Gerow v. Mitch Crawford Holiday Motors

• Decision Date: 12 January 1999
• Docket Number: No. WD,WD
• Citation: 987 S.W.2d 359
• Parties: Prod.Liab.Rep. (CCH) P 15,431 Larry, Louis and Jeanette GEROW, Appellants, v. MITCH CRAWFORD HOLIDAY MOTORS, A Missouri Corporation, and Chrysler Corporation a Delaware Corporation, Respondents. 55008.
• Court: Missouri Court of Appeals

Page 359

987 S.W.2d 359

Prod.Liab.Rep. (CCH) P 15,431

Larry, Louis and Jeanette GEROW, Appellants, v. MITCH CRAWFORD HOLIDAY MOTORS, A Missouri Corporation, and Chrysler Corporation a Delaware Corporation, Respondents.

No. WD 55008.

Missouri Court of Appeals,

Western District.

Jan. 12, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 2, 1999.

Application to Transfer Denied

April 27, 1999.

Paul L. Redfearn, Daniel R. Brown, Kansas City, Missouri, Redfearn & Brown, P.C., for appellant.

Craig A. Smith, Gary R. Cunningham, Springfield, Missouri, Daniel, Clampett, Powell & Cunningham, for respondent.

Before SMART, P.J., ELLIS and HOWARD, JJ.

ELLIS, Judge.

Larry Gerow, Louis Gerow, and Jeannette Gerow are the surviving adult children of William and Barbara Gerow, both now deceased. The Gerow children brought a wrongful death action against Chrysler Corporation ("Chrysler") in the Circuit Court of Jackson County. They alleged that Chrysler manufactured the car in which their parents were traveling when they sustained the injuries resulting in their deaths, and that the car was defective in design and manufacture, and unreasonably dangerous when put to its reasonably anticipated use. The case was tried to a jury, which returned a verdict in favor of Chrysler on June 19, 1997. The Gerow children appeal.

At the time of the subject accident, William and Barbara Gerow owned a 1984 Plymouth Reliant K car, which they had purchased used from a dealer. On September 16, 1994 Barbara was driving the vehicle westbound on 50 Highway in Lee's Summit, Missouri. William was seated in the passenger seat, and Jeannette Gerow was in the rear seat. The vehicle left the roadway, straddled the guardrail, and struck a bridge support pillar at the southwest M-291 Highway overpass. Gasoline spilled from the fuel tank, which had been ruptured when the vehicle straddled the guardrail, resulting in fire. Witnesses pulled Jeannette and Barbara from the vehicle, but were unable to extricate William, who died at the scene. Barbara Gerow died 15 days later. Jeannette survived the accident.

The three adult children of William and Barbara Gerow ("the Gerows") brought suit against Chrysler, the manufacturer of the vehicle, for strict liability in the deaths of William and Barbara. They alleged that the Reliant K car was defective in design and manufacture, and was unreasonably dangerous when put to reasonably anticipated use. The allegations were based on the fact that the K car had an "underslung" fuel tank which was positioned one-quarter inch above the floor pan in front of the rear axle. According to the Gerows' expert, the positioning of the fuel tank was dangerous because it made the tank vulnerable to puncture in a reasonably foreseeable accident, and safer designs were available at the time of the vehicle's manufacture.

The Gerows brought their claim against Chrysler under the "second collision" or "enhanced injury" doctrine, which differentiates between conduct causing the accident and an alleged design defect which is the proximate cause of enhanced injuries. Expert witnesses for the Gerows testified that the injuries suffered by William and Barbara as a result of the impact with the overpass pillar alone were not sufficient to cause their deaths, but that fatal injuries resulted from the fuel fire. The action against Chrysler sought recovery only for the secondary, or enhanced, injuries from the ruptured fuel tank. Chrysler contended the vehicle was not being used as reasonably anticipated by the manufacturer at the time of the accident, and Barbara Gerow's negligence caused or contributed to the injuries. The case was tried to a jury in June, 1997 resulting in a verdict in favor of Chrysler.

The Gerows assert four points of error on appeal. In their first point, the Gerows allege that the trial court erred when it allowed Chrysler to state in closing argument that a reasonably anticipated use of the vehicle involved an operator that was alert, conscious, and awake when he or she is driving. A jury instruction pursuant to § 537.765 ¹ assessing comparative fault on Barbara Gerow had been tendered by Chrysler and refused by the court. ² In rejecting Chrysler's jury instruction as to the comparative fault of Barbara Gerow, the court stated:

The way I understand the theory of this instruction, one of the things [Chrysler] would have to prove is she failed to use the product as product for a purpose not intended by the manufacturer. I don't think there's any evidence of that. The fact that she drove off the road and had a wreck, ... I think that's an anticipated use.

