ROBERT L. JOHNSON, Respondent/Cross-Appellant,
AUTO HANDLING CORPORATION, Cross-Respondent, and COTTRELL, INC., Appellant/Cross-Respondent.
from the Circuit Court of St. Louis County Honorable Thomas
J. Prebil, Judge
Denvir Stith, Judge
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.
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
FACTUAL AND PROCEDURAL BACKGROUND
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
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,
 but the record contains substantial
evidence he has not recovered from the back injury caused, in
whole or in part, by the idler accident.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
STANDARD OF 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
PLAINTIFF MADE A SUBMISSIBLE CASE AGAINST AUTO HANDLING ON
THE THEORY OF NEGLIGENT MAINTENANCE AND INSPECTION
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.
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.
Defective Arc Weld Theory
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.
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.
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.
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
Duty of a Supplier Under Restatement (Second) of Torts