Irene S. HENDERSON et vir, Petitioners, v. FORD MOTOR COMPANY et al., Respondents, 519 S.W.2d 87

REAVLEY, Justice. This is a products liability case which raises questions of proof of a defective design and the defense to strict liability when the injured claimant has continued to use the product after discovery of the risk of doing so. Irene S. Henderson was badly hurt when, because she could not reduce the speed of her automobile, she intentionally drove it into a metal pole. She brought this suit against the manufacturer (Ford Motor Company) and her dealer (Snelling Motor Company). Mrs.

Henderson obtained judgment against the defendants in the trial court; the Court of Civil Appeals reversed that judgment and remanded the case for retrial. 500 S.W.2d 709. Mrs. Henderson comes here contending that retrial is not justified because the evidence raises no issue of her assumption of the risk and because issues as to her negligence constitute no defense to strict liability. Ford Motor Company (and Snelling) come here contending that no liability is justified because there is no evidence of defective design. All of the stated contentions are upheld by this Court. On April 15, 1969 Mrs.

Henderson was driving her 1968 Lincoln Continental in Houston city traffic. After accelerating to enter a freeway, she found that the speed of the car was not responsive to her control. Her first impression was that the problem was with the brakes. She drove the car from the freeway at the first exit and onto South Post Oak Road, continuing her efforts to stop. She determined that the accelerator pedal was not depressed. She pumped the brake and pushed with both feet against the brake pedal, but the speed continued.

Seeing a busy intersection ahead and recognizing the peril to other persons, she drove onto the esplanade in the center of the street and finally crashed into the large signal light pole. The Continental automobile had been purchased from Snelling Motor Company seven months earlier; it had been driven approximately 9,000 miles. When the wreckage was examined six days later by Dr. William Tonn, the accelerator linkage to the carburetor was found to be jammed as the result of the indentation of the pole into the engine area, but no pre-accident fault was indicated in the linkage.

Two years later a mechanic, Levertt LaRue examined the wreckage. He found nothing: wrong: with the carburetor linkage but when he looked into the carburetor itself, he found a piece of rubber between the throttle blades and the bore of the chamber of the carburetor. The piece of rubber turned out to be part of the gasket which was originally installed around the' bottom of the air filter housing where that housing was seated on top of the carburetor.

The purpose of the air filter is to prevent dirt and foreign objects from entering the carburetor as oxygen and fuel are being drawn into the combustion chambers of the engine. The lightweight filter housing requires some type of rubber or fibre gasket along the area where it fits upon the carburetor housing. In the engine installed in Mrs. Henderson’s automobile, which Ford designated as model number 462, the gasket was glued into a trough or groove around the underside of the air filter housing.

An alternative design, the one used on the successor model 460 Lincoln engine, substitutes a separate fibre gasket (on and around the carburetor housing at the place where the filter housing is seated) for the gasket previously fixed in the filter housing. The chief contention of the plaintiff at the trial was that the gasket was not properly placed in its groove during manufacture, that it protruded from the groove when first sold to plaintiff and was finally cut free, that the piece then lodged in the carburetor and held open the gas feed during Mrs. Henderson’s frightful ride.

The jury, however, answered in the negative the issues of whether the gasket was defectively installed by Ford or defectively installed when sold by Snelling. The judgment for plaintiff was based upon jury findings that the design of the air filter housing was defective and that this design defect was the producing cause of Mrs. Henderson’s damages. The Court of Civil Appeals majority held that the defendants were entitled to have the jury determine issues as to Mrs. Henderson’s contributorily negligent conduct following her discovery that the ca?was not functioning correctly.

Under that holding if the jury determined that a person in the exercise of ordinary care would have avoided injury by stopping the car earlier through the proper use of the brakes or by shifting the transmission control to neutral or by turning off the ignition, the defendants would not then be liable. This holding is understandable because of the writing of this Court in Shamrock Fuel & Oil Sales Co., Inc. v. Tunks, 416 S.W.2d 779 (Tex.1967).

This writ was granted for the purpose of resolving some of the uncertainty as to the defenses to strict liability when predicated upon conduct of the complainant following discovery of the defect. CONTRIBUTORY NEGLIGENCE Some courts allow contributory negligence of the user as a defense to strict liability in tort against the manufacturer of a defective product, and no distinction is made as to whether the negligent conduct occurs before or after discovery of the defect by the user.