During closing argument, Chrysler's attorney made the following statements:

MR. CUNNINGHAM (Counsel for Chrysler): [S]he was nodding as if she was asleep ... the vehicle gently veers off the road when the road makes just a gentle right-hand turn. And that's very consistent with what everyone says ... A reasonably anticipated use of this vehicle involves an operator and sometimes operators--no, I won't say sometimes--always operators are reasonable to be alert, to be conscious, to be awake when they're driving a vehicle at 55 and 60 miles per hour on open roads--

MR. REDFEARN (Counsel for Gerows): Your Honor, I object to this whole line of argument. It's outside the scope of the instructions in this case and its irrelevant to the issues of this case.

THE COURT: Overruled.

MR. CUNNINGHAM: To make corrections, is that an unreasonable thing to expect of an operator? With regard to their anticipated use that the operator will be, in fact, awake to make corrections....An anticipated use, is it unreasonable to think that they will avoid striking guardrails, that they will avoid getting their vehicle so that it is up on two wheels into steel I-beam posts. Anticipated use is an issue in this case. And I submit to you that is not an anticipated use.

The Gerows argue that defense counsel's statements in closing argument were an attempt to improperly inject comparative fault into the case after the comparative fault instruction had been rejected by the court. Chrysler contended that its statements were made in support of its defense to the reasonableness element in the Gerows' enhanced injury claim.

The enhanced injury theory is recognized in Missouri. See Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir. banc 1976); Cryts v. Ford Motor Co., 571 S.W.2d 683 (Mo.App. E.D.1978). "The second collision doctrine merely extends the scope of liability of a manufacturer to the situations in which the construction or design of its product has caused separate or enhanced injuries in the course of an initial accident brought about by an independent cause." Cryts, 571 S.W.2d at 687. "[T]he defect would not have produced any injury in the absence of an intervening cause which sets the injury producing cycle into action." Id.

To make a submissible case under the enhanced injury theory in the case at bar, the Gerows were required to prove that the 1984 Plymouth Reliant K car was used in a manner reasonably anticipated. Id. However, "[t]he source of the original or intervening cause is irrelevant so long as the plaintiff's particular use of the product is reasonably foreseeable." Id. (emphasis added). The conduct of Barbara Gerow was irrelevant as long as it was reasonably foreseeable that a vehicle could leave the roadway and straddle the guardrail, puncturing the fuel tank. Cryts, 571 S.W.2d at 687.

The U.S. Court of Appeals for the Eighth Circuit noted that Missouri courts have found misuse to be reasonably anticipated. Polk, 529 F.2d at 266. "[T]he intended use doctrine necessarily includes foreseeable consequences of (unintentional) misuse." Id. "The concept of reasonably anticipated use includes misuse ... and abnormal use which is objectively foreseeable." Threats v. General Motors Corp., 890 S.W.2d 327, 329 (Mo.App. E.D.1994) (quoting Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 381 (Mo. banc 1986)). The fact that Barbara Gerow was driving the vehicle on a highway was an intended use. Driver error which resulted in unintentional misuse was therefore reasonably foreseeable, and the nature of the error was irrelevant to proving an enhanced injury claim. Cryts, 571 S.W.2d at 687. Chrysler's suggestion that Barbara Gerow fell asleep or was not alert inappropriately suggested comparative fault in the context of a claim which should have centered entirely on whether the design of the vehicle and placement of the fuel tank contributed to the fuel-fed fire.

The trial court has broad discretion concerning final argument. Kelly by Kelly v. Jackson, 798 S.W.2d 699, 704 (Mo. banc 1990). However, the trial court's discretion is not so broad as to permit argument beyond the issues or to urge a theory of claim or defense which conflicts with the trial court's instructions. Hart v. Forbes, 633 S.W.2d 90, 92 (Mo.App. W.D.1982). "In ruling on the propriety of final argument, the challenged comment must be interpreted in light of the entire record rather than in isolation." Kelly, 798 S.W.2d at 704. When determining the prejudicial effect of final argument, the court's discretion will not be disturbed absent a showing of abuse. Hart, 633 S.W.2d at 92. An abuse of discretion occurs where counsel's comments are "plainly unwarranted and clearly injurious" to the adverse party. State v. Simmons, 944 S.W.2d 165, 178-79 (Mo. banc), cert. denied --- U.S. ----, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997).

Since any error on the part of Barbara Gerow which might have caused the original accident is irrelevant in this enhanced injury case, Chrysler's argument as to the reasonableness of her failure to correct her direction was unwarranted. This is particularly so since the trial court had already found that there was no evidence that Barbara Gerow failed to use the vehicle as reasonably anticipated by the manufacturer or that she used it for a purpose not intended by the...