Frericks v. General Motors Corp.

Menchine, J., delivered the opinion of the Court. Lowe, J., dissents and filed a dissenting opinion at page 540 infra. Evans 1 and Larsen, 2 continuing their national battle for supremacy, meet for the first time on Maryland soil. 3 Each a ⁵²⁰ direct descendant of MacPherson v. Buick, 111 N. E. 1050 (N.Y. 1916), they have enunciated “second collision” principles precisely poles apart. Their clashing concept as to the appropriate legal principle controlling manufacturers’ liability for design defects producing enhanced injuries in motor vehicle accidents but not causing or contributing to the initial collision, has led to a new “War between the States” unsurpassed since 1865.

In Evans, liability asserted alternatively under: (a) negligence, (b) breach of implied warranty, and (c) strict tort liability, 4 was rejected under all theories. Liability under general negligence standards and under strict tort liability was rejected on the basis of the absence of a duty owed; liability was denied under implied warranty upon the ground there was no showing of unfitness for intended use. Although Larsen clearly had sustained liability under general negligence standards, its progeny, though parading under its banner, sometimes imposed liability by way of warranty 5 or strict tort liability. 6 Lines of demarcation in legal theory hardly can be more starkly drawn or more vigorously debated than the disparate views expressed in Evans v. General Motors Corp., ⁵²¹ swpra, (CCA 7 declaring Indiana law), and Larsen v. General Motors Corp., supra, (CCA 8 declaring Michigan law). Evans thus stated the issue and answer: P.824 “Plaintiffs theory is that the collision which occurred was a foreseeable emergency and that by omitting side frame rails, defendant created an unreasonable risk of harm to occupants of the automobile it manufactured.

Plaintiff asserts that defendant was negligent in designing and in failing to test the design of the automobile; that defendant breached implied warranties that the automobile was of merchantable quality and reasonably fit for use as an automobile; that defendant placed in the stream of commerce an automobile in a dangerous and defective condition in that it was equipped with an “X” frame lacking side frame protection, thus proximately causing the fatal injuries to the decedent when the automobile was involved in a broadside collision, for which the defendant is strictly liable to plaintiff. The major question before us is the nature of the duty which an automobile manufacturer owes to users of its product. This presents an issue of law for the Court. A manufacturer is not under a duty to make his automobile accident-proof or fool-proof; nor must he render the vehicle ‘more’ safe where the danger to be avoided is obvious to all.

Campo v. Scofield, 1950, 301 N.Y. 468 , 95 N.E. 2d 802, 804 . Perhaps it would be desirable to require manufacturers to construct automobiles in which it would be safe to collide, but that would be a legislative function, not an aspect of judicial interpretation of existing law.” ⁵²² P.825 “The intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer’s ability to foresee the possibility that such collisions may occur. As defendant argues, the defendant also knows that its automobiles may be driven into bodies of water, but it is not suggested that defendant has a duty to equip them with pontoons. We cannot agree with the plaintiff that the defendant had a duty to equip all its automobiles with side rail perimeter frames, or that such a duty can be inferred from the mere fact that some of the defendant’s, or some of its competitors’, automobiles are now made with side rails, or from the opinions of certain experts that perimeter frames are ‘safer’ in a collision.

Defendant had a duty to test its frame only to ensure that it was reasonably fit for its intended purpose.” Larsen thus stated the issue and answer: P.496 “The plaintiff * * * received severe bodily injuries while driving * * *. A head-on collision, with the impact occurring on the left front * * * caused a severe rearward thrust of the steering mechanism into the plaintiffs head.” P.497 “The plaintiff does not contend that the design caused the accident but that because of the design he received injuries he would not have otherwise received or, in the alternative, his injuries would not have been as severe. The rearward displacement of the steering shaft on the left frontal impact was much greater on the Corvair than it would be in other cars that were designed to protect against such a rearward displacement.” ⁵²³ P.498 “Both parties agree that the question of a manufacturer’s duty in the design of an automobile or of any chattel is a question of law for the court. There is a line of cases directly supporting General Motors’ contention that negligent design of an automobile is not actionable, where the alleged defective design is not a causative factor in the accident.

