Miller v. Varity Corp.

922 S.W.2d 821, 1996 Mo. App. LEXIS 561, 1996 WL 148291

• Court: Missouri Court of Appeals
• Decided: April 2, 1996
• Docket: 67862 and 68678
• Status: Published

Opinions

CRANDALL, Judge.

Defendant, Varity Corporation, appeals from a judgment in favor of plaintiffs, Carla and Megan Miller, after a jury trial in* plaintiffs’ action for the wrongful death of James Miller. Plaintiffs have filed a cross appeal. We affirm.

On September 29, 1990, James Miller was mowing across the side of a levee on his father’s farm. Mr. Miller was operatmg a Model MF-1130 tractor which was manufactured and sold by Massey Ferguson in 1966.¹ Mr. Miller was pulling an attached shredder. The tractor’s left rear tire apparently dropped into a hole and the tractor suddenly rolled over to the left, pinning Mr. Miller. He died of a broken neck at the scene.

Plaintiffs, Carla and Megan Miller, are the surviving wife and minor daughter of James Miller. They brought this action for wrongful death based upon products liability theories. On December 9, 1994, the jury returned a verdict in favor of plaintiffs. The jury found total damages at $2,000,000 and assessed 90% of the fault to defendant and 10% to Mr. Miller. In accordance with the verdict, the trial court entered judgment in the amount of $1,800,000. Then the court entered an amended judgment, reducing the plaintiff’s recovery by the $30,000 settlement plaintiffs obtained from a former defendant and awarding them prejudgment interest. Defendant’s post trial motions for judgment notwithstanding the verdict or, in the alternative, for new trial or, in the alternative, for remittitur (motion for new trial) were denied.

Plaintiffs’ Cross-Appeal

Plaintiffs contend the trial court erred in entering an order nunc pro tunc changing the file stamp date on defendant’s motion for new trial from January 10, 1995, to January 9,1995.

Rule 78.04 required defendant to file its motion for new trial not later than thirty days after entry of judgment. An untimely motion for new trial preserves nothing for appellate review. Hawthorne v. Hills, 861 S.W.2d 337, 339 (Mo.App.W.D.1993). It is undisputed that defendant’s last day for filing was January 9, 1995. Defendant’s motion for new trial was date stamped January 10, 1995, and the entry located in the case minutes likewise indicated a date of January 10, 1995. However, defendant offered to prove that these dates were clerical errors and that its motion was actually filed on January 9, 1995, by producing the Federal Express envelope in which the motion was delivered. This envelope was also date stamped January 10, 1995, however, an unsigned handwritten notation read: “To: Division 10 Judge Koehr 1-9-95.”² In support of its claim that the motion was actually received in the clerk’s office on January 9, 1995, defendant also produced an affidavit signed by defense counsel’s secretary stating that she had called the circuit clerk’s office on January 9, 1995, and had been informed that the motion for new trial had been received on that date; a telephone bill showing that a call was placed to the court on January 9, 1995; an unsigned Federal Express letter stating that a package sent by defendant was delivered to the court on January 9, 1995; and a form generated by defense counsel indicating that a package was sent from defense counsel’s office to the court via Federal Express on January 6,1995.

Nunc pro tunc is a Latin phrase meaning “now for then.” Black’s Law Dictionary 1218 (4th ed. 1968). Rule 74.06 codifies the common law order nunc pro tunc. Higher Educ. Assistance v. Hensley, 841 S.W.2d 660, 663 (Mo.1992). Rule 74.06 provides in pertinent part:

[C]lerical mistakes in judgments ... arising from oversight or omission may be corrected by the court at any time of its own initiative or on motion of any party....

An order nunc pro tunc must be supported by some entry, minute or notation in the record. Unterreiner v. Estate of Unterreiner, 899 S.W.2d 596, 598 (Mo.App.E.D.1995). It is settled that parol evidence will not support an order nunc pro tunc. Id. Parol evidence is derived from outside sources. In Re Marriage Rea, 773 S.W.2d 230, 232 (Mo.App.1989). To justify sustaining a motion for nunc pro tunc order, there must be corroboration from another source in the records or papers of the court. Grimes v. Bagwell, 728 S.W.2d 688, 689 (Mo.App.1987).

Although the remainder of the proffered evidence which supported defendant’s assertion that the motion was actually received by the clerk’s office on January 9, 1995, was parol evidence, the Federal Express envelope was part of the court file.

