Frericks v. General Motors Corp.

Eldridge, J., delivered the opinion of the Court. In this case questions relating to the liability of automobile manufacturers and dealers for alleged, design defects which cause or enhance injuries in so-called “second collisions,” are once again presented to this Court. See Volkswagen of America v. Young, 272 Md. 201 , 321 A. 2d 737 (1974). On September 21, 1970, John Joseph Frericks was seriously injured when the car in which he was riding as a passenger left the road and overturned.

The accident took place near Jacksonville, North Carolina, as Frericks and Ronald D. Baines, the driver of the car, were returning to Camp Lejeune in North Carolina. The car, a 1969 Opel Kadett 2-door sedan, had been purchased in Maryland on October 7, 1969, from Anchor Pontiac Buick, Inc., by Walter and Agnes Baines, parents of Ronald Baines. On January 28, 1972, the petitioners, John Joseph Frericks and Frank Frericks, his father, filed suit in the Circuit Court for Cecil County, claiming damages as a result of the accident. Named as defendants were the driver, Ronald D. Baines, his parents, Walter D. Baines and Agnes Baines, the dealer who sold them the car, Anchor Pontiac Buick, Inc., ²⁹¹ and the manufacturer of the car, General Motors Corporation.

The circuit court (Roney, J.) sustained with leave to amend Anchor Pontiac Buick’s and General Motors’ demurrers to the original declaration. Petitioners then filed an amended declaration. What was termed “Case I” in the amended declaration was a claim against the Baineses grounded on Ronald Baines’s alleged negligent driving. What was called “Case II” in the amended declaration set forth claims against General Motors and Anchor in four counts: negligence, breach of implied warranty, breach of express warranty, and strict liability in tort.

Petitioners alleged in the amended declaration that, after leaving the highway, “the aforesaid 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, with the result that the roof itself bent, crumbled and gave way; that at the same time, when the vehicle overturned, the seat mechanism of seat in which the Plaintiff, JOHN FRERICKS was riding as a passenger, asleep, which was reclined at a five (5) degree angle, suddenly and without warning, failed and as a result thereof dropped rearward to an eighty (80) degree angle, with the result that the head uf the Plaintiff was caused to be placed in a position in line with the collapsing roof supports and the collapsing roof on the right side of said vehicle, at which time a second impact occurred between the Plaintiff’s head and the collapsing roof, crushing his skull and causing him to sustain the injuries hereinafter alleged.” In the first count, petitioners stated that respondent, General Motors, designed, manufactured, constructed and tested Buick Opel Kadetts and that respondent, Anchor Pontiac Buick, Inc., sold such vehicles to the public. Petitioners alleged that General Motors breached its duty to use care in the design of the Buick Opel Kadett by using ²⁹² steel alloys of inadequate tensile strength in construction of the roof supports, by using steel alloys of insufficient strength and thickness in the seat tilting mechanism, and by inadequately testing these parts of the Opel Kadett. Petitioners further charged that General Motors and Anchor were negligent in failing to warn the petitioners of the alleged design defects in the Opel Kadett and failing to employ adequate means to recall such vehicles. In the second count, petitioners stated that General Motors sold Opel Kadetts to Anchor which resold them to the public.

They claimed that General Motors and Anchor both impliedly warranted that the Opel Kadett in which petitioner was injured would be suitable for its intended purpose, the provision of reasonably safe transportation. They alleged that both respondents breached the implied warranty by selling a car which was defectively designed in the manner set forth in the first count. Petitioners, in the third count, alleged that General Motors and Anchor expressly warranted to petitioners that the Opel Kadett was designed to be reasonably fit for its intended purpose, and that both respondents breached the express warranty by selling the Opel Kadett which was defectively designed. In the fourth count, petitioners claimed that the design defects described in the first count made the Opel Kadett unreasonably dangerous to petitioner, John Joseph Frericks, and that the sale of the car in such a defective state subjected the respondents to strict liability General Motors and Anchor filed demurrers to the amended declaration.

On October 3, 1972, the circuit court sustained the demurrers without leave to amend and filed an opinion explaining that in view of the facts which petitioners alleged, they had not stated any legal theory on which recovery could be based. Following the circuit court’s ruling of October 3, 1972, petitioners appealed to the Court of Special Appeals. That court dismissed the appeal as premature because the claim against the Baineses was still pending in the circuit court. See Maryland Rule 605 a; Frericks v. Baines, 16 Md. App. ²⁹³ 343, 296 A. 2d 706 (1972).