The latest leading case on this point is Evans v. General Motors Corporation, 359 F.2d 822 (7 Cir. 1966), cert. denied, 385 U.S. 836 , 87 S.Ct. 83 , 17 L.Ed.2d 70 (1966).” 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’. Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types. The manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily foresee and when it knows that the probability over the life of its product is high, that it will be involved in some type of injury-producing accident.” P.502 “We think the ‘intended use’ construction urged by General Motors is much too narrow and unrealistic.

Where the manufacturer’s negligence in ⁵²⁴ design causes an unreasonable risk to be imposed upon the user of its products, the manufacturer should be liable for the injury caused by its failure to exercise, reasonable care in the design. These injuries are readily foreseeable as an incident to the normal and expected use of an automobile. While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called ‘second collision’ of the passenger with the interior part of the automobile, all are foreseeable.

Where the injuries or enhanced injuries are due to the manufacturer’s failure to use reasonable care to avoid subjecting the user of its products to an unreasonable risk of injury, general negligence principles should be applicable. The sole function of an automobile is not just to provide a means of transportation, it is to provide a means of safe transportation or as safe as is reasonably possible under the present state of the art.” P.503 “We perceive of no sound reason, either in logic or experience, nor any command in precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents. 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 ⁵²⁵ 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.

Any design defect not causing the accident would not subject the manufacturer to liability for the entire damage, but the manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design.” P. 504 “We think the duty of the use of reasonable care in design to protect against foreseeable injury to the user of a product and perhaps others injured as an incident of that use should be and is equally applicable to all manufacturers with the customary limitations now applied to protect the manufacturer in case of an unintended and unforeseeable use. We, therefore, do not think the automotive industry is being singled out for any special adverse treatment by applying to it general negligence principles in (1) imposing a duty on the manufacturer to use reasonable care in the design of its products to protect against an unreasonable risk of injury or enhancement of injury to a user of the product, and (2) holding that the intended use of an automotive product contemplates its travel on crowded and high speed roads and highways that inevitably subject it to the foreseeable hazards of collisions and impacts. Neither reason, logic, nor controlling precedents compel the courts to make a ⁵²⁶ distinction between negligent design and negligent construction. The manufacturer’s duty to use reasonable care in the design and manufacture of a product to minimize injuries to its users and not to subject its users to an unreasonable risk of injury in the event of a collision or impact should be recognized by the courts.

The manufacturers themselves have, in various public utterances in discussing automotive safety, expressed their concern for making safer vehicles. And General Motors admits the foreseeability of accidents which are matters of public and common knowledge over a long period of time. Legal acceptance or imposition of this duty would go far in protecting the user from unreasonable risks. The normal risk of driving must be accepted by the user but there is no need to further penalize the user by subjecting him to an unreasonable risk of injury due to negligence in design.” The Subject Litigation John Joseph Frericks (Passenger) filed a multiple count declaration alleging: that he was a passenger in; that Ronald D. Baines (Driver) was the driver of; that Walter Baines and Agnes Baines (Owners) were the owners of; that General Motors Corporation (Manufacturer) was the manufacturer of; and that Anchor Pontiac Buick, Inc. (Seller) was the seller of; a 1969 Opel Cadet Two Door Sedan.

In Case No. I it was alleged that on September 2, 1970, Driver operated the automobile at an excessive and unlawful speed, causing it to run off the road and overturn. Damages for personal injuries and other losses were claimed from the Driver and Owners. Case II, Count I repeated by reference all allegations of Case No. I and further alleged that after leaving the highway the vehicle rolled over on its roof “causing the roof supports to collapse, bend, crumble and give way, unable to support the weight of the automobile”; that “at the same ⁵²⁷ time the seat mechanism in which passenger was reclining at a 5° angle failed and dropped rearward to an 80° angle,” the two conditions then combining to cause a second impact to occur between passenger’s head and the collapsing roof, crushing his skull and causing greatly enhanced injury and damage. The count further alleged that collisions and overturning accidents of vehicles on the highway were foreseeable by the manufacturer and seller and should have been taken into account by them in the design, construction, manufacture and distribution of the involved motor vehicle; but that they negligently failed to use appropriate design and to provide safe engineering qualities with respect to the vehicle roof and the seat mechanism.