In those states the failure to discover or foresee dangers which the ordinarily careful person would have discovered or foreseen, as well as negligent conduct after discovery of the danger and in the use of the product, constitutes a defense to an action based on strict liability. Stephan v. Sears, Roebuck & Co., 110 N.H. 248, 266 A.2d 855 (1970); Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). This Court' has rejected for Texas the defense of negligent failure to discover a defect or to foresee the danger. Shamrock Fuel & Oil Sales Co. v. Tunks, supra; McKisson v.

Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). We reaffirm that holding and believe it to be the prevailing view. See: Williams v. Brown Mfg. Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970); 2 Frumer and Friedman, Products Liability, § 16 A(5) (f). This Court in 1967 left open the question of whether contributory negligence would be a defense if the subpar conduct of the user followed discovery of -the defect. We now hold that contributory negligence is not a defense under those circumstances in a strict liability action.

In a recent opinion, delivered after the Court of Civil Appeals opinion in the instant case, this Court held that contributory negligence on the part of a claimant is no defense in a strict liability action for damages caused by a vicious animal. Marshall v. Ranne, 511 S.W.2d 255 (Tex.1974). No distinction was made there between a failure to discover the nature of the animal and a careless encounter with its viciousness after discovery. The conduct in question in that particular case occurred after full knowledge of the viciousness of the beast.

We will apply the same rule for the defense of strict liability whether the risk encountered is a dangerous animal or a defective product. ASSUMPTION OF RISK Assumption of the risk, or volenti non fit injuria, remains a proper defense in a strict liability action. The prevailing trend of the courts seems to .be to follow Comment n of § 402A of the Restatement Second, Torts, which states: n. Contributory negligence. Since the liability with which this

Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this

Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery. The Restatement here joins subjective appreciation of the danger with objective lack of care in unreasonably continuing use of the product. It is not unusual for assumption of risk and contributory neglience to be treated as overlapping. 2 Harper and James, Torts, 1162 (1956); Keeton, Assumption of Risk in Products Liability Cases, 22 Louisiana L.Rev. 122, 131, 143 (1962).

The overlapping may have some relation to a dislike for the defense of assumption of the risk and the efforts to have it abolished. See generally: Prosser, Torts, 454 (4th ed. 1971). When the rule described in Comment n of § 402A of the Restatement, above, is followed, the courts which do so are justified in saying that it makes no difference whether the defense is labeled contributory negligence or assumption of the risk. See Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973); Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966).

Neither label would be entirely appropriate under previous Texas decisions. The Restatement rule requires the defendant to prove more than contributory negligence after discovery that some defect exists. It requires proof of the elements of assumption of risk, or volenti non fit in-juria as that defense is known in the Texas cases, with the additional proof that the plaintiff’s voluntary exposure to the risk was unreasonable. To illustrate, let us suppose that plaintiff takes his spanking-new car to the country for a test drive. Its brakes have been defectively designed and manufactured.

He discovers along the way that he has no brakes at all, but the car rolls harmlessly to a halt on the side of the country road. There is no danger in plaintiff leaving his car and walking to the garage, but he has important engagements to make and proceeds to drive his new car very cautiously toward the garage. He does not make it; let us say that a horse walks onto the road. The elements of assumption of risk are clearly present, but there remains the fact issue of whether plaintiff’s conduct was reasonable.

The United States Court of Appeals for the Fifth Circuit has had several cases before it which required a decision as to the Texas law at this particular point. E.g., Borel v. The Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973); Messick v. General Motors Corp., 460 F.2d 485 (5th Cir. 1972). In Messick the plaintiff knew of the defect in the front suspension system of his automobile and had been told by a mechanic that if he continued to drive the car it would kill him. He did continue to drive it and, though he was not killed, he was injured.

He argued that his use of the automobile after knowledge of the danger was reasonable because of economic duress since he depended upon his car in his work as a salesman and he was unable to obtain any substitute transportation. The jury was instructed: “[A] person is not at fault in voluntarily exposing himself to a known and appreciated danger, if; under the same or similar circumstances, an ordinarily prudent person would have incurred the risk which such conduct involved.

Thus, if there was some reasonable necessity or propriety which justified Plaintiffs in exposing themselves to the known risks involved, or if by the exercise of care proportionate to the danger Plaintiffs might reasonably have expected to have avoided the danger, or if there was no other reasonable course open to them but to make continued use of this automobile, then Plaintiffs cannot be found to have voluntarily exposed themselves to the risk.” 460 F.2d 493. The Fifth Circuit upheld this instruction and decided that the Supreme Court of Texas would agree with that statement of the law. We do not.

