Katz v. Slade

• Decision Date: 14 December 1970
• Docket Number: No. 1,No. 54605,54605,1
• Citation: 460 S.W.2d 608
• Parties: Baylie E. KATZ, Appellant, v. Jack SLADE and the City of Kansas City, Missouri and Toro Equipment Company, Respondents
• Court: Missouri Supreme Court

Page 608

460 S.W.2d 608

Baylie E. KATZ, Appellant, v. Jack SLADE and the City of Kansas City, Missouri and Toro Equipment Company, Respondents.

No. 54605.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1970.

Achtenberg, Sandler & Balkin, Lloyd S. Hellman, Kansas City, for plaintiff-appellant.

Aaron A. Wilson, Jr., Acting City Counselor, Robert A. Dakopolos, Thomas C. Clark, Asst. City Counselor, Kansas City, for respondent.

HOUSER, Commissioner.

This is an action by Baylie E. Katz against Jack Slade, The City of Kansas City and Toro Equipment Company for $20,000 damages for personal injuries alleged to have been sustained while preparing to play golf on the Minor Park Golf Course, a public facility owned and operated by the city. By stipulation the case was dismissed as to defendants Slade and Toro. Following an adverse judgment after a jury trial of his cae against the city, Katz has appealed.

The public was invited to use the golf course upon payment of greens fees. The city conducted a pro shop on the premises and owned and rented electric golf carts for use by the general public in playing the game. The fees charged for use of the golf carts were comparable to fees charged by various other golf clubs in the area. The rentals were for short periods of time--for use in playing 9 or 18 holes of golf--and only for use on the golf course. The city maintained, checked and repaired the golf carts. A foursome, for whom Katz paid the greens fees, started to play 9 holes of golf on the city course, using two rented golf carts. Katz and one Snyder drove to the first see in one of the carts, for which Kartz had paid the rental fee. Katz dismounted, went to the back of the car to remove equipment for play from his golf bag which was on the rack at the rear of the cart. Jack Slade, a member of the foursome, paid the rental fee on the second cart (No. 4). Slade and one Copper left the clubhouse and approached the number one tee, with Slade driving and Cooper riding as a passenger in cart No. 4. Katz was standing behind the other cart, with his back toward the oncoming cart. Slade drove cert No. 4 slightly downhill on the asphalt path provided for the carts, coasted down the incline, and approached the place where Katz was standing. Slade testified that the tried to stop the cart but was unable to do so and the front bumper of cart No. 4 struck Katz in the rear across the calf of both legs; that when he pressed down on the brake pedal there were no brakes; that he pressed the pedal clear to the floor and still had no brakes; that he yelled 'No brakes' but it was too late. Cooper testified that when the brakes were applied there was 'very limited' effect; there was some decleration but not to any extent; 'it was like dragging.' After the accident he drove the cart back to the parking area. When he swung into the parking area he 'didn't have much speed'--was going 2 or 3 m.p.h. when 4 or 5 feet from the wall. He pressed the brakes in a 'normal hard manner.' They did not lock. They had a slowing effect but did not stop the cart, which bumped into the wall. A policeman who was called to the scene took a ride in cart No. 4 after the accident. He testified that in a trip over the same terrain the golf pro, driving the cart, stepped on the brake. There was definitely a brake (the pedal did not go to the floor). The officer heard the brake engage. 'It ground, or a grinding sort of, you could hear it, and then all of a sudden we came to an abrupt stop'; the wheels locket, but the cart 'traveled a considerable distance further than it should have.' His report stated that '* * * the brakes would stop it, buy only after it had traveled a considerable distance with them applied.' The officer further testified that the cart went more than 10--15 feet after the brakes were applied before it grabbed and locked the brakes, all of the time making a noise and not braking. Testimony elicited from the city's witnesses indicated that cart No. 4 had been purchased new and had been in use from July 1966 to the date of the occurrence in February, 1967; that the person responsible for the maintenance of the carts was a Mr. Biddle who was not a mechanic; that the club had no one with mechanical ability responsible for testing the carts; that no adjustments had been made on the linkage between the foot pedal and the brake pad calipers; that there had been no occasion before the accident to adjust the linkage; that linkage can get out of adjustment, but that during the time the club had cart No. 4 no check of the linkage had been made; that 'the only inspection the man in the morning makes is a visual inspection to make sure the tires are up and he drives it out (on a level place) and stops it.'

