Lewis v. Vermont American Corp.

870 S.W.2d 909, 1994 Mo. App. LEXIS 58, 1994 WL 4266
CourtMissouri Court of Appeals
DecidedJanuary 11, 1994
DocketNo. 62919
StatusPublished
Cited by2 cases

This text of 870 S.W.2d 909 (Lewis v. Vermont American Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Vermont American Corp., 870 S.W.2d 909, 1994 Mo. App. LEXIS 58, 1994 WL 4266 (Mo. Ct. App. 1994).

Opinion

PER CURIAM:

This is an appeal by plaintiff Gay Lewis from judgment after a jury verdict denying his product liability claim against defendant Vermont American Corporation. We affirm.

In his five points relied on, Lewis contends the trial court erred: (1) in admitting evidence of Lewis’ failure to wear safety glasses because (a) no evidence was presented to support a preliminary finding that safety glasses would have prevented or lessened the injury, or that Lewis knew they would have prevented or lessened his eye injury and (b) Vermont American did not establish that Lewis’ failure to wear safety glasses was the sole cause of his eye injury; (2) in admitting evidence regarding a warning on the packaging label on the package of drill bits purchased by plaintiff which contained the drill bit which fractured during use and caused plaintiffs eye injury because this warning was irrelevant; (3) in submitting contributory fault Missouri Approved Instruction, (MAI) 32.23, because no evidence was presented that Lewis knew there was a problem with the drill bit that rendered it dangerous to use; (4) by refusing to allow Lewis to argue that Vermont American did not present any evidence to support a finding that wearing the safety glasses would have prevented or lessened the injury; and (5) by allowing Vermont American to present evidence that it was not allowed to conduct destructive testing of pieces of the drill bit because such evidence was irrelevant. We affirm.

The evidence is reviewed in accord with our obligation to consider all of the record in a light most favorable to the verdict. Tennis v. General Motors Corp., 625 S.W.2d 218, 222 (Mo.App.1981).

This case arises out of an industrial accident which occurred on January 19, 1987, at the Hussman Refrigeration Plant in St. Louis [911]*911County. In January, 1987, Gay Lewis (Lewis) was an employee of Griffith Construction Company, (Griffith) for approximately three to four years. On January 19, 1987, Griffith assigned Lewis to work at the Hussman Refrigeration Plant. On his way to the plant, Lewis stopped at Clyde’s Lumber to purchase some Vermont American ⅜" drill bits. The drill bits were made of a high speed steel.

Lewis was to use a hand-held power drill in order to make a new meat case. He began to drill holes into a steel C-channel in order to secure it to the meat case. While using one of the new drill bits, it fractured. A co-worker testified he heard Lewis scream and when he ran to Lewis, he observed a shiny piece of steel protruding out through the center of Lewis’ eye. Lewis had safety glasses but chose not to wear them. The injury caused Lewis to lose sight in his right eye.

Lewis sued Vermont American and Clyde’s Lumber alleging he suffered an eye injury as a result of an unreasonably dangerous and defective drill bit manufactured by Vermont American and sold by Clyde’s. Clyde’s Lumber was dismissed out of the suit during trial. A jury returned a verdict in favor of Vermont American. Lewis appeals.

In Lewis’ first point, he contends that the trial court erred in admitting evidence of Lewis’ failure to wear safety glasses because (a) no evidence was presented that such glasses would have prevented or lessened the injury, or that Lewis knew such glasses would have prevented or lessened his eye injury and (b) Vermont American did not establish that Lewis’ failure to wear safety glasses was the sole cause of his eye injury. We will address Lewis’ first point together with his third point wherein he alleges the trial court erred in submitting MAI 32.23, the contributory fault instruction, because no evidence was presented that Lewis knew there was a problem with the drill bit that rendered it dangerous to use.

The injury Lewis sustained occurred on January 19, 1987. This was before the July 1, 1987 effective date of § 537.765 RSMo Cum.Supp.1992 which adopted pure comparative fault in product liability cases and fault as an affirmative defense. At the time of plaintiffs injury, contributory fault was not always a product liability issue. Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491, 493 (Mo. banc 1986). However, the giving of a contributory fault instruction based on MAI 32.23 is appropriate in certain cases. Id. at 493. Many cases since Lippard have addressed this issue, each interpreting when contributory fault is appropriately instructed. In Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192 (Mo. banc 1992), the supreme court clarified the differing interpretations. There it said, “While differences exist in the cases from the court of appeals, the general tendency is a ease-by-case approach based on the plaintiffs experience.... In short, a plaintiff ‘knew of the danger as submitted in [plaintiffs] Instruction^]’ if the plaintiff knew that the product posed a significant risk of causing the calamity submitted in the plaintiffs case.... [T]he plaintiff must know ‘that there is a problem that renders it dangerous to use,’ not the ‘precise engineering explanation of the defect.’”

Lewis offered verdict director Instruction Number 6, patterned after MAI 25.04, to the jury as follows:

On plaintiffs claim against defendant Vermont American Corporation, your verdict must be for plaintiff if you believe:
First, defendant sold the drill bit in the course of defendant’s business, and
Second, the drill bit was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and
Third, the drill bit was used in a manner reasonably anticipated, and
Fourth, plaintiff was damaged as a direct result of such defective condition as existed when the drill bit was sold, unless you believe plaintiff is not entitled to recover by reason of Instruction Number 8.

Instruction Number 8, patterned after MAI 32.23, was submitted for Vermont American as follows:

On plaintiffs claim against defendant Vermont American Corporation, your verdict must be for defendant if you believe:
[912]*912First, when the drill bit was used, plaintiff knew of the danger as submitted in Instruction Number 6 and appreciated the danger of its use, and
Second, plaintiff voluntarily and unreasonably exposed himself to such danger, and
Third, such conduct directly caused or directly contributed to cause any damage plaintiff may have sustained.

Lewis testified that over the course of his lifetime, he had 20 to 50 separate experiences in which drill bits he was using fractured. He knew this before he began using the drill bit which fractured causing the injury to his eye. His father told him to always use protective eye wear when using any type of tool. He had been taught this in trade school. He knew a drill bit could in fact break, and if that happened, a piece might break off and fly someplace. He testified that common sense tells you that a piece of a drill bit might break if there is some side to side pressure put on it. He also testified that if a piece were to break off and fly someplace it could hit him in the eye.

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870 S.W.2d 909, 1994 Mo. App. LEXIS 58, 1994 WL 4266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-vermont-american-corp-moctapp-1994.