Notes and Comments
The Suzuki Samurai gained an infamous reputation of being an unsafe car and prone to a rollover after Consumer Reports,the magazine arm of Consumers Union,reported that during a 1988 test on the short course avoidance maneuver(Consumer Union Short Course Double Lane Change,or CUSC for short),the Samurai experienced what they deemed as an unacceptable amount of roll-over while undertaking the severe turn.The roll-over which CU deemed unacceptable stemmed from the sudden swerve simulation part of the test where,for example,a car backs out of a driveway or drives forward from a side street or intersection and into traffic,causing the driver to unexpectedly swerve to avoid hitting the object that is obstructing the drivers path.
A Suzuki Samurai 1992
The dispute and eventual lawsuit stemmed from the CR statement easily rolls over in turns,which CR attributed to the sudden swerve test,and not meant to generally apply to the Samurai in retrospect to other tests that CR undertakes to simulate normal routine driving such as 0～60 m.p.h.acceleration and stopping.However,the use of the adverb easily may have been misconstrued or misunderstood by others to indicate that the Samurai was inherently an unsafe car prone to roll-overs in any sort of driving conditions.
Suzuki sued on the grounds that the statements made by CU damaged their reputation and the reputation of their vehicles in 1996.Suzuki sued for $60 million in damages and unspecified punitive damages for what Suzuki claimed was willful fraudulent testing.However,after an 8-year legal battle and several dismissals of Suzuki’s claims against CR in Federal courts,both sides settled out of court through mutual consent in 2004.
In the settlement,CR agreed to mention the agreement that it “never intended to imply that the Samurai easily rolls over in routine driving conditions.”And it notes that it “never questioned the safety of any other Suzuki model” and,in fact,“praised the Suzuki Sidekick and recommended the Suzuki Vitara/XL-7.”This agreement is noted whenever mention of the Suzuki Samurai is made in any media CR publishes,such as Used Car guides and even website searches on their website.
[1]See,Jeremiah Smith,Tort and Absolute Liability,30 HL Rv.328;Street,FOUNDATIONS OF LEGAL LIABILITY vol.1,pp 77,78.
[2]The facts here do not oblige us to decide whether the Shiras and Continental could successfully invoke Palsgraf against claims of owners of shore-side property upstream from the Concrete Elevator or of non-riparian property other than the real and personal property which was sufficiently close to the bridge to have been damaged by the fall of the towers.
[3]The contrasting situation is illustrated by the familiar instances of the running down of a pedestrian by a safely driven but carelessly loaded car,or of the explosion of unlabeled rat poison,inflammable but not known to be,placed near a coffee burner.Larrimore v.American Nat.Ins.Co.,184 Okl.614(1939).Exoneration of the defendant in such cases rests on the basis that a negligent actor is responsible only for harm the risk of which was increased by the negligent aspect of his conduct.
This principle supports the judgment for the defendant in the recent case of Doughty v.Tuner Mfg.Co.,[1964] 2.W.L.R.240 (C.A.).The company maintained a bath of molten cyanide protected by an asbestos cover,reasonably believed to be incapable of causing an explosion if immersed.An employee inadvertently knocked the cover into the bath,but there was no damage from splashing.A minute or two later an explosion occurred as a result of chemical changes in the cover and the plaintiff,who was standing near the bath,was injured by the molten drops.The risk against which defendant was required to use care – splashing of the molten liquid from dropping the supposedly explosion proof cover – did not materialize,and the defendant was found not to have lacked proper care against the risk that did….[I]f as indicated in Lord Pearce’s judgment,the plaintiff was not within the area of potential splashing,the case parallels Palsgraf….
[4]An instance is In re Guardian Casualty Co.,253 App.Div.360,2 N.Y.S.2d 232 (1938),where the majority gravely asserted that a foreseeable consequence of driving a taxicab too fast was that a col-li sion with another car would project the cab against a building with such force as to cause a portion of the building to collapse twenty minutes later,when the cab was being removed,and injure a spectator twenty feet away.Surely this is “straining the idea of foreseeability past the breaking point,” Bohlen,Book Review,47 Harv.L.Rev.556,557 (1934),at least if the matter be viewed as of the time of the negligent act,as the supposedly symmetrical test of the Wagon Mound Demands,[1961] 1 All Eng.R.at 415.On the other hand,if the issue of foreseeability is viewed as of the moment of impact,see Seavey,Mar.Justice Cardozo and the Law of Torts,52 Harv.L.Rev.372,385 (1939),the test loses functional significance since at that time the defendant is no longer able to amend his conduct so as to avert the consequences.
[5]In a recent case,workmen who had adjourned for their tea-break on a November afternoon left paraffin lamps as warnings around a tent covering an open manhole.Two boys determined to explore the manhole,using a ladder lying nearby;after they had performed this successfully,one of the lamps fell or was kicked into the manhole,an explosion occurred,and a boy fell in and suffered burns,particularly from applying his fingers to the hot rungs of the ladder.The Court of Sessions affirmed a defendant’s judgment in deference to The Wagon Mound.The House of Lords reversed,their lordships explaining that this was not different from “the type or kind of accident … or occurrence that could reasonably have been foreseen.” They stated that “The fact that the features or developments of an accident may not reasonably have been foreseen does not mean that the accident itself was not foreseeable”;that “[i]n order to establish a coherent chain of causation it is not necessary that the pr-e cise details leading up to the accident should have been reasonably foreseeable;” and that “to demand too great precision in the test of foreseeability would be unfair … since the facets of misadventure are innumerable.” This comes very close to saying that where the damage was of the sort that was risked,foreseeability is not required.