Thereafter, an order of satisfaction was filed with respect to the claim against the Baineses, and the petitioners then took a timely appeal to the Court of Special Appeals. The Court of Special Appeals, in a 2 - 1 decision, upheld the circuit court’s action in sustaining the respondents’ demurrers except with regard to the express warranty count. Frericks v. General Motors Corp., 20 Md. App. 518 , 317 A. 2d 494 (1974). The Court of Special Appeals allowed petitioners 60 days after remand to amend the express warranty count of the declaration by including allegations which could “authorize recovery under that theory.” The majority opinion in the Court of Special Appeals noted that a division of opinion existed on the issue of whether an automobile manufacturer should be liable for so-called design defects which produce enhanced injuries in an accident, but which are not the cause of the accident itself.

The majority chose to follow the reasoning of Evans v. General Motors Corp., 359 F. 2d 822 (7th Cir.), cert. denied, 385 U. S. 836 , 87 S. Ct. 83 , 17 L.Ed.2d 70 (1966), where the court declined to impose on an automobile manufacturer liability to an occupant of an automobile whose injuries were enhanced by a negligently designed part of the car although the defective part had not caused the original accident. The majority in the Court of Special Appeals rejected Larsen v. General Motors Corp., 391 F. 2d 495 (8th Cir. 1968), where the court concluded that liability could be imposed where a design defect led to enhanced injuries in the “secondary impact” of an occupant with the interior of a car following an initial collision. Judge Lowe, in a dissenting opinion, urged that the Larsen holding be followed. Frericks v. General Motors Corp., supra, 20 Md. App. at 540 .

The Court of Special Appeals decision in Frericks was filed before our recent decision in Volkswagen, of America v. Young, supra, 272 Md. 201 . Because of the importance of the issues involved, and the apparent inconsistency between the Court of Special Appeals’ decision in this case and our decision in Volkswagen of America v. Young, we granted a writ of certiorari. ²⁹⁴ In Volkswagen of America v. Young, supra, we dealt with the question of a manufacturer’s liability in negligence for a design defect which aggravates injuries received in an accident although the defect is not a cause of the accident. In Young , we followed the reasoning of Larsen v. General Motors, supra, and the cases following it, with regard to so-called “secondary impact” injuries caused by a negligent design. Our conclusion with respect to the negligence issue there involved was as follows ( 272 Md. at 216 ): “In sum, ‘traditional rules of negligence’ lead to the conclusion that an automobile manufacturer is liable for a defect in design which the manufacturer could have reasonably foreseen would cause or enhance injuries on impact, which is not patent or obvious to the user, and which in fact leads to or enhances the injuries in an automobile collision.” This Court rejected Volkswagen’s argument that “the intended purpose of an automobile is transportation and does not include its participation in collisions” by stating that (id. at 217): “While the intended purpose of an- automobile may not be to participate in collisions, the intended purpose includes providing a reasonable measure of safety when, inevitably, collisions do occur.

For many years automobiles have been equipped with safety glass, bumpers, windshield wipers, etc. More recently, and largely as a result of governmental action, automobiles are equipped with additional safety devices such as seat belts, shoulder harnesses, padded dashboards, padded visors, non-protruding knobs, etc. Frequent collisions are foreseeable, and the intended purpose of all of these parts of the vehicle is to afford reasonable safety when those collisions occur.” We noted in Young that our holding did not require manufacturers to design and produce vehicles which would protect users from injury in all accidents (ibid.): ²⁹⁵ “The arguments that there is no duty to design ‘accident-proof or ‘injury-proof’ vehicles, and that automobile manufacturers are not insurers, are ‘straw men.’ No case has ever held that an automobile manufacturer must design an ‘accident-proof’ or ‘injury-proof’ vehicle or that the manufacturer is an insurer. Concerning two of the examples most often used by the advocates of non-liability for design defects, no one has suggested that an automobile must be designed to withstand a high speed head-on collision with a truck or to float if it leaves the road and goes into a body of water. As the court stated in Larsen, supra, 391 F. 2d at 502 : “ ‘We do agree that under the present state of the art an automobile manufacturer is under no duty to design an accident-proof or fool-proof vehicle or even one that floats on water, 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.’ ” In Young , the Court did not consider whether under Maryland law a cause of action for breach of warranty was set forth, since the law of the state where the car was purchased, Alabama, controlled that issue {id. at 220.) The Court also declined to apply the strict liability theory of Restatement 2d, Torts, § 402A, in a design defect situation {ibid.). In the instant case, petitioners contend that the Young decision is controlling, and that under Young their declaration sets forth causes of action in all four counts against General Motors and Anchor.

Respondents, on the other hand, argue: (1) that, since the accident occurred in North Carolina, the sufficiency of the negligence and strict liability counts of petitioners’ declaration should be evaluated under North Carolina law, and that North ²⁹⁶ Carolina does not impose liability on manufacturers and dealers for “secondary impact” injuries caused by design defects; (2) that our holding in Young with respect to “secondary impact” injuries resulting from the negligent design of a car should not be extended to breach of warranty cases; and (3) that, even if Volkswagen of America v. Young is applicable to both, petitioners’ declaration fails to state a cause of action either under a negligence or a breach of warranty theory. (1) Respondents’ initial argument is that Volkswagen of America v. Young, supra, is not applicable to the negligence issue because North Carolina law governs that issue in this case.. The respondents correctly assert that the rule of lex loci delictus is applicable in tort actions brought in Maryland. Harford Mut.

