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Ford v. Ford Motor Co.

Court of Appeals of Missouri, Western District, Second Division

June 25, 2019

LISA ANN FORD and DAVID JACOB FORD, Respondents,
v.
FORD MOTOR COMPANY, Appellant.

          Appeal from the Circuit Court of Clay County The Honorable Janet L. Sutton, Judge.

          Before Edward R. Ardini, P.J., and Alok Ahuja and Gary D. Witt, JJ.

          Alok Ahuja, Judge.

         David Ford's wife and son (the "Plaintiffs") brought a wrongful death suit against Ford Motor Company after Mr. Ford died as a result of injuries he suffered while working as a contractor at Ford Motor's Kansas City Assembly Plant. Mr. Ford was delivering vehicle seats to the plant when he was crushed between a stationary guard rail and a moving piece of machinery. The Plaintiffs alleged that Ford Motor was negligent for failing to remove or barricade the dangerous pinch point, or to effectively warn visitors of its existence. After an eight-day trial in the Circuit Court of Clay County, a jury found Ford Motor to have 95% comparative fault for Mr. Ford's injuries, and awarded the Plaintiffs $38 million in compensatory damages. The jury awarded the Plaintiffs an additional $38 million in aggravating circumstances damages.

         Ford Motor appeals. It argues that the circuit court erred by:

(1) preventing a key Ford Motor witness from testifying because he had not been adequately disclosed during discovery;
(2) failing to direct a verdict for Ford Motor on the basis that Mr. Ford was a trespasser in the part of the plant where he was injured;
(3) refusing to submit an instruction requiring the jury to determine whether Mr. Ford was trespassing;
(4) failing to direct a verdict for Ford Motor on the basis that the pinch point presented an "open and obvious" danger;
(5) refusing to submit a jury instruction on the "open and obvious" issue;
(6) submitting an erroneous aggravating circumstances instruction; and
(7) admitting evidence of other incidents involving the equipment which caused Mr. Ford's injuries.

         We affirm.

         Factual Background[1]

         David Ford was killed when he was crushed by machinery in the Kansas City Assembly Plant operated by Ford Motor in Claycomo, where Ford Motor assembles its F-150 model pickup truck. Mr. Ford was not employed by Ford Motor. Instead, he worked as a delivery driver for Walkenhorst Transportation, a trucking company. Walkenhorst had contracted with Ford Motor to deliver vehicle seats (manufactured by Johnson Controls in Riverside) to the Claycomo plant.

         The Claycomo plant operated twenty-four hours a day, six days a week. Walkenhorst delivered seats to the plant in a constant loop, so that Ford Motor had an uninterrupted supply of seats during the entire duration of the assembly plant's operating hours. The seats delivered by Walkenhorst would be immediately integrated into the vehicle assembly process. On arrival at the Claycomo plant, Walkenhorst's delivery trucks would back into a loading dock, where pallets of seats were removed by a piece of equipment called a "seat stripper." The seat stripper consisted of an L-shaped pair of conveyor lines. The seat stripper operated in conjunction with a number of dual-pronged, ceiling-mounted carriers which resembled the mast system of a forklift. The carriers would pick up pallets of seats from a lift table at the end of one of the seat stripper's conveyor lines. The carriers would convey the pallets of seats to the assembly line so that the seats could be installed into trucks. Once the seats were delivered to the assembly line, the carriers would return the empty pallets to a lift table on the second conveyor line of the seat stripper. After the empty pallets were removed, the carriers crossed a gap between the lift tables at the end of the seat stripper's two conveyor lines, in order to pick up new pallets loaded with vehicle seats. A dangerous "pinch point" existed where the carriers traveled across the gap from one lift table to the other.

         Evidence indicated that the seat stripper was one of the oldest pieces of equipment in the plant at the time of Mr. Ford's injury. One of the Plaintiffs' experts testified that the seat stripper was "a cobbled-together and inferior piece of equipment." The testimony indicated that the seat stripper frequently jammed, and had to be cleared by repositioning seats or pallets. Even when the seat stripper and carrier system were not malfunctioning, the testimony indicated that the carrier system frequently and unpredictably stopped, sometimes for several minutes at a time, and then resumed operation without any type of warning to workers. One of the Plaintiffs' experts, Franklin Darius, testified that "[e]rratic motion or intermittent motion is much more dangerous than consistent motion"; he testified that "if [machinery] can stop for a long period of time and then suddenly move without warning, it'll catch people by surprise." Darius testified that, unless it was physically isolated from workers, the carrier system should have issued an audible and/or visible alarm whenever it resumed its motion: "[i]f there's a possibility of a human being [getting] caught off guard by the movement of the conveyor system, there must be an alarm of some type."

