KORLI v. FORD MOTOR COMPANY (1977)

On the evening of November 4, 1969, William Korli, his wife Mary and their twoyear old daughter Diane were travelling north on the Santa Ana Freeway at a speed of 60–65 miles an hour. The automobile in which they were riding was a 1965 Lincoln Continental four-door sedan.

William was driving; Mary was in the right front seat and initially, Diane was seated in the front between her parents. At a point during the trip Mary placed Diane alone on the rear seat. It is conceded that shortly thereafter, Diane for some reason pulled the unlatching handle on the right rear door and opened it.

The rear doors of the 1965 Lincoln Continental were hinged at the rear. When Diane opened the right rear door it was caught by the wind and forced completely open. Diane fell from the vehicle onto the freeway and was killed by oncoming vehicles. William stopped the car and, in attempting to rescue his daughter, was also killed.

At the hospital a member of the California Highway Patrol interviewed Mrs. Korli. Although distraught over the death of her husband and child she was coherent. She told the officer that before Diane fell out of the car the child was ‘playing in the back seat.’ At trial she testified the child was in the rear seat only a matter of seconds.

Mary instituted an action against the Ford Motor Company, the designer and manufacturer of the automobile, for wrongful death and for the emotional injury which she personally suffered in witnessing this terrible tragedy.

The case proceeded to trial before a jury on the theory of strict liability for defective design of the automobile. The jury returned a verdict in Mary's favor in the sum of $750,000. Ford's motion for a judgment notwithstanding the verdict and a new trial in the alternative was denied. Ford appeals from that order and from the judgment.

The Korlis purchased the 1965 Lincoln as a used car in November 1965. In that year the only cars whose rear doors were rearhinged were the Lincoln Continental, Ford Thunderbird and Rolls Royce. The automobile industry in general had not used rear door hinging since 1958. Ford used the rear hinge for its Lincoln from 1961 through 1969 and for its Thunderbird from 1967 throught 1971.

The front and rear doors of the car could be locked and unlocked manually by pushing the door lock buttons on each door down or up or by pushing up or down on a springloaded automatic locking switch located on the instrument panel. The locking buttons on the rear doors are reachable from the front seat.

The automatic locking switch activates a vacuum system which moves the locking buttons on all doors into a locked or unlocked position. The automatic locking system operates with the engine running or off as long as there is vacuum pressure in the vacuum tank. As the lock buttons move into a locked or down position a clicking sound may be heard within the car.

The 1965 Lincoln is equipped with a red warning signal mounted on the instrument panel to the left of the steering column. This signal contains the words ‘rear door’ signifying that a rear door is open. The red warning light is not activated unless the doors are either fully open and unlatched or unless caught on the secondary latch. The light goes out when the door is fully shut whether locked or unlocked.

The rear door unlatching handles are located in the center of the rear doors projecting one and one-half inches above the arm rests attached to the door. The movement of the handles approximately two to three inches to the rear releases the door latching mechanism. A five to six pound pull is necessary to activate the latch. When the doors are in a locked position, the door unlatching handle will not open the door.

Thus, if the locking buttons on a rear door are down and locked a passenger must perform two separate maneuvers to open the doors viz. raising the locking buttons and pulling the unlatching handle.

The rear doors are equipped with both a primary and secondary latch. The primary latch holds the door in a completely closed position and the secondary latch allows the door to be opened approximately one inch but still be restrained. When the door handles are pulled the secondary latch is overridden to facilitate opening. On closing, however, the doors will catch on the secondary latch even if not pushed firmly enough to engage the primary latch and shut the door completely. This secondary latch is a safety feature to hold the door shut even if the person exiting has not closed the door fully.

