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June 26, 1978

Bih-Jing JENG et al., Plaintiffs,
Joseph E. WITTERS and General Motors Corp., Defendants, v. Ying-Che CHENG, Additional Defendant

The opinion of the court was delivered by: HERMAN

 Bih Jing Jeng, on his own behalf, and in his capacity as administrator of the estate of his deceased wife, Su-Jen Jeng, brought this diversity suit to recover damages for injuries he sustained, and for the death of his wife, resulting from a motor vehicle collision which occurred around 9:30 p.m. on August 23, 1969.

 Bih Jing Jeng and his wife, hereinafter referred to as Plaintiffs, were passengers in the rear seat of a 1963 Buick Wildcat four-door hardtop sedan owned and operated by one Ying-Che Cheng. The Buick was involved in a collision with a 1966 Ford Thunderbird operated by Joseph E. Witters. Plaintiffs sued Witters, claiming that Witters had been negligent in the operation of the Thunderbird, and Plaintiffs also sued General Motors, claiming liability under Section 402A of the Restatement (Second) of Torts for a defective door latch which allegedly caused a "second collision" type accident during the collision with the Witters' vehicle when a rear door of the Jeng vehicle flew open and both Plaintiffs were thrown to the highway. General Motors and Witters asserted third party claims against the driver of Plaintiffs' vehicle, Ying-Che Cheng, and General Motors and Witters also asserted claims against each other. A jury returned a verdict for the Defendants, and the case is now before us on motions by Plaintiffs for judgment n.o.v. or a new trial.

 The accident occurred at the intersection of U.S. Route 15 and Pennsylvania Route 114 in Upper Allen Township, Cumberland County, Pennsylvania. Route 15 is a four-lane concrete highway divided by a medial strip. The road runs generally north and south. Route 114 is a two-lane macadam road running generally east and west. At the time of the accident there was no traffic light at the intersection of Route 15 and Route 114, but Route 114 was controlled by stop signs. The night of the accident was dark, the weather was clear, and the roads were dry.

 A jury trial was held in March of 1975 before the late Judge Michael Sheridan, then chief judge of the United States District Court for the Middle District of Pennsylvania. In response to special interrogatories, the jury found that Defendant Witters was not negligent in the operation of his automobile and that the 1963 Buick door latch was not defective and unreasonably dangerous at the time of the accident. (N.T. 1545). Plaintiffs have moved for judgment n.o.v. and for a new trial pursuant to Rules 50(b) and 59 of the Federal Rules of Civil Procedure, against both Witters and General Motors, alleging some fourteen different grounds including alleged evidentiary errors and alleged errors in the judge's charge to the jury. Five of the points raised deal with the liability of Defendant Witters, and nine of the points concern the liability of Defendant General Motors.

 The pending post trial motions were assigned to us pursuant to Rule 63 of the Federal Rules of Civil Procedure after the untimely death of Judge Sheridan. Having reviewed the trial transcript and relevant file documents, and after hearing oral argument, we are now in a position to rule on the pending motions.


 Sufficiency of the evidence.

 In answers to special interrogatories, the jury found that the right rear door latch in the Buick automobile was not defective and unreasonably dangerous at the time of the accident, thus finding in favor of General Motors on the products liability claim. Plaintiffs have alleged nine trial errors in the manufacturer's portion of the case. Defendant General Motors argues that any trial errors are purely academic because there was insufficient evidence to submit the strict liability issue of a defect in design to the jury. From a careful review of the record, we are satisfied that there was not sufficient evidence to permit a jury to decide whether the door latch mechanism had a defect in design.

 Pennsylvania has adopted the doctrine of strict liability in tort as expressed in the Restatement (Second) of Torts, § 402A. *fn1" Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). A manufacturer may be held liable if it manufactured a product in such a manner that it was in a defective condition and unreasonably dangerous and the defect caused injuries, regardless of the degree of care exercised by the manufacturer. *fn2" The design of a product may make it defective and unreasonably dangerous. Bowman v. General Motors Corp., 427 F. Supp. 234 (E.D.Pa.1977).