Paragraph 3 of Katz' petition charged the city with negligent failure to maintain proper care of the cart; failure to check its brakes; failure to maintain proper service records on the cart; renting the cart of Slade with knowledge that the brakes were faulty and unable to stop the cart in an ordinary, reasonable, distance, and were partially or totally inoperative. Paragraph 4 alleged breach of warranty of fitness of use on the part of the city in renting the cart in question. Paragraph 5 charged that they city permitted Slade's use of the cart, for hire, with knowledge that a golf cart with improperly maintained or faulty breaks is a dangerous instrumentality. Paragraph 6 was based on the theory that the city maintained a nuisance in wrongfully permitting a defective cart to be operated on its premises.

Katz went to the jury on the theory of strict liability in tort by Instruction No. 2, patterned after and adapted from MAI 25.03. At the city's request the court gave Instruction No. 7, as follows: 'Your verdict must be for defendant unless you believe the brakes filed on golf cart No. 4 as a direct result of this defendant's failure to exercise ordinary care.'

Katz' sole point on appeal is that the court erred in giving No. 7 because it erroneously imposed upon Katz the improper burden of establishing failure to exercise ordinary care in a case submitted on the basis of strict liability, and that No. 7 is not a true converse instruction. This point must be sustained under Austin v. Western Auto Supply Co., Mo.App., 421 S.W.2d 203, for these reasons: No. 7 purports to but does converse the elements of unfitness for the intended use and causation. Instead if injects a new and foreign element, i.e., the failure of the city to exercise ordinary care. That element was extraneous to a submission on strict liability. It confused the issue by engrafting onto a submission on strict liability in tort (which is unrelated to any theory of negligence) the question whether the city exercised ordinary care. If Katz had been entitled to submit on the theory chosen the instruction complained of would have imposed upon him a burden not his, for in strict liability in tort all that plaintiff need show is defect and causation (not negligence). This was misdirection of a prejudicial nature because it enabled the jury to determine the case on the basis of a false issue.

There is no merit in the city's suggestion that by the language of paragraph 2 of Instruction No. 2 ¹ Katz introduced the standard of ordinary care and therefore Katz actually submitted negligence in failing to exercise ordinary care to eliminate defective brakes. Obviously paragraph 2 referred only to the element of knowledge on the part of the city of the use to which the cart was to be put and did not serve to postulate negligence.

The city, however, urges that under the law and evidence Katz was not entitled to submit his case on the theory of strict liability in tort.

To this writing the beneficiaries of the rule of strict liability in tort in this State have been restricted to the ultimate purchasers, consumers and users of these products. ² Katz was not a purchaser, consumber or user of the product. He was a bystander. Although he rented a golf cart carrying two of a foursome he did not rent the cart which struck him. Struct liability in tort to this date has been imposed in this State only on manufacturers, food packagers and beverage bottlers, retailers, wholesalers and restaurant operators--those engaged in manufacturing, preparing, distributing, supplying and selling products which endanger the safety or property of the public. It has never been applied in this State to situations involving mutual benefit bailments, leases or rentals of the products of industry. Now Katz calls upon this Court to enlarge the class of beneficiaries who may avail themselves of the rule of strict liability in tort by including bystanders, and to enlarge the class of parties liable thereunder to include others than manufactuers, sellers, etc. and specifically to include lessors. The question before us, therefore, is whether under the circumstances of this case a bystander may recover damages under the doctrine of strict liability in tort from a municipal corporation which is the owner-lessor of a golf cart for injuries sustained when struck while the vehicle is being operated by a third party-lessee, as a result of a defect rendering the vehicle unfit for its intended use.

In determining this question we look to the basic policy reasons underlying the decisions in this State abrogating the requirement of privity of contract in implied warranty cases and imposing strict liability in tort in cases in which that element is absent. Various reasons have been assigned: to reshape the law to conform to the requirements of modern life in the interest of social justice; to modify the harsh results flowing from the rule of caveat emptor; to afford justice to the majority of the consumer citizenry whose well-being, health and lives are dependent in great degree upon processed food and manufactured articles, the fitness or safety of which the ordinary consumer knows little other than that the processor or...