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07/06/78 REVA SWARTZ & OTHERS *FN1 v. GENERAL

July 6, 1978

REVA SWARTZ & OTHERS *FN1
v.
GENERAL MOTORS CORPORATION *FN2



Suffolk. Tort. Writ in the Superior Court dated June 3, 1968. The action was tried before Morse, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Braucher, Kaplan, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Negligence, Manufacturer of motor vehicle. Motor Vehicle, Defect. Uniform Commercial Code, Privity of contract, Warranty. Sale, Warranty.

The opinion of the court was delivered by: Braucher

This court declined to apply the doctrine of strict liability in tort, as set forth in Restatement (Second) of Torts § 402A (1965), to an action arising out of injuries suffered in an automobile accident in 1967, prior to the Legislature's prospective amendment of G. L. c. 106, § 2-318, to eliminate the requirement of privity of contract. [629-631]

Evidence in a product liability case, predicated on defective design of an automobile, was insufficient to show that a defect attributable to the manufacturer's negligence caused the plaintiffs' injuries. [631-633]

This is a product liability case, predicated on defective design of an automobile, arising out of a 1967 accident. We hold that there is no "strict liability in tort" apart from liability for breach of warranty under the Uniform Commercial Code, G. L. c. 106, §§ 2-314 -- 2-318. We also affirm the action of the trial Judge in directing a verdict for the defendant because there was no evidence that the defendant's negligence caused the accident.

On September 4, 1967, the plaintiff Sklar was driving an automobile manufactured by the defendant, General Motors Corporation. The plaintiff Cohen was a passenger. The car, a 1966 Buick Riviera, had been driven 20,448 miles when it collided with the house occupied by the plaintiff Swartz. All three plaintiffs were injured. They brought suit in 1968, and at trial in 1976 claimed that the accident resulted from malfunction of a "detent switch" connected to the accelerator. Claims for breach of warranty were waived by the plaintiffs. At the Conclusion of the plaintiffs' opening statement the Judge directed a verdict for the defendant on claims based on strict liability in tort. At the close of all the evidence he directed a verdict for the defendant on the issue of negligent design. Later he denied a motion for new trial, and the plaintiffs appealed. We allowed their application for direct appellate review.

1. Strict liability in tort. The plaintiffs urge us to follow Restatement (Second) of Torts § 402 A (1965). *fn3 That proposal requires consideration of legislative developments. In the reporter's notes to § 402A, Massachusetts is listed as one of the jurisdictions which "still reject the rule stated in this Section, even as to food." In addition to the cases there cited, see Haley v. Allied Chem. Corp., 353 Mass. 325, 331 (1967), where it was pointed out that the Uniform Commercial Code, G. L. c. 106, § 2-318, at that time dispensed with the requirement of privity of contract only in the case of a natural person who is in the family or household of the buyer or a guest. In Necktas v. General Motors Corp., 357 Mass. 546, 549 (1970), a majority of the court rejected a claim similar to the present one.

In 1971 § 2-318 was amended to eliminate the requirement of privity of contract. St. 1971, c. 670, § 1. In 1973, the section was extended to lessors, and the defense of failure to give notice was limited to cases where the defendant proved prejudice. St. 1973, c. 750, § 1. That amendment, together with a 1974 amendment, harmonized the statute of limitations with G. L. c. 260, §§ 2A and 4. St. 1974, c. 153. The result is to provide a remedy as comprehensive as that provided by § 402A of the Restatement, *fn4 a remedy not limited by the "Caveat" appended to § 402A. See Back v. Wickes Corp., post 633, 639-640 (1978); Wolfe v. Ford Motor Co., 6 Mass. App. Ct. , (1978). a

Section 2-318 applies to leases which are made and to injuries which occur after the effective date of the 1973 amendment. St. 1973, c. 750, § 2. Hoffman v. Howmedica, Inc., 373 Mass. 32, 34-37 (1977). We need not now explore its application to injuries occurring from 1971 to 1973. It has no application to the present case, involving injuries suffered in 1967, since none of the plaintiffs bore the required relationship to the person who bought the car from the defendant.

But for the intervention of the Legislature, we should be inclined to re-examine the question whether our law ought to have continued to be out of harmony with the overwhelming weight of authority in other States. But the rule here in question has been revised by the Legislature with prospective effect. No sufficient reason appears for us to engage in retroactive revision of the law as it existed before 1971. Cf. Higgins v. Emerson Hosp., 367 Mass. 714, 715-716 (1975) (charitable immunity); Whitney v. Worcester, 373 Mass. 208, 209-213 (1977) (sovereign immunity). We therefore decline to apply § 402A of the Restatement to the present case.

2. Negligent design. In denying the plaintiffs' motion for new trial, the Judge stated the "evidence most favorable to the plaintiffs." We summarize that evidence, relying largely on his statement. The Buick was leased to the employer of the plaintiffs Sklar and Cohen. On the day of the accident Cohen was seated in the back, and the car was operated by Sklar. Sklar started the engine after having given the accelerator a "pump of gas." The engine roared, and the car went backward and then went forward at high speed. Sklar depressed the brake pedal to the floor, but the car did not stop. She looked down and saw the accelerator pedal on the floor. After traveling about 500 feet, the car struck the house occupied by the plaintiff Swartz. All the plaintiffs were injured.

The detent switch operates to "downshift" from the driving gear to a lower gear. When the accelerator is fully depressed, the detent switch is closed, and the downshift occurs. Ordinarily, a return spring and the weight of the linkage operate to reopen the detent switch and to return the accelerator to the idle position. The detent switch was removed from the vehicle after the accident ...


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