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Johnson v. Auto Handling Corp.

Supreme Court of Missouri, En Banc

June 27, 2017

ROBERT L. JOHNSON, Respondent/Cross-Appellant,
v.
AUTO HANDLING CORPORATION, Cross-Respondent, and COTTRELL, INC., Appellant/Cross-Respondent.

         Appeal from the Circuit Court of St. Louis County Honorable Thomas J. Prebil, Judge

          Laura Denvir Stith, Judge

         Defendant Cottrell, Inc., appeals a jury verdict entered in favor of the plaintiff, Robert Johnson, in a products liability case, on his claims of negligence and strict liability failure to warn. Mr. Johnson cross-appeals, challenging the exclusion of evidence of other Cottrell accidents and a directed verdict in favor of the other defendant, Auto Handling Corporation, on all of his claims.

         The trial court erred in granting a directed verdict to Auto Handling, as Mr. Johnson made a submissible case that Auto Handling negligently inspected and maintained the tractor trailer driven by Mr. Johnson. The trial court also erred in submitting Mr. Johnson's negligence claims against Cottrell based on MAI 17.02 rather than MAI 25.09, which is mandatory for use where, as here, the plaintiff alleges negligent manufacturing, design, or warning about a product defect that caused plaintiff's accident and injuries. It further erred in submitting the negligence instruction because it allowed the jury to find for Mr. Johnson based on evidentiary rather than ultimate facts. For these reasons, the trial court's judgment is reversed and the case is remanded.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Johnson was employed by Jack Cooper Transport Company, Inc., as a vehicle hauler - the driver of a tractor trailer that transported new automobiles. The trailer was manufactured by Cottrell. In his amended petition, Mr. Johnson alleged an accident occurred in the early morning hours of July 3, 2007, involving the chain and ratchet system on the trailer used to "tie-down" vehicles being transported on the trailer.

         On the morning of the accident, Mr. Johnson's pre-driving inspection revealed a loose "tie-down" chain on one of the vehicles being transported. As he attempted to tighten the chain, the idler through which it was threaded broke, suddenly releasing tension on the chain and causing Mr. Johnson to fall onto his tailbone, causing him pain and injury. Mr. Johnson subsequently sought medical care for back pain resulting from the accident. He was diagnosed with a herniated lumbar disk that was repaired by surgery, a discectomy, in January 2008. Mr. Johnson also sustained other injuries both before and after the idler accident, [1] but the record contains substantial evidence he has not recovered from the back injury caused, in whole or in part, by the idler accident.

         Mr. Johnson brought this action against Cottrell, the manufacturer of the trailer. He claimed the accident was caused by an idler weld and a manual chain and ratchet system negligently designed by Cottrell so as to require the use of more force in securing the vehicles than the design of the system and the strength of the weld on the idler could withstand. He also alleged Cottrell gave inadequate warnings as to the risks involved in using the idler as designed. Additionally, he variously claimed that Cottrell was negligent in failing to review, analyze, and communicate industry injury and testing data related to the chain and ratchet tie-down system to his employer.

         Mr. Johnson also sued Auto Handling, a company contracted by Jack Cooper to maintain and repair the tractor trailers, alleging negligent inspection and maintenance of the trailer, negligent repair of the idler, and negligent failure to warn as to the allegedly dangerous design of the original idler weld and of the repair weld.

         Jack Cooper had truck transport terminals located near auto manufacturing plants across the country. Many of these terminals, including the Fairfax terminal near Kansas City, Kansas, used exclusively Jack Cooper mechanics, but three of the terminals, including the Wentzville, Missouri, terminal, employed only Auto Handling mechanics.

         At trial, Mr. Johnson presented expert testimony from Dr. Gerald Micklow. Dr. Micklow testified Cottrell's weld on the broken idler was defective in design because it was a metal inert gas (MIG) weld. He testified MIG welds are more superficial than other types of welds; while a MIG weld creates a nicer surface for painting, it can result in an inadequately weak attachment when used in a manual chain and ratchet system such as that designed by Jack Cooper.

