Key v. Diamond Int'l Trucks

Decision Date27 January 2015
Docket NumberWD 77323
Citation453 S.W.3d 352
PartiesSteven Key and Christine Key, Respondents, v. Diamond International Trucks f/k/a KCR International Trucks, Appellant.
CourtMissouri Court of Appeals

Corey Kraushaar, St. Louis, MO, Counsel, Christopher Seibold, St. Louis, MO, Daniel Young, Kansas City, MO, CoCounsel for Appellant.

John Turner, Kansas City, MO, Counsel, Christopher Sweeny, Kevin Meyers, Marty Seaton, Kansas City, MO, CoCounsel for Respondent.

Before Division Four: Alok Ahuja, C.J. Presiding, James Edward Welsh, J., and Patrick Campbell, Sp. J.

Opinion

James Edward Welsh, Judge

Diamond International Trucks, formerly known as KCR International Trucks, Inc., appeals from the judgment entered by the circuit court following a jury verdict of $10,000,000 in damages on Steven Key's negligence claim for personal injuries but assessing 35 percent fault to Diamond International and 65 percent fault to Key. Diamond International asserts that the circuit court: (1) erred in denying its motion for new trial because the circuit court erroneously and prejudicially rejected Diamond International's comparative fault instruction and gave an alternative comparative fault instruction, (2) erred in denying its motion for judgment notwithstanding the verdict on Key's negligence claims because Diamond International owed no duty to provide Key with the equipment needed to perform his work safely, and (3) erred and abused its discretion in denying Diamond International's motion for new trial because the circuit court erroneously and prejudicially excluded evidence of subsequent remedial measures taken by Key's employer. We affirm.

Viewing the evidence in the light most favorable to the verdict, the evidence established that Key was employed by Auto Truck Transport (ATT), and, as part of his employment, Key delivered heavy duty commercial trucks to dealerships. The trucks are transported by ATT in a piggyback or decked fashion, which means that two or three trailing trucks are attached to a lead truck at an angle with only their rear wheels on the ground. The trucks are decked by ATT using special saddles made of steel and wooden blocks that are bolted to the truck chassis and held in place by the weight of the trucks.

On December 6, 2007, Key delivered three trucks from Texas to Diamond International's St. Joseph, Missouri, dealership. When Key arrived at Diamond International's dealership, he pulled the trucks into an area that Diamond International provided for undecking the trucks. In the undecking facility, Diamond International provided a hoist to be used in the undecking process.

To undeck the trucks, straps are used to attach a truck to the hoist. The trucks have hooks in the front bumpers which are used to attach the straps to the hoist. Once the straps are secured to the hoist, the straps help to limit the vertical movement of the top truck, and the hoist lifts the top truck off the next lower truck. Attached to the trucks are U-bolts and a J-bolt. U-bolts hold the saddle onto the top truck, and a J-bolt holds hold the two saddles together.

When Key was undecking the trucks at Diamond International, he attempted to use two straps to attach the truck to the hoist but said he was unable to do so because of the height differential between the hoist and the top truck. Key, therefore, used one strap. He hooked one end of the strap to one side of the bumper, put the strap through the hoist, hooked the other end of the strap to the other hook on the bumper, and lifted the truck. After lifting the truck, Key got wooden chocks or blocks out of the “container” or “bin” and “kicked them behind the wheels and underneath the front of the wheels” of the truck. Key then went to the driver's side of the truck and took off one U-bolt. Key was attempting to remove another U-bolt from the top truck, when the top truck rolled back and trapped Key between the two trucks.

Key suffered multiple injuries including bilateral chest trauma, hemothoraces, flail chest

, multiple rib fractures, pulmonary contusion, respiratory failure, pneumonia, hemoperitoneum, internal bleeding, avulsion, renal injuries, injuries to the lumbar arteries, injuries to the mesenteric arteries, damage to the mesentery, a devascularized small bowel, an infarcated colon, pelvic hematoma, injury to the pelvis, transverse process fractures, and acute renal failure. As a result of his injuries, Key was left impotent. He also suffers from impaired bowel function, gait impairment which requires the use of a cane, deep vein thrombosis, weakness in his muscles, bladder issues, and back pain. In the future, Key will need rehabilitative services, physical therapy, medications, and ongoing consultations with urology and gastroenterology.

