Fahy v. Dresser Industries, Inc.
| Decision Date | 17 November 1987 |
| Docket Number | No. 69287,69287 |
| Citation | 740 S.W.2d 635 |
| Parties | Prod.Liab.Rep. (CCH) P 11,585 Terrence J. FAHY, Plaintiff-Respondent, v. DRESSER INDUSTRIES, INC., et al., Defendants-Appellants. |
| Court | Missouri Supreme Court |
Gerald D. Morris, Ian P. Cooper, David A. Boresi, St. Louis, Mo., for defendants-appellants.
Douglas P. Dowd, St. Louis, Mo., for plaintiff-respondent.
Defendant Dresser Industries, Inc. (Dresser) appeals from a $3,000,000 jury verdict in this products liability action finding it 100% at fault for injuries suffered by plaintiff Terrence J. Fahy when he was run over by an asphalt roller. The jury found in favor of Dresser's co-defendant, Machinery, Inc., an alleged seller of the roller. The Missouri Court of Appeals, Eastern District, concluded that Fahy had failed to prove that his injuries were caused by any defect in the roller and reversed and entered judgment for Dresser. This Court granted transfer, Mo. Const. art. V, sec. 10. Affirmed.
The asphalt roller at issue here was manufactured in 1950 by Galion Iron Works and Manufacturing Co. Galion was later acquired by Dresser and Dresser therefore now stands in the position of original manufacturer. The roller is known as a 3 to 5 ton Tandem Roller. It has two rolls which are hollow and can be filled with water to increase the weight, and therefore the compression capability, of the machine. The total weight of the roller unballasted, i.e., without water in the rolls, was in excess of 7000 pounds.
After the roller had passed through an indeterminate number of owners, County Asphalt and Paving Co. purchased it in 1964 or 1965. Hired to repave the drives of St. Trinity Cemetery in South St. Louis County, County Asphalt had the roller at the cemetery on August 23, 1979. The operator of the roller that day was plaintiff Fahy. Fahy, aged nineteen, had been a regular roller operator for County Asphalt for a year and a half. On this day, Fahy's job was to compress previously spread gravel into hot oil with the Galion roller. At about two in the afternoon, something went awry and Fahy was caught under and run over by the roller. Although several co-workers saw Fahy within a few minutes of the accident, no one witnessed it. Miraculously, Fahy survived, albeit with catastrophic injuries.
Fahy brought this products liability suit against Dresser, alleging that the roller had been designed defectively. There is some controversy as to exactly what design defect Fahy was attempting to prove at trial. Fahy states that he was trying to show that the roller was defective because it was designed so that it was able to operate even when no one was in the driver's position. Dresser urges that Fahy tried to prove that the defect was that the roller should have been designed with a deadman switch. A deadman switch is a control which will shut off the motive force of a machine in the event that the operator leaves the driver's position. The positions taken by Fahy and Dresser are simply alternative verbal formulations of the same defect. If the roller here had had a deadman switch it could not have operated if no one was in the driver's position. Any device that would have prevented the roller from operating when no one was in the driver's position would have been, by definition, a deadman switch.
Dresser's principal point on appeal is that Fahy failed to make a submissible case. In order for a plaintiff to recover under a products liability theory for an injury caused by an allegedly defective product, he must establish each of the following:
(1) defendant sold the product in the course of its business;
(2) the product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use;
(3) the product was used in a manner reasonably anticipated (4) plaintiff was damaged as a direct result of such defective condition as existed when the product was sold.
MAI 3d 25.04. See also Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 375-76 (Mo. banc 1986); Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362, 366 (Mo.1969).
In reviewing a challenge to the submissibility of a case, the evidence is to be considered in the light most favorable to plaintiff, plaintiff is to receive the benefit of all inferences reasonably drawn from the evidence, and defendant's evidence that does not support plaintiff's case is to be disregarded. E.g., Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 274 (Mo. banc 1984).
Dresser argues Fahy failed to make a submissible case because Fahy introduced insufficient evidence to prove that the absence of a deadman switch was the proximate cause of Fahy's injuries and thereby failed to prove the fourth element of a products liability case.