 In the instant case the issues revolve around a "second collision" and the crashworthiness of the design of a door latch on a 1963 Buick. Crashworthiness means the protection that a passenger motor vehicle affords its passengers against personal injury or death as a result of a motor vehicle accident. See, 15 U.S.C. § 1901(14). The term "second collision", as used in definitions of crashworthiness of a motor vehicle in products liability cases generally refers to the collision of the passenger with the interior part of the automobile after the initial impact or collision. Dreisonstok v. Volkswagenwerk, A. G., 489 F.2d 1066 (4th Cir. 1974). In the type of case where a car door opens allowing an occupant to not be retained within a motor vehicle in a collision, we believe the "second collision" concept is still applicable, although in such a situation the person has not collided with the interior of the vehicle. The principle behind the "second collision" concept is that because of the way the vehicle has been manufactured a passenger's injuries have been aggravated unnecessarily, and such a concept has equal applicability whether the person's second collision is with the interior of the vehicle or, as in this case, the highway.

 There has been some controversy over whether a manufacturer should be held liable for a second collision type accident, mainly because some courts have not regarded an automobile accident as a contemplated use of the manufacturer's product. There have been no authoritative Pennsylvania cases adopting or rejecting the concept, and so we must determine how we believe the Pennsylvania courts would react when faced with the question. In Dyson v. General Motors Corp., 298 F. Supp. 1064 (E.D.Pa.1969), the Court determined that Pennsylvania would follow the second collision approach outlined in Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968) rather than that of Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966). See generally, Comment, "Automobile Crashworthiness, EVANS Takes a Backseat", 21 Vill.L.Rev. 72 (1975-76). We agree.

 It was stated in Larsen that:

"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. . . . We perceive 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 of minimizing the effect of accidents."

 Larsen v. General Motors Corp., supra, at 502-503.

 Strict liability in tort requires that the product be used in a foreseeable manner, and the Larsen approach concludes that an accident is a foreseeable use of an automobile. That is not to say a manufacturer has a duty to design a car to withstand all collisions under any and all circumstances, but rather that passengers must be provided with a reasonably safe container within which to make a journey. Dyson v. General Motors Corp., 298 F. Supp. 1064 (E.D.Pa.1969). A jury should take into account the circumstances of the accident in which the car is involved, and where a door latch fails to hold under the stress of an accident, a major consideration must be the severity of the physical forces which were placed on the car as a whole and the door latch in particular. As outlined in Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir. 1976), a manufacturer may be held liable for only those injuries shown to have been caused or enhanced by a defective condition of a product in the course of or following an initial accident brought about by some independent cause.

  One of the fundamental questions touching on many aspects of proof in this products liability case is whether the unreasonably dangerous requirement contained in § 402A of the Restatement (Second) of Torts, is the law of Pennsylvania. This problem arises because of the opinion of Chief Justice Jones of the Pennsylvania Supreme Court in Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), which asserted that a plaintiff in a § 402A case need not prove that a product is unreasonably dangerous. The later Pennsylvania cases are not conclusive, and the federal courts have consistently held that Berkebile fails to state the law of Pennsylvania because it was concurred in by only one other justice. *fn3" Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir. 1976); Posttape Associates v. Eastman Kodak Co., 537 F.2d 751 (3d Cir. 1976); Bair v. American Motors Corp., 535 F.2d 249 (3d Cir. 1976); Bowman v. General Motors Corp., 427 F. Supp. 234 (E.D.Pa.1977); Serpiello v. Yoder Co., 418 F. Supp. 70 (E.D.Pa.1976); Bunn v. Caterpillar Tractor Co., 415 F. Supp. 286 (W.D.Pa.1976); Beron v. Kramer-Trenton Company, 402 F. Supp. 1268 (E.D.Pa.1975); See, Note, "Pennsylvania Supreme Court Rejection of 'Unreasonably Dangerous' Standard of Section 402A, Restatement of Torts, Held Deficient as Binding Precedent", 81 Dick.L.Rev. 374 (1977).

 It was pointed out in Bowman v. General Motors Corp., 427 F. Supp. 234 (E.D.Pa.1977), the unreasonably dangerous requirement serves a valuable function as a measure or standard in design defect cases, because often there has been a conscious trade-off among safety, utility and cost. Included in the factors mentioned in Bowman which are to be considered in determining whether a product is unreasonably dangerous are the likelihood that the product as designed will result in injury to a user, the seriousness of potential injury in such circumstances, the ability of the manufacturer to eliminate unsafe characteristics without impairing the usefulness of the car or significantly increasing its cost, and whether the product is dangerous beyond that which would be contemplated or expected by the ordinary user, considering the ordinary knowledge common to the community as to an automobile's characteristics. *fn4"

 We believe the trial court properly used the unreasonably dangerous concept in this case and therefore we rule against Plaintiffs' assignment of error on this point.