Defendant contends that there is no dispute that defendant’s motion was received by the court on January 9, 1995. Actually, that is the crux of the dispute. If it were clear that the motion had been received on January 9,1995, it would have been deemed timely even if it was date stamped the following day. See Hawthorne v. Hills, 861 S.W.2d 337 (Mo.App.W.D.1993). The salient issue is whether the trial court erred in entering the nunc pro tunc order based upon the record in this case.

Here, three documents in the record are date stamped as received on January 10, 1995: the motion for new trial, the minutes of the proceeding and the Federal Express envelope. The date stamps on the motion for new trial and the Federal Express envelope were initialed by a deputy clerk; the minutes had the first name of the clerk making the entry. However, the handwritten notation was also part of the record and corroborated defendant’s nunc pro tunc motion. Further, this notation was directed to the judge that had actually tried the case. The notation indicated the motion was actually received in the clerk’s office on January 9, 1995, although not date stamped until January 10, 1995. We believe the court’s interpretation of the notation was not an abuse of discretion based upon the record in this case. Plaintiffs’ first point on their cross-appeal is denied.

Defendant’s Appeal

Plaintiffs submitted their case under Missouri’s products liability statute, § 537.760, RSMo 1994, which codifies Restatement 2d of Torts § 402A. Section 537.760, RSMO 1994, provides, in pertinent part:

[T]he term “products liability claim” means a claim or portion of a claim in which the plaintiff seeks relief in the form of damages on a theory that the defendant is strictly liable for such damages because:

(1) The defendant, wherever situated in the chain of commerce, transferred a product in the course of his business; and

(2) The product was used in a manner reasonably anticipated; and

(3) Either or both of the following:

(a) The product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold....

Plaintiffs’ theory was that the 1966 Massey Ferguson tractor was in a defective condition unreasonably dangerous because it was not equipped with a Roll Over Protection System (ROPS). A ROPS is a roll bar and seat belt or harness combination designed to prevent tractors from rolling more than 90 degrees and to restrain the operator within a protective envelope in the event of a roll over. Evidence was adduced that not only did the industry have the knowledge and technology to make such a ROPS available for this tractor in 1966, but also that a ROPS compatible with this make of tractor actually did exist when the plaintiffs purchased the used tractor from a dealership in 1968, but was not installed, nor was it offered.

In its first point on appeal, defendant attacks the submissibility of plaintiffs’ cause of action. In reviewing a challenge to the submissibility of a case, the evidence is to be considered in the light most favorable to the plaintiff, plaintiff is to receive the benefit of ail inferences reasonably drawn from the evidence and defendant’s evidence that does not support plaintiffs case is to be disregarded. McDowell v. Kawasaki Motors Corp. USA, 799 S.W.2d 854, 865 (Mo.App.1990).

Defendant attacks submissibility on four grounds. However, two of defendant’s grounds of error³ are not in its motion for new trial and therefore are not preserved for appellate review. Rule 84.13(a). Defendant’s other two grounds are preserved; however, the argument portion of defendant’s brief does not track its points relied on. See 84.04(e). Nevertheless, we will review these two grounds.

Defendant’s first preserved ground addressing the submissibility of plaintiffs case contends the tractor was not dangerous to an extent beyond that which would be contemplated by the ordinary user of the tractor. This “consumer-contemplation approach” assumes the ordinary user is the best judge of whether the dangers he perceives are outweighed by the benefits of the product and assesses liability only where the actual danger exceeds that perceived by the ordinary user. Delvaux v. Ford Motor Co., 764 F.2d 469, 474 (7th Cir.1985). Missouri has not adopted the consumer-contemplation test for defectiveness. Nesselrode v. Executive Beechcraft, 707 S.W.2d 371, 377 (Mo. bane 1986); Pree v. Brunswick Corp. 983 F.2d 863, 867 (8th Cir.1993). In Missouri, the salient inquiry in a design defect case is whether the product—due to its design— creates an unreasonable risk of danger to the consumer or user when put to normal use. Nesselrode, 707 S.W.2d at 375-76. The concept of unreasonable danger is determinative of whether a product is defective and is presented to the jury as an ultimate issue without further definition. Id. at 378; see, e.g., Wilson v. Danuser, 874 S.W.2d 507 (Mo.App.S.D.1994) (Jury question as to whether log splitter was unreasonably dangerous and therefore defective in action for strict liability based on defective design).⁴

