Klugesherz v. American Honda Motor Co., Inc., 66982

• Decision Date: 16 July 1996
• Docket Number: No. 66982,66982
• Citation: 929 S.W.2d 811
• Parties: Prod.Liab.Rep. (CCH) P 14,710 David KLUGESHERZ, as Guardian, Conservator and Next Friend of Brian Klugesherz, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR CO., INC., and Honda Motor Company, Ltd., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 811

929 S.W.2d 811

Prod.Liab.Rep. (CCH) P 14,710

David KLUGESHERZ, as Guardian, Conservator and Next Friend of Brian Klugesherz, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR CO., INC., and Honda Motor Company Ltd., Defendants-Respondents.

No. 66982.

Missouri Court of Appeals,

Eastern District,

Division Two.

July 16, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 1996.

Application to Transfer Denied

Oct. 22, 1996.

Roger C. Denton, Steven J. Stolze, St. Louis, for plaintiff/appellant.

G. Keith Phoenix, St. Louis, for defendants/respondents.

CRAHAN, Presiding Judge.

Plaintiff, David Klugesherz ("Plaintiff"), guardian and next friend of his son, Brian, appeals the judgment notwithstanding the verdict ("JNOV") entered in favor of Defendants American Honda Motor Company, Inc. and Honda Motor Company, Ltd. (collectively "Honda") on two of his claims seeking damages for personal injuries suffered by Brian while riding an all-terrain vehicle ("ATV") manufactured and sold by Honda. We affirm.

Plaintiff's action was submitted to the jury in three counts: strict liability/design defect, strict liability/failure to warn and negligence. The jury returned a verdict for Honda on the design defect claim and a verdict in favor of Plaintiff on the failure to warn and negligence claims, ¹ awarding substantial damages. The trial court granted Honda's motion for JNOV on the grounds that Plaintiff failed to prove the absence of a proper warning was the proximate cause of Brian's injuries and that the verdict on the negligence claim was also inconsistent with the verdict in Honda's favor on the design defect claim. In the alternative, the trial court granted Honda's motion for new trial on the failure to warn and negligence claims based on several alleged trial errors. Plaintiff appeals the judgment granting JNOV and the alternative motion for new trial but does not challenge the jury verdict in Honda's favor on the design defect claim.

The precise manner in which the accident occurred is largely immaterial to the dispositive issues on appeal. Brian was injured while riding an ATV which belonged to his friend, Eddie Smith. The ATV was manufactured and sold by Honda and had been purchased used by Eddie's stepfather, Glen Voyles, about two years prior to the accident. He did not obtain an owner's manual when he purchased the vehicle from the original owner.

Brian, who was almost fifteen years old at the time of the accident, had been specifically instructed by his father that he was not to ride motorized vehicles of any type and knew he would be disciplined if he did so. Eddie, who was sixteen on the date of the accident, had been specifically instructed by his stepfather that he was not to permit anyone else to operate the ATV. Mr. Voyles had also warned Brian and other friends of Eddie's that they were not to ride on or operate the ATV. However, apparently unknown to either Brian's or Eddie's parents, Brian drove the ATV in the field adjacent to their neighborhood nearly as much as Eddie did during the two years preceding the accident.

According to Eddie, he frequently rode the ATV in the nearby field after school and on weekends, so much so that a rough path or track was created, enabling the rider to make a complete circuit around the field. On the date in question, Eddie obtained the key from his mother, Marianne Voyles, after school and began riding the ATV around the rough track in the field. He stopped to rest and Brian asked if he could ride for a while. Eddie agreed and Brian drove the vehicle around the path.

According to Eddie, Brian had just completed one complete circuit and, as he was descending a shallow grade while seated with both hands on the handlebars, the front wheel appeared to lock up for no apparent reason and the vehicle flipped over, landing on Brian. Eddie's estimate of Brian's speed varied from less than 20 m.p.h. to nearly 30 m.p.h. but he said it was difficult to judge the exact speed. He did not feel that Brian was going particularly fast and did not consider the speed to be excessive. Brian did not testify and there were no other witnesses to the accident. ²

Plaintiff's first point is dispositive. In this point, Plaintiff urges that the trial court erred in granting JNOV on the strict liability and negligent failure to warn claims because the evidence was sufficient to support a finding that Honda's inadequate warnings were a proximate cause of Brian's injuries. We disagree.