         Dr. Micklow also testified the manual chain and ratchet tie-down system used on the trailer required force greater than what the welds can withstand when properly tightened. According to Dr. Micklow, safer alternative designs have been available for at least 20 years. This conclusion was based on industry reports, testing data, and prior patent applications submitted by various entities, including Cottrell itself.

         Dr. Micklow further testified that at an unknown point the Cottrell MIG weld in question had been repaired using an arc welder. An "arc weld" provides a stronger, though lumpier, weld because it fuses metals at a deeper thickness. But, according to Dr. Micklow, as supported by Mr. Johnson's photographic evidence, this arc weld was negligently made because it went only partially around the circumference of the idler, leaving a weak spot at the bottom of the idler which was attached to the trailer only by the more superficial original MIG weld. Dr. Micklow said the bottom of the idler is the part that sustains the most stress when a vehicle is being secured, and the idler failure began at this weak spot.

         Mr. Johnson presented evidence that Auto Handling knew or should have known about the alleged defects in the design of the manual chain and ratchet system in general, the idler in particular, and the defective attempt to repair the idler with a bad arc weld, and that it failed to warn him or his employer about these defects. He also attempted to show that Auto Handling itself had made the defective arc weld repair attempt. Auto Handling denied it performed the weld repair, denied it undertook any duty to warn of flaws in a chain and ratchet system it took no part in designing, and denied it undertook inspection for other defects. At the conclusion of Mr. Johnson's case the trial court directed a verdict in favor of Auto Handling on all of Mr. Johnson's theories against it.

         The trial court denied Cottrell's motion for directed verdict. It found Mr. Johnson made a submissible case against Cottrell on his claims of negligence, strict liability product defect, and strict liability failure to warn as to the allegedly defective idler and manual chain and ratchet system. It overruled Cottrell's objections that Instruction 10, the negligence instruction offered by Mr. Johnson, was improperly based on MAI 17.02 rather than on MAI 25.09, and the case was submitted only against Cottrell.

         The jury returned a verdict in favor of Cottrell on Mr. Johnson's strict product liability claim involving the allegedly defective idler and chain and ratchet system. Mr. Johnson does not appeal that verdict, and this Court does not further address it. The jury returned verdicts in favor of Mr. Johnson on his claims against Cottrell of negligence as submitted in Instruction 10 and of strict liability failure to warn as submitted in Instruction 13 in regard to the broken idler and chain and ratchet system. The jury found Cottrell 55 percent at fault and Mr. Johnson 45 percent at fault on the negligence submissions in Instruction 10, and Cottrell 49 percent at fault and Mr. Johnson 51 percent at fault on his strict liability failure to warn claim. The jury found Mr. Johnson suffered damages of $2, 091, 513.45 from the idler accident.

         The trial court overruled Cottrell's motion for judgment notwithstanding the verdict and for new trial based on alleged errors in Instruction 10. The trial court did not enter judgment based on the finding in Mr. Johnson's favor in Instruction 13. It entered judgment against Cottrell only on the negligence verdict submitted in Instruction 10 because the jury found Mr. Johnson only 45 percent at fault on his negligence claims. Accordingly, the trial court reduced the jury's damage verdict by 45 percent and entered judgment against Cottrell on the negligence verdict for $1, 150, 332.40. Cottrell appealed the judgment, and Mr. Johnson cross-appealed the directed verdict in favor of Auto Handling. After decision by the court of appeals, this Court granted transfer.

         II. STANDARD OF REVIEW

         Review of the trial court's decision to sustain or overrule a motion for directed verdict depends on "whether the plaintiff made a submissible case." Dodson v. Ferrara, 491 S.W.3d 542, 551 (Mo. banc 2016). And "[w]hether the plaintiff made a submissible case is a question of law" this Court reviews de novo. Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011). "Whether a jury is properly instructed is a matter of law" this Court also reviews de novo. Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 90 (Mo. banc 2010).

