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Buehler v. Whalen





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Robert L. Gagen, MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:

Plaintiffs Marie Buehler and the First National Bank of Belleville, as guardian of the estates of her sons Richard and Michael, brought suit against defendants, Debra Goodman Whalen and Ford Motor Company, to recover damages for injuries suffered when the automobile in which the Buehlers were riding caught fire after being struck by a car driven by Whalen. The other plaintiff, Gerrell Forth, was burned while helping the occupants leave the car.

The action against Whalen was predicated on negligence, while suit against Ford, the manufacturer of the Buehler car, was in strict liability in tort. It was alleged that the automobile was defectively designed.

The jury found for all plaintiffs against both defendants. Judgment was entered on the verdicts. Both defendants appealed. The appellate court affirmed. (41 Ill. App.3d 446.) Pursuant to Rule 315 (58 Ill.2d R. 315), we granted petitions for leave to appeal filed by both defendants.

The issues for decision are: (1) the liability of an automobile manufacturer in strict liability in tort for injuries sustained by passengers in a collision allegedly caused by the vehicle's defective design; (2) sanctions which should be imposed for failure to comply with discovery procedures; (3) whether a joint tortfeasor is entitled to an apportionment of damages under these circumstances; and (4) the propriety of a given instruction.

The circumstances of the accident are virtually undisputed. On January 3, 1971, while the Buehler car, driven by Mr. Buehler, was traveling south on a two-lane highway headed toward the Buehler residence, Buehler had to make a left turn to enter a driveway leading to his residence on the east side of the road. When he was from 300 to 400 feet north of the driveway, he reduced his speed and turned on his left-turn signals.

The deceleration of the Buehler car caused a line of five other cars to form behind it. The last of these cars was that of defendant Whalen. She drove her car into the northbound lane to pass the line of cars ahead. As she reached a point two car lengths north of the Buehler car, she observed it was about to cross the northbound lane. Then traveling at 65 miles an hour, the posted limit, she applied her brakes and swerved to avoid hitting the Buehler car. The effort failed and the left front of her car struck the left rear of the Buehler car.

Upon impact, the rear of the Buehler car burst into flames. It came to rest on its side in a ditch bordering the side of the highway. Forth had observed the accident from his car, one of those lined up behind the Buehler car. He and others righted the car, and helped the passengers out. It was stipulated that the injuries of the plaintiffs were caused entirely by burns.

Subsequently the gas cap of the Buehler car was found near the scene. The ears securing it to the filler spout of the tank were missing. They were found within the gas tank. The filler spout had been displaced from its normal position and was extending at or below the level of the rear bumper.

Buehler's car was a 1966 Ford Fairlane sedan. It was equipped with what is called a flange-mounted gas tank, as contrasted with a strap-mounted tank. The latter model is placed below and separated from the floor of the trunk compartment. The top of the flange-mounted tank, on the other hand, serves as the floor of the trunk. The tank is held rigidly to the car structure by screws. The gas filler spout runs through the trunk into an opening in the license plate bracket area above the rear bumper. The distance between tank and bumper is about 2 1/2 inches.

The flange-mounted tank was not used in any American automobile prior to 1960. In that year Ford started using it in some models. General Motors and Chrysler continued to use the strap-mounted tank in their cars. Sometime after 1970 Ford changed back to that model.

The 1966 Fairlane had no shielding between the trunk compartment and the passenger compartment other than a fiberboard panel and the padding of the rear seat.

Expert testimony made it apparent that the fire in the Buehler car arose out of its being struck by Whalen's car, and that the occurrence of the fire in the trunk, as well as its rapid spread into the passenger compartment, was due to the design of the Fairlane model.

Paul O'Shea, head of a company called California Automotive Research, which does work in automotive design and testing, testified on the basis of his inspection of the Buehler car and of a crash test that the impact on the Buehler car, at an estimated impact velocity of 35 miles an hour, knocked the tank cap off.

William Eddie, chief engineer at St. Louis Testing Laboratory, was of the opinion that the impact of the collision caused a sudden change in the configuration of the tank and a surge of its contents which in turn forced off the cap.

Derwyn Severy is a research engineer in the Department of Transportation and Traffic Engineering at the College of Engineering at the University of Southern California who has done considerable research into automobile crashes, including test crashes as well as some 6,000 actual crashes. He has also done studies on fires occurring after collision between cars. He stated that the abrupt acceleration of the Buehler car as a result of the collision caused the gasoline in the tank to surge to the rear of the tank, forcing off the cap, and introducing atomized gas into the trunk. This gas was then ignited by sparks generated in the collision by contact between the metal of the car and the pavement.

Both O'Shea and Severy testified that if the car had had a firewall between the trunk and the passenger compartment, the spread of the fire would have been delayed long enough to permit the occupants to get out without suffering serious injury.

According to Severy, the design of the Fairlane rendered it susceptible to fire originating in the gas tank upon a rear-end collision for several reasons. There was the close proximity of the tank to the rear bumper, making likely the release of the contents of the tank in a rear-end impact. Another was that the rigid method by which the tank was attached to the car made the tank particularly subject to stress from the impact, with the result that the tank would be warped and the filler neck displaced from its normal position. The lack of a fire wall, the use of which he had recommended to the automotive industry, including Ford, was a contributing fact. Severy concluded that the design of the fuel tank in the 1966 Ford Fairlane constituted an unreasonably dangerous condition for occupants of the vehicle.

The probability of rear-end accidents was established by the testimony. O'Shea stated that 50% of all automobile collisions were of that type. The percentage of rear-end collisions resulting in fires was also in evidence. O'Shea estimated a figure of one-half of one percent, whereas Severy stated that more recent data indicated the figure was 4%. Severy also testified, however, that in about 12% of collisions where gas spillage occurs, the gas ignites.

Ford contends it had no duty to design a vehicle that would prevent injuries to plaintiffs under the occurrences of this case. Ford argues that while the injury complained of may have been foreseeable, it was not one which it was "objectively reasonable to expect." It relies on Mieher v. Brown (1973), 54 Ill.2d 539, and Cunis v. Brennan (1974), 56 Ill.2d 372.

In Mieher a car driven by decedent collided with the rear of a truck manufactured by International Harvester Company. Decedent's car was propelled underneath the bed of the truck. Plaintiff's negligence action was based on alleged negligence in the design of the truck, since there was no bumper or shield to prevent a car from passing underneath its body in the event of a collision. Mieher, involving the duties of the manufacturer of a vehicle to a nonuser, described the issue as whether the manufacturer's duty was to "design a vehicle with which it is safe to collide." (54 Ill.2d 539, 543.) The manufacturer's duty, this court concluded, did not extend to this "highly extraordinary" occurrence. (54 Ill.2d 539, 545.) Actually, it would seem that the question is far ...

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