Hill v. Air Shields, Inc.

• Decision Date: 28 October 1986
• Docket Number: No. 51105,51105
• Citation: 721 S.W.2d 112
• Parties: Prod.Liab.Rep. (CCH) P 11,250 Christopher Shawn HILL, Plaintiff-Appellant, v. AIR SHIELDS, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 112

721 S.W.2d 112

Prod.Liab.Rep. (CCH) P 11,250

Christopher Shawn HILL, Plaintiff-Appellant, v. AIR SHIELDS, INC., Defendant-Respondent.

No. 51105.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 28, 1986.

Motion for Rehearing and/or Transfer Denied Dec. 3, 1986.

Application to Transfer Denied Jan. 13, 1987.

Thurman, Smith, Howald, Weber & Bowles, Hillsboro, for plaintiff-appellant.

Williams & Montgomery, Ltd., Chicago, Ill., Anderson, Gilber, Wolfort, Allen & Bierman, St. Louis, for defendant-respondent.

CRANDALL, Judge.

Plaintiff, Christopher Shawn Hill, a minor, by and through Ronald D. Hill, his father and next friend, appeals from a grant of summary judgment in favor of defendant, Air Shields, Inc. We reverse and remand.

Plaintiff was born prematurely on May 19, 1969. At birth he weighed 3 pounds 5 ounces. He was transported almost immediately to St. Louis Children's Hospital for treatment for respiratory distress. There, he was placed in an incubator known as the Model C86 Isolette, which was designed, manufactured and sold by defendant. While in the incubator, plaintiff was administered oxygen on a continuous basis until May 24. The levels of oxygen concentration initially started at 50 percent and were gradually decreased to between 30 percent to 40 percent. It was formerly believed that oxygen was safe if kept below levels of 40 percent. Later research determined, however, that there was no safe percentage for every premature infant. Defendant had manufactured and designed its Isolette to be equipped with a red warning flag. To administer oxygen in concentrations of greater than 40 percent, it was necessary to manually adjust this red flag.

Several months after his release from the hospital on June 26, 1969, plaintiff was diagnosed as suffering from Retrolental Fibroplasis (hereinafter referred to as RLF), an eye disease which resulted in total blindness in his right eye and loss of sight in his left eye so that his vision in that eye was limited to simple light perception. He brought a malpractice action against the doctor who delivered him, the pediatrician who treated him, and the hospital in which he received treatment. See Hill v. Boles, 583 S.W.2d 141 (Mo. banc 1979) (a prior appellate opinion on that litigation). He alleged, inter alia, that his condition of RLF was caused by excessive exposure to oxygen during his postnatal treatment at the hospital for respiratory distress.

Plaintiff later joined Air Shields, Inc. as a party-defendant. Plaintiff's theories of recovery in his petition against defendant sounded in strict liability and in negligence. He alleged that defendant had misled and had failed to warn the medical profession of the dangers of exposing premature infants to excessive oxygen. Defendant filed a motion to dismiss and for summary judgment. Plaintiff's counsel responded with his own sworn affidavit alleging that defendant knew that oxygen concentrations of 40 percent or less were dangerous to infants but did not so warn physicians and hospitals. Plaintiff alleged that defendant had fostered the belief that low levels of oxygen concentration were safe for all premature infants both in its literature about its product and by installing the red warning flag for oxygen levels of greater than 40 percent. The trial court granted summary judgment in favor of defendant. That judgment became final when plaintiff subsequently settled and dismissed his claims against all the other parties to the action.

Before turning to the substantive issues raised in this appeal, we consider the procedural aspects of a motion for summary judgment in general and the specific application of Rule 74.04 to this case. In ruling on a motion for summary judgment, the trial court and the appellate court must scrutinize the record in the light most favorable to the party against whom the motion for summary judgment was filed and against whom judgment was rendered, and must accord to that party the benefit of every doubt. First National Bank of St. Charles v. Chemical Products, Inc., 637 S.W.2d 373, 375 (Mo.App.1982). Summary judgment is a drastic remedy and is therefore inappropriate unless the prevailing party has shown by unassailable proof to be entitled thereto as a matter of law. If a genuine issue of fact exists, summary judgment cannot be granted. A genuine issue of fact exists when there is the slightest doubt about the facts. The fact in doubt, however, must be a material one which has legal probative force as to a controlling issue. Union Electric Co. v. Clayton Center Ltd., 634 S.W.2d 261, 263 (Mo.App.1982) (citations omitted). "In negligence cases, summary judgment is generally not as feasible as in other kinds of cases." Brown v. Upjohn Co., 655 S.W.2d 758, 760 (Mo.App.1983) (citations omitted).