Key1 sued Diamond International alleging that Diamond International negligently supplied a dangerous instrumentality for a business purpose by not providing Key proper wheel chocks to stabilize the trucks during the undecking process.2 After a trial, the cause was submitted to the jury upon comparative fault instructions. Instruction Number 8 said:

In your verdict you must assess a percentage of fault to defendant Diamond International Trucks whether or not plaintiff Steve Key was partly at fault, if you believe:
First, defendant supplied an un-decking facility for use, and
Second the un-decking facility lacked proper wheel chocks and was therefore dangerous when put to a reasonable expected use, and
Third, the un-decking facility was put to a reasonably expected use, and
Fourth, defendant knew or in the exercise of ordinary care could have known of such dangerous condition, and
Fifth, defendant failed to exercise ordinary care to make the condition reasonably safe, and
Sixth, such failure either directly caused damage or combined with the failure of Auto Truck Transport to directly cause damage to plaintiff.

Instruction Number 9 said:

In your verdict you must assess a percentage of fault to plaintiff Steve Key, whether or not defendant was partly at fault, if you believe:
First either:
plaintiff Steve Key failed to use any straps to undeck the subject truck, or
plaintiff Steve Key knew or by using ordinary care could have known that there was a reasonable likelihood of injury during the undecking procedure if he failed to use two straps in the undecking procedure, if feasible, or
plaintiff Steve Key knew or by using ordinary care could have known that there was a reasonable likelihood of injury during the undecking procedure if he failed to disconnect the saddles by the J-bolts, and
Second, plaintiff Steve Key, in any one or more of the respects submitted in Paragraph First, was thereby negligent,3 and
Third, such negligence of plaintiff Steve Key directly cause or directly contributed to cause any damage plaintiff Steve Key may have sustained.

The jury was also instructed to determine the total amount of Key's damages on his claim for personal injury and instructed that, in making such determination, it should disregard any fault it assessed against Key. The jury returned a verdict of $10,000,000 in damages on Key's claim for personal injuries but assessed 35 percent fault to Diamond International and 65 percent fault to Key. Consistent with the jury's verdict, the circuit court entered judgment in favor of Key and against Diamond International in the amount of $3,500,000. Thereafter, Diamond International filed its motion for judgment notwithstanding the verdict, or, in the alternative, motion for new trial and motion for remittitur. The circuit court denied Diamond International's post-trial motions. Diamond International timely filed its notice of appeal with this court on February 28, 2014.

In its first point on appeal, Diamond International asserts that the circuit court erred in denying its motion for new trial because the circuit court erroneously and prejudicially rejected Diamond International's comparative fault instruction and instead gave the jury Key's comparative fault instruction, Instruction Number 9. Diamond International contends that Instruction Number 9 improperly deviated from the Missouri Approved Instructions, misstated Diamond International's burden of proof, and failed to submit the specific acts of comparative fault to the jury.

Initially, we note that the denial of a motion for new trial is not an appealable order. “No appeal lies from an order overruling a motion for a new trial, but the aggrieved party may appeal from a final judgment entered against him.” Walker v. Thompson, 338 S.W.2d 114, 116 (Mo.1960) ; Burbridge v. Union Pacific R.R. Co., 413 S.W.3d 649, 654 (Mo.App.2013). In its notice of appeal, Diamond International states that it is appealing from “the Judgment entered in this action on November 26, 2013, and the Order denying post-judgment relief entered on February 21, 2014.” We therefore assume that Diamond International's appeal was from the judgment entered by the circuit court.

Diamond International contends that the circuit court erred in rejecting its comparative fault Instruction A, which provided:

In your verdict you must assess a percentage of fault to plaintiff Steve Key, whether or not defendant was partly at fault, if you believe:
First, either:
plaintiff Steve Key failed to use any straps to undeck the subject truck, or
plaintiff Steve Key failed to use two straps to undeck the subject truck, if feasible, or
plaintiff Steve Key failed to disconnect the saddles by the J-bolts, and
Second, plaintiff Steve Key, in any one or more of the respects submitted in Paragraph First, was thereby negligent, and
Third, such negligence of plaintiff Steve Key, directly caused to directly contributed to cause any damage plaintiff Steve Key may have sustained.
The term “negligent” or “negligence” as used in this instruction means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by an expert in plaintiff Steve Key's business .4

The circuit court, however,...

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