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EDWARD L. TOLIVER v. GENERAL MOTORS CORPORATION

NOVEMBER 06, 1985

EDWARD L. TOLIVER
v.
GENERAL MOTORS CORPORATION, ET AL.



EN BANC

DAN LEE, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Holmes County. The appellant, Edward Toliver, was severely injured in an automobile accident on January 7, 1978, when his 1973 Chevrolet Vega was struck from the rear by a car owned by David Lee Thomas and driven by Roosevelt Mabry, Jr., with Thomas as a passenger.

Upon impact, Toliver's gas tank erupted, leaking gas into the passenger compartment, which ignited. Toliver was critically burned as a result of the accident, causing the almost complete destruction of his facial features, partial loss of use of his right hand and arm, severe damage to his lips and partial loss of his nose.

 Toliver filed suit seeking $5,000,000 in actual damages and $25,000,000 in punitive damages against David Lee Thomas, Alice McBride, Administratrix of the Estate of John McBride, Jr. (who sold Toliver the used Vega), and General Motors Corporation. Both Thomas and McBride failed to answer or appear, and Toliver took a default judgment against them.

 Toliver alleged that General Motors Corporation placed his 1973 Chevrolet Vega on the market in an unreasonably dangerous and defective condition. Specifically, his complaint stated that the vehicle's fuel tank was inadequately designed to withstand punctures in rear-end collisions. He also alleged that General Motors negligently failed to warn consumers about the defective fuel tanks; that General Motors negligently failed to recall the 1973 Vega when it knew of its inherent danger; that General Motors knowingly decided to mass produce and market the automobile in its defective state in order to save the expense of correcting the problem; that General Motors negligently concealed knowledge of the defective design from consumers; and that General Motors breached its express and implied warranties of fitness for a particular purpose. Toliver charged that these wrongful acts on the part of General Motors proximately

 caused his injuries.

 General Motors filed a motion to dismiss pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure, for failure to state a claim upon which relief could be granted. The Plaintiff's action was dismissed.

 The sole issue on appeal is whether Edward Toliver, who was injured in a collision between his Vega and another automobile, may assert a cause of action against the manufacturer of his Vega because his injuries were proximately caused or enhanced by the alleged defective design or construction. We hold that Toliver has asserted a cause of action, and overrule Walton v. Chrysler Motor Corp., 229 So. 2d 568 (Miss. 1969), and the subsequent cases based on Walton. (Odum v. Glover, 413 So. 2d 722 (Miss. 1982); Pattillo v. Cessna Aircraft Corp., 379 So. 2d 1225 (Miss. 1980); Jones v. Babst, 323 So. 2d 757 (Miss. 1975); Baker v. Ford Motor Co., 317 So. 2d 51 (Miss. 1975); General Motors Corp. v. Howard, 244 So. 2d 726 (Miss. 1971); and Ford Motor Co. v. Simpson, 233 So. 2d 797 (Miss. 1970)).

 We have previously held that no liability attaches to an automobile manufacturer in a "second impact" type case because the alleged defect in the automobile's design or manufacture did not proximately cause or proximately contribute to the collision. However, after careful consideration of the authorities cited by the appellant in his brief, we are convinced that the question of causation more properly is addressed to the instrumentality causing the enhanced injury, not that which caused the collision. "That the design defect does not cause the initial collision should make no difference if it is a cause of the ultimate injury." Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737 (1974). See also Ford Motor Co. v. Hill, 404 So. 2d 1049 (Fla. 1981); Brandenburger v. Toyota Motor Sales, Inc., 162 Mont. 506, 513 P.2d 268 (1973); Bolm v. Triumph Corp., 33 N.Y.2d 151, 305 N.E.2d 769, 350 N.Y.S.2d 644 (1973); Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979); Sumnicht v. Toyota Motor Sales, Inc., 121 Wis. 2d 338, 360 N.W.2d 2 (1984). Furthermore, the overwhelming weight of authority holds, and we agree, that automobile accidents occur with sufficient frequency to be foreseeable to manufacturers. Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976); Roberts v. May, 41 Colo. App. 82, 583 P.2d 305 (1978); Friend v. General Motors Corp. 118 Ga. App. 763, 165 S.E.2d 734 (1968), cert. dismissed, 225 Ga. 290, 167 S.E.2d 926 (1969); Buehler v. Whalen, 70 Ill. 2d 51, 374 N.E.2d 460 (1977); Smith v. Ariens Co., 375 Mass. 620, 377 N.E.2d 954 (1978); Elsasser v. American

 Motors Corp., 81 Mich. App. 379, 265 N.W.2d 339 (1978); Friedrick v. Anderson, 191 Neb. 724, 217 N.W.2d 831 (1974); Devaney v. Sarno, 125 N.J. Super. 414, 311 A.2d 208 (1973), aff'd, 65 N.J. 235, 323 A.2d 449 (1974); Johnson v. American Motors Corp., 225 N.W.2d 57 (N.D. 1974); Leichtamer v. American Motors Corp. 67 Ohio St. 2d 456, 424 N.E.2d 568 (1981); Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969), 255 S.C. 136, 177 S.E.2d 548 (1970); Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973); Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn. 1973); Baumgardner v. American Motors Corp., 83 Wash. 2d 751, 522 P.2d 829 (1974); Chrysler Corp. v. Todorovich, 580 P.2d 1123 (Wyo. 1978).

 In his complaint, Toliver alleged that General Motors mass produced and marketed the 1973 Vega with full knowledge and understanding that the placement of its fuel tank caused the automobile to be unreasonably dangerous to consumers. According to Toliver, General Motors, through crash tests of the vehicle, had determined that the fuel tank would be inadequately protected in the event of a rear end collision. The cost of correcting this design defect would have been minimal; however, General Motors decided to sell the automobile in its defective condition, rather than to incur the expense necessary to correct this condition.

 If the appellant can prove his allegations at trial, he will clearly have established that General Motors Corporation was grossly negligent in the design and sale of the 1973 Vega. He has alleged the requisite elements to establish a cause of action based on negligence. Those elements include: 1. A duty requiring the defendant to conform to a certain standard of conduct; 2. A failure by the defendant to conform to that standard; 3. Proximate cause; and 4. Actual damage. W. L. Prosser, Handbook of the Law of Torts (4th ed. 1971) 30. This Court has recognized today that automobile manufacturers have a legal duty to design vehicles that are not unreasonably dangerous to a user. Edward Toliver has asserted that his 1973 Vega was unreasonably dangerous, and that he was injured as the result of General Motors' willful failure to properly design the fuel tank in his automobile. He is entitled to a full trial on the merits to present his theory of negligence to a jury.

 The next issue to be considered is whether the doctrine of strict liability, as expressed in Section 402A of the Restatement (Second) Torts (1965) applies to this case. We adopted the language of that Section in the case of State Stove Mfg. Co. v. Hodges, 189 So. 2d 113 (Miss. 1966), and it states as follows:

 Special Liability of Seller of Product for Physical Harm to User or Consumer -

 (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ...


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