Earll v. Consolidated Aluminum Corp.
| Decision Date | 19 August 1986 |
| Docket Number | No. 50237,50237 |
| Citation | 714 S.W.2d 932 |
| Parties | Ronald EARLL and Elizabeth Earll, Plaintiffs-Appellants, v. CONSOLIDATED ALUMINUM CORP. and Central Hardware, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
John J. Frank, Stephen H. Ringkamp, Hullverson Hullverson & Frank, Inc., St. Louis, for plaintiffs-appellants.
William W. Evans, Gerre S. Langton, Evans & Dixon, St. Louis, for defendants-respondents.
Plaintiffs' appeal from the judgment entered on the jury verdict in favor of defendants in a products liability case. We affirm.
Plaintiff Ronald Earll was injured on June 22, 1978, while painting the exterior of his residence. He testified that he was on a fully extended 16 foot aluminum extension ladder when the two sections of the ladder began to disengage. As the ladder began to fall, he jumped to the ground and was injured. He and his wife sued the manufacturer and the retailer of the ladder.
At trial, an expert witness testified for plaintiff that the ladder was defectively manufactured due to insufficient interlock between the flanges of the two sections of the ladder. The ladder was designed, he testified, for an interlock of .119 inches. By measuring the ladder after the accident he determined that there was an overlap of the flanges of only .027 inches. This was an insufficient overlap to prevent the weight of the users body from causing the upper or fly section of the ladder to slip out of engagement with the side rail of the lower or base section, a process described as "unzipping". Based upon his measurements, he concluded the ladder was defective when manufactured.
Two expert witnesses testifying for defendants disputed this testimony. After the accident, the ladder was bent or bowed to the left. Defendants' witnesses testified this could only have been caused by the force of plaintiff's body falling upon the ladder. This conclusion, they said, was corroborated by the fact that both sections of the ladder contained the same degree of bowing, proving that the two sections were still interlocked when the impact occurred. The bowing resulted in a distortion of the interlocking flanges, thus accounting for the measurement of an insufficient overlap. They concluded the ladder was not defective when manufactured. Other evidence will be developed in discussing plaintiff's points on appeal.
In their briefs and in oral argument before this court both parties have assumed the applicability of the doctrine of comparative fault to a case of strict liability in tort arising from the manufacture and sale of an allegedly defective product. Since the submission of this appeal the Supreme Court of Missouri has enunciated a contrary rule in Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491 (Mo. banc 1986). We address the contentions asserted by plaintiffs in the light of this decision.
Prior to the commencement of the trial, plaintiffs filed a motion in limine seeking an order prohibiting the introduction of evidence relating to six specified topics. For purposes of this appeal, only one of the six subjects plaintiff sought to exclude is pertinent.
Plaintiff's contributory negligence, when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence, and/or evidence of plaintiff's unobservant, inattentive, ignorant or awkward failure to discover or guard against a defect should not be admitted for the purpose of reducing the damages of plaintiff.
The trial court overruled the motion in limine.
On appeal plaintiffs argue that the trial court should have excluded evidence relating to "the method by which plaintiff set up the ladder against his house by using a brick and screw driver to level the base of the ladder on slanted ground" and testimony "as to the effect of plaintiff's position on the ladder, with hypothetical balancing problems caused by reaching and leaning...."
The ladder contained an express warning that it should be used only on the level ground. The land where the ladder was placed sloped sharply to the rear of the house. Plaintiff testified that to compensate for the uneven ground, he placed a brick under the right leg of the ladder and braced the brick with a screw driver driven into the ground. This evidence was introduced by plaintiffs. One of defendants' experts testified that from the position on the ladder described by plaintiff, he would be unable to see the surface he intended to paint without leaning awkwardly away from the ladder. No objection was made to this testimony. Defendants theorized that since the damage to the ladder demonstrated that it had not "unzipped" before it fell, the sole cause of the accident was the slipping of the leg of the ladder from the brick which would slope in conformity to the terrain upon which it was placed.
The evidence which plaintiffs now assert should have been excluded is not evidence of "failure to discover the defect in the product" as raised by their pre-trial motion in limine. On the contrary, plaintiffs elicited the testimony regarding the sloping terrain and raised no objection to the testimony about plaintiff's unbalanced position on the ladder." A party may not advance on appeal an objection to evidence different from the one presented to the trial court." Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 884 (Mo. banc 1985). Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99, 107 (Mo. banc 1985). Moreover, the evidence was properly admitted because it tended to refute plaintiffs' contention that the accident was caused by a defect in the ladder permitting it to become "unzipped." In support of their denial of the existence of any defect, defendants may advance a different explanation of the sole, rather than a contributing, cause of the accident, in this case, plaintiffs misuse of the product. Lippard, at 493; Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920, 927 (Mo. banc 1981). Plaintiffs' first point is without merit.