 As we stated previously, General Motors argues that there was not sufficient proof by Plaintiff to submit this case to the jury. Generally expert testimony is used to prove a defect, and the need for expert testimony would seem to be especially helpful where the claim is a defect in design rather than manufacture. See, Bair v. American Motors Corp., 473 F.2d 740 (3d Cir. 1973); Fenton v. McCrory, 47 F.R.D. 260 (W.D.Pa. 1969). However, it was recognized in MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1964), that under some circumstances evidence of the malfunction of a product can create a permissible inference that the product was defective. In MacDougall a new Ford automobile which had been driven at moderate speeds for less than 200 miles suddenly went out of control for no apparent reason and the Pennsylvania Superior Court ruled that in such a situation there was sufficient circumstantial evidence to permit a jury to infer that the steering mechanism of the car was defective in some manner.

 Some mention was made in the record in this case (N.T. 571-572) of a MacDougall theory of liability although at other points the Plaintiffs indicated their proof would go a step beyond MacDougall. (N.T. 582). To rely on MacDougall, the Plaintiff would have to show that the door latch remains closed in normal use and for it to come open during normal use would be a malfunction evidencing a defect. We believe that reliance on a MacDougall theory of recovery would be misplaced in this case because it appears to be the external force of the accident which caused the door latch to break apart and allowed the door to open. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974).

 Plaintiffs wisely took their theory a step further and indicated that the specific defect was in design of the door and latch such that in an accident the latch motor housing would break away from the latch mounting plate. (N.T. 581-582). General Motors argued that it was quite obvious that the latch plate broke at the point where the rotor housing attaches to the face plate, (N.T. 584), but that the forces exerted in the accident were so overwhelming that the breaking of the latch hardly evidences a defect.

 That significant force was exerted on the door latch seems beyond dispute, and much of the controversy revolves around how significant the force really was. Plaintiffs' expert's version of the impact was that it was "moderate", although he had no opinion as to the pounds of force involved in the impact. (N.T. 428-429). His opinion was based on an examination of certain photographs of the damage to the vehicles. (N.T. 603). Plaintiffs' expert characterized the accident as a right angle collision but a glancing blow. (N.T. 660-661). The expert further testified that a properly designed door would have stretched along with the movement of the moderate force at the rear of the car and would not have come open. (N.T. 592). It was his opinion that the design should have included more possibility of deformation in the sheet metal on four faces of the door and surrounding area. (N.T. 593). His opinion was that the door could have been made stronger in 1962 and the latch and door were defective because the latch came apart rather than the door deforming and being capable of absorbing the shock of what he characterized as "not such a severe collision". (N.T. 595-597). He testified that the defect in design existed at the time the car left the General Motors factory, (N.T. 597), and there was no other cause to explain the door opening. (N.T. 598). He was asked whether he considered the door unreasonably dangerous and replied:

"Yes, for the reasons I have described that the car could be hit in such a manner to stretch the side of the car and fail to stretch the door because of the way the door comes apart or the way the latch comes apart."

 (N.T. 598).

 Defendant General Motors on the other hand described the accident as involving overwhelming force applied to the door latch on the Buick. (Brief of General Motors Corp., pp. 6-12). They cite various portions of testimony and say Defendant Witters was proceeding south on Route 15 approaching the intersection with Route 114, at sixty miles per hour in a 4700 pound Thunderbird, prior to applying his brakes in an effort to avoid the collision. (N.T. 33, 765). Witters applied his brakes and left a skid mark which was, at most, 72 feet in length prior to impact. (N.T. 34, 838). The right front portion of the Thunderbird struck the right rear fender of the Buick behind the right rear wheel, (N.T. 32, 429), with the cars opposing each other at a right angle. (N.T. 619, 661). Assuming that Witters' skid mark prior to impact was 72 feet long, the length described by officer Elder, Plaintiffs' expert calculated the speed of Witters' Thunderbird to have been 45.7 miles per hour when it struck the Buick. (N.T. 617). If the skid mark had been 40 feet long, the length described by Shen Peir Jeng, the expert calculated that Witters was traveling 51.7 miles per hour at impact. (N.T. 617). There was testimony that after the accident the Buick spun in a clockwise direction and came to rest on the north side of Route 114, west of Route 15, about 66 feet from the point of impact. (N.T. 30, 620). The force of the collision moved the trunk, rear bumper and frame of the Buick from right to left. (N.T. 610). The car was split open on the right side, the right rear portion and fender were pried away, and the "C" post moved to the rear, thereby enlarging the right rear door opening and causing the latch in that door to be destroyed by being physically pulled apart. (N.T. 436-437, 610-612). According to Plaintiffs' expert, the kinetic energy lost by the Thunderbird during the time the vehicles were in contact with each other was 51,000 to 62,000 foot pounds, (N.T. 626, 627, 647), or enough energy to raise a 1,000 pound weight 51 to 62 feet in the air. (N.T. 662-663).