         III. PLAINTIFF MADE A SUBMISSIBLE CASE AGAINST AUTO HANDLING ON THE THEORY OF NEGLIGENT MAINTENANCE AND INSPECTION

         A case is submissible when each element essential to liability is supported by legal and substantial evidence. Dodson, 491 S.W.3d at 551. This Court "views the evidence in a light most favorable to the plaintiff, " including "all reasonable inferences while disregarding all contrary evidence and inferences." D.R. Sherry Const. v. Am. Family Mut. Ins., 316 S.W.3d 899, 904 (Mo. banc 2010).

         To make a submissible case for negligence, a plaintiff "must plead and prove that the defendant had a duty to protect [him] from injury, that the defendant breached that duty, and that the defendant's failure directly and proximately caused her injury." Robinson v. Health Midwest Dev. Grp., 58 S.W.3d 519, 521 (Mo. banc 2001). Mr. Johnson's claims of negligence against Auto Handling were: negligent repair of the idler with a defective arc weld; negligent failure to warn of the dangerous nature of Cottrell's manual chain and ratchet system; and negligent inspection and maintenance of the trailer by Auto Handling.

         A. Defective Arc Weld Theory

         The trial court did not err in directing a verdict in favor of Auto Handling on Mr. Johnson's claims that it made the defective arc repair weld. The evidence at trial showed Jack Cooper produced and kept a set of maintenance and repair records for all of the tractor trailers in its fleet, including the one driven by Mr. Johnson. Each time repair or maintenance was performed, the records included: the date, a code identifying the driver, a code identifying the tractor trailer (either the tractor or trailer code or both), the odometer reading, the location of the repair facility (which would identify whether it was a terminal that employed exclusively Auto Handling or Jack Cooper mechanics), and codes pertaining to the type of work done. Dr. Micklow testified he reviewed the complete set of records for the tractor trailer and found no record of any repair arc weld being made on the idler in question prior to the accident, even though he said his examination showed that an inadequate repair arc weld in fact had been made over the original allegedly inadequate MIG weld.

         Mr. Johnson testified he had been the driver of this tractor trailer since 2004, just after it was put into service by Jack Cooper, and he was familiar with its maintenance and repair history. Mr. Johnson testified that all of his repairs were done at Jack Cooper terminals either by Jack Cooper mechanics or Auto Handling mechanics. His base terminal was in Fort Wayne, Indiana, but because that terminal had no repair facilities, the majority of repairs occurred at Jack Cooper's Fairfax location, which employed only Jack Cooper mechanics. He testified he sometimes brought the tractor trailer to the Wentzville, Missouri facility for preventive maintenance and repairs and Wentzville was one of the facilities employing only Auto Handling mechanics. Another hauler also testified Auto Handling mechanics at the Wentzville terminal performed "an enormous amount" of repairs to Cottrell idlers.

         Mr. Johnson said Jack Cooper repairs were always recorded in the maintenance records, but he knew of at least one occasion when Auto Handling made repairs on his tractor trailer without recording them. He concluded that if any repair was made without being documented, it was most likely performed by Auto Handling.

         Dr. Micklow and Mr. Johnson both testified that Jack Cooper's records did not document a repair to the idler. In fact, although Mr. Johnson claimed he knew all about his tractor trailer and all repairs made on it, he also testified he had been unaware of the arc weld repair to the idler, and he was not familiar with Jack Cooper's repair and maintenance records system and had never seen the repair and maintenance records prior to this litigation. In light of these facts, his speculation that Auto Handling must have made the repair weld because there would have been a record of it if the repair had been made by Jack Cooper and he did not think anyone else would have repaired the tractor trailer was just that, speculation. The jury would have no method other than speculation to determine whether Auto Handling made the arc repair weld. The trial court, therefore, did not err in directing a verdict for Auto Handling on this theory.[2]

         B. Duty of a Supplier Under Restatement (Second) of Torts ...


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