On unlatching the rear doors the rubber weather stripping on the door, which is compressed when the door is shut, is released from its compressed state. The passenger is assisted in overcoming the inertia of the doors which weigh over 100 pounds by this outward thrust of the rubber. A small coil spring in the latching mechanism which is primarily designed to maintain sufficient tension in the latch to keep parts in proper position when the door is open also imparts an infinitesimal force to that required to move the door into an open position. The assist by the spring and the rubber is given only during the first inch of travel by the door as it opens.

Mrs. Korli stated that she knew of no previous history of malfunctioning of the door-locking system or latches. Her husband, who was careful about maintenance, was an engineer by profession and had never complained about the automobile, and in fact, had liked the car very much.

Experts for plaintiff opined that at the time the child opened the door it was unlocked. These experts conceded that at the time of the accident and afterward the doors and the locking system were functioning properly and there were no ‘defects' in construction or operation. Plaintiff's case rests upon the claim that the car was ‘defectively designed’ in two instances: (1) the rear-hinging of the doors, and (2) the accessibility of the unlatching lever.

Justice Fleming, in Self v. General Motors Corp., 42 Cal.App.3d 1, at page 7, 116 Cal.Rptr. 575, at page 579, prophesied: ‘. . . that prosecution of a lawsuit is a poor way to design a motor vehicle, for the suit will almost invariable emphasize a single aspect of design to the total exclusion of all others.’ That prophecy has been realized in the case at bar. The jury here opted for front door hinging and restricted ease of ingress and egress because of the circumstances of this accident and in spite of the uncontroverted evidence that under other readily foreseeable circumstances such as head-on collisions, rear door hinging would provide better containment than front hinging and, in case of fire, easier egress would be beneficial in preventing the trapping of occupants inside. In other words, Ford made conscious design choices on the basis of competing safety considerations only to have that choice rejected by a lay jury which was undoubtedly influenced by the stark horror of this case.

A manufacturer is strictly liable in tort if he places on the market a product which because of a defect in its manufacture or design is unsafe for its intended use and an injury is caused by such defect. (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897.) That basic rule is easily stated but has proven to be more difficult in application.

‘A defect may be variously defined, and as yet no definition has been formulated that would resolve all cases or that is universally agreed upon. . . .’ (Jiminez v. Sears, Roebuck & Co., 4 Cal.3d 379, at 383, 93 Cal.Rptr. 769, at 772, 482 P.2d 681, at 684.)

The manufacturer is not an insurer of the product and is not required to design a fail-safe or fail-proof product. (Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153.) He is required to achieve a degree of safety which is reasonable and practical within the current state of the art. (Self v. General Motors Corp., supra; Cronin v. J.B.E. Olson Corp., supra; Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229; Thomas v. General Motors Corp., 13 Cal.App.3d 81, 91 Cal.Rptr. 301; Buccery v. General Motors Corp., 60 Cal.App.3d 533, 132 Cal.Rptr. 605)

The starting point for analyzing the concept of ‘defect’ is whether the product is ‘. . . one which fails to match the quality of most like products, . . .’ and if so ‘. . . the manufacturer is then liable for injuries resulting from deviations from the norm: the lathe did not like other lathes have a proper fastening device, the brakes of the automobile went on unexpectedly, the drive shaft of a new car became disconnected.’ (Jiminez, supra, 4 Cal.3d at p. 383, 93 Cal.Rptr. at p. 772, 482 P.2d at p. 684.) (Emphasis added.) Other tests that have been applied are whether the product was unfit for its ordinary purpose (Jiminez v. Sears, Roebuck & Co., supra), and ‘. . . a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.’ (Pike v. Frank G. Hough Co., supra, 2 Cal.3d at p. 470, 85 Cal.Rptr. at p. 632, 467 P.2d at p. 232).

Further, we are told by the cases that before determining that a manufacturer shall be held strictly liable for the injury resulting from the use of its product, the use must be reasonably foreseeable and that a collision is a reasonably foreseeable occurrence in the use of an automobile (Cronin v. J.B.E. Olson Corp., supra), as is the need to take emergency action in avoiding collision (Culpepper v. Volkswagen of America, Inc., 33 Cal.App.3d 510, 109 Cal.Rptr. 110). On the other hand, a defect is something more than a condition which caused physical injury. (Roger J. Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn.L.Rev., p. 363.) And the fact that injury occurred is not itself a proof that a defect existed.