Defendant claims the “open and obvious” lack of a ROPS on the tractor would bar recovery since the danger of roll overs would be readily apparent. Defendant relies heavily upon Morrison v. Kubota Tractor Corp., 891 S.W.2d 422 (Mo.App.W.D.1994) for its proposition that a manufacturer could not be held liable for negligent design if the defect or danger is open, obvious and apparent. However, Morrison is distinguishable. In Morrison, the court was considering the directed verdicts on the plaintiffs’ negligence claims. Plaintiffs here proceeded under strict liability theories. The Morrison court held that such open and obvious defects were not actionable under Missouri’s negligence law, but specifically stated in a footnote that it was not deciding whether the open and obvious nature of the peril posed by the absence of a ROPS would justify a directed verdict in a ease brought under strict liability theories. Id. at 427-28, n. 5.

Defendant’s “open and obvious” argument fails because Missouri enacted a statute in 1987 which abolished contributory fault as a complete bar to plaintiffs recovery. Section 537.765, RSMO 1994, provides, in pertinent part:

1. Contributory fault, as a complete bar to plaintiffs recovery in a products liability claim, is abolished. The doctrine of pure comparative fault shall apply to products liability claims as provided in this section.

2. Defendant may plead and prove the fault of the plaintiff as an affirmative defense. Any fault chargeable to the plaintiff shall diminish proportionately the amount awarded as compensatory damages but shall not bar recovery.

3. For purposes of this section, “fault” is limited to:

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(3) Use of the product with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger[.]

Under this statute, the open and obvious nature of the defect is directly addressed in subsection 3(3). Evidence that the defect was readily apparent would not bar plaintiffs’ recovery, but could be properly considered in apportioning fault. See, e.g., Wilson, 874 S.W.2d at 510-11 (Evidence of plaintiff’s voluntary exposure to known danger supported submission of comparative fault instruction). Here, evidence that the lack of ROPS was open and obvious and that the decedent was aware of the danger presented by roll overs was submitted to the jury. The jury determined that the 1966 Massey Ferguson tractor was unreasonably dangerous due to the manufacturer’s failure to incorporate a ROPS. Evidence was adduced that ROPS limit cab roll overs to 90 degrees, and when used in conjunction with a seat belt or harness system would have created an “envelope of protection.” The jury assessed fault at 10% to decedent and 90% to defendant, and the plaintiffs’ recovery was reduced accordingly. The evidence was sufficient to support this verdict. Defendant’s first point is denied.

In its second preserved ground, defendant claims the evidence failed to establish that decedent would have survived the roll over. Causal connection is established when plaintiffs show that absent the alleged wrongful act the fatal injury would not have been sustained. Richardson v. Volkswagenwerk, 552 F.Supp. 73, 85 (W.D.Mo.1982). Plaintiffs’ expert testified that in his opinion, within a reasonable degree of professional certainty, the decedent would have survived the roll over if the tractor he had been operating had a roll over protection system (ROPS) and decedent had been wearing a seat belt. Defendant’s expert likewise admitted that if the tractor had been equipped with a ROPS and decedent had been wearing a seat belt, he would not have been crushed. It was adequate in this case for plaintiffs to show that but for the absence of the ROPS, decedent might have survived the roll over. Plaintiffs made a submissible case. Defendant’s second point is denied.

We have reviewed the parties’ remaining points; no error of law appears. A written opinion on these points would have no prece-dential value. The remaining points are denied. Rule 84.16(b).

The judgment of the trial court is affirmed.

CRAHAN, P.J., concurs in result in separate opinion filed. DOWD, J., concurs in opinion of CRANDALL, J.

1 . Defendant is Massey Ferguson’s successor corporation.

2 . The Honorable Jack L. Koehr was the trial judge.

3 . Defendant's two unpreserved grounds asserted 1) there was no expert testimony that the tractor as sold in 1966 was more dangerous than would be contemplated by the ordinary user of tractors, and 2) there was no evidence from which the jury could infer that the tractor was defective when first sold in 1966 because there was no proof that the first purchaser’s usage was compatible with ROPS.

4 . The record is unclear as to whether an instruction defining the term "unreasonably dangerous” was given in this trial, contrary to the existing case law as outlined in Nesselrode, 707 S.W.2d at 378. The transcript states that such an instruction was given, however, the legal file shows that it was refused. If the trial court did, in fact, give the defining instruction, the error was harmless in view of the verdict for plaintiffs.