Egelhoff v. Holt

• Decision Date: 26 April 1994
• Docket Number: No. 76281,76281
• Citation: Egelhoff v. Holt, 875 S.W.2d 543 (Mo. 1994)
• Parties: Prod.Liab.Rep. (CCH) P 13,869 Anita L. EGELHOFF, Appellant, v. Linda Jo HOLT, Respondent, and Kero Metal Products, Inc., Respondent/Cross-Appellant.
• Court: Missouri Supreme Court

Page 543

875 S.W.2d 543

Prod.Liab.Rep. (CCH) P 13,869

Anita L. EGELHOFF, Appellant, v. Linda Jo HOLT, Respondent and Kero Metal Products, Inc., Respondent/Cross-Appellant.

No. 76281.

Supreme Court of Missouri En Banc.

April 26, 1994.

Rehearing Denied May 26, 1994.

Herbert D. Schaeffer, Clayton, for appellant.

David Larson, Thomas H. Davis, Diane M. Beers, Kansas City, Michael R. Baker, Columbia, for respondent.

THOMAS, Judge.

Anita Egelhoff brought an action for personal injuries against Linda Jo Holt and Kero Metal Products. Egelhoff's claim against Holt was submitted on negligence, and her claims against Kero were submitted on MAI 25.04, Strict Liability--Defective Product, and MAI 25.05, Strict Liability--Failure to Warn. The jury awarded Egelhoff $250,000 and found her to be eighty percent at fault, Kero fifteen percent at fault, and Holt five percent at fault. Egelhoff appealed the trial court's denial of her motion for new trial. Kero cross-appealed the trial court's denial of its motion for a judgment notwithstanding the verdict. The Court of Appeals, Eastern District, (1) affirmed the trial court's denial of Egelhoff's motion for new trial and (2) reversed the trial court's denial of Kero's motion for judgment notwithstanding the verdict. Both parties now appeal to this Court. We affirm the judgment of the trial court.

FACTS

Linda Holt had an aboveground swimming pool in her backyard. The swimming pool, which was manufactured by Kero Metal Products, came with several insertable plastic caps that were designed to cover the top of the pool deck railing support posts. On July 9, 1988, upon entering her yard, Holt noticed that several of these plastic caps were on the ground. She testified that this happened often. Holt picked up these caps and placed them on a table in her backyard. She did not insert the caps back into the railing supports.

After cleaning the pool, Holt invited her tenant, Anita Egelhoff, to go swimming. Egelhoff was in the pool when Holt asked her to help set up a volleyball net. Egelhoff climbed out of the pool onto a narrow deck and tied the volleyball net to one of the swimming pool's support posts. After securing the net, Egelhoff turned around and lowered herself toward the deck. To assist her in getting back into the pool, Egelhoff reached back and grabbed one of the support posts, which cut her thumb. The pain caused Egelhoff to twist away from the post and fall into the pool. As a result of the twisting fall, Egelhoff claims she injured her back. She has since had therapy and numerous surgeries to treat her back problem.

Egelhoff argues in support of her motion for a new trial that (1) the trial court erred in submitting a comparative fault instruction patterned after MAI 32.28 "because the instruction as given applied to different causes of action against" Kero Metal Products and Linda Jo Holt, and (2) the trial court erred in admitting an edited video tape of Egelhoff at a bar playing pool and dancing. ¹ Kero argues in support of its cross-appeal from the trial court's refusal to grant its motion for judgment notwithstanding the verdict that Egelhoff failed to make a submissible case against Kero because: (1) the only evidence that Egelhoff was injured by the support posts on the swimming pool manufactured by Kero came from Holt's deposition testimony, which was inadmissible against Kero, and (2) the swimming pool was modified after leaving Kero's possession.

THE FORM OF THE COMPARATIVE FAULT INSTRUCTION

Egelhoff asserts three points of error with regard to Instruction No. 10, the comparative fault instruction submitted by Kero. At trial, however, Egelhoff's only objection to Instruction 10 was that the evidence was insufficient to support a comparative fault instruction. Although this does not preclude us from reviewing Instruction 10 on grounds other than sufficiency of the evidence, we may consider the failure of Egelhoff to object specifically on the grounds raised in this appeal in determining whether the submission of this comparative fault instruction was prejudicial. Rule 70.03 ²; Hudson v. Carr, 668 S.W.2d 68, 71-72 (Mo. banc 1984).