         Mr. Ford was injured at the Kansas City Assembly Plant on December 8, 2015. At the time, he had been delivering seats to the plant for only 13 days. While delivering seats on December 8, Mr. Ford entered the area between the seat stripper's two conveyor lines to manually clear a fault or jam in the system. After telling a Ford Motor employee that he had cleared the fault, Mr. Ford stepped into the "pinch point" between the lift tables. Mr. Ford was pinned against a stationary guard rail by one of the dual-pronged carriers crossing from one of the seat stripper's lift tables to the other. A forensic pathologist retained by Plaintiffs, Dr. Judy Melinek, testified that the amount of force inflicted on Mr. Ford was comparable to the force inflicted in a "high-velocity motor vehicle accident[ ]" at approximately fifty or sixty miles per hour, or when an individual falls from a four-story building.

         As a result of the crushing injury, Mr. Ford suffered fractures of his sternum, multiple ribs, and multiple thoracic vertebrae. The compression of Mr. Ford's thorax transected his inferior vena cava vein, and the vein had largely separated from the right atrium of his heart, causing massive bleeding in the pericardium, and compressing Mr. Ford's heart muscle. Mr. Ford underwent extensive open-heart surgery immediately following his injury.

         Dr. Melinek testified that the amount of "bone-crushing pain" Mr. Ford experienced at the time of the accident caused him to lose consciousness. Although sedated, Mr. Ford was responsive to his family members and "not completely unconscious" following his thoracic surgery. Mr. Ford's surviving spouse, Plaintiff Lisa Ford, testified that "[h]e was in a lot of pain" while hospitalized; she testified that, "[i]t's not anything that you ever want to see." Mr. Ford was on a ventilator from the time of his surgery until the time of his death. Mr. Ford died on December 15, 2015, as a result of the traumatic blunt-force injuries he sustained on December 8.

         On January 6, 2016, Mr. Ford's wife and son filed a wrongful death petition in the Circuit Court of Clay County against Ford Motor, in which they sought both compensatory and aggravating circumstances damages. The petition alleged that "[a]t all times relevant to this Petition, David Scott Ford was an invitee at the Ford Motor assembly plant." The petition alleged that the "conveyor belt and surrounding area of Ford Motor's assembly plant was not reasonably safe, in that it could cause serious injury to any person who was caught within the belt." The petition alleged that Mr. Ford's injuries were a "direct and proximate result of the negligence, carelessness, failure and violations of Ford Motor to exercise ordinary care . . . to remove the dangerous condition on its property and/or to warn visitors such as David Scott Ford of its existence."

         An eight-day jury trial was held beginning on February 13, 2018. At trial, a key issue was whether Mr. Ford was authorized to enter the seat stripper system or whether he was an unauthorized trespasser at the location where he was injured. Although Ford Motor presented several witnesses who testified that Walkenhorst drivers were not authorized to enter the seat stripper, Plaintiffs introduced evidence that Walkenhorst drivers routinely entered the machine, that Ford Motor expected the Walkenhorst drivers to clear jams in the seat stripper themselves without summoning Ford Motor employees, and that Ford Motor managers and employees were aware of this practice. Thus, David Martin, the former Head of Operations at Walkenhorst, testified that a delivery driver could "seldom get through a trailer load without having to [access the seat stripper area], and pull a pallet or something that would get lodged in there sideways or stuck." Martin testified that Ford Motor managers witnessed Walkenhorst's drivers accessing the interior portion of the seat stripper system, and that occasionally Ford Motor employees would assist the

          Walkenhorst drivers in fixing a seat stripper fault. Martin testified that Ford Motor employees had placed hooks, ladders, and poles at various locations near the seat stripper so that drivers could more easily fix a jam in the system, and that Ford Motor had even placed several chairs in the interior portion of the seat stripper for drivers to sit in as the seats from their trucks were unloaded.

