FORD Motor Company

v.

Ethel MATTHEWS, Administratrix of Estate of Earnest Matthews, Deceased

Supreme Court of Mississippi

291 So. 2d 169 (1974)

Rodgers, J. This is a products liability suit in a wrongful death action. It was filed by the estate of Earnest Matthews in the Circuit Court of Benton County, Mississippi, against Ford Motor Company and Ray Brothers Tractor Company, Inc. During the trial, a settlement was reached between Ray Brothers and the plaintiff, leaving the Ford Motor Company as the sole defendant. The court, sitting without a jury, found for the plaintiff-administratrix and entered a judgment against Ford in the amount of seventy-four thousand two hundred seventy-two dollars and sixty-five cents ($74,272.65). Ford Motor Company appeals ***

Earnest Matthews was killed as a result of being run over by his tractor and dragged underneath a disc attachment. It was alleged that Matthews was standing beside his tractor when he started it, and the tractor was in gear at the time. The Ford tractor in question was equipped with a starter safety switch which was designed to prevent the tractor from being started in gear. It is the position of the plaintiff-administratrix that the plunger connected with the safety switch was defective and allowed the tractor to be started in gear. ***

The appellant Ford *** contends that Matthews' act of standing on the ground and starting the tractor while in gear was a misuse of the product. It is argued that such misuse is an absolute limitation on Ford's liability. The basic authority for this position is Comment (h), Rest. (2d) Torts @ 402A, which reads in part: "A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling . . . the seller is not liable." [Rest.(2d) Torts @ 402A, at 351]. Several cases are cited by appellant to illustrate this proposition. However, in the cases cited, the court either found that there was no defect and the accident was caused by a misuse, or even if there were a defect, it played no part in the causation of the accident. Here the situation is clearly distinguishable. It is apparent that the failure of the safety switch to prevent the tractor from cranking in gear was a cause of the accident. The failure of the decedent to make sure the tractor was in neutral before starting [if that were true] may be characterized as the omission of a customary precaution, although there is no evidence that he was warned of this danger, or that he knew of the danger. Nevertheless, this was not such a misuse of the tractor as to relieve Ford from its strict liability for the defective condition of the tractor. ***

Although misuse of a product that causes an injury is normally a bar to strict liability, it is said that: ". . . The manufacturer is not liable for injuries resulting from abnormal or unintended use of his product, if such use was not reasonably foreseeable. The issue is one of foreseeability and misuse may be foreseeable." 1 Frumer and Friedman, Products Liability @ 15.01, at 351 (1973).

A recent law review writer expressed it in this manner: "In strict liability cases the same duty to foresee certain unintended uses has been recognized, and ordinarily the factual issue of the foreseeability of a particular use has been left to the jury." Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand.L.Rev. 93, 97 (1972).

It is admitted that the tractor in question was designed to prevent its starting in gear. It is apparent that it could be foreseen by Ford that one day a tractor operator might carelessly crank the engine without first making certain that it was not in gear (as recommended in the owner's manual), especially if he were aware of the purpose of the safety switch system. In short, even if Matthews were guilty of negligence, such negligence was reasonably foreseeable by Ford and is not a bar to an action based on strict liability resulting from a defective tractor.

***

[W]e are of the opinion that the total sum determined by the trial judge to be due was not excessive and the case should be affirmed.

Affirmed.

PATTERSON, INZER, SMITH and SUGG, JJ., concur.