Damages were claimed from Manufacturer and Seller grounded in negligence. Case II, Count II repeated prior allegations and further alleged that Manufacturer introduced the automobile into the stream of commerce and that Seller sold the same to Owners, thereby giving rise to an implied warranty, running to Passenger’s benefit that was breached by Manufacturer and Seller with resultant damages. Case II, Count III repeated allegations heretofore stated and further alleged an express warranty, running to Passenger’s benefit, that was breached by Manufacturer and Seller with resultant damages. Case II, Count IY repeated allegations heretofore stated in Case II, Count I and claimed damages for personal injuries and other losses on the theory of strict liability in tort.

There was no allegation in any count that the alleged defect in design caused or contributed in any way to the initial upset of the vehicle. Driver and Owners filed pleas. Manufacturer and Seller demurred to Case I and to all counts of Case II. The trial judge sustained the demurrers without leave to amend.

An appeal from the judgments thereafter entered in favor of Manufacturer and Seller was dismissed as prematurely taken because of the continuing pendency of claims against Driver and Owners. Frericks v. Baines, 16 Md. App. 343 , 296 A. 2d 706 . ⁵²⁸ Upon remand after dismissal of the earlier appeal, settlement by Passenger with Driver and Owners was made and an Order of Satisfaction filed as to Driver and Owners. This appeal followed from the then final judgments in favor of Manufacturer and Seller. General Negligence Standards We are required to choose between Evans and Larsen.

We have chosen Evans . We now give the reasons for our choice. Evans, supra, grounded decision essentially upon the precepts of Campo v. Scofield, 95 N.E.2d 802 [N.Y. 1950], wherein it was said: P.803 “The cases establish that the manufacturer of a machine or any other article, dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. Accordingly, if a remote user sues a manufacturer of an article for injuries suffered, he must allege and prove the existence of a latent defect or a danger not known to plaintiff or other users.” P.804 “If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. * * * In other words, the manufacturer is under no duty to render a machine or other article ‘more’ safe — as long as the danger to be avoided is obvious and patent to all.

To impose upon a manufacturer the duty of producing an accident-proof product may be a desirable aim, but no such obligation has been — ⁵²⁹ or, in our view, may be — imposed by judicial decision.” P.805 “It may well be argued that, since the development of mechanical contrivances has created so many new dangers, manufacturers should be compelled to equip complicated modern machinery with all possible protective guards or other safety devices. If, however, the manufacturer’s liability is to be so extended, if so fundamental a change is to be effected, we deem it the function of the legislature rather than of the courts to achieve that change.” Thus it is that the Evans ’ Court concluded, properly we think, that so complex and universal a problem should be left to legislative decision. Perhaps that Court was conscious of impending congressional action. Larsen, supra, on the other hand, relied essentially upon four cases, namely: Ford v. Zahn, 265 F. 2d 729 [CCA 8 1959]; Blitzstein v. Ford, 288 F. 2d 738 [CCA 5 1961]; Comstock v. General Motors Corp., 99 N.W.2d 627 [Mich. 1959], and Spruill v. Boyle-Midway, 308 F. 2d 79 , [CCA 4 1962], We do not find them persuasive.

Evans had discussed Ford v. Zahn, supra, and had made crystal clear that it was without weight in non-causative design situations, in that it was precisely because the vehicle in that case was “unfit for [its] intended use and in precisely that respect [was] the cause of accidental [injury].” Blitzstein v. Ford and Comstock v. General Motors Corp., both involving defects causally related to the initial event, are equally distinguishable for precisely the same reason. Spruill v. Boyle-Midway, supra, dealt with a claim for the wrongful death of a child caused by ingestion of a substance toxic to humans, the container of which bore an inadequate warning of the dangerous nature of the product. Applicability of Spruill to cases involving the manufacture ⁵³⁰ of motor vehicles is foreclosed totally by decisions of the Court of Appeals of Maryland in Myers v. Montgomery Ward & Co., 253 Md. 282 , 252 A. 2d 855 , and Blankenship v. Morrison Machine Co., 255 Md. 241 , 257 A. 2d 430 , in both of which Campo v. Scofield was cited with approval. See also Patten v. Logemann Brothers Co., 263 Md. 364 , 283 A. 2d 567 .

