Court upholds Arkansas Bus in product liability case

Journal Record, The (Oklahoma City), Mar 8, 2001

The following summaries of state and 10th Circuit court opinions were compiled by Anthony Sammons.

Oklahoma Supreme Court

For the week ended March 6

Jack Allenberg, Surviving next-of-kin of Ava Pattee Allenberg, deceased, vs. Bentley Hedges Travel Services Inc., Bentley Hedges Park & Fly Inc., Lowell Hite Arvieux, and Arkansas Bus Exchange Corp., No. 95,400.

On July 16, 1997, Bentley Hedges Travel arranged transportation to the airport for Ava Pattee Allenberg and her daughter, Gwinn Norman, in a used shuttle bus it had purchased from the appellee, Arkansas Bus Exchange. While en route to the airport, the bus collided with other vehicles in an intersection. The bus was not equipped with seat belts, and the passengers were flung from their seats and injured in the collision. Ava Allenberg died a few days after the accident. On Feb. 19, 1998, Gwinn Norman, filed a lawsuit on her own behalf and another lawsuit as the personal representative of her mother's estate. She sued Bentley Hedges Travel and the driver of the bus alleging that they were negligent. She also sued Arkansas Bus alleging that it had distributed and sold a defective, unreasonably dangerous shuttle bus because the bus was not equipped with seat belts, adequate handholds, or secured luggage compartments. Bentley Hedges and the bus driver were later dismissed from the lawsuit. Arkansas Bus filed answers in both cases, denying the allegations and asserting that it could not be liable because it did not manufacture, design, or produce the bus, nor did it alter, change or modify the bus in any way from its original condition. While the lawsuit progressed, Gwinn Norman died of causes unrelated to the accident and her brother, Jack Allenberg (estate representative), was substituted as surviving next-of-kin of Ava Allenberg. On Aug. 16, 2000, both cases were consolidated for trial. However, on Sept. 27, 2000, the trial court entered judgment in favor of Arkansas Bus, finding that the shuttle bus was a used vehicle when the bus exchange purchased it and that it did not alter, modify, rebuild or restore the bus. The estate representative appealed.

On appeal, the issue of first impression before the court was whether the commercial seller of a used product can be subjected to manufacturer's products liability for alleged defects not created by the seller, and if the product is sold in essentially the same condition as when it was acquired for resale. Oklahoma adopted the theory of manufacture's products liability in Kirkland vs. General Motors, 521 P.2d 1353 (Okla. 1974). The Kirkland teaching is that the seller of a product in a defective condition, which is unreasonably dangerous to the user or consumer, is strictly liable for the physical harm to the person or property caused by the defect. Although the court had extended manufacture's products liability to retailers, dealers or distributors, importers, and lessors, through case law, the court ruled that manufacturer's products liability should not extend to commercial sellers of used products when the alleged defect was not created by the seller, and the product was sold in essentially the same condition as when it was required for resale. In its ruling, the court joined the majority view. The court based its decision on the fact that the alleged defects were created by the manufacture and not Arkansas Bus.

Oklahoma Court of Civil Appeals

For the week ended March 6

Jerry King vs. Pillsbury Bakery, Lumberman's Mutual Casualty and the Workers Compensation Court, No. 95,298.

Jerry King (Claimant) filed his Form 3 in the Workers Compensation Court, alleging he injured both knees in a cumulative injury, arising out of and in the course of his employment with Pillsbury Bakery Co. Claimant testified that he left work on the last day with employer because of pain in his shoulders. Claimant also admitted that there was no mention of any problems with his knees at any time before he left. The trial court entered an order denying the claim. In its order, the trial court ruled that claimant failed to meet his burden of proof and failed to meet his burden of persuasion. American Management Systems, Inc. vs. Burns, 903 P.2d 288 (Okla. 1995). Claimant appealed.

An employer is not required to prove a claimant's injuries did not arise out of and in the course of his employment. See Collins vs. Halliburton Services, 804 P.2d 440 (Okla. 1990). Moreover, the court is not required to accept as credible every portion of Claimant's evidence, even if it is claimed to have been uncontroverted. Bittman vs. Boardman Co., 560 P.2d 967 (Okla. 1977). If Claimant's own testimony creates an impression of improbability of the facts to which he testified, the court may disregard the evidence. Id. at 969. In the instant case, the court sustained the trial court's ruling that Claimant failed to meet his burden of persuasion.

Dolores Coulter, as personal representative of the estate of Marguerite D. Whitaker, deceased, vs. Carewell Corp. of Oklahoma, d/ b/a Rest Haven Nursing Home, No. 94,036.