Hill v. General Motors Corp.

• Citation: 637 S.W.2d 382
• Decision Date: 20 July 1982
• Docket Number: No. 45016,45016
• Parties: Ernest M. HILL, et al, Appellants, v. GENERAL MOTORS CORPORATION, et al, Respondents.
• Court: Missouri Court of Appeals

Page 382

637 S.W.2d 382

Ernest M. HILL, et al, Appellants, v. GENERAL MOTORS CORPORATION, et al, Respondents.

No. 45016.

Missouri Court of Appeals, Eastern District, Division Three.

July 20, 1982.

Richard L. Anderson, Kimberling City, for appellants.

Joseph M. Kortenhof, St. Louis, for General Motors Corp.

James J. Amelung, St. Louis, for Darrell Kinsey and Mary Kinsey.

Gilbert Beckemeier, St. Louis, for Como Tire Supply, Inc.

REINHARD, Presiding Judge.

Plaintiffs appeal from an order of the trial court dismissing three counts of their first amended petition against General Motors Corporation (GMC), without prejudice, for failure to state a claim upon which relief can be granted and four counts against Darrel and Mary Kinsey d/b/a Kinsey's Vickers Station (Kinseys) for lack of venue.

Plaintiffs filed a nine count amended petition in St. Louis County Circuit Court against GMC, the Kinseys, and Como Tire Supply, Inc. for injuries arising from a vehicular accident. In their petition, plaintiffs alleged that GMC manufactured a certain 1977 Chevrolet Blazer and that after it was sold, the Kinseys modified the Blazer's suspension system by installing lifts, U-bolts, oversize wheels and tires purchased from Como Tire Supply, Inc. The petition further alleged that on October 23, 1980, while plaintiffs Ernest and Marty Hill were passengers in the Blazer, it overturned without warning several times on a highway in Stone County, Missouri, and they were injured. Plaintiff, Catherine Hill's claims against the defendants are based on loss of consortium.

Plaintiffs alleged that GMC knew its vehicles were being modified in this manner and that with these modifications the Blazer had "an unreasonably dangerous tendency to turn over...." GMC was therefore, "negligent in failing to adequately warn foreseeable owners, users, operators, and passengers of such Blazer of its propensity to turn over if modified in (this) manner ...."

Como Tire Supply, Inc. filed an answer. Defendant GMC filed a motion to dismiss all counts against it for failure to state a claim and the Kinseys filed a motion to dismiss for improper venue. The trial court sustained both motions. Subsequently, it made its dismissal without prejudice ¹ and designated the order final for purpose of appeal. Rule 81.06. We affirm.

In determining whether plaintiffs have stated a cause of action we assume every fact as true and take every favorable inference which may be reasonably drawn from the facts pleaded. Rook v. Public School Retirement System, 593 S.W.2d 905, 906 (Mo.App.1980). In determining the sufficiency of the claim, averments are given a liberal construction. Cady v. Hartford Accident and Indemnity, 439 S.W.2d 483, 485 (Mo.1969). The test of sufficiency is whether the averments invoke substantive law which entitle the plaintiff to relief. Nelson v. Wheeler Enterprises, Inc., 593 S.W.2d 646, 647 (Mo.App.1980).

At the outset, we note that plaintiffs do not contend they pleaded a cause of action against GMC in strict liability in tort as recognized in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969). In Keener, Missouri adopted § 402A of the Restatement (Second) of Torts, which provides that a manufacturer is liable in damages for defective products if the product reaches the user or consumer "without substantial change in the condition in which it is sold." The defect must have existed at the time of manufacture. Williams v. Ford Motor Co., 411 S.W.2d 443, 450 (Mo.App.1966); M.A.I. 25.04. See, Cox v. General Motors, 514 S.W.2d 197 (Ky.App.1974) (manufacturer not liable for injuries caused by alteration to wheels, tires, and suspension system after car was manufactured). Plaintiffs' petition fails to plead a "defect" in the Blazer at the time the vehicle left the manufacturer as well as affirmatively pleads substantial post-sale modifications which proximately caused the accident.

Plaintiffs, though, contend their petition pleads a cause of action in negligence against GMC for failure to warn them as foreseeable users of the dangers presented by the modifications. In an action for negligence, generally, plaintiffs must allege ultimate facts which if proven, show: 1) the existence of a duty on the part of the defendant to protect plaintiffs from injury; 2) failure of defendant to perform that duty; and 3) injury to plaintiffs resulting from such failure. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976).

Missouri has long recognized that a manufacturer has the duty to warn ultimate users of its products or articles which are inherently dangerous or are dangerous because of the use to which they are put. Orr v. Shell Oil Co., 352 Mo. 288, 177 S.W.2d 608, 612 (1943); Griggs v. Firestone Rubber Co., 513 F.2d 851, 856 (8th Cir. 1975); and Alexander v. Inland Steel Co., 263 F.2d 314, 322 (8th Cir. 1958) (both applying Missouri law). See, Annot., 76 A.L.R.2d 9. In Morris v. Shell Oil Co., 467 S.W.2d 39, 42 (Mo.1971), Missouri adopted § 388 Restatement (Second) of Torts, which provides:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

a) knows or has reason to know that the chattel is or is likely to be dangerous

for the use for which it is supplied, and

b) has no reason to believe that those for which use the chattel is supplied will realize its dangerous condition, and

c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

The duty to warn for foreseeable and latent dangers is attendant upon the proper and intended use of a product. LaPlant v. E. I. DuPont de Nemours & Co., 346 S.W.2d 231, 239 (Mo.App.1961).

In Orr v. Shell Oil Co., 352 Mo. 288, 177 S.W.2d 608 (1943), the plaintiff, a laborer, developed a severe rash after handling a chemical supplied by the defendant manufacturer. The manufacturer knew it was toxic when handled and knew specifically that a laborer would handle the chemical in this manufacturing process. The Supreme Court affirmed a verdict against the manufacturer and held that its failure to provide a warning to the plaintiff on the dangers involved constituted negligence. Similarly, in Morris v. Shell Oil Co., 467 S.W.2d 39 (Mo.1971), the court held that plaintiff, who injured her hands using a petroleum solvent as a cleaning agent was entitled to a warning that the product was dangerous. In both of these cases, though, there was no alteration of the product.

There are no Missouri cases which have imposed a duty on the part of a manufacturer to anticipate and warn of...