Doors on automobiles perform two functions: (1) providing ingress and egress, and (2) providing containment of passengers and protection against the weather. If containment was the only criterion, as plaintiff contends, the car would have solid sides. If ingress and egress were the only criteria, as defendant contends, completely open sides would suffice.

Here it is undisputed that when closed, the doors on the 1965 Lincoln provided adequate containment and protection from the weather, and that the rear-hinging provided easy ingress and egress. Thus, to that extent, the doors performed their intended function.

In placing doors and windows in vehicles the manufacturer has, under presently acceptable design standards, two alternatives for hinging the doors, i. e., front or rear. Either option has both benefits and drawbacks.

The conscious choice by the manufacturer to use of one method or the other does not seem to us to violate either the ‘deviation from the norm’ test or the ‘unfitness for ordinary purpose’ test.

In the case at bench the rear-hinging of the doors did not cause the automobile to fail to match the quality of most like products nor render it ‘unfit for its ordinary purpose.’ Both the doors and the locking mechanism were perfectly capable of performing their intended function and there was no failure on the part of Ford in incorporate any available and well recognized safety device on its Lincoln automobile. It seems obvious that the opening of a car door while the car is in motion at high speed on a freeway is not a normal or intended function.

True, the rear-hinging caused the doors to open wider and faster than would have been the case of front-hinging but the ‘cause’ of the door opening in the first place was the pulling of the unlatching lever and not the position of the hinges.

Turning now to plaintiff's contention that the position and configuration of the unlatching lever constituted a ‘defect’. Again, it is clear that the lever was not defective in construction or operation. It performed its function in opening the door. The contention is that it was too accessible and facile of operation.

Reduced to its simplest terms plaintiff's contention is that it is foreseeable that people will leave small children unrestrained and unattended in the rear seat of fourdoor automobiles and that such children will inadvertently unlatch the door. Thus, according to plaintiff, Ford was obliged to design its car to prevent such an occurrence.

Ordinary contributory negligence does not, in California, bar recovery in a strict liability action. (Luque v. McLean, 8 Cal.3d 136, 104 Cal.Rptr. 443, 501 P.2d 1163.) Were it otherwise we would have no hesitation in concluding that the act of permitting a two-year old to roam unrestrained and unattended in the rear of a four-door automobile constitutes contributory negligence.

While assumption of risk was a defense in a strict liability action prior to the adoption of comparative negligence in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the application of that defense now, and in fact, the applicability of comparative negligence to strict liability cases is as yet undetermined. The trial court here refused Ford's requested instruction on the subject. We need not, however, attempt that determination here since under established rules the conduct of the plaintiff in his use of the product and its effect on the issue of causation is, in a product liability case, a factor to be considered in determining whether the design was in fact defective or whether it was the cause of the injury.

It has been said that strict liability in tort is really nothing more than a theory of negligence without the element of scienter. (Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890.) That analysis is valid when the alleged defect is in the manufacture of the product, i. e., a bolt is left out, a component is improperly attached, etc. Those things occur in fabrication and manufacture without the manufacturer's knowledge yet the doctrine imposes liability. On the other hand where the claim is ‘defective design’ scienter is inherently present because design is the result of conscious choice and not inadvertence.

It was suggested in Balido that in design cases ‘foreseeability is merely scienter under another name. . . .’ (Page 640, 105 Cal.Rptr. page 895.) Dean Prosser asserts that the concept of defective design ‘rests primarily upon a departure from proper standards of care, so that the tort is essentially a matter of negligence’ involving ‘a duty to use reasonable care to design a product that is reasonably safe for its intended use, and for other uses which are foreseeably probable.’ (Emphasis added.) (Prosser, Law of Torts (4th ed.) 1971, § 96, at pp. 644–645.)

