United States District Court, Central District of Illinois
July 24, 1989
TINA BARRON, PLAINTIFF,
FORD MOTOR COMPANY OF CANADA, LIMITED AND FORD MOTOR COMPANY, U.S.A., DEFENDANTS.
The opinion of the court was delivered by: Mihm, District Judge.
Plaintiff's Complaint sounds in negligence, strict liability
and breach of implied warranty. Defendants filed a Motion for
Summary Judgment on all three counts, premised on North
Carolina's*fn* substantive law. A hearing was held at which
the Court heard arguments by the parties and ruled that the
Motion for Summary Judgment as to the strict liability claim
was granted but denying the Motion as to the negligence and
breach of warranty claims. The Court indicated it would
memorialize its ruling in a written opinion; this is that
Plaintiff's count in strict liability alleges that
Defendants' use of a tempered glass sunroof created an
ultrahazardous condition and that the sunroof shattered when
the vehicle rolled over and caused the Plaintiff to be
seriously injured when she was ejected from the vehicle.
Plaintiff further alleges that the ultrahazardous condition
existed when the vehicle left the manufacturer's control.
North Carolina substantive law does not recognize the
doctrine of strict tort liability. Smith v. Fiber Controls
Corp., 300 N.C. 669, 268 S.E.2d 504, 509-10 (1980); Holley v.
Burroughs Wellcome Co., 74 N.C. App. 736, 330 S.E.2d 228
(1985); Byrd Motor Lines v. Dunlop Tire & Rubber,
63 N.C. App. 292, 304 S.E.2d 773, 778 (1983). Accordingly, summary judgment
is granted as to the claim sounding in strict liability.
The Plaintiff's negligence allegations claim that Defendants
breached a duty to warn of dangerous qualities inherent in the
Ford Escort in which she was a passenger, which was designed,
manufactured, and installed with a tempered glass sunroof that
shattered when the vehicle rolled over, allegedly causing
Plaintiff to be ejected from the vehicle. In essence,
Plaintiff alleges that the vehicle was not crashworthy. In
Plaintiff's breach of warranty allegations, she asserts that
Defendants impliedly warranted that the vehicle was
crashworthy and suitable for its intended use. Plaintiff
further alleges that she relied upon that implied warranty and
that Defendants' breach of the warranty caused her injury.
The North Carolina Supreme Court has not ruled on whether
allegations that a vehicle was crashworthy or that the
condition of a vehicle enhanced a Plaintiff's injuries state
a cause of action under either negligence or breach of implied
The Circuit Court of Appeals for the Fourth Circuit, in
which North Carolina is situated, has on three occasions had
the opportunity to predict whether the North Carolina Supreme
Court would recognize a negligence theory of crashworthiness
and/or enhanced injury. Erwin v. Jeep Corp., 812 F.2d 172 (4th
Cir. 1987); Martin v. Volkswagen of America, Inc., 707 F.2d 823
(4th Cir. 1983); Wilson v. Ford Motor Co., 656 F.2d 960 (4th
Cir. 1980). In all three cases, the Fourth Circuit predicted
that the North Carolina Supreme Court would not recognize the
doctrine of crashworthiness
and/or enhanced injury. In making these rulings, the Circuit
Court of Appeals for the Fourth Circuit specifically relied
upon the State Supreme Court's refusal to adopt the doctrine
of strict tort liability. Smith v. Fiber Controls Corp.,
300 N.C. 669, 268 S.E.2d 504, 509-10 (1980). Circuit Judge Philips
in his special concurrence in the Martin opinion stated as
. . North Carolina courts have not [adopted]
such doctrinal expansions as strict liability and
comparative negligence. While to some this may
appear unenlightened, it may to others reflect a
completely respectable and deep-seated attitude
of judicial restraint and deference to
legislative primacy in making significant changes
in the long-established common law tort doctrine.
In any event, judicial restraint in these related
areas is a fact that must be taken into account
by a federal diversity court in assessing the
probable view of North Carolina's appellate
courts on the propriety of judicially adopting
the crashworthiness doctrine.