First, Egelhoff claims that it is improper to give a single comparative fault instruction when there are two defendants, each of whose liability is premised on different theories--strict liability and negligence. There is no merit to this claim. In Cornell v. Texaco, Inc., 712 S.W.2d 680, 682 (Mo. banc 1986), this Court held that only one comparative fault instruction should be given when there are multiple defendants. "Under a pure comparative fault system, the plaintiff's negligence is not compared with that of defendant A and then again with defendant B, but rather it is compared with the cumulative negligence of all the defendants." Id. This rationale for submitting one comparative fault instruction when there are multiple defendants is persuasive even if there is more than one theory of recovery alleged, i.e., negligence and strict liability. The trial court, therefore, properly submitted one comparative fault instruction.

Second, Egelhoff cites to Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491 (Mo. banc 1986), in arguing that it is improper to submit a comparative fault instruction in products cases alleging strict liability. Lippard was decided, however, prior to the enactment of section 537.765, RSMo Supp.1993, which specifically authorizes fault apportionment in product liability cases. Section 537.765 became effective on July 1, 1987. The alleged injury in this case occurred on July 9, 1988. Thus, section 537.765 is controlling, and it authorized the submission of a comparative fault instruction in this case.

Third, Egelhoff argues that the comparative fault instruction that was submitted failed to track MAI 32.28. Instruction 10 proffered by Kero stated:

In your verdict you must assess a percentage of fault to plaintiff whether or not defendants were partly at fault if you believe:

First, plaintiff knew or by using ordinary care should have known that the plastic cap was missing from the top of the pool deck railing support post and as a result the pool deck railing support post was not reasonably safe, and

Second, plaintiff unreasonably failed to appreciate the danger involved [sic] the use of the pool or the consequences thereof and unreasonably exposed herself to said danger, or plaintiff failed to undertake the precautions a reasonably careful user of the pool would take to protect herself against dangers which a reasonably careful user would reasonably appreciate under the same or similar circumstances, and

Third, such failure directly caused or directly contributed to cause any damage plaintiff may have sustained.

This instruction submits two of the six types of comparative fault specified in section 537.765, which states:

537.765 Contributory fault as complete bar to plaintiff's recovery abolished--doctrine of comparative fault to apply--fault of plaintiff an affirmative defense to diminish damages--fault defined.--1. Contributory fault, as a complete bar to plaintiff's 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:

(1) The failure to use the product as reasonably anticipated by the manufacturer;

(2) Use of the product for a purpose not intended by the manufacturer;

(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;

(4) Unreasonable failure to appreciate the danger involved in use of the product or the consequences thereof and the unreasonable exposure to said danger;

(5) The failure to undertake the precautions a reasonably careful user of the product would take to protect himself against dangers which he would reasonably appreciate under the same or similar circumstances; or

(6) The failure to mitigate damages.

The subdivisions of subsection 3 of this statute generally constitute the following defenses: ³ (1) unforeseeable misuse; (2) foreseeable misuse; (3) assumption of the risk; (4) negligent assumption of the risk; (5) contributory negligence; and, (6) failure to mitigate damages. Kero submitted an instruction that included (4) negligent assumption of the risk and (5) contributory negligence. Kero could not submit these defenses solely in their statutory form because such a submission likely would constitute a "roving commission." It was necessary to specify the conduct by Egelhoff that was claimed to constitute the fault; the instruction does so in paragraph second.

Because there is no approved instruction for submitting the defenses encompassed within section 537.765.3, Kero modeled its instruction after MAI 32.28 and the language in section 537.765.3. MAI 32.28, which is a comparative fault instruction for injured invitees, is based on failure to keep a careful lookout. It is helpful as a guide to the type of language and format that has been approved by MAI for submitting acts similar to those submitted in the present case. Here, Kero tracked the general method of submission in MAI 32.28 but (1) made it applicable to the premises where the accident occurred--a swimming pool, and (2) submitted the conduct of Egelhoff and asked the jury to determine if that conduct amounted to negligent assumption of the risk or contributory negligence. This is a proper "Not in MAI" instruction. It submits applicable defenses for claims submitted on the theories of negligence, strict liability--defective product (MAI 25.04), and strict liability--failure to warn (...