Lloyd Wooten, Plaintiff-appellant, v. White Trucks, a Division of White Motor Corporation, Andwhite Motorcorporation, Defendants-appellees, 514 F.2d 634 (5th Cir. 1975)

This diversity tort suit requires us to consider how a Florida court would conclude a Kentucky court would decide a point which neither¹  has yet passed upon.

Plaintiff Lloyd Wooten worked for a Florida food company as a long-haul truck driver. He drove a truck-tractor of the type known as cab-over-engine made by defendant White Motor Corporation (White). On July 18, 1971, in Kentucky, Mr. Wooten was approaching a toll plaza by crossing a high bridge, in train behind another truck and a mobile home. As the mobile home slowed for the plaza, the truck following it and leading Wooten rear-ended it, and the two ground to a stop blocking the road. Wooten applied brakes and drove for a gap at the right of the tangle. Unfortunately, he could neither quite stop nor quite squeeze by, and the left front of his cab struck the right rear of the jack-knifed trailer at a speed of about five miles per hour. The light-weight fiberglass and aluminum cab did not withstand this impact; it was penetrated, and Wooten's left leg was crushed against his seat's front brace. As a result, it was amputated at the upper calf.

Plaintiff brought suit in Florida, where he resided, against White, an Ohio corporation, claiming the tractor cab was so deficient in design and construction as to render White strictly liable or indicate negligence. As plaintiff's brief advises us, the cab-over-engine design permits truckers to pull a larger trailer because of the shorter tractor, is more maneuverable, affords greater visibility by moving the driver forward, facilitates engine service by using a light-weight cab which tilts easily without requiring springs or power, etc. Since the trucker works against a 73,280-pound overall federal weight limit, a lighter cab permits a greater payload. Makers of trucks have competed, therefore, to lighten cabs, and stiffening this cab sufficiently to have resisted this impact would probably have made the tractor noncompetitive. Defendants' engineers testified without dispute that their cabs were as safe as any of this type in the industry.

At trial, plaintiff dismissed the negligence count and went to the jury in strict liability, on a "crashworthiness" or "second impact" theory, while defendant resisted and, as well, advanced assumed risk as an affirmative defense. The jury found for defendant in response to a general charge. On appeal plaintiff principally complains of the framing of the court's charge on strict liability and of submission of the assumed-risk charge.²  We affirm.The "Crashworthiness" Instruction

It seems ironic that the parameters of decision on this diversity-bound theory of liability should be set by federal cases. In Evans,³  the Seventh Circuit rejected the "crashworthiness" concept entirely on reasoning that, though automobile collisions are foreseeable, they are not within the intended purposes of the machine and the manufacturer's duty does not therefore extend to designing against them. The court observed that manufacturers know as well that their cars will sometimes be driven into water, but are not thereby obliged on pain of liability for damages to provide flotation gear. Larsen,⁴  on the other hand, explicitly rejects the "intended use" reasoning of Evans, observing that since makers know a high percentage of automobiles produced are at some time or another involved in serious accidents, designing for as much safety as is reasonably attainable under these statistically-likely circumstances (and under the given state of the art) is among the manufacturer's duties. Unwilling to concede an inch to the Evans reasoning, the Larsen court went so far as to meet its illustrative example head-on, observing that the manufacturer's duty may indeed require consideration of the cars' flotation capability. Dreisonstok⁵  represents the Fourth Circuit's attempt to chart a course between Evans' perhaps somewhat-unworldly view and the Larsen-induced spectre of one approved automobile design resembling nothing so much as a $100,000 amphibious tank. It was Dreisonstok which the court below sought to follow, and it is essentially its claimed failure in that of which Mr. Wooten complains to us. The Dreisonstok opinion therefore merits a brief discussion here.

Terri Lee Dreisonstok, a passenger, was injured in a Volkswagen microbus whose driver chose climbing a telephone pole over a head-on collision. The microbus, like White's cab-over-engine tractor in our case, achieves enhanced maneuverability and added cargo space at a cheap price by putting the front seat at the vehicle's forward wall. Her strict liability action against Volkswagenwerk presented one theory only: that the microbus was unreasonably dangerous because it did not conform to the configuration of the then-standard American passenger car, with the engine in front and the passengers behind it.

