Stahlecker v. Ford Motor Co.

667 N.W.2d 244

266 Neb. 601

Susan STAHLECKER and Dale Stahlecker, individually and as Special Administrators of the Estate of Amy M. Stahlecker, deceased, Appellants, v. FORD MOTOR COMPANY et al., Appellees.

No. S-02-1004.

Supreme Court of Nebraska.

August 8, 2003.

Richard J. Rensch, of Raynor, Rensch & Pfeiffer, P.C., Omaha, for appellants.

Daniel P. Chesire and Raymond E. Walden, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee Bridgestone/Firestone, Inc.

John A. Svoboda, Omaha, of Gross & Welch, P.C., and George E. Wolf and Paul A. Williams, of Shook, Hardy & Bacon, L.L.P., Kansas City, MO, for appellee Ford Motor Company.

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, Scottsbluff, for amicus curiae Nebraska Association of Trial Attorneys.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

This is a civil action for damages resulting from the injury and wrongful death of Amy M. Stahlecker (Amy). Appellants, Susan Stahlecker and Dale Stahlecker, parents of the deceased and special administrators of her estate, alleged that during the early morning hours of April 29, 2000, Amy was driving a 1997 Ford Explorer equipped with Firestone Wilderness AT radial tires in a remote area of western Douglas County, Nebraska, when one of the tires failed, rendering the vehicle inoperable. They further alleged that Richard Cook encountered Amy "alone and stranded" as a direct result of the tire failure and that he assaulted and murdered her. The Stahleckers brought this action against Ford Motor Company (Ford), the manufacturer of the vehicle; Bridgestone/Firestone, Inc. (Firestone), the manufacturer of the tire; and Cook. The district court for Dodge County sustained demurrers filed on behalf of Ford and Firestone and dismissed the action as to those parties. We affirm.

BACKGROUND

In their operative petition, the Stahleckers alleged that on the date of her death, Amy had been driving the Ford Explorer with the permission of its owner when one of the Firestone tires mounted on the vehicle "failed ... causing the components of the tire to separate causing the Ford Explorer to be inoperable." There is no allegation that Amy sustained any injury as a result of the tire failure itself. Rather, the Stahleckers alleged that immediately after the vehicle became inoperable, Cook "found Amy alone and stranded as a direct result of the failure of the [t]ire and proceeded to abduct, terrorize, rape and murder" her.

The Stahleckers alleged that the failure of the tire "was caused by a defect in the design and/or manufacturing process and/or recommended tire air pressure use" and that Ford and Firestone, as the manufacturers of the vehicle and tire, knew or should have known that their products would be used without close expert testing or inspection. The Stahleckers further alleged that "long before April 29, 2000," Ford and Firestone had actual knowledge of "the defective nature of the Ford Explorer's Firestone tires and their propensity to unexpectedly blow out causing wide-ranging results that included stranding and rollovers." The Stahleckers alleged that Ford and Firestone withheld this knowledge from consumers and the general public and advertised the Ford Explorer equipped with Firestone tires as "dependable when used under similar circumstances as Amy was using them during the early morning hours of April 29, 2000." They alleged:

[I]t was further promoted and generally understood that the vehicle and tires would help protect its consumers, such as Amy, from encountering dangerous situations which could invite criminal behavior, such as might be encountered in dark parking lots at night or during breakdowns in remote areas and from weather related acts of God, such as blizzards, heavy rain or extreme heat in arid country.

The Stahleckers alleged:

While the specific act of rape and murder of Amy Stahlecker by ... Cook may not necessarily have been foreseeable by Defendants Ford and Firestone, the potential for similar dangerous situations arising as a result of a breakdown of a Ford Explorer and/or its tires resulting in danger to its consumers and users from criminal activity, adverse weather conditions, inability to communicate with others or any combination thereof, were known and/or should have been known to Defendants Ford and Firestone. This knowledge is evidenced by some of their promotions, advertisements and incorporated design features.