These various expressions of terminology do not, of course, directly address the problem of the standard by which a manufacturer is to be judged when the design decision accommodates certain reasonably foreseeable uses but, because of the nature of the product or the design, necessarily fails to accommodate other uses which are also reasonably foreseeable.

The varying terminology does suggest the problem and does indicate that design cases would be better handled under familiar rules of negligence than under the doctrine of strict liability. (See Hoening, Product Designs and Strict Tort Liability: Is There a Better Approach? (1976) 8 Sw.U.L.Rev. 109.) Under that approach, at least, a jury would be required to test a manufacturer's liability against established industry standards of safety rather than in the context of the particular accident.

Intermediate appellate courts lack the authority to make such a basic policy change in the law. Hence until the issue is finally resolved we must follow the practice of deciding on a case-by-case basis whether the claimed defect in design is, under the general policy of the law, the type of defect for which liability should attach.

Assuming arguendo the foreseeability of the negligence of parents placing a toddler in the position in which Diane was placed, that circumstance is simply one of a myriad of foreseeable thisgs that can happen in or to a car in motion such as head-on, rear-end or broadside collisions, sharp turns to avoid collisions, loss of steering control from blow-outs or defective roadway, loss of braking power, and fires. All of the foregoing are possibilities affecting design decisions which are necessarily made within the constraints of economic considerations and marketability. Obviously, a manufacturer must assess the possibilities according to a scale of probability, because what is a beneficial feature in some possible occurrences is a detriment in others.

It is safe to assume that parents with small children do not numerically constitute a majority of the purchasers of motor vehicles. Of their number, whatever it is, it is a safe assumption that only a portion will purchase a four-door car rather than a two-door and only a small portion would not avail themselves of the optional safety devices that are available thereby subjecting the children to the dangers to which Diane was here subjected.¹

Hence, a manufacturer that makes a design decision which well serves the needs of the broader market or which provides protection in what is considered to be the more probable occurrences does not thereby market a ‘defective’ product because, on hindsight, a jury might determine that the particular accident would not have occurred if the manufacturer's decision had been different. (Cf. Hatch v. Ford Motor Co., 163 Cal.App.2d 393, 329 P.2d 605.) Application of the ‘balancing’ test of Pike v. Frank G. Hough Co., supra, would, under the facts of this case, also bar liability.

We do not believe that the doctrine of strict product liability was conceived to permit the court and especially lay juries, absent a failure of intended function by the product or absent established industry standards or guidelines by which product safety can be gauged, to simply make value judgments as to the relative desirability of one design over another. (See Henderson, Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Columbia L.Rev. 1530, 1558 (December 1973).)

In the instant case plaintiff's own evidence established that the doors and locking systems in the 1965 Lincoln Continental were adequate to perform their intended functions. The ‘cause’ of the accident was either that the driver failed to lock the door and the child inadvertently pulled the unlatching lever (an occurrence which could have been prevented only by a reasonably inaccessible location for such a lever) or the driver locked the door and the child unlocked the one door deliberately and then unlatched it. The evidence was totally insufficient to support a finding that the car was ‘defectively designed’ or that the design was the cause of the injury.

The judgment is reversed and the order denying defendant's motion for a judgment notwithstanding the verdict is reversed. The trial court is directed to enter judgment for the defendant.

FOOTNOTES

1.  Plaintiffs owned an infant restraining seat but did not use it on the day in question. In addition, child-proof ‘kiddie locks' were also available as an optional item from the manufacturer but had not been installed by the Korlis.It should be pointed out that a small child unattended and unrestrained in the rear of any vehicle is subject to many more hazards than just the opening of a door.

COMPTON, Associate Justice.

ROTH P. J., and FLEMING, J., concur.