FORD MOTOR COMPANY v. JACK RIDGWAY AND LINDA RIDGWAY (concurring)

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No. 02-0552

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Ford Motor Company, Petitioner,

v.

Jack Ridgway and Linda Ridgway, Respondents

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On Petition for Review from the

Court of Appeals for the Fourth District of Texas

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Justice Hecht, joined by Justice Owen, concurring.

I join in the Court=s opinion and write only to explain that while Texas law would allow proof of products liability by circumstantial evidence in certain cases,[1] the black-letter rule of section 3 of the Restatement (Third) of Torts: Products Liability does not accurately restate Texas law.

Section 3 states:

Circumstantial Evidence Supporting Inference of Product Defect

It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:

(a) was of a kind that ordinarily occurs as a result of product defect; and

(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.[2]

AIt may be inferred@ cannot mean Ait is always proper to infer@, as the present case demonstrates. Section 3(a) requires only that an injury-causing incident be the kind of thing that ordinarily results from a product defect, not that the incident is the kind of thing that ordinarily does not result unless there is a defect. A pickup suddenly bursting into flame for no discernible reason is the kind of thing that ordinarily occurs as a result of product defect in the sense that product defects do cause such things. Thus Ridgway has satisfied section 3(a), even though it is also true that fires in vehicles ordinarily occur for many reasons other than product defect.[3] As for section 3(b), although Ridgway cannot conclusively negate that the fire was caused solely by something other than a defect, Ford cannot point to anything as the sole cause of the fire. Therefore, Ridgway argues, section 3 entitles him to an inference that his pickup was defective and the further inference that the defect existed when Ford sold the pickup. The Court rejects Ridgway=s argument, not because of the text of the rule, but because comment d to section 3, the reporter=s notes, and cases allowing proof of products liability by circumstantial evidence limit the stated rule. In other words, the section 3 rule means much less than it appears to say.

AIt may be inferred@ really means Ait is sometimes proper to infer@, but while this reading makes the rule stated in section 3 accurate, it also makes the rule not very helpful. Few would question the use of circumstantial evidence to prove products liability in appropriate cases. The hard issue is not whether it can be done, but when and how. The comments to section 3 and the cases cited in support of it illustrate the kinds of considerations courts have taken into account in deciding whether to allow an inference of pre-sale defect in a product, but these considerations are not reflected the in the black-letter rule itself. One looks to comments to explain the rule; one does not look to comments to find the rule.

Section 3 is modeled on section 328D of the Restatement (Second) of Torts,[4] which states:

Res Ipsa Loquitur

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by evidence; and

(c) the indicated negligence is within the scope of the defendant=s duty to the plaintiff.[5]

But the differences in the two provisions are such that section 3 is not an analogue of section 328D but rather a kind of res ipsa B lite! Sections 3(a) and (b) are less strict than the parallel provisions in sections 328D(1)(a) and (b), at least in a case like the present one. It cannot be said that fires in pickups do not ordinarily occur absent a product defect; they ordinarily occur for all sorts of reasons.[6] Nor has Ridgway Aeliminated by evidence@ the existence of other responsible causes of the fire. The most he can say is that Ford has offered no evidence of another cause. He has not shown that, given the circumstances, another cause was impossible or even improbable. If section 3 were as strictly worded as section 328D, Ridgway=s claim would clearly fail.

Texas law of res ipsa loquitur is at least as strict as section 328D. We require the first condition stated in section 328D(1)(a), and instead of the second condition stated in section 328D(1)(b), we require that the instrumentality causing harm have been under the defendant=s management and control.[7] We have explained that

the Acontrol@ requirement is not a rigid rule that the instrumentality must have always been in the defendant=s possession or even that it must have been in the defendant=s control at the time of the injury. It is sufficient if the defendant was in control at the time that the negligence inferable from the first factor probably occurred, so that the reasonable probabilities point to the defendant and support a reasonable inference that he was the negligent party. The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant=s door.[8]

The rule of res ipsa loquitur allows an inference of negligence, absent direct proof, only when injury would ordinarily not have occurred but for negligence, and defendant=s negligence is probable.

There is no reason to allow an inference of products liability any more freely than an inference of negligence. An inference of products liability is really two inferences: that the product was defective, and that the defect existed at the time of sale. Applying the principle underlying res ipsa loquitur, neither inference can be drawn without evidence that the injury would not ordinarily have occurred absent a product defect and that that defect probably existed when the product was sold. This is not what section 3 says.

Nathan L. Hecht

Justice

Opinion delivered: February 6, 2004

[1] See, e.g., General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex. 1977), overruled on other grounds by Turner v. Gen. Motors Corp., 584 S.W.2d 844 (Tex. 1979) and Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (1984); Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex. 1969); see also Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) (citing Hopkins, 548 S.W.2d 344).

[2] Restatement (Third) of Torts: Products Liability ' 3 (1998).

[3] See U.S. Fire Administration, Highway Vehicle Fires, 2 Topical Fire Research Series No. 4 (July 2001, revised Mar. 2002) (reporting that highway vehicle fires are due 66% to mechanical or design problems 18% to incendiary or suspicious origins, 8% to misuse, 4% to operational deficiency, and 3% to other design, construction, and installation deficiencies), available at http://www.usfa.fema.gov/downloads/pdf/tfrs/v2i4.pdf (last visited Feb. 5, 2004).

[4] Proceedings at 72nd Annual Meeting: American Law Institute, 72 A.L.I. Proc. 179, 231 (1996) (remarks of James A. Henderson, Reporter, introducing Restatement (Third) of Torts: Products Liability ' 3 (Tentative Draft No. 2, 1995)) (ASection 3 is derived quite faithfully from ' 328D of the Restatement, Second, of Torts.@).

[5] Restatement (Second) of Torts ' 328D (1965).

[6] See infra note 3.

[7] Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990) (ARes ipsa loquitur is applicable only when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant.@) (citing Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex. 1974) and Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982)).

[8] Mobil Chem. Co., 517 S.W.2d at 251 (citations omitted).