They further alleged:

[The Stahleckers] have reason to believe that at all times material hereto Defendant Ford and Defendant Firestone knew, or, in the exercise of sound safety engineering and marketing of its products knew or should have known that people similarly situated to Amy would rely upon the Ford Explorer and its Firestone tires dependability when those consumers and users would make decisions regarding encountering circumstances of travel in incl[ement] weather or other dangerous circumstances and locations such as those locations and circumstances encountered by Amy Stahlecker on April 29, 2000. Further, [the Stahleckers] have reason to believe that Defendant Ford and Defendant Firestone had or should have had knowledge, to include statistical information, regarding the likelihood of criminal conduct and/or sexual assault against auto and tire industry consumers as a result of unexpected auto and/or tire failures in general.

The Stahleckers alleged four separate theories of recovery against Firestone and Ford, including negligence, res ipsa loquitur, strict liability, and breach of implied warranty. They also sought recovery from Cook on an intentional tort theory, but no aspect of that claim is before us in this appeal. The damages claimed against all defendants included compensation for

the mental and physical suffering experienced by Amy prior to her death as a result of being abducted, terrorized, raped and murdered and the damages sustained by the [the Stahleckers] for their deprivation of Amy's aid, advice, affection, comfort, assistance, society, companionship and love along with their deprivation of Amy's future contribution to their care, support and maintenance.

The Stahleckers also claimed unspecified general damages and costs.

The district court sustained demurrers filed by Ford and Firestone in response to the Stahleckers' original petition, focusing upon "the issue of whether or not the tortious and criminal acts of Cook were reasonably foreseeable by Ford and ... Firestone." The court reasoned that while Cook's actions were "independent and intervening and operated upon a situation" allegedly created by the tire failure, that "if Ford and ... Firestone had no reason to expect intentional tortious or criminal acts by a third person, they are not liable under Nebraska law for the harm caused thereby, even though their negligence afforded the opportunity for such conduct to occur." The court held that a "general awareness on the part of Ford and ... Firestone ... that there are bad people in society who do bad things" was insufficient to establish foreseeability. The Stahleckers were granted leave to amend.

The Stahleckers filed an amended petition, which included the allegations we have quoted and paraphrased above. Ford and Firestone again filed demurrers asserting that the amended petition failed to state facts sufficient to constitute a cause of action against them. The district court sustained these demurrers and dismissed the causes of action against Ford and Firestone without leave to amend, reasoning that the amended petition failed to state causes of action against Ford and Firestone "due to the lack of foreseeability of the actions of [Cook]." In a subsequent order, the district court directed entry of final judgments in favor of Ford and Firestone. The Stahleckers perfected this timely appeal from those judgments and successfully petitioned to bypass the Nebraska Court of Appeals.

ASSIGNMENTS OF ERROR

The Stahleckers assign, restated, that the district court erred in sustaining the demurrers filed by Ford and Firestone and in dismissing the action as to those parties without leave to amend.

STANDARD OF REVIEW

In an appellate court's review of a ruling on a demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Regier v. Good Samaritan Hosp., 264 Neb. 660, 651 N.W.2d 210 (2002); McCormick v. City of Norfolk, 263 Neb. 693, 641 N.W.2d 638 (2002).

ANALYSIS

In order to withstand a demurrer, a plaintiff must plead a statement of "facts sufficient to constitute a cause of action." Neb.Rev.Stat. § 25-806(6) (Reissue 1995). We have interpreted this phrase to mean "a narrative of events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff." Regier v. Good Samaritan Hosp., 264 Neb. at 664, 651 N.W.2d at 213. In determining whether a cause of action has been stated, a petition is to be construed liberally; if, as so construed, the petition states a cause of action, the demurrer is to be overruled. McCarson v. McCarson, 263 Neb. 534, 641 N.W.2d 62 (2002); Malone v. American Bus. Info., 262 Neb. 733, 634 N.W.2d 788 (2001). The petition alleges that both Ford and Firestone are liable for the injury and wrongful death of Amy under alternative theories of negligence, res ipsa loquitur, strict liability, and breach of implied warranty.

Res ipsa loquitur is a qualification of the general rule that negligence is not to be presumed. Bargmann v. Soil Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998); Roberts v. Weber & Sons, Co., 248 Neb. 243, 533 N.W.2d 664 (1995). However, it is clear that if specific acts of negligence are alleged or there is direct evidence of the precise cause of the accident, the doctrine of res ipsa loquitur is not applicable. Bargmann v. Soil Oil...