707 F.2d at 826.
Shortly before oral argument on Defendants' Motion for
Summary Judgment was heard, the North Carolina Court of
Appeals issued its opinion in the case of Warren v. Columbo,
377 S.E.2d 249 (N.C. App. 1989). The justices in the Warren
case wrote three separate opinions. In Judge Orr's lead
opinion, he found that the plaintiff's complaint of enhanced
injuries sufficiently stated a cause of action sounding in
negligence.[fn**] (Warren, at 255). He specifically refused to
consider the issue of whether the plaintiff's complaint stated
a cause of action under a "crashworthiness" doctrine. In this
regard, he stated: "We shall specifically address the issue as
`enhanced injury' and not `crashworthiness' or `second
In a concurring opinion, Judge Greene stated that he did
"not find it necessary or helpful . . . to recognize a new
cause of action for enhanced injuries." Judge Greene found
that the plaintiff's complaint stated a cause of action
because it expressed "the notion that, within limits,
automobile manufacturers may be held liable for injuries
caused by their failure to take the possibility of automobile
accidents into consideration in designing their products."
Judge Arnold dissented. He expressed his opinion that the
"`first impact' is the critical and sole event of proximate
causation in vehicular collision cases, and therefore actions
for enhanced injuries are precluded."
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L.Ed. 1188 (1938), and its progeny, a federal district
court sitting in diversity must apply state substantive law. In
Erie, this law was defined as being the law "declared by [the
state's] Legislature in a statute or by its highest court in a
decision." 304 U.S. at 78, 58 S.Ct. at 822. However, where a
state supreme court has not addressed the issue before the
district court, the district court must predict "how the
state's highest court would decide were it confronted with the
problem." McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657
(3rd Cir. 1980).
In determining how the supreme court would rule in a like
case, the district court should consider the decisional law of
the state supreme court, then decisions by the supreme court
in analogous cases, and finally dicta by the state's highest
court as well as decisions of lower state courts and other
federal courts. McKenna v. Ortho Pharmaceutical Corp.,
622 F.2d 657, 662 (3rd Cir. 1980).
Thus, this Court is faced with a situation in which it must
predict which analysis the state's highest court will adopt
despite the absence of any statements by that court on the
subject. While that court's statement regarding strict
liability are informative, they are not dispositive. Likewise,
the decisions of the Fourth Circuit may persuade but do not
bind this Court. The state's appellate court decision in
Warren must also be considered, since it is the only state
court opinion on point.
The fact that the state has refused to adopt a theory of
strict liability does not require a conclusion that the court
would not find proximate causation in a case such as this one.
The generally conservative approach of the court, in refusing
to extend tort liability beyond what is authorized by the
legislature, does not tell us how that court might define
proximate causation, an element of traditional tort law.
Furthermore, proximate causation is not the element that
defines the difference between negligence and strict
liability; rather knowledge or intent distinguishes the two.
Judge Greene in Warren basically analyzed the "enhanced
injury" concept within the traditional notions of tort law, a
relatively conservative method and one which is most
persuasive. Accordingly, this Court predicts that, if faced
with the issue, the Supreme Court of North Carolina would rule
in essentially the same manner as Judge Greene that it is not
necessary to recognize a new negligence cause of action in
order to recognize the validity of a claim of enhanced
injuries. Rather, the "enhanced injuries" or "crashworthiness"
theory is "merely an expression for the `notion that, within
limits, automobile manufacturers may be held liable for
injuries caused by their failure to take the possibility of
automobile accidents into consideration in designing their
The Motion for Summary Judgment of the breach of warranty
claim likewise raises only a question of law: whether North
Carolina law recognizes implied warranties of crashworthiness.
Neither party has cited any North Carolina law (statutory or
common) which would mandate dismissal of this claim or even
suggest that dismissal might be appropriate. Indeed, North
Carolina General Statutes § 99B-2(b) explicitly envisions
breach of implied warranty suits generally. If the warranty of
crashworthiness was implied and breached (an issue not raised
by any pleading), then the Court need make no modification or
extension of existing law in order to allow the claim for
breach of that warranty to proceed. Thus, the Motion for
Summary Judgment on the breach of warranty claim is denied.
This Court makes no rulings with respect to what damages may
be recovered in such actions or what defenses can be asserted
to such actions.
It is hereby ordered that Defendants' Motion for Summary
Judgment is GRANTED on the strict liability claim and DENIED
on the negligence and breach of warranty claims.