An expert witness for Fahy, Boulter Kelsey, testified that in his opinion the roller was defective because it lacked a deadman switch. He further testified that "the defect was the direct cause" of the accident because, "had the roll stopped when Mr. Fahy left the operating position, it would not have rolled over him." An assumption underlying these opinions by Kelsey was that, immediately before the accident, Fahy had been in the driver's position on the roller and had then fallen from this position into the path of the roller. Dresser asserts that these expert opinions do not constitute sufficient evidence to submit the case because Kelsey's opinions were based on evidence insufficient to prove that Fahy had been in the driver's position immediately before the accident and had then fallen from this position.
It is true that an expert's opinion must have a substantial basis in facts actually established. E.g., Schears v. Missouri Pac. R.R. Co., 355 S.W.2d 314, 321 (Mo. banc 1962). However, the Court concludes the evidence, viewed most favorably to Fahy, was sufficient to prove Fahy was in the driver's position immediately before the accident and he fell off and was run over by the roller. Scott Thoele, a co-worker of Fahy who was apparently the last person to see Fahy before the accident, testified that he saw Fahy off the roller cleaning tar and gravel from the roller wheels about five minutes before the accident. After that, within a minute or two of the accident, Scott saw Fahy back on the roller, operating it. This testimony that Fahy was operating the roller within a minute or two of the accident, coupled with the evidence that Fahy's crushed body was discovered lying behind the still moving roller, gives rise to the reasonable inference that Fahy fell from the driver's position to the ground and was crushed by the roller.
The testimony of Kent Thoele does not nullify this reasonable inference. Kent, also a co-worker of Fahy, testified that he saw Fahy off the roller cleaning its wheels "no more than a minute before the accident, I guess." (Emphasis added.) Kent's testimony that he guessed Fahy was cleaning the roller no more than a minute before the accident is not necessarily inconsistent with Scott's testimony he saw Fahy operating the roller within a minute or two of the accident because both were only estimating the time. Making allowances for the subjectiveness of these time estimates, the jury could reasonably have believed Fahy finished cleaning the roller wheels about a minute before the accident and then climbed back on the roller only to soon fall off it.
Moreover, further evidence indicated that Fahy had finished cleaning the roller wheels before the accident. Kent testified Fahy was using gasoline and a rag and maybe a thin metal scraper to clean the tar and gravel from the roller wheels. Kent also testified Fahy normally kept the can of gasoline near him while he cleaned the wheels and would put the can to the side of the road when he finished cleaning and was ready to start to work again. The can of gasoline, the rag, and the scraper were all discovered after the accident sitting by a tree off to the side of the road. Lonnie Lucas, another co-worker of Fahy, testified that he had talked with Fahy "a few minutes," another subjective time estimate, before he became aware of the accident. Fahy told Lucas he was finished cleaning the roller wheels and ready to proceed with the paving job. The testimony as to Fahy's normal cleaning procedure and the testimony from Lucas, when combined with Scott Thoele's testimony, is substantial evidence that Fahy finished cleaning the roller wheels, got back on the roller, began to compress gravel into the hot oil, and then, for whatever reason, fell into the path of the roller.
Dresser also contends that Kelsey's expert opinion that Fahy's injuries were directly caused by the absence of a deadman switch is not supported by sufficient evidence that, even had the roller been equipped with such a control, it would have stopped its motion before rolling over Fahy. This contention is without merit because Scott Thoele testified that he ran to the roller after it had run over Fahy to turn it off and that the roller rolled "a couple of feet" after he shut the engine off. There was also testimony from Kelsey that a deadman switch could be designed to apply the brakes at the same time it disengages the drive of a machine. Thus, if this roller had had a deadman switch which also applied the brakes, it seems that the roller would have stopped in much less than "a couple of feet" after Fahy left the driver's position and thus activated the switch. Viewing this evidence most favorably to Fahy, a jury could reasonably infer that the roller would have stopped in the time it would have taken Fahy to fall from the roller.
Because there was substantial evidence that Fahy was in the driver's position immediately before the accident and then fell and that the roller would have come to a stop before rolling over Fahy had it been equipped with a deadman switch, Kelsey's expert opinion that the absence of a deadman switch was the direct cause of Fahy's injuries...
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