In Blankenship, supra, the Court of Appeals said at page 246 [432]: “In Myers , then, we adhered firmly to the latent-patent test (which, according to 2 Harper and James, The Law of Torts, § 28.5, p. 1544, is a vestigial carryover from pre-MacPherson days [MacPherson v. Buick Motor Co. (N.Y.), 111 N. E. 1050 ], when deceit was needed for recovery). As the quotation from Campo v. Scofield shows, Maryland has followed New York, which still remains loyal to the vestigial carryover of the latent-patent rule.” Significantly, Evans, supra, was cited in Blankenship as supporting the quoted language. We had previously noted [Footnote 3] that Judge Green in the case of Bremier v. Volkswagen of America, Inc., supra had concluded that Maryland would follow Larsen. That conclusion was based upon the belief that Maryland would follow Spruill as an authority in a noncausative “second collision” claim.

For the reasons previously given we do not do so. Spruill, supra, there applying Virginia law, has not been cited in any Maryland Appellate decision. We find that the basic assumption of Larsen was that liability should be co-extensive with foreseeability and regard that assumption as totally fallacious. Before and after Larsen, legal scholars had criticized use of foreseeability as the sole test in the determination of a duty owed.

Professor Leon Green, (University of Texas) in an article titled: “Foreseeability in Negligence Law,” published in 61 Columbia Law Review 1401, et seq. (1961), said at page 1412: “An attempt to rest liability in negligence cases ⁵³¹ wholly on the gossamer of foreseeability seems so far removed from the practical world of affairs as to suggest the Wizard of Oz or the creations of Disneyland.” In the latest (1971) edition, Prosser, expressing a kindred view said: “As a formula this is so vague as to have little meaning, and as a guide to decision it had no value at all.” Law of Torts 4th Ed., p. 326. Tobin v. Grossman, 249 N.E.2d 419 [New York 1969] very cogently stated the dangers inherent in the formula: [P. 423] “If foreseeability be the sole test, then once liability is extended the logic of the principle would not and could not remain confined.” Some cases, following Larsen’s careening “foreseeability” down the road to the manufacturer’s door, ignore totally the braking effect inherent in the allied requirement that the product must be unreasonably dangerous, whether liability is suggested under § 402A or under general negligence standards. 7 Others, giving lip-service to the “latent-patent” test of a manufacturer’s duty, have strained it almost to the breaking point. 8 On September 9, 1966, eighteen months prior to decision in Larsen, the Congress passed Public Law 89-563 (15 U.S.C.A. 1381-1431, inclusive), known as the National Traffic and Motor Vehicle Safety Act of 1966 (The Act). It seems to us that this should have alerted the courts to an awareness that orderly, progressive and uniform standards ⁵³² of design for motor vehicles and their equipment would be established to provide reasonable and objective bases for the determination of manufacturers’ liability for design defects.

Larsen, however, dealt very cavalierly with The Act, saying at page 506: “It is apparent that the National Traffic Safety Act is intended to be supplementary of and in addition to the common law of negligence and product liability. The common law is not sterile or rigid and serves the best interests of society by adapting standards of conduct and responsibility that fairly meet the emerging and developing needs of our time. The common law standard of a duty to use reasonable care in light of all the circumstances can at least serve the needs of our society until the legislature imposes higher standards or the courts expand the doctrine of strict liability for tort.” Larsen then rejected Evans , and promulgated its own nebulous and subjective test of “foreseeability” for the determination of a manufacturer’s liability for design defects. We do not read The Act in so limited a style and consider it desirable to recite herein some of its imperative