Plaintiffs' final point on appeal relates to the withdrawal from the case of the issue of comparative fault. Plaintiffs' contention is predicated upon five sub-points involving various trial strategies and procedural maneuverings. Although the decision in Lippard is determinative of the basic issue of application of comparative fault in a products liability case, we nevertheless address the sub-points in order to demonstrate that no prejudicial error warranting reversal occurred during the trial.
Plaintiffs' second amended petition sought recovery under strict liability in tort, negligence and breach of warranty. In their answers each defendant alleged that plaintiffs' damages Immediately before trial plaintiffs' dismissed without prejudice the negligence and breach of warranty counts and filed the aforementioned motion in limine. At the conclusion of the evidence plaintiffs offered a set of instructions and verdict forms directing the jury to assess appropriate percentages of fault to the parties and to determine plaintiffs' total damages, disregarding any fault on the part of plaintiff. Defendants' attorney chose not to submit any verdict directing instruction on an affirmative defense of comparative fault or contributory negligence. The trial judge, expressing his "feeling" that defendants' had "the right to abandon the comparative negligence instruction," rejected the comparative fault package of instructions and verdict forms tendered by plaintiffs. Plaintiffs then submitted instructions and verdict forms from the pre-Gustafson era, MAI 25.04, MAI 4.01, MAI 10.04, which the court gave. Plaintiffs' also offered, but the court rejected, a withdrawal instruction in the following form:
All evidence and any inferences based on such evidence and any issue in any way relating to misuse, abnormal or improper use of a ladder by plaintiff Ronald Earll or relating to any fault on the part of the plaintiff Ronald Earll are withdrawn from the case and you are not to consider any such evidence, inferences, or issues in arriving at your verdict.
Plaintiffs contend the trial court erred in permitting defendants to unilaterally withdraw the issue of comparative fault from the jury's consideration, in refusing to give their offered instructions and verdict forms based on comparative fault, in refusing their offered withdrawal instruction and in permitting defendants to argue fault or misuse on the part of plaintiff.
The effect of abandonment of a pleaded affirmative defense was considered by the Supreme Court in Shepard v. Harris, 329 S.W.2d 1, 7 (Mo. banc 1959).
We are of the opinion and therefore hold that when a defendant fails to submit the affirmative defense of contributory negligence he has thereby abandoned that defense and it no longer remains an issue in the case for any purpose, and, consequently, a plaintiff's verdict directing instruction which ignores such abandoned issue of contributory negligence is not erroneous.
Does a similar rule apply to a defendant's refusal to submit an affirmative defense instruction based on comparative fault? Analysis of the conceptual and procedural distinctions between the doctrines of contributory negligence and comparative fault leads us to conclude this question must be answered in the negative.
With the publication of the Supreme Court opinion in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), the doctrine of contributory negligence was supplanted by a comprehensive system of comparative fault. This major change in the tort law of Missouri was made in recognition of the reality that "there must be a better way to obtain fairness and justice than to continue to indulge in fictions in...
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Thompson v. Brown & Williamson Tobacco Corp.
...at 18). In 1987, the legislature adopted, as delineated above, section 537.765, codifying these concepts. In Earll v. Consolidated Aluminum Corp., 714 S.W.2d 932 (Mo.App. E.D. 1986), the court addressed whether comparative fault instructions should have been submitted to the jury at the req......
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Smith v. Brown & Williamson Tobacco Corporation, No. WD 65542 (Mo. App. 7/31/2007)
...adopted. Id. Comparative fault was codified in 1987 as section 537.765. Id. at 121. Thompson then examined Earll v. Consolidated Aluminum Corp., 714 S.W.2d 932 (Mo. App. E.D. 1986), wherein the court "addressed whether comparative fault instructions should have been submitted to the jury at......
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Smith v. Brown & Williamson Tobacco Corp.
...adopted. Id. Comparative fault was codified in 1987 as section 537.765. Id. at 121. Thompson then examined Earll v. Consolidated Aluminum Corp., 714 S.W.2d 932 (Mo.App. E.D.1986), wherein the court "addressed whether comparative fault instructions should have been submitted to the jury at t......
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Smith v. Brown & Williamson Tobacco Corporation, No. WD65542 (Mo. App. 9/2/2008)
...adopted. Id. Comparative fault was codified in 1987 as section 537.765. Id. at 121. Thompson then examined Earll v. Consolidated Aluminum Corp., 714 S.W.2d 932 (Mo. App. E.D. 1986), wherein the court "addressed whether comparative fault instructions should have been submitted to the jury at......