Assumption of risk is the defense; contributory negligence or failure to act reasonably is not. We do recognize that the assumption of risk defense requires a voluntary encounter with the danger or risk — which means by free and intelligent choice. Marshall v. Ranne, 511 S.W.2d 255 (Tex.1974); Wood v. Kane Boiler Works, 150 Tex. 191, 201, 238 S.W.2d 172, 178 (1951); Biscayne Texas Properties v. Miner, 502 S.W.2d 225 (Tex.Civ.App.1973, writ ref’d n. r. e.); Noel: Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand.L.Rev. 93, 126 (1972).

This is to say that a plaintiff may have elected from some alternatives to face the danger without being barred from subsequent recovery, but it does not mean that a fact issue of reasonableness is always an element of the defense. No decision has been made by this Court to rule the case where the defendant manufacturer should have anticipated that the dangerous design would cause physical harm to one in the course of use similar to that which caused plaintiff’s injury and notwithstanding the plaintiff user’s knowledge of the danger. See generally Bolm v.

Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644, 305 N.E.2d 769 (1973); Patten v. Logemann Bros. Co., 263 Md. 364, 283 A.2d 567 (1971); Bexiga v. Havir Manufacturing Corp., 60 N.J. 402, 290 A.2d 281 (1972); Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970); Twerski, Old Wine in a New Flask—Restructuring Assumption of Risk in The Products Liability Era, 60 Iowa L.Rev. 1 (1974). We then move to the question of whether an issue of assumption of risk was raised by the evidence in this case, understanding that under the Texas cases the inquiry is whether Mrs.

Henderson voluntarily exposed herself to the risk with knowledge and appreciation of the danger. Ellis v. Moore, 401 S.W.2d 789 (Tex.1966); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449 (1959); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953). We hold that defendants have no evidence to point to in this record which could raise the issue of voluntary encounter with the danger. From the first sign of malfunction to the crashing finale, Mrs.

Henderson was steering and braking as best she knew to avoid the danger and do the least harm. There is no evidence that she knew of means by which she could avoid the danger, if any means did exist. There is no indication in the evidence that she chose to drive her automobile any longer or farther than she could avoid or that she elected to re-encounter the danger.

It is no defense to strict liability to show that the driver was negligent in not turning off the car ignition (and struggling with manual steering) or in not moving the transmission control to neutral (when she did not know that this was possible while the car was underway). A negligent failure to choose the-best escape from the throes of peril is not a voluntary encounter with the danger. DESIGN DEFECT The applications for writ of error were originally granted because we agreed with the contentions of the plaintiff on the issues discussed above.

Our study of the record now leads us also to agree with the defendants in their contention that no case of liability has been made against them. Both defendants sought judgment non ob-stante veredicto in the trial court and, through points of error' before the Court of Civil Appeals and in applications for writ of error in this Court, have continued to contend that there is no evidence of a design defect. The merit of their position is inescapable.

After failing to find that the gasket on the Henderson vehicle was defectively installed, the jury found “that the design of the air filter housing used on the 1968 Lincoln 462 Series in question was defective.” There is no evidence in this record to support that finding. The car manufacturer and its dealer are liable for unreasonably dangerous products — whether designed defectively or improperly and produced as designed, or whether designed perfectly but improperly or defectively produced. Ford Motor Co. v. Russell & Smith Ford Co., 474 S.W.2d 549 (Tex.Civ.App.1972, no writ); Garcia v.

Sky Climber, Inc., 470 S.W.2d 261 (Tex.Civ.App.1971, writ ref’d n. r. e.); Pizza Inn v. Tiffany, 454 S.W.2d 420 (Tex.Civ.App.1970, no writ); Franks v. National Dairy Products Corp., 282 F.Supp. 528 (W.D.Tex.1968); Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill.2d 339, 247 N.E.2d 401 (1969); Keeton: Products Liability—Liability Without Fault and the Requirement of a Defect, 41 Texas L.Rev. 856 (1963); Keeton: Product Liability and the Meaning of Defect, 5 St.