         Walkenhorst driver Stephen Andrews testified that Ford Motor's maintenance employees expected delivery drivers to fix a stuck pallet or seat by freeing it with a hook, and that the Ford Motor employees would "get a little irritated" if they were called "to do this misdemeanor little thing that you guys could fix." Andrews said that Ford Motor employees routinely saw him standing on the interior of the seat stripper, but none of the employees ever reproached him, or told him not to access the seat stripper. Andrews said that he was instructed to "do whatever's necessary to keep the line moving, that's part of the service you provided to Ford [Motor]."

         Another delivery driver, Scott Brown, testified that he would sit on the inside of the seat stripper while his truck was unloading, so that he could more easily clear jams. Brown testified that he never shut down the machine before attempting to unclear a jam, nor did anyone ever train him on how to shut the seat stripper down. Brown said that one of his trainers told him, "Do whatever you got to do to keep the line going. If you can't get it fixed, hit the call button."

         Finally, Walkenhorst delivery driver Rick Allen testified that in his 14 years of experience, he would routinely enter the seat stripper in order to fix faults or jams. Allen estimated that, on average, he fixed jams in the seat stripper approximately ten times during a twelve-hour shift. Allen said that he would occasionally call the Ford Motor maintenance team for assistance in clearing a jam, but that the maintenance workers were "pretty slow," sometimes taking as long as thirty minutes to respond to a call. Allen testified that he never saw a sign that stated the seat stripper was for "authorized personnel only," nor was he ever warned not to enter the seat stripper system.

         Evidence was also presented at trial that other persons had been injured at the pinch point where Mr. Ford suffered his fatal injury, or had narrowly avoided injury. In 1996, just one year after the seat stripper was installed, the maintenance foreman of the plant, Stephen Bray, was caught in the pinch point and crushed, causing a broken rib. A nearby electrician hit a kill switch when he saw that Bray was pinned against the guard rail. If the electrician had not shut down the line, Bray acknowledged that he "wouldn't have walked away from it."

         Less than six months before Mr. Ford's accident, Timothy Van Vickle, a Ford Motor electrician, narrowly avoided an injury in the pinch point. Van Vickle testified that he was working as an apprentice in the seat stripper with a journeyman, near where Mr. Ford was injured. Van Vickle testified that his journeyman warned him to step back because the area was dangerous. Van Vickle "backed up and they . . . watched that thing cross over." He acknowledged that, if he had not been told to step away, "that could have been [him] who was killed." Van Vickle testified that "you get tunnel vision when you're focused so you're not really looking at your surroundings."

         Another incident occurred in September 2015, approximately three months before Mr. Ford was killed. In that incident a Walkenhorst driver named Sal Cangelosi had entered the seat stripper to fix a fault. While Cangelosi was standing in the pinch point area, a carrier unit came towards him. Another Walkenhorst driver who was nearby, described as a "pretty good sized guy," grabbed the carrier and yelled at Cangelosi, who moved away. The carrier hit Cangelosi's shoulder as it went by, and both he and the other driver suffered minor injuries as a result of the incident. After hearing about the incident, a Ford Motor maintenance employee told Cangelosi that he was "lucky," because the pinch point could have "hurt him" more seriously.

         The Plaintiffs also presented evidence that indicated that Ford Motor was aware of the dangers presented by the pinch point, and that it had failed to follow its own policies, industry standards, and applicable regulations when it failed to remove, or adequately barricade or warn of, the pinch point. Thus, Plaintiffs presented evidence that when the seat stripper was installed in 1995, Ford Motor policy required that a risk assessment be conducted, but it was not. "[T]he first question" on the risk assessment would have been to identify any pinch points in the equipment. Plaintiffs also presented evidence that such a risk assessment should have been conducted - but was not - following Stephen Bray's injury accident in 1996. Further, Plaintiffs presented evidence that, as a result of citations issued during a "wall-to-wall" inspection conducted by the Occupational Safety and Health Administration (OSHA) in 1999, Ford Motor entered into a settlement in which it agreed to "conduct a joint risk analysis [with the United Auto Workers union] of all crossover locations in the facility by January of 2000 to determine which areas needed guarding." Plaintiffs also presented evidence that, as part of a comprehensive safety audit in 2007-2008, Ford Motor employees identified, or should have identified, the pinch point in the seat stripper as an area requiring additional guarding.

