Black v. U-Haul Co. of Missouri, ED 86510.

• Decision Date: 05 September 2006
• Docket Number: No. ED 86510.,ED 86510.
• Court: Missouri Court of Appeals
• Parties: Michael BLACK & Carrie Black, Plaintiffs-Appellants, v. U-HAUL COMPANY OF MISSOURI Defendant-Respondent.

204 S.W.3d 260

Michael BLACK & Carrie Black, Plaintiffs-Appellants, v. U-HAUL COMPANY OF MISSOURI Defendant-Respondent.

No. ED 86510.

Missouri Court of Appeals, Eastern District, Division Three.

September 5, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 11, 2006.

Application for Transfer Denied November 21, 2006.

Leonard P. Cervantes, Jennifer Suttmoeller, Cervantes & Associates, St. Louis, MO, for appellants.

Rodney E. Loomer, Springfield, MO, for respondent.

KENNETH M. ROMINES, Judge.

Introduction

Plaintiff-Appellants Michael and Carrie Black (collectively "the Blacks") appeal from the judgment of the Circuit Court of the City of St. Louis, the Honorable Margaret M. Neill presiding, after a jury found in favor of Defendant U-Haul Company of Missouri ("U-Haul") and Defendant Hussain Qassim Al-Owaid ("Al-Owaid") in the Black's wrongful death action. We affirm.¹

Factual and Procedural Background

The record in this case reveals that on 1 July 1999, the Blacks' daughter, Michelle, and her friend, Al-Owaid, were driving on an interstate highway in Indiana when they were involved in an accident in which Michelle was killed and Al-Owaid was seriously injured. At the time of the accident, Al-Owaid was driving and Michelle was a passenger. The case was tried on competing theories of liability: (1) that Al-Owaid lost control of the truck while attempting to pass a vehicle in front of him, and swerved across the median into oncoming traffic; and (2) that the accident was caused by a serious steering or braking malfunction.

Michelle's parents subsequently filed this wrongful death suit against several defendants. First, the Blacks named U-Haul, and alleged strict liability as well as liability based on negligent repair of the truck involved in the accident. Second, the Blacks named Al-Owaid, and alleged that he negligently operated the truck causing the accident. Finally, the Blacks named John Haus d/b/a John's 66 ("Haus")—Haus was the local U-Haul dealer who rented and delivered possession of the truck to Al-Owaid and Michelle.²

The Black's primary theory against U-Haul was that its mechanics had improperly serviced the truck the day before it was rented to Al-Owaid and Michelle. Specifically, the Blacks alleged that U-Haul's mechanics had failed to install a critical cotter pin into the wheel assembly upon reassembling it, and that this omission ultimately led to the failure of the steering and braking mechanism, causing Al-Owaid to lose control of the vehicle while driving under normal conditions. In the alternative, the Blacks pled that Al-Owaid negligently operated the truck, thus causing him to lose control and veer into oncoming traffic.³

At trial there was a great deal of evidence presented by both sides concerning the cause of the accident, which was the central issue in dispute. U-Haul's primary theory of defense was that Al-Owaid came upon a slower-moving car in his lane, and in an attempt to pass this car at the last moment, swerved too sharply, thus causing him to lose control of the truck and veer into oncoming traffic in the other lane.

Al-Owaid does not dispute that he was attempting to pass a slower moving car when he lost control of the truck. However, he claimed that as he was steering to avoid the car in front of him, the steering and brake mechanisms failed, thus causing him to lose control of the truck and veer into the other lane. The initial police investigation attributed "steering failure" as the root cause of the accident. Moreover, the police report did not ascribe driver error as a cause of the accident. At trial, evidence was presented that both the left and right front tire "spindles" did not have cotter pins, and that the absence of the left cotter pin allowed the left "retaining nut" to come loose, which ultimately led to the failure of the steering system and the collision with the oncoming tractor trailer.⁴