Before turning to the specific arguments advanced by Plaintiff, we must explain why the issue of proximate cause is dispositive of both the strict liability/failure to warn and negligent failure to warn claims. In the strict liability/ failure to warn count, Plaintiff hypothesized that the ATV was unreasonably dangerous when put to a reasonably anticipated use "without knowledge of its characteristics," that Honda "did not give an adequate warning of the danger," that the product was used in a manner reasonably anticipated, and that Brian was injured as a direct result of the ATV being sold "without an adequate warning." In the negligence count, Plaintiff hypothesized that the ATV "was dynamically unstable when used by minors of Brian Klugesherz's age," that Defendants "failed to use ordinary care to either distribute an ATV that was reasonably safe or adequately warn of the risk of harm from dynamic instability when used by minors of Brian Klugesherz's age" and that as a direct result Brian was injured.

The propriety of these instructions is not before us. We observe, however, that the first portion of the disjunctive negligence submission--i.e., failure to distribute an ATV that was "reasonably safe," is not a meaningful specification of negligence. It is patently a roving commission and misstates the law with respect to Defendant's duty. We know of no authority which would support such a submission. In any event, the jury's verdict in favor of Honda on Plaintiff's strict liability/design defect claim, which Plaintiff did not appeal, effectively precludes a finding in Plaintiff's favor on this aspect of the submission except insofar as the jury may have found that the vehicle was not reasonably safe due to an inadequate warning. We will therefore disregard that aspect of the claim for purposes of our analysis. The proximate cause issue is thus squarely presented: Did Plaintiff present sufficient evidence to support a finding that better warnings of the danger posed either by the handling characteristics or its use by children of Brian's age would have prevented Brian's injuries?

To make a submissible case, evidence is required for every fact essential to liability. Eidson v. Reproductive Health Services, 863 S.W.2d 621, 626 (Mo.App.1993). A mere scintilla of evidence is insufficient. Beelman River Terminals, Inc. v. Mercantile Bank, 880 S.W.2d 903, 907 (Mo.App.1994). "Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case." Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 880 (Mo.App.1985). The questions of whether evidence in a case is substantial and whether the inferences drawn are reasonable are questions of law. Id.

In determining whether a submissible case is made, we review the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable favorable inferences and disregarding defendant's evidence except insofar as it may aid the plaintiff's case. Beelman River Terminals, Inc., 880 S.W.2d at 906. However, we do not supply missing evidence or give plaintiff the benefit of unreasonable, speculative, or forced inferences. Eidson, 863 S.W.2d at 626. The evidence and inferences must establish every element and not leave any issue to speculation. Id.

A party is bound by the uncontradicted testimony of that party's own witnesses including that elicited on cross examination. Id. A submissible case is not made if it depends solely on evidence which supports two inconsistent and contradictory factual inferences as to ultimate and determinative facts because liability is then left in the realm of speculation, conjecture and surmise. Id.

In a failure to warn case, there are two separate requirements of causation which the plaintiff must prove: (1) the product for which there was no warning must have caused plaintiff's injuries; and (2) "the plaintiff must show that a warning would have altered the behavior of those involved in the accident." Tune v. Synergy Gas Corp., 883 S.W.2d 10, 14 (Mo. banc 1994). Plaintiff expressly does not contend that a warning would have altered Brian's behavior. Plaintiff urges, however, that he made a submissible case on proximate cause in three different ways: (1) the legal presumption that a warning will be heeded; (2) Plaintiff's expert, Dr. Karnes' testimony that the accident was caused in part by ignorance of the hazard created by foreseeable use of the ATV; and (3) Mrs. Voyles' (Eddie Smith's mother) testimony that if she had the type of information and warnings Plaintiff claimed were necessary, she would not have given Eddie the key. We will examine each of these contentions in turn.

Plaintiff is correct that Missouri recognizes a rebuttable presumption that a warning will be heeded. Arnold v. Ingersoll-Rand Company, 834 S.W.2d 192, 193 (Mo. banc 1992). However, that presumption is of no assistance to Plaintiff in this case. Plaintiff concedes that he does not contend that Brian would...