Keller v. International Harvester Corp.

• Decision Date: 01 March 1983
• Docket Number: No. WD32713,WD32713
• Citation: 648 S.W.2d 584
• Parties: Matthew Scott KELLER, d/n/f Carole Keller, Daniel Keller and Carole Keller, Appellants, v. INTERNATIONAL HARVESTER CORPORATION and Carl Looman, Respondents.
• Court: Missouri Court of Appeals

Page 584

648 S.W.2d 584

Matthew Scott KELLER, d/n/f Carole Keller, Daniel Keller and Carole Keller, Appellants, v. INTERNATIONAL HARVESTER CORPORATION and Carl Looman, Respondents.

No. WD32713.

Missouri Court of Appeals Western District.

March 1, 1983.

John C. Risjord, Terry L. Karnaze, Niewald, Risjord & Waldeck, Kansas City, for appellants.

Thomas O. Baker, Thomas E. Rice, Jr., Kansas City, and Thomas E. Allen, Liberty, for Intern. Harvester.

J. Nelson Happy, Happy, Cooling & Herbers, P.C., Kansas City, for Looman.

Before SOMERVILLE, C.J., and DIXON and CLARK, JJ.

CLARK, Judge.

This appeal is from an adverse jury verdict returned against plaintiffs, son and parents, in their claims for damages from an injury sustained by the son in a lawn mower accident. The judgment is affirmed.

On October 10, 1974, plaintiff Matthew Keller, then six years of age, was playing with other youngsters in the yard of neighbors when defendant Carl Looman arrived to mow the grass. Looman was using his 1968 Cub Cadet tractor with lawn mowing attachment, both manufactured by defendant International Harvester. In one of his turns about the yard, Looman drove the mower past where Matthew was at play some fifteen feet distant. According to Matthew, as the mower came by, an object from the mower struck him in the eye. He felt immediate pain and withdrew an object which he testified was a blade of grass. Evidence of serious injury was immediately apparent and Matthew was taken to a hospital for treatment. In the following months, efforts to save the eye proved unsuccessful and the eye was surgically removed in August, 1975.

The present suit filed in 1980 alleged that the International Harvester mower was designed, manufactured and distributed without a guard or deflector plate rendering the machine dangerous to bystanders. The petition appeared to charge International Harvester with liability by reason of defective design of the mower, a failure to warn of hazards accompanying its use and a failure subsequently to remedy the defects when known. As to defendant Looman, liability was based on a claim he negligently operated the mower near the area where children were playing. On this appeal, nine points of error are asserted. They will be grouped for purposes of discussion.

I.

In three points, appellants contend the trial court erred in denying admission of certain exhibits and in excluding proof intended to show other lawn mower accidents had occurred in similar fashion before and after the injury suffered by plaintiff Matthew Keller. The exhibits were photographs and written materials depicting safety shields and guards used on other mowing devices. To understand the mower design issue, some description of mower function drawn from testimony at trial by expert witnesses will be helpful.

From the standpoint of operating efficiency, mower blades which are neither guarded nor encased perform most effectively. Exposed rotating blades are dangerous, however, not only because of the hazard from the blades themselves but because the blades tend to lift objects from the ground and propel them at high speeds in all directions. Interests of safety require that mower design include a housing to enclose the blades from above and around the circumference, but the design must also provide a discharge mechanism for the grass cuttings. This is necessary because the absence of a relief chute causes cuttings to accumulate under the housing clogging the blade action and dropping the cuttings unevenly.

Design of the discharge chute affects the performance of the mower. While reducing the size of the chute by guards or deflectors increases safety, the efficiency of the mower suffers. The design of the chute also determines at what angle from horizontal the mower discharge will be propelled. Here, too, the design must recognize some compromise between safety and commercially acceptable function. Appellants' case here against International Harvester was grounded upon the contention that the design of the 1968 Cub tractor mower was unreasonably dangerous in that the discharge chute was not equipped with a guard or deflector plate to reduce the velocity and angle of objects thrown from under the mower.