Furthermore, the Blacks presented evidence that on 29 June 1999, just two days before the accident in question, U-Haul's mechanics performed a routine preventative maintenance check of the brake system. During the course of the maintenance check, the front brake systems were disassembled and reassembled, and it was at this time that the Blacks allege the critical cotter pin was not replaced, an omission they alleged ultimately led to the accident. The Blacks' expert witness, Thomas Russell, testified that U-Haul's mechanic's failure to install the cotter pins could allow the steering assembly to come loose while driving, which would result in a loss of steering ability consistent with the testimony of Al-Owaid. Mr. Russell testified that such a truck without a cotter pin is "defective" and "unreasonably dangerous." In addition, the Black's expert Mark Ezra, testified that the failure of the steering system would also lead to a failure of the braking system, and these failures would be consistent with Al-Owaid's testimony that he was unable to stop the truck after losing control.

U-Haul's primary defense theory was that Al-Owaid lost control of the truck as he attempted to pass a slower moving car in front of him. In support of this theory, U-Haul presented expert testimony that the truck's brake assembly contained the properly installed cotter pins that the Blacks alleged were missing. Regarding U-Haul's driver error theory, U-Haul presented the testimony of an "accident reconstructionist," Dr. Charles Moffatt, who testified to two key facts that he believed contributed to Al-Owaid losing control of the truck: (1) that the car Al-Owaid attempted to pass was "a little more than a car length" in front of him when he began to steer around it; and (2) that Al-Owaid's steering angle, while attempting to pass the car, was "much sharper than normal." Additionally, Dr. Moffatt presented a computer-animated video exhibit which demonstrated how the accident occurred. Specifically, the exhibit illustrated that Al-Owaid was approximately one car length behind the vehicle when he attempted to pass, and also illustrated the sharp angle at which the pass was made.

U-Haul then presented the testimony of Fred Semke, a mechanical engineer, who testified that approximately eight weeks after the accident occurred, a "retainer nut" was found at the accident scene, and that he believed the nut came from the U-Haul truck Al-Owaid was driving. The finding of this nut was important because it supported Semke's assertion that the left wheel assembly was properly secured by the cotter pin at the time of the accident, thus contradicting the Blacks' theory that it was not. This testimony, when combined with other expert testimony, supported U-Haul's overall theory that the left spindle was properly secured, and thus, that a steering malfunction was not the cause of the accident.

Finally, U-Haul presented the testimony of one of its employees, Michael Mikhailov, who testified that he performed two driving tests with a truck virtually identical to the one involved in the accident. In the first test, the entire braking and steering mechanisms were adjusted to factory specifications, and the truck was driven under conditions similar to those immediately preceding the accident. The purpose of this test was to demonstrate the truck's normal steering and handling capabilities. In the second test, the cotter pin was removed from the front left spindle, and the last supporting nut was placed on the loosest point of the spindle, thus simulating the condition of the left spindle according to the Black's theory of the case. The truck was then driven at speeds similar to those being driven by Al-Owaid at the time of the accident. According to Mikhailov, however, the truck maintained all of its normal steering and handling abilities, even though there was no cotter pin in place and the supporting nut was in the loosest position. The test truck was driven approximately 10 miles during the second test, as opposed to the 250 miles that Al-Owaid had driven the truck involved in the accident.

At the conclusion of all the evidence, the Blacks submitted their case against U-Haul based on strict liability and negligence for allegedly failing to install the left cotter pin. In addition, the Blacks submitted their case against Al-Owaid for general negligence, alleging that he followed another car too closely and drove on the wrong side of the road. The jury returned a verdict in favor of both defendants on all counts. This appeal followed.

Discussion

The Blacks bring the following four claims of error: (1) that the trial court erred in admitting the opinion testimony of Dr. Moffatt regarding the distance between Al-Owaid's truck and the car he was attempting to pass, as well as the angle at which the pass was made; (2) that the trial court erred in admitting the computer animation which was premised upon Dr. Moffatt's opinions referenced in the first claim of error; (3) that the trial court erred in admitting U-Haul's driving test video; and (4) that the trial court erred in admitting the testimony of U-Haul's witness, Fred Semke, who testified about the retainer nut...