Defendants argue at length not only of the improbability of plaintiff's position but also of the deficiency of plaintiff's affidavit filed in response to defendant's motion for summary judgment. However persuasive defendant's arguments may be, they are irrelevant to the preliminary determination of whether summary judgment will lie.

Summary judgment cannot be sustained upon the basis of the most probable of conflicting evidence. Clary v. United Telephone Co., 670 S.W.2d 936, 939 (Mo.App.1984). The question is whether defendant has shown by unassailable proof that only one conclusion is possible and that it is, therefore, entitled to summary judgment as a matter of law. See Rule 74.04(h). Only when the moving party makes a prima facie showing that he has met this highest civil burden of proof does consideration of the other party's response become germane. In determining the issue of unassailable proof, the inquiry focuses not on what plaintiff failed to do in response to defendant's motion, but rather on whether defendant fulfilled his initial responsibility and burden as the moving party to show or to resolve by unassailable proof all genuine issues of material fact. Fisher v. Scott & Fetzer Co., 664 S.W.2d 662, 664 (Mo.App.1984). Unassailable proof is that which leaves no room for controversy. Porter v. Georgia Casualty & Surety, 508 S.W.2d 27, 31 (Mo.App.1974).

In the present case, defendant filed an unverified motion unsupported by affidavits. In the motion, defendant made reference to particular parts of depositions taken during discovery in the present action and of testimony at the trial in the prior action, Hill v. Boles. Plaintiff opposed the motion for summary judgment by means of the sworn affidavit of his attorney in which he, in essence, repeated the allegations of fact contained in his Third Amended Petition; namely, that defendant had misled and had failed to warn the medical profession of the danger of administering oxygen in concentrations of 40 percent or less to all premature infants. Plaintiff filed no other counter-affidavits.

Defendant asserts that plaintiff's affidavit was insufficient and that plaintiff's failure to file the appropriate affidavits was tantamount to admitting the facts within defendant's motion for summary judgment. Defendant reasons that, as a result, it was entitled to have summary judgment granted. See Rule 74.04(e).

Rule 74.04(b) permits a motion to be made "with or without supporting affidavits." An unverified motion, however, may not substitute for one of the functions an affidavit performs in a summary judgment proceeding. Upjohn, 655 S.W.2d at 759. "The affidavit constitutes evidentiary material by which the moving party demonstrates entitlement to the drastic relief afforded by a summary judgment." Id.; see also Rule 74.04(h).

The purpose of the trial court's examination of proffered material extraneous to the petition is not to try an issue but to determine whether there is a genuine issue of material fact for trial. Here, it is unclear from the record before us what precisely was before the court. Defendant refers to depositions and to previous trial testimony, but whether these transcripts were actually before the court is not evident. It is not the function of the appellate court to sift through material furnished by the parties on appeal to determine the exact nature of the evidentiary material submitted to the trial court in a summary judgment proceeding. The preferable course for both the moving and opposing parties to follow in a motion for summary judgment would be to enumerate all portions of the transcripts and depositions referred to in the motion and to properly authenticate or certify the documents which they wish the trial court to consider in ruling on the motion. Unless the record reveals that the documents which the parties purportedly relied upon in the trial court were properly made part of the record, we cannot say that they were before the trial court and they are not now before us. See, e.g., Stix & Co., Inc. v. First Missouri Bank and Trust Co. of Creve Coeur, 564 S.W.2d 67, 69 (Mo.App.1978).

In response to defendant's charge that plaintiff's affidavit was inadequate to oppose his motion for summary judgment, we note that the affidavit was not challenged in the trial court. The affidavit of plaintiff's counsel submitted on behalf of his client may have failed to satisfy the strict requirements of Rule 74.04(e), in that plaintiff's counsel was not competent to testify and did not have personal knowledge of any of the alleged facts. The affidavit, however, sufficiently brought the facts before the court and was within the spirit of Rule 74.04. Also, had defendant met its initial burden by submitting affidavits in support of his motion, Rule 74.04 may have required plaintiff to have done more than to simply rely on contrary allegations in his counsel's affidavit.

We now turn to the substantive issues raised in plaintiff's appeal. Defendant's motion for summary judgment posited two grounds for relief: (1) no duty either under a strict liability theory or under a negligence theory; and (2) no...