Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Clay County The Honorable Janet L.
Edward R. Ardini, P.J., and Alok Ahuja and Gary D. Witt, JJ.
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
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
(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
(5) refusing to submit a jury instruction on the "open
and obvious" issue;
(6) submitting an erroneous aggravating circumstances
(7) admitting evidence of other incidents involving the
equipment which caused Mr. Ford's injuries.
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.
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
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."
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
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.
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.
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."
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.
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]."
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
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
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."
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."
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.
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.
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.
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.
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
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).
Interrogatory 4, served on March 24, 2016, made the following
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.
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
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.
e-mail dated November 2, 2017, Plaintiffs' counsel
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.
Motor filed a supplemental response to Interrogatory 4 on
December 15, 2017. That supplemental response did not
identify John Lawson as a potential witness.
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
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.
Motor still did not disclose John Lawson, nor did it ask for
any clarification regarding the nature of the required
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.
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.
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
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 ...