Ins. Co. v. Bruchey, 248 Md. 669, 674 , 238 A. 2d 115 (1968); White v. King, 244 Md. 348, 355 , 223 A. 2d 763 (1966). In this case, however, the respondents failed to give notice of their intent to rely on foreign law, when the case was before the trial court, as required by Maryland Code (1974), § 10-504 of the Courts and Judicial Proceedings Article. 1 That section contemplates that, if a party wishes to rely on foreign law, notice be given in the trial court so that the adverse party has an adequate opportunity to prepare his arguments on the foreign law. The respondents are, in effect, asking us to take judicial notice of North Carolina law in spite of their failure to comply with § 10-504.

Although we may in our discretion take judicial notice of foreign law where the statutory ²⁹⁷ notification was not given and proof of the foreign law was not presented, Harry L. Sheinman & Sons v. Scranton Life Ins. Co., 125 F. 2d 442, 444 (3d Cir. 1942); M. N. Axinn Co. v. Gibraltar Development, 45 N.J. Super. 523 , 133 A. 2d 341, 347 (1957); Litsinger Sign Co. v. American Sign Co., 11 Ohio St. 2d 1 , 227 N.E.2d 609, 613-614 (1967), we decline to do so here because the case proceeded in the trial court and before the Court of Special Appeals on the assumption that Maryland law was applicable, and we granted certiorari on that basis. See von Frank v. Hershey Nat'l Bank, 269 Md. 138, 144 , 306 A. 2d 207 (1973). However, upon remand of this case to the circuit court, respondents will have an opportunity to give the notice required by § 10-504.

That section allows notice to be given in the pleadings, and since respondents have yet to file their answer in this case, there obviously remains an opportunity for them to comply with § 10-504. If the circumstances indicate that no unfair surprise would result, notice of intent to rely on foreign law may be filed up to the start of trial. See Morris v. Peace, 14 Md. App. 681, 685-686 , 288 A. 2d 600 , cert. denied, 266 Md. 740 (1972). 2 As respondents failed to give proper notice in the trial court of their intent to rely on North Carolina law, “we are not required to take judicial notice of the law of that state other than presume it is like that of Maryland.” Von Frank v. Hershey Nat’l Bank, supra, 269 Md. at 144 ; Coppage v. Resolute Insur. Co., 264 Md. 261, 269 , 285 A. 2d 626 (1972); Gebhard v. Gebhard, 253 Md. 125, 128 , 252 A. 2d 171 (1969); Leatherbury v. Leatherbury, 233 Md. 344, 348 , 196 A. 2d 883 (1964).

Consequently, as to determining the sufficiency of the negligence count of petitioners’ declaration at this stage of the case, the principles of Volkswagen of America v. Young, supra, are fully applicable. ²⁹⁸ The respondents also contended that North Carolina law should be applied to the strict liability count of petitioners’ declaration. For the reasons set forth above, we presume North Carolina law to be the same as Maryland law with regard to the strict liability count. This Court has not, as yet, either rejected or accepted the “strict liability” theory set forth in Restatement 2d, Torts, § 402A, in the type of case where that section might logically be applied. Petitioners argue that the present case is one in which the principles of § 402A should be held applicable.

However, in Volkswagen of America v. Young, supra, we stated ( 272 Md. at 220-221 ): “ .. . Regardless of whether the theory of § 402A of the Restatement should be accepted in other contexts, we are convinced that it has no proper application to liability for design defects in motor vehicles. The thrust of § 402A is that a seller of ‘any product in a defective condition’ is liable to a user for harm caused by that defective condition even though ‘the seller has exercised all possible care in the preparation and sale of his product.’ This principle obviously changes the standard of care with regard to a construction defect. But as to a defect in design, it has no special meaning.

Since the existence of a defective design depends upon the reasonableness of the manufacturer’s action, and depends upon the degree of care which he has exercised, it is wholly illogical to speak of a defective design even though the manufacturer has ‘exercised all possible care’ in the preparation of his product. While a few cases applying Larsen principles have used language of ‘strict liability’ with respect to design defects, it has been recognized that this results in ‘no practical difference’ from the application of negligence principles. Note, 24 Vanderbilt L. Rev. 862, 866-867 (1971); Sklaw, ‘Second Collision’Liability: The Need For Uniformity, 4 Seton Hall L. Rev. 499 , 507, 522-523 (1973). . . .” ²⁹⁹ We adhere to what we said in Young , and decline to apply the “strict liability theory” of § 402A in a case where liability is dependent upon the existence of a defect in the design of an automobile. (2) Respondents’ next contention