been submitted to the jury, not on the strict liability theory, but upon the theory of negligence with applicable standards of ordinary care and foreseeability.

Lastly, as to the award of punitive damages, this court held in Smithhisler v. Dutter (1952), 157 Ohio St. 454 , at paragraph one of the syllabus:

“In tort actions, the questions of punitive damages may not ordinarily be submitted to a jury in the absence of actual HlHillC6 * *

In Miles v. Perpetual S. & L. Co. (1979), 58 Ohio St. 2d 93 , this court held at pages 96-97, that where there is no evidence establishing that the defendant’s actions are motivated by ac *482 tual malice and where there is no evidence from which reasonable minds can find that the defendant acted in a malicious, wanton, or reckless manner, it is error to submit such case to a jury for determination.

In the instant case, the jury found that the defendants had acted willfully on the basis of the company’s advertising, and that the defendants had acted grossly because they had “neglected to test [the] roll bar support system for foreseeable roll-overs and/or foreseeable pitch-overs.” The evidence in the record does not support the conclusions reached by the jury. The advertising does not suggest that there is no risk, nor does the advertising proclaim the roll bar to be the all protective or injury prohibiting device. Also, as indicated, the defendants established that pitch-overs are rare, and that a roll bar had been devised and tested for side-rolls, the accident known more frequently to occur.

There was no evidence presented sufficient for the establishment of punitive damages. In any event, the jury’s stated conclusions are legally insufficient to justify the award of punitive damages.

Accordingly, I would reverse the judgment of the Court of Appeals.

P. Brown, J., concurs in the foregoing dissenting opinion.

Locher, J., concurs in that part of the foregoing dissenting opinion having to do with punitive damages.

At this point it is important to emphasize that the appellees’ theory is not that some defective condition of the vehicle caused the pitch-over. The appellees concede *478 that the pitch-over was caused by the driver’s negligence. However, the appellees assert that their injuries were enhanced by the failure of the roll bar to support the vehicle once the pitch-over occurred.

The author argues that the imposition of liability solely on the basis of negligence would not differ greatly from the “strict liability” tests advocated by some authors. See, e.g., Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L. J. 825; Keeton, Manufacturer’s Liability: The Meaning of “Defect” in the Manufacture and Design of Products, 20 Syracuse L. Rev. 559 .

See, also, Henderson, Renewed Judicial Controversy over Defective Product Design: Toward the Preservation of an Emerging Consensus, 63 Minn. L. Rev. 773 (author argues that liability should be imposed only under a cost-benefit analysis).

Compare Barker v. Lull Engineering Co., Inc. (1978), 20 Cal. 3d 413 , 143 Cal. Rptr. 225 (no need to prove that a product is unreasonably dangerous as well as in a defective condition), with Phillips v. Kimwood, Machine Co. (1974), 269 Ore. 485 , 525 P. 2d 1033 (adopting a risk-benefit analysis test to determine whether a product is unreasonably dangerous).