As to the claim the International mower was defective in design, the theory of liability is that expressed in § 402A of the Restatement (Second) of Torts adopted by Missouri in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969). Under the defective design theory, the plaintiff must prove the product as designed was so defective as to make the product unreasonably dangerous for its anticipated use. Cryts v. Ford Motor Co., 571 S.W.2d 683 (Mo.App.1978). As the opinion in Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977) points out, strict liability in a defective design case depends not on reasonable anticipation that acts or omissions will cause harm or injury but on the foreseeable or reasonably anticipated use of the product. The strict liability claimant must therefore prove that the article as designed had a degree of dangerousness which the law of strict liability will not tolerate, ¹ and the use being made of the article at the time was one to be reasonably anticipated by the manufacturer.

In the present case, appellants undertook to prove, as the concept of strict liability required, that the mower in question was unreasonably dangerous as marketed without guarding or shielding of the discharge chute. As a part of that proof, the exhibits of the photographs and written materials were tendered to show the availability and feasibility of added guarding to the mower discharge chute. Appellants contend the exhibits were erroneously denied admission to appellants' prejudice. The points lack merit for several reasons.

In this case, unlike many design defect cases, the evidence was uncontroverted that no technological advance was necessary to add further guarding to the discharge chute. Appellants successfully demonstrated to the jury that International Harvester itself manufactured both a mulcher plate which closed the end of the chute and a steel extension plate which attached to the mower and lowered the angle of discharge. Also explored in the evidence were alternate possibilities of baffles, chains and rear baggers. Substantial evidence, apart from the exhibits denied admission, amply demonstrated to the jury the availability and means for closing or narrowing the mower discharge chute, a point which was never in actual contest. At most the ruling of the trial court merely excluded proof which was cumulative. There is no showing here that appellants were thereby prejudiced.

An additional ground for excluding some of the exhibits was their lack of relevance. Some of the photographs depicted a rotary cutter, an appliance designed to cut heavy brush and high weeds. A cutter differs from a mower in that the housing over the cutter's blades is open at front and rear to permit passage of the blades into and over rough materials. There is no side discharge from a cutter, the materials being expelled or discharged from the rear. A cutter is so dissimilar to a mower as to be of no comparative value. The photographs and narrative material portraying cutters was properly refused because not relevant to mower design.

Another exhibit was a photograph of a lawn mower manufactured by International Harvester in 1972 which had a deflector attachment on the chute. Any issue as to this exhibit has not been preserved for appellate review because there was no offer of proof. International Harvester Credit Corp. v. Formento, 593 S.W.2d 576, 579 (Mo.App.1979). We do observe, ex gratia, that the exhibit added nothing to appellants' case because a similar deflector attachment was admitted in evidence with a demonstration as to how it would have been attached to the Looman machine. Moreover, there was no showing that the 1972 model did not incorporate other design changes and no showing the 1972 model changes were technically available in 1968. ²

Other materials rejected included photographs of mowers with chains at the end of the discharge chute, mowers with the same discharge arrangement as the mower used by Looman and a twenty-seven page document of photographs and text. Without exploring the details of these exhibits, it suffices to restate that the trial court excluded the exhibits as irrelevant. Decision as to relevancy is left to the sound discretion of the trial court and the ruling will be upheld on appeal unless abuse of discretion be shown. Long v. Hooker, 443 S.W.2d 178, 181 (Mo.1969). Taking into account the repetitive nature of some of the exhibits and the nature of others which depicted machines not comparable in function to mowers, no abuse of discretion in denying admission of the exhibits appears.

The second and third points asserting error in the exclusion of evidence center upon proof appellants offered as to lawn mower accidents which allegedly occurred both before and after the subject mishap. Appellants contend the evidence had probative value to prove the mower design was defective and to prove also that International Harvester had notice of the problem. This contention serves to demonstrate a confusion which has permeated appellants' presentation of the case under a mixture of liability concepts. To this point, discussion of the case has assumed the pleaded and submitted theory of liability to have been strict liability for defective product design. Under that theory, knowledge, fault or remedial conduct by the manufacturer is not relevant, Racer v. Utterman, 629 S.W.2d 387, 395 (Mo.App.1981). It could thus be ruled that any proof as to what International Harvester had learned from accident reports was irrelevant. It is, however, unnecessary at this point to consider whether some other liability theory would have justified reception of the proof excluded because appellants laid no foundation to admit the...