California Law Review VOL. 55 AUGUST 1967 No. 3 Automobile Design and the Judicial Process Ralph Nader* and Joseph A. Page** N RECENT YxAS courts have developed doctrines and attitudes which have greatly enlarged the liability of manufacturers, sellers and dis- tributors.' Caveat emptor is dead. The new watchword is that the cost of the product should bear the blood of the consumer.2 However, this trend has not extended to automobile manufacturers' liability for unsafe design of passenger cars. While a number of suits involving unsafe de- sign have been settled,3 plaintiffs have had little luck on the trial court level.4 On appeals, plaintiffs are batting zero. The appellate courts have * Member of the Connecticut and Massachusetts Bars. ** Assistant Professor, University of Denver College of Law. The authors wish to thank William I. Crowell, Jr., Arthur R. Hauver, Constance L. Hauver and James Rode of the University of Denver College of Law for their research assistance; Robert H. Joost, Esq. of Boston, Mass., for his helpful suggestions; and former Congressman Charles P. Farnsley of Louisville, Ky., for his kind encouragement. 'See, e.g., RESTATEIENT (SECOND) Or TORTS § 402 (A) (1965); Prosser, The Assault Upon the Citadel, 69 YALE L.J. 1099 (1960); Prosser, The Fall of the Citadel, 50 Mn=. L. REv. 791 (1966); Comment, Products Liability-The Expansion of Fraud, Negligence, and Strict Tort Liability, 64 MicH: L. REv. 1350 (1966). See generally L. FRUMER & M. Faiw- MAN_,PRODUCrS Lr.Bnrry (1965) [hereinafter cited as FRuER & FRDExN A]; R. HuESH, AiumcAN LAW or PRODUCTS LTAETIT (1961). 2 This is a paraphrase of the workmen's compensation campaign slogan, "the cost of the product should bear the blood of the workman," attributed to Lloyd George. W. PROSSER, HANDBOOK or THE LAW OF TORTS 554 & n.3 (3d ed. 1964). s Forty-seven lawsuits alleging unsafe design of General Motors' Corvair were settled for $340,000. N.Y. Times, Jan. 12, 1967, at 78, col. 1. A Harvard Law student and his wife obtained a $24,000 settlement for injuries suffered in a Corvair accident. Letter from Justin P. Morreale, Watertown, Mass., to Ralph Nader, Nov. 12, 1966. An early Corvair case was settled for $70,000. R. NADER, UNSAFE AT ANY SPEED 4-8 (1965). A settlement of $3,250 was obtained from General Motors in a California case involving a collision between the tall fin of a moving Cadillac and the stomach of the plaintiff, a motorcyclist who rearended the vehicle. Douglas v. General Motors Corp., No. 125 738 (Super. Ct., Orange County, Cal.) in Letter from attorney Stephen I. Zetterberg, counsel for plaintiff, to Ralph Nader, July 6, 1966. 4At least three jury verdicts have been recorded in the defendant's favor in Corvair cases. Dunn v. General Motors Corp. (D. Okla.), in N.Y. Times, Nov. 21, 1966, at 32, col. 1 (city ed.); Collins v. General Motors Corp. (Super. Ct., Santa Clara County, Cal. 1965), in 14 DEFENSE L.J. 556 (1965); Anderson v. General Motors Corp. Law No. 17013 (6th Jud. 645 CALIFORNIA LAW REVIEW ['Vol. 5: 645 yet to reverse a judgment for a maniufacturer or affirm a judgment for a plaintiff in a case involving a traffic accident allegedly caused by the unsafe design of an American passenger car.6 At the same time, research by engineers, physicians and statisticians has provided strong support for the conclusions that existing vehicle design plays a significant role in accident and injury causation and that feasible, safer alternatives are available to manufacturers.' Focusing on the design and performance of the vehicle seems to be the most effective and economically practicable way of attacking the traffic safety problem.7 Cir., Pinellas County, Fla., Aug. 14, 1965), in Hearings on the Federal Role in Traffic Safety Before the Subcomm. on Executive Reorganization of the Senate Comm. on Government Operations, 89th Cong., 2d Sess., pt. 4, at 1409 (1966). Two Corvair cases have been dis- missed with prejudice: Priver v. General Motors Corp. (Super. Ct., Los Angeles County, Cal., Feb. 23, 1966), in Hearings, supra, at 1414; Goldenberg v. General Motors Corp., No. 826 338 (Super. Ct., Los Angeles County, Cal., filed Oct. 3, 1963), in Hearings, supra, at 1414. A trial judge sitting without a jury rendered a judgment for the defendant in another Corvair case, Drummond v. General Motors Corp., CCH PRODS. LIa-. RFP. IT 5611 (Super. Ct., Los Angeles County, Cal. 1966). Finally, a jury verdict for the plaintiff in yet another Corvair case was set aside by the trial judge. Cantos v. General Motors Corp., CCH PRODS. IAB. REP. 1 5656 (Super. Ct., Los Angeles County, Cal., Nov. 14, 1966). In Schemel v. General Motors Corp., 261 F. Supp. 134 (S.D. Ind. 