 There have been several other cases in which plaintiffs have alleged liability for defective door latches. In Bair v. American Motors Corp., 473 F.2d 740 (3d Cir. 1973), plaintiff appealed from a judgment on a jury verdict in favor of defendant American Motors Corporation. Plaintiff was injured when, in an automobile accident, she was ejected from a 1966 American Motors Rambler. The theory of plaintiff's expert was that had the Rambler been equipped with door latches then used by other automobile manufacturers to prevent opening when the vehicle was subjected to upward and longitudinal stress such as occurred in the accident, plaintiff would not have been ejected. The alleged defect in that case was failure to install a T-head type bolt assembly in a 1966 automobile which had been used by other manufacturers as early as the 1961-1962 model year, and which assembly was significantly more likely to prevent ejection. The case went to the jury which found for American Motors, although a new trial was ordered because of an evidentiary error.

 In Walker v. International Harvester Company, 294 F. Supp. 1095 (W.D.Okl.1969), the contention of plaintiff, which in view of the conflicting evidence was sufficient to go to the jury, was that the defendant truck manufacturer failed to use a safety door latch then in use in the industry, that the impact from the accident was light but sufficient to cause the door to open with the type of door latch installed, and that had the safety door latch been installed the impact would not have caused the door to open. Defendant contended that the door latch used was proper and conformed with industry practice at that time, other manufacturers of heavy trucks like the one involved used the same door latch at the time, the impact in the collision was violent because the truck was struck near the right front door by a car going approximately 40 miles per hour, and the impact was of such force and location that it caused the door to open, the door would have been forced open even if the safety latch had been installed, and the type of door latch on the truck was not the proximate cause of plaintiff's injuries. The court held the conflicting evidence made it improper to direct a verdict for either party.

 In Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir. 1976), Ford Motor Co. appealed a verdict against it on a strict product liability claim under Nebraska law. A jury had returned a verdict finding a design defect in the left door latch assembly of the 1968 Ford Mustang. The plaintiff's theory, and the theory upon which it was ruled the case properly went to the jury, was that the door latch was designed in such a manner that it would open upon very slight impact because it lacked a "fail-safe" mechanism which several other 1968 cars were alleged to contain. Part of Ford's defense was that the force on the latch was overwhelming. The court stated:

 (emphasis as in original, footnote omitted). 534 F.2d at 799.

 Although we feel the severity of the accident was properly for the jury based upon the conflicting testimony, that does not end the problems of Plaintiffs' proof. General Motors argues that to show a defective and unreasonably dangerous design, Plaintiffs must present evidence of an alternative, safer design, practicable under the circumstances. Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976) (applying New Jersey law). Again, while arguably weak, we believe Plaintiffs' proof on this point was sufficient to go to the jury. General Motors' expert, Cockburn, admitted that a car is safer if its doors remain closed in an accident and its occupants are retained in the vehicle. He testified that beginning in the early 1950's that was one of the aims in designing General Motors door latches. (N.T. 900, 912). Cockburn admitted that the weak link in 1963 latch was where the rotor housing was pulled out of the latch plate. (N.T. 928). He further admitted the possibility that a stronger alternative design would be a latch plate of the same thickness as the end plate, (N.T. 944), and that additional welding could create a better design. (N.T. 984). Plaintiffs' expert, Fonda, indicated that a strengthened door latch with more deformable sheet metal on the door faces and surrounding areas would have been an alternative, safer design. Of course all of the testimony as to alternative, safer design hinges on the ...

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