         After the Plaintiffs rested, Ford Motor attempted to call their corporate representative at trial, John Lawson, to testify as a fact witness. Plaintiffs objected on the basis that Lawson's name had not been disclosed in response to Plaintiffs' Interrogatory 4, which required Ford Motor to identify "every person who has any knowledge or information about Plaintiffs' claims set forth in the pleadings." Plaintiffs contended that the interrogatory had required Ford Motor to identify all of the witnesses it intended to call at trial. Although Lawson had not been disclosed in response to Interrogatory 4, he had served as one of Ford Motor's designated representatives during a deposition of the corporation conducted pursuant to Supreme Court Rule 57.03(b)(4). (The deposition was conducted on January 25, 2018, less than three weeks before trial began on February 13.) Ford Motor argued that the corporate representative deposition had given the Plaintiffs adequate notice of Lawson's planned testimony. For their part, the Plaintiffs argued that they had not deposed Lawson in his personal capacity, and would have prepared differently for a personal deposition, and would have conducted such a deposition earlier in the discovery process. The circuit court sustained Plaintiff's objection, and prohibited Lawson from testifying.

         After the first phase of trial, the jury assessed 95% of the fault for Mr. Ford's death to Ford Motor, and awarded the Plaintiffs $38 million in compensatory damages. The jury also found that Ford Motor's conduct satisfied the substantive standard for an award of aggravating circumstances damages. Following a second phase of trial, the jury awarded the Plaintiffs an additional $38 million in aggravating circumstances damages. The trial court entered its final judgment on February 26, 2018, awarding Plaintiffs the total sum of $74.1 million. After the denial of its post-judgment motions, Ford Motor filed this appeal.

         Analysis

         I.

         In its first Point, Ford Motor argues that the trial court erred when it refused to allow Ford Motor's corporate trial representative, John Lawson, to testify during the first phase of trial. The trial court excluded Lawson because Ford Motor had not identified him in response to an interrogatory asking it to identify those persons with "any knowledge or information about Plaintiffs' claims set forth in the pleadings."

         "'Trial courts have broad discretion in administering rules of discovery, which this Court will not disturb absent an abuse of discretion.'" State ex rel. BNSF Ry. Co. v. Neill, 356 S.W.3d 169, 172 (Mo. 2011) (quoting State ex rel. Delmar Gardens N. Operating, LLC v. Gaertner, 239 S.W.3d 608, 610 (Mo. 2007)). A trial court abuses its discretion when the court's ruling is "clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Lewellen v. Franklin, 441 S.W.3d 136, 149 (Mo. 2014) (citation and internal quotation marks omitted). "The trial court has broad discretion in admitting or excluding testimony on the basis of nondisclosure in interrogatories." DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 533 (Mo. App. E.D. 1991); see also, e.g., Jones v. City of Kansas City, 569 S.W.3d 42, 61 (Mo. App. W.D. 2019).

         Plaintiffs' Interrogatory 4, served on March 24, 2016, made the following request:

Please state the name, address, telephone number, employer, title, and occupation [of] each and every person who has any knowledge or information about Plaintiffs' claims set forth in the pleadings, who witnessed the Incident, was present at the scene, or arrived thereafter, and what defendant believes they witnessed; or has knowledge or information about David Ford's condition or actions prior to the Incident, and what information defendant believes he or she has.

         Ford Motor responded to Interrogatory 4 on April 22, 2016, identifying approximately 30 people. The company's response objected to Interrogatory 4 on several grounds: that several of the identified individuals were represented by counsel, and therefore could only be contacted through counsel; that the nature of each person's knowledge was a more appropriate topic for deposition testimony rather than a narrative interrogatory response; and that the interrogatory would require Ford Motor to speculate concerning Mr. Ford's actions before his accident. Notably, Ford Motor did not object to Interrogatory 4 on the basis that it was overbroad, vague, or confusing (although it did assert a general objection directed at all of the Plaintiffs' interrogatory requests on this basis). Ford Motor did not identify John Lawson in its April 2016 response to Interrogatory 4.

