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April 17, 1969

Margaret Jane DYSON, Plaintiff
GENERAL MOTORS CORPORATION, Defendant and Thalia K. STEPHENSON, Third-Party Defendant

The opinion of the court was delivered by: FULLAM

 This is a products-liability case. Plaintiff was severely injured when the automobile in which she was a passenger left the roadway and upset. The right side of the roof collapsed, allegedly as a result of defective design of the vehicle, a 1965 Buick "Electra" two-door hardtop. Plaintiff concedes that the alleged defective design of the roof did not cause the accident, but contends that the severity of her injuries was greatly increased by the failure of the roof to support, even partially, the weight of the overturned car.

 The case is presently before the Court on defendant's motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). Accordingly, the issue is whether the pleaded facts, viewed in a light most favorable to the plaintiff, provide any conceivable basis for permitting plaintiff to recover. See Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (3rd Cir. 1965); 2 Moore, Federal Practice § 1215.

 Plaintiff has pleaded the following theories of liability: (1) negligence in design and manufacture; (2) breach of express and implied warranties of fitness; (3) strict liability under section 402A of the Restatement of Torts 2d; and (4) conscious or negligent misrepresentation. It is also claimed that plaintiff is entitled to punitive damages. Since the oral argument of the present motion, it has been stipulated that plaintiff makes no claim of defective manufacture of the particular vehicle, but relies solely upon the asserted design defect.


 The warranty phase of plaintiff's argument may quickly be disposed of: The plaintiff was not the purchaser and may not obtain the benefit of any warranties extended to the purchaser. Pennsylvania has not abandoned the requirement of horizontal privity. Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963) still represents Pennsylvania law on this point; only vertical privity has been eliminated. Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); 12A Pa.Stat.Ann. § 2-318 (1967 supplement).

 The claim of misrepresentation likewise requires only brief mention. It is alleged that the defendant's advertising of its 1965 Buick automobiles misrepresented their safety qualifies, and that these representations were consciously, or at least negligently, made. In the absence of specific averments, it is somewhat difficult to assume that the advertising amounted to a representation, and was untrue; but even assuming these factors to be present, there would be no basis for recovery unless either the purchaser or the plaintiff relied thereon:

"The causal connection between the wrongful conduct and the resulting damage, essential throughout the law of torts, takes in cases of misrepresentation the form of inducement of the plaintiff to act, or refrain from acting, to his detriment. The false representation must have played a material and substantial part in leading the plaintiff to adopt his particular course; and when he is unaware of it at the time he acted, or it is clear that he was not in any way influenced by it, and would have done the same thing without it for other reasons, his loss is not attributed to the defendant." Prosser, The Law of Torts § 103, at 729 (3rd ed. 1964).

 There is no merit to plaintiff's argument that sections 310 *fn1" and 311 *fn2" of the Restatement of Torts 2d authorized recovery notwithstanding lack of reliance. See Comment (d) under section 310. *fn3" Robb v. Gylock Co., 384 Pa. 209, 120 A.2d 174 (1956). Moreover, it seems farfetched to suppose that the present case could be brought within the framework of intentional tort.


 In determining the possible liability of the defendant under general negligence principles, and under the strict-liability concepts of section 402A of the Restatement of Torts 2d, the accurate formulation of the issues may differ, but the essence of the issues is identical. In the exercise of due care (or, to avoid creating an "unreasonably dangerous" product) should the defendant have designed the roof of its 1965 Buick Electra hardtop so that it would support the weight of the automobile, when, after a 180 degrees roll-over, the vehicle came to rest on its roof? The answer to this question involves subsidiary lines of inquiry: (1) was the defendant under any legal obligation to provide protection against this kind of hazard (involving, under negligence concepts, such matters as the orbit of risk and foreseeability; and, under section 402A, whether roll-over accidents fall within the contemplated "normal use" of the product); and (2) if so, do the pleaded facts establish a breach of such duty.

 The defendant understandably relies on the decision of the Seventh Circuit in 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) and the cases which have followed in its wake. *fn4" In Evans, Judge Knoch, writing for the majority, stated simply:

"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. * * * We cannot agree with the plaintiff that the defendant had a duty to equip all its automobiles with side rail perimeter frames * * *. Defendant had a duty to test its frame only to insure that it was reasonably fit for its intended purpose." 359 F.2d at 825.

 In Schemel v. General Motors Corp., 384 F.2d 802 (7th Cir. 1967) the same Court held that it was not negligent for a manufacturer to build an automobile capable of going 115 miles per hour, and that the manufacturer was not bound to anticipate "grossly careless misuse of his product by reckless drivers." Id. at 805. In Shumard v. General Motors Corp., 270 F. Supp. 311 (S.D.Ohio 1967), it was alleged that plaintiff's decedent was killed as a result of the defective design of a 1962 Corvair, the gas tank of which was so located that, when the vehicle was involved in a collision, the tank ruptured, and the decedent was burned to death. The complaint was dismissed for failure to state a cause of action. Willis v. Chrysler Corp., 264 F. Supp. 1010 (S.D.Tex.1967) followed the Evans rationale where an alleged defective design resulted in a car splitting in two, as a consequence of a head-on collision. *fn5"

 On the other hand, the plaintiff relies upon such cases as Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). In that case, it was alleged that the steering column of the automobile protruded some 2.7 inches forward of the leading surface of the front tires, and that this constituted negligent design because it greatly enhanced the danger to the driver in a collision. The ...

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