Haffey v. Generac Portable Products, L.L.C.

• Decision Date: 22 September 2005
• Docket Number: No. 26437.,26437.
• Citation: Haffey v. Generac Portable Products, L.L.C., 171 S.W.3d 805 (Mo. 2005)
• Court: Missouri Supreme Court
• Parties: Kevin HAFFEY and Diane Lewis, Appellants, v. GENERAC PORTABLE PRODUCTS, L.L.C., Respondent.

171 S.W.3d 805

Kevin HAFFEY and Diane Lewis, Appellants, v. GENERAC PORTABLE PRODUCTS, L.L.C., Respondent.

No. 26437.

Missouri Court of Appeals, Southern District, Division Two.

September 22, 2005.

COPYRIGHT MATERIAL OMITTED

Stuart H. King & W. Craig Hosmer, McDonald, Hosmer, King & Royce, P.C., Springfield, for Appellants.

Nicholas Nagrich & Warford B. Johnson, III, Wallace, Saunders, Austin, Brown & Enochs, Springfield, for Respondent.

ROBERT S. BARNEY, Judge.

Appellants Kevin Haffey and Diane Lewis (variously "Plaintiff," "Plaintiffs," "Haffey," or "Lewis") filed an action in the Circuit Court of Greene County, Missouri, against Respondents Generac Portable Products, L.L.C. ("Generac") and Sears Roebuck & Company ("Sears") claiming damages to their building resulting from a fire on or about June 28, 2000, which Plaintiffs assert was caused by a defective and unreasonably dangerous 10,000 watt gas-powered generator manufactured by Generac. Sears was later dismissed from the litigation and the cause against Generac was tried before a jury. The jury returned its verdict in favor of Generac and judgment was entered in accordance with the jury's verdict. Plaintiffs now raise three points of trial court error involving the trial court's failure to give three requested withdrawal instructions to the jury, as more fully set out below. We affirm.

The record shows that in 1993 Haffey purchased 42 acres of real property which was surrounded by land owned by the United States Forest Service. He later built a metal building on the property which was approximately 30 feet by 40 feet in size. In July of 1999, Haffey and Lewis met and thereafter decided to get married. By the following year, Haffey had altered the metal building such that approximately two-thirds of the building was used as a shop and the remainder was converted to an apartment for Plaintiffs; however, electric services were not available to the building because Haffey had not yet obtained a permit from the United States Forest Service to extend electrical lines through the surrounding national forest. Therefore, in order to provide electrical power to the building, Haffey purchased a 10,000 watt Sears Craftsman gas-powered generator. Haffey placed the generator on a concrete slab located on the west side of the building and he partially enclosed the generator with a metal roof and two walls. For ventilation purposes, he constructed the two walls such that the lower two to three feet were open to allow air to circulate around the generator.

On June 28, 2000, Haffey put gasoline into the generator and left the property. Later, Lewis returned to the property. She started the generator, let it warm up and then plugged in the electrical cord which powered the lights to the apartment portion of the building. About ten to fifteen minutes later, Lewis heard a "wooshing, crinkle sound coming from behind us outside . . ." and the lights in the apartment began to flicker. Lewis went outside and discovered that the concrete pad and the west wall of the building were engulfed in flames. As a result of the fire, the building was completely destroyed and virtually all of its contents were incinerated.

Thereafter, Haffey and Lewis filed suit against Generac and Sears on theories of strict products liability, negligence, and breach of warranty.

During the trial, Plaintiffs offered two expert witnesses, Thomas Evans ("Evans"), a fire investigator, and Alan McGee ("McGee"), an electrical engineer. On direct examination Evans testified that the only fuel source which could have started the fire was the gasoline within the tank on top of the generator. He related that the point of origin of the fire was not at all consistent with an electrical fire. Further, he was able to exclude the propane system, which consisted of a propane tank and piping connected, as a fuel source to the refrigerator and water heater in the apartment.

McGee testified that he inspected the wiring system of the burned building on July 13, 2000, and opined the electrical system of the building did not cause the fire.¹

At trial, Haffey acknowledged that the product manual advised against "overfilling" the tank located on top of the generator and that he was careful to leave at least half an inch of space below the top of the tank when filling the generator with gasoline.