         In a series of e-mail exchanges, Plaintiffs' counsel made it clear that they intended to depose each and every one of the fact witnesses identified by Ford Motor in response to Interrogatory 4. On February 23, 2017, Plaintiffs' counsel sent the following e-mail to counsel for Ford Motor:

Our firm has served various discovery requesting [sic] requiring Ford to list all people with potentially relevant information. You are right in your belief that we have asked for and intend to depose every one of those individuals.
[I]f you identify a previously undisclosed fact witness we ask that you comply with the rules by supplementing your discovery responses. In such case, it is our intent to take the deposition as set forth above.

         In an e-mail dated November 2, 2017, Plaintiffs' counsel stated,

We have requested and are again requesting to take the depositions of any and all current or former Walkenhorst, JCI, Universal, Ford Employees, First Responder and/or treaters who have relevant information - unless Ford Motor Company agrees not to call them at trial.

         Ford Motor filed a supplemental response to Interrogatory 4 on December 15, 2017. That supplemental response did not identify John Lawson as a potential witness.

         Plaintiffs' counsel provided further notice of the need to disclose potential witnesses during a hearing on January 3, 2018, five weeks before trial began on February 13. At the hearing, counsel stated that he would seek to exclude at trial any witness who was not disclosed by Ford Motor in the course of discovery:

The last matter, and that I believe - matter of fact, I know that in light of the Court's rulings that this is understood, but just for the record I want to say, we're going to work with them to narrow the list of witnesses down. But at some point, we're going to file a motion in limine that says, look, they've identified these witnesses. If they haven't made them available for deposition, or they haven't otherwise disclosed them, that they be excluded.
I guess it's just more - it's not really asking for any kind of ruling other than to put opposing counsel on notice. If they have people they're planning to call, who they should have disclosed in response to discovery, the time to do that is now so we're not, the week of trial, scrambling around dealing with later [disclosed] witnesses.

         Ford Motor still did not disclose John Lawson, nor did it ask for any clarification regarding the nature of the required disclosures.[2]

         Despite clear and repeated notifications that Interrogatory 4 required it to disclose the fact witnesses that it intended to call at trial, Ford Motor failed to supplement its response by disclosing John Lawson as a fact witness. Plaintiffs' first notice that Ford Motor intended to call Lawson as a fact witness came on the first day of trial, when he was identified on a Ford Motor witness list.

         In its oral ruling sustaining Plaintiffs' objections to Lawson's testimony, the circuit court noted that, despite "extensive interrogatories submitted on both sides" over the course of approximately two years, Lawson was not disclosed until less than one month before trial, and even then he was disclosed merely as a corporate representative to testify at a Rule 57.03(b)(4) deposition. The court noted that Ford Motor never attempted to supplement its interrogatory responses by identifying Lawson as a fact witness, and only did so on the first day of trial.

         The circuit court did not abuse its "broad discretion" when it concluded that Lawson should have been disclosed in response to Interrogatory 4, because Lawson "ha[d] . . . knowledge or information about Plaintiffs' claims set forth in the pleadings." Lawson testified during the corporate representative deposition that he played a primary role investigating Mr. Ford's accident, starting immediately after the accident occurred. He was designated by Ford Motor to give deposition testimony on the company's behalf with respect to the facts of the accident; Ford Motor's investigation of the accident and its conclusions as to the accident's cause; any discipline of employees as a result of Mr. Ford's accident; any subsequent remedial measures Ford took as a result of the accident; the design and operation of the seat stripper and carrier system; and safety reviews and prior injuries involving that machinery.

         Ford Motor argues that it interpreted Interrogatory 4 as calling for the identification only of witnesses who witnessed Mr. Ford's accident, or its immediate aftermath. But Interrogatory 4 was not limited to such witnesses; it asked Ford Motor to identify "each and every person who has any knowledge or information about Plaintiffs' claims set forth in the pleadings." Ford Motor's current argument is belied by its own conduct during discovery. Before trial, Ford Motor disclosed three categories of witnesses in response to Interrogatory 4: (1) persons who responded directly to the scene; (2) persons who provided care to Mr. Ford directly following the accident; and (3) persons who participated in ...


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