This theory was rejected by the Dreisonstok court. Instead, the court enunciated a balancing approach in which the purpose of use of the vehicle, its safety by comparison with other like⁶  vehicles, considerations of price economy, and the apparency of the design's hazards to the user all receive weight in a duty calculus to be undertaken by the court and in which foreseeability of harm is merely another, albeit an important, factor. And, as noted, it was this general doctrine of unreasonable danger in all likely circumstances, balanced against the usefulness of the conduct (read design) in question which informed Dreisonstok and which the court below adopted.

The issue tendered by Wooten in this area is therefore narrow: did the court's charge, in context, misadvise the jury on the law according to Dreisonstok, which both plaintiff and the court agree⁷  is the canon? The offending portion of the charge reads:

The failure of a manufacturer of a truck-tractor to adopt the most modern, or even a better safeguard, does not make the manufacturer legally liable to a person injured by that tractor. The manufacturer is not a guarantor that nobody will get hurt in using the machine. Nor is there any duty upon the manufacturer to produce a tractor that is "accident-proof." What the manufacturer is required to do is to make a product which is free from defective and unreasonably dangerous conditions. (emphasis added).⁸ 

Wooten contends that ". . . the court's instruction wholly failed to inform the jury that a truck manufacturer had any duty . . . to design a vehicle . . . to provide reasonable protection in the event of a collision."⁹  We simply disagree. On the assumption that "crashworthiness" is the rule, the portion of the charge quoted above amply conveys the notion that even a use of the machine which results in an accident does not abrogate the truck-maker's duty to eliminate unreasonable hazards in his product, though he is not a guarantor of safety in this (or any other) circumstance. After all, the only fact situation presented the jury involved injury in the course of an admitted accident; they are unlikely to have thought the whole proceeding a mummery, which did they take Wooten's view of the charge they must have. The charge contains no faintest hint that accidents constitute a misuse in the Evans sense,¹⁰  barring recovery, or that the duties which it lays on the truck manufacturer are inoperative in the only fact situation the jury is asked about an accident. This contention of Mr. Wooten lacks merit.

Assumption of Risk: Error to Give the Instruction?

Wooten complains as well of the court's instruction on assumption of risk:

The defendant, White Motor Corporation, contends that the plaintiff, Lloyd Wooten, assumed the risk of injury from the dangers which plaintiff contends caused his injury. If you find that defendant has established each of the following propositions, the plaintiff cannot recover:

One, that a dangerous situation or condition existed.

Two, that the dangerous situation or condition was obvious, or that the plaintiff knew of the dangerous situation.

And, three, that the plaintiff voluntarily exposed himself to the danger and was injured thereby.

The complaint is that the instruction submits so-called "pure" assumption of risk as a defense and that Kentucky has abandoned that doctrine in favor of a "qualified" one in which even a knowing exposure to danger does not bar recovery unless it is unreasonable. As a theoretical matter the contention seems well-taken. We think that under Kentucky law the third proposition of the charge properly should accommodate a knowing exposure to danger under conditions of urgent necessity "such as to save a life,"¹¹  where there is evidence of such conditions. For two reasons, however, reversal is not required here: the charge was not objected to on this ground¹²  and is not plain error,¹³  and there was no evidence of such urgent necessity as Kentucky law would require to render reasonable an encounter with known or obvious danger. The first of these reasons requires no discussion, only a reference to the pertinent portion of Fed. R. Civ. P. 51: "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." The second bears brief discussion.

In Parker v. Redden, 421 S.W.2d 586 (Ky.1967), a negligence case, the Kentucky Court uprooted from Kentucky jurisprudence the "pure" assumption of risk defense in favor of the "qualified" one. We are not cited, nor have we found, a Kentucky authority precisely in point on the status of the "qualified" defense as to strict liability. We cannot, however, believe¹⁴  that Kentucky would discriminate as to defenses according to theories of defendant's liability in a manner unfavorable to one cast in strict liability, which may be imposed in circumstances barren of fault. It seems clear that where a situation rendering defendant liable exists, whether grounded in fault or otherwise, and is known or obvious to the injured party, a defense held valid to negligence liability would be thought a sufficient answer to strict liability. And the majority of jurisdictions appear to recognize some form of assumed risk as a defense in product liability causes.¹⁵  Defendant's liability, if we assume it, is of the most tenuous: design liability imposed for actions conforming to universal practice. As the Kentucky Court observed in a more recent case than Redden :

We agree that if an industry adopts careless methods, it cannot be permitted to set its own uncontrolled standard. Herme v. Tway, Ky., 294 S.W.2d 534 (1956). If the only test is to be that which has been done before, no industry or group will ever have any great incentive to make progress in the direction of safety. We also agree, however, with Prosser's declaration that: "Cases will no doubt be infrequent in which any defendant will be held liable for failing to do what no one in his position has ever done before; but there appears to be no doubt that they can arise." Prosser, Handbook of the Law of Torts, section 33, page 167 (4th Edition 1971).

Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66, 70 (Ky.1973).¹⁶ 

As all know who care to read, Dean Prosser was at least present at the conception of § 402A, and if there is an author in this common-law ambit who attains to the stature of the civil juris consults it is he. We may therefore assume that he was not lightly invoked. Hence, we conclude that as to this essentially no-fault liability defenses to actual fault which are approved by Kentucky would be admitted as well.

So assuming, we must inquire whether Kentucky law requires a charge incorporating the qualification of reasonable (or, perhaps more appropriately, not unreasonable) encountering of a known danger in this case. We can only conclude that it would not, that no evidence lies in this record to raise the proposition. In Redden, as noted, little if anything more than matters which might give rise to a charge on the traditional doctrine of rescue were instanced: " . . . if there was an urgent necessity for the plaintiff to incur the risk, such as to save a life, and if the risk could not easily have been eliminated, there is no reason why the damage suffered by the plaintiff should be borne by him rather than by the defendant who negligently created the risk." 421 S.W.2d, at 593 (emphasis added). No evidence of anything approaching this magnitude appears here, only matter which might have supported some such contention as that the cab-over-engine truck came with the job and its use was Wooten's economic necessity. The illustration used by the Kentucky court saving a life strongly implies that matters more exigent than job security are required to ground an excuse from knowing encounter.¹⁷ 

We have carefully considered plaintiff's remaining assignments. None merits discussion or approaches reversible error. The jury has had its say, responding to a charge which fairly applied Kentucky law to the facts of this case. There it ends.

Affirmed.

THORNBERRY, Circuit Judge (specially concurring):

I am satisfied that the "crashworthiness" charge was not in error, and I join in the narrow conclusion reached by the majority that judgment for the defendant is correct on the basis of counsel's waiver. I have serious reservations about the assumption of risk portion of the majority opinion and its apparent assumption that the evidence justified some kind of charge on that defense. Nevertheless, plaintiff well knew that the trial judge intended to submit the case to the jury upon a general charge and general verdict. Indeed, plaintiff tendered that form of submission. At the charge conference, plaintiff seems to have abandoned his earlier motion for an instructed verdict, which was grounded on the argument that the record contained no substantial evidence of knowledge on his part concerning the cab's dangerous propensity literally to shear and collapse upon an occupant at low speed impact. Was this propensity so obvious that the jury was entitled to charge plaintiff, a man whose education stopped at the eighth grade, with the requisite awareness of the risk, see item Two of the trial court's charge on assumed risk quoted, in Judge Gee's opinion, supra p. ---, simply on the basis of his experience as a driver of this type of truck and his general familiarity with heavy vehicles? The trial court thought so in overruling plaintiff's motion for instructed verdict. The defendant apparently thinks so, for it makes no effort to refute plaintiff's no evidence point on appeal. For me the problem is most difficult. See Restatement (Second), Torts § 402A, comments g and i; cf. Williams v. Brasea, Inc., 5 Cir. 1974, 497 F.2d 67, 78-79, on rehearing 5 Cir. 1975, No. 72-3623 at slip p. 5688.

But it demands no further discussion in this case, for the plaintiff neither asserted the point by way of objection to the charge, nor did he ask that the trial court submit the case upon special interrogatories.¹  In a motion for new trial, the plaintiff assigned as error the overruling of his motion for instructed verdict. On appeal, he continues to request a new trial on that basis as well as others. Yet, in view of plaintiff's willingness to take his chances with the jury on a general submission, his ambivalence and vagueness below with respect to the charge (see F.R.Civ.P. 51), and the not-insubstantial possibility that the jury simply failed to find the cab unreasonably defective, thus pretermitting assumption of risk as the critical issue, I am constrained to resolve my doubts in favor of the judgment, and to conserve my sympathy. If this court is wrong on the substantive law, the Kentucky courts may freely say so. Furthermore, my reservations as to the Kentucky law suggested by the majority may ultimately prove not well taken.²  The judgment is correct, however, on independent procedural grounds, and on that basis I concur.