At the close of Plaintiffs' case, Generac rested without offering any evidence. It is clear from our review of the record that during trial Generac vigorously cross-examined Plaintiffs' witnesses, pointing out inconsistencies between deposition testimony and testimony at trial. In particular, Generac elicited testimony tending to show, or infer, that Haffey used the generator contrary to the operator's manual by: (1) having "overfilled" the gas tank located on top of the generator; (2) placing the generator too close to the wall of the building preventing proper ventilation of the heat, gasoline, and attendant vapors which were emitted from the generator, thereby igniting a fire; and (3) leaving the portable generator in its original wooden crate when placing it on the concrete slab. Additionally, while Generac did not dispute that the fire originated with the 10,000 watt generator, it elicited cross-examination evidence tending to show that Plaintiffs had not proven an actual defect making the generator unreasonably dangerous when put to a reasonably anticipated use.

When Generac rested its case without presenting any evidence, Plaintiffs tendered three withdrawal instructions to the trial court which addressed issues they believed should not be presented to the jury. Instruction Number "A" sought the withdrawal of the issue of whether the propane system in the building caused or contributed to the cause of the fire; Instruction Number "B" sought the withdrawal of the issue of whether the electrical system of the building caused or contributed to the cause of the fire; and Instruction Number "C" sought the withdrawal of the issue of whether Haffey overfilled the gasoline tank on the generator. All three withdrawal instructions were refused by the trial court.

Plaintiffs were permitted to submit a verdict directing instruction based on MAI 25.04, Strict Liability-Product Defect (6th Ed.).² As previously related, the jury returned its verdict in favor of Generac.

As a general rule, "plaintiff has the burden of proof and a verdict for defendant need not be supported by any evidence." Feick v. Fenlon, 939 S.W.2d 537, 538 (Mo.App.1997). "`Generally, the party not having the burden of proof on an issue need not offer any evidence concerning it.'" Stiff v. Stiff, 989 S.W.2d 623, 628 (Mo.App.1999) (quoting Brown v. Mustion, 884 S.W.2d 365, 369 (Mo.App.1994)).

"Evidence in any suit should be relevant; and evidence that throws no light on the controversy should be excluded as it tends to confuse the issues and operate to prejudice a party before a jury." Switzer v. Switzer, 373 S.W.2d 930, 939 (Mo.1964). "The test for relevancy is whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence." Morehouse v. Behlmann Pontiac-GMC Truck Serv., Inc., 31 S.W.3d 55, 60 (Mo.App.2000).

"As a general rule, a witness may be asked any questions on cross-examination that tend to test accuracy, veracity, or credibility, or shake the witness' credit by injuring his or her character." Long v. St. John's Reg'l Health Ctr., 98 S.W.3d 601, 606 (Mo.App.2003). "The trial court may not exclude relevant and material facts simply because counsel seeks to elicit such facts on cross-examination." Id.

"[I]n situations involving the cross-examination of expert witnesses, parties are to be given wide latitude `to test qualifications, credibility, skill or knowledge, and value and accuracy of opinion.'" Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 60 (Mo. banc 1999) (citation omitted). "Where a witness' prior inconsistent statement relates specifically to a paramount issue in the case, the trial court does not have discretion to prevent the impeachment of the witness through use of that statement." Long, 98 S.W.3d at 606. In utilizing such statements, "[t]he form of the prior inconsistent statement does not matter." Id. "In particular, a prior inconsistent statement of a witness who is available for cross-examination may be used as substantive evidence in a civil trial." Id.; Phillips v. Am. Motorist Ins. Co., 996 S.W.2d 584, 593 (Mo.App.1999).

"This [C]ourt defers to the jury's role of judging the weight of the evidence and the credibility of witnesses." Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 682 (Mo.App.2002). "The jury is the sole judge of the credibility of the witnesses and the weight and value of their testimony and may believe or disbelieve any portion of that testimony." Id.

Withdrawal instructions may be given when evidence on an issue has been received, but there is inadequate proof for submission of the issue to the jury; when there is evidence presented which might mislead the jury in its consideration of the case as pleaded and submitted; when there is evidence presented directed to an issue that is abandoned; or when there is evidence of such character that might easily raise a false issue.

Stevens v. Craft, 956 S.W.2d 351, 355 (Mo.App.1997) (internal citations omitted). "A withdrawal instruction is also appropriate in clarifying damages for the jury." Id. "`While MAI 34.02 is called a "withdrawal" instruction, its use is not limited to withdrawing evidence which is accidently or improperly admitted. It is intended rather to clarify what the jury is to consider in assessing damages.'" Id. (quoting MAI 34.02, Committee Comment).

"Determining whether to give a withdrawal instruction is a matter that is within the trial court's discretion." Id. "An abuse of discretion occurs only when a trial court's ruling is clearly against the logic of the circumstances and is so arbitrary and...