Mary’s L.J. 30 (1973); Traynor: The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn.L.Rev. 363 (1965); Keeton: Manufacturer’s Liability: The Meaning of “Defect” and the Manufacture and Design of Products, 20 Syracuse L.Rev. 559 (1969); Dickerson: Products Liability: How Good Does a Product Have to Be?, 42 Ind.L.J. 301 (1967). There is surely evidence in this record that on April 15, 1969, when Mrs. Henderson started her trip, her automobile was dangerous — and evidence that the gasket beneath the air filter housing was then dangerous.

The question is whether this filter housing, and all housings of the same design, were unreasonably dangerous from the time of installation. Did some feature of the form or material or operation of the housing threaten harm to persons using the automobile to the extent that any automobile so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risks involved in its use or to the extent that the automobile would not meet the reasonable expectations of the ordinary consumer as to its safety? Dr.

William Tonn, an engineer and expert witness for the plaintiff, testified unequivocally that he had no criticism of the design of the carburetor and gasket and air filter housing. Dr. Douglas Muster, Professor of Engineering at the University of Houston, also a witness for the plaintiff, testified at some length to his reasons for believing that the gasket had not been properly installed during production of the car.

As for the design itself, he would only say that it was his opinion that positioning of the gasket on top of the carburetor “would be better” than this installation on the bottom of the filter housing. He objected to the straight side edge of the housing adjacent to the rubber gasket, which he thought would have a tendency to be cut if dislocated, but he would not term the latter design as unsafe or dangerous. He also stated that he saw no reason why the rubber gasket would not be expected to remain in place throughout the life of the car if the gasket were properly installed.

All testimony in the record relative to glue on the gasket, and the process by which it was applied, was elicited on the issue of whether the gasket was installed properly during manufacture. The glue was applied into the groove and the gasket was then fixed there. The piece of gasket which the witness LaRue said that he retrieved from this carburetor showed glue along its entire length. There is no evidence of Ford’s failure, by design or in production of the Henderson car, to apply sufficient glue to hold the gasket in place after being properly fixed in the groove.

After studying this record carefully and viewing the evidence in favor of the jury finding and trial court judgment, we conclude that there is no evidence of danger or lack of reasonable safety in the design itself. One witness says that the design could be better and that an edge or ridge has a tendency to cut a softer object bound across it. Liability is not predicated upon such bare criticism. The same statements could be made about reasonably safe products, for few machines within our ability to purchase could not be designed “better” in some respect.

This determination will not suffice as a predicate for a finding of improper or defective design and a basis for liability of the manufacturer. Garst v. General Motors Corp., 207 Kan. 2, 484 P.2d 47 (1971). Ford engineers testified that the 462 model air filter housing design was changed at the time of an overall engine change in 1968. They described the 462 design as superior and more expensive to produce than the successor scheme which used a loose gasket rather than one fixed on the underside of the air filter housing.

Over 300,000 Lincolns have been produced with the older design and it has been used on over 1,500,000 vehicles. These witnesses testified that they had no notice of any prior claim that the earlier design caused a malfunction or any problem caused by torn pieces of the gasket.

The purchaser of an automobile is entitled to expect that its manufacturer has designed the vehicle to meet the demands of its usage without deficiencies that will make it unreasonably dangerous during the course of that usage, but the manufacturer is not charged by the law nor expected by the purchasing public to design every part to be the best that science can produce or to guarantee that no harm will befall the user.

This particular Lincoln Continental had been driven across the United States; no attempt was made to prove all the instances when this filter housing had been removed or all of the hands that had touched the gasket. The jury found that the design defect of the air filter housing was the producing cause of Mrs. Henderson’s accident. Perhaps the jury concluded that a piece of rubber did lodge in the carburetor, causing the malfunction, and that this errant piece of rubber resulted from the manner in which the air filter housing was designed.

But why would a gasket glued into a groove on the underside of the filter housing be more likely to get into the carburetor than a separate gasket that is placed on the carburetor housing for the filter housing to sit upon? The evidence gives no answer- — -only silence. The probabilities of entanglement may favor the loose gasket.

When a former Snelling mechanic was asked — if the gasket were properly installed — whether the filter housing could be removed “hundreds and thousands of times without ever doing any harm to the gasket,” he answered: “I would think so.” And plaintiff’s attorney then agreed: "I would, too.” But aside from pure speculation, there was no expert testimony or other evidence to support the finding of the jury that the 462 model Lincoln Continental air filter housing was so designed as to be unreasonably dangerous. The judgments are reversed; judgment is here rendered that plaintiffs take nothing from defendants.