1966), a claim alleging that the defendant was negligent in designing a car capable of exceeding 100 miles per hour was dismissed for failing to state a claim upon which relief could be granted. In Willis v. Chrysler Corp., 264 F. Supp. 1010 (S.D. Tex. 1967), the court dismissed a claim alleging that the defendant breached an implied warranty of fitness by designing a car so that it broke into two sections on impact. Two verdicts in plaintiffs' favor still stand. Dumas v. Chevrolet Div. of General Motors Corp., CCH PRoDs. LAB. REP. T 5570 (24th Jud. Dist. Ct., Jefferson Parish, La. 1965); Mickle v. Blackmon, 8 A.T.LA. NEwSLETTER 99 (6th Jud. Cir. Ct., York County, S.C. 1965) ($780,000). See also Shepard v. General Motors Corp., Nos. 2461, 2462 (D.N.H., Feb. 3, 1967) (default judgment against defendant); Franklin v. General Motors Corp., No. 63-C-22427 (Cir. Ct., Cook County, Ill., July 29, 1965) (default judgment against defen- dant). 5 The cases are discussed at length in Part III infra. Most of the reported vehicle design decisions in the plaintiff's favor involve other than passenger cars. See Carpini v. Pittsburgh & Weirton Bus Co., 216 F.2d 404 (3d Cir. 1954) (bus); Goullon v. Ford Motor Co., 44 F.2d 310 (6th Cir. 1930) (tractor); Hyatt v. Hyster, 106 F. Supp. 676 (S.D.N.Y. 1952), rev'd by stipulation of Parties, 205 F.2d 421 (2d Cir. 1953) (fork lift); Rosin v. International Harvester, 262 Minn. 445, 115 N.W.2d 50 (1962) (truck); Clark v. Zurich Truck Lines, 344 S.W.2d 304 (Mo. Ct. App. 1961) (tractor); Railway Express Agency v. Spain, 249 S.W.2d 644 (Tex. Civ. App. 1952) (truck). In two cases courts have imposed liability on the dealer or distributor of a foreign car for failure to warn of unsafe design. Blitzstein v. Ford Motor Co., 288 F.2d 738 (5th Cir. 1961); McKinney v. Frodsham, 57 Wash. 2d 126, 356 P.2d 100 (1960). Another decision holds the manufacturer liable for injuries suffered by a mechanic who, while making repairs, cut his hand on a negligently designed splash shield underneath a passenger car. Elliott v. General Motors Corp., 296 F.2d 125 (7th Cir. 1961), cert. denied, 369 U.S. 860 (1962). 6 See Part H infra. 7 It is not our intention to minimize other aspects of the crusade for traffic safety. Our argument is that it is easier to change the design of future vehicles than to redesign and rebuild the thousands of miles of poor existing highways or to alter the habits of millions of individual drivers. 19671 AUTOMOBILE DESIGN Furthermore swift S and unanimous 9 passage by Congress of the Traffic and Motor Vehicle Safety Act'0 reflected a definite public judgment on the inadequacy of existing design standards. The apparent failure of the judicial process to deal with the realities of traffic accident causation is underlined by the magnitude of the traffic safety problem and the immensity of the automotive industry. The in- dustry's size should increase its ability to bear and spread losses from unsafe design. In 1965, fourteen automobile and equipment manufacturers had almost 43 billion dollars worth of sales, 6.3 billion dollars in profits before taxes, 3.3 billion dollars in profits after taxes, and 1.9 billion dollars in dividend distributions." During the same year, motor vehicle accidents caused 49,000 deaths, 1.8 million economically disabling injuries, and economic loss assessed at 8.9 billion dollars.' 2 The economic loss figure includes lost wages, medical expenses, property damage and insurance overhead. 8 The diversion of police, judicial and administrative services are indirect costs which must also be included in the total economic loss. These costs to society, however, do not affect the economic viability of automobile manufacturing. 4 Highway transport differs from rail, sea and air transport in not being dominated by carriers to whom the cost of and responsibility for injuries may be shifted. It is possible to think of private sources of pressure which would effectively stimulate automotive safety design. However, self-regnlation by the auto industry has so far not materialized.' 5 There have long been safety organizations, but their effectiveness and independence from the 8 See Drew, The Politics of Auto Safety, ATLANTIC MoNTHLY, Oct. 1966, at 95. 0 112 CoNG. Rac. 13,611 (daily ed. June 24, 1966); id. at 18,813 (daily ed. Aug. 17, 1966). 10 80 Stat. 718 (1966). 11BuReAu or Tnn CENSUS, U.S. DEP'T or COmmERCE, STATISTICAL ABSTRACT Or THE UNrrED STATES 496 (87th ed. 1966) (Table No. 696). 1 2 NATioNAL SA=ETY CouNCIm, ACcIDE N FAcTS 40 (1966). From the first death by auto up to the end of 1965, more than 1.5 million people have been killed in automobile accidents in the United States.