Linegar v. Armour of America, Inc.

• Decision Date: 26 July 1990
• Docket Number: No. 89-1535,89-1535
• Citation: 909 F.2d 1150
• Parties: Prod.Liab.Rep.(CCH)P 12,549 Sandra Lynn LINEGAR, individually and as next friend for Jennifer Nicole Linegar and James Michael Linegar, Appellee, v. ARMOUR OF AMERICA, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1150

909 F.2d 1150

Prod.Liab.Rep.(CCH)P 12,549

Sandra Lynn LINEGAR, individually and as next friend for Jennifer Nicole Linegar and James Michael Linegar, Appellee, v. ARMOUR OF AMERICA, INC., Appellant.

No. 89-1535.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 16, 1990.

Decided July 26, 1990.

Hugh C. Griffin, Chicago, Ill., for appellant.

William W. Francis, Jr., Springfield, Mo., for appellee.

Before ARNOLD and BOWMAN, Circuit Judges, and HEANEY, Senior Circuit Judge.

BOWMAN, Circuit Judge.

This action was brought as a products liability case and heard under the District Court's diversity jurisdiction. Armour of America, Inc. (Armour) appeals a judgment based on a jury verdict in favor of the widow and children of Jimmy Linegar, a Missouri State Highway Patrol trooper who was killed in the line of duty. The jury found that the bullet-resistant vest manufactured by Armour and worn by Linegar at the time of the murder was defectively designed, and it awarded his family $1.5 million in damages. We reverse.

On April 15, 1985, as part of a routine traffic check, Linegar stopped a van with Nevada license plates near Branson, Missouri. The van's driver produced an Oregon operator's license bearing the name Matthew Mark Samuels. Linegar ascertained from the Patrol dispatcher that the name was an alias for David Tate, for whom there was an outstanding warrant on a weapons charge. Linegar did not believe the driver matched the description the dispatcher gave him for Tate, so he decided to investigate further.

A fellow trooper, Allen Hines, who was working the spot check with Linegar, then approached the passenger's side of the van while Linegar approached the driver's side. After a moment of questioning, Linegar asked the driver to step out of the van. The driver, who was in fact David Tate, brandished an automatic weapon and fired at the troopers first from inside and then from outside the van. By the time Tate stopped firing, Hines had been wounded by three shots and Linegar, whose body had been penetrated by six bullets, lay dead or dying. ¹ None of the shots that hit the contour-style, concealable protective vest Linegar was wearing--there were five such shots--penetrated the vest or caused injury. The wounds Linegar suffered all were caused by shots that struck parts of his body not protected by the vest.

The Missouri State Highway Patrol issued the vest to Linegar when he joined the Patrol in 1981. The vest was one of a lot of various sizes of the same style vest the Patrol purchased in 1979 directly from Armour. The contour style was one of several different styles then on the market. It provided more protection to the sides of the body than the style featuring rectangular panels in front and back, but not as much protection as a wrap-around style. The front and back panels of the contour vest, held together with Velcro closures under the arms, did not meet at the sides of the wearer's body, leaving an area along the sides of the body under the arms exposed when the vest was worn. This feature of the vest was obvious to the Patrol when it selected this vest as standard issue for its troopers and could only have been obvious to any trooper who chose to wear it. The bullet that proved fatal to Linegar entered between his seventh and eighth ribs, approximately three-and-one-fourth inches down from his armpit, and pierced his heart.

The theory upon which Linegar's widow and children sought and won recovery from Armour was strict liability in tort based on a design defect in the vest. On appeal, Armour challenges: (1) the sufficiency of the evidence to make a submissible case of strict liability in tort; (2) the District Court's refusal to allow proof of or submit to the jury Armour's government contractor immunity defense; (3) the court's refusal to allow evidence of or submit to the jury Armour's defense of contributory negligence; (4) the court's response to the jury's question concerning the phrase "defective condition" as used in the verdict director; and (5) various evidentiary rulings that Armour terms "inconsistent." Because we hold that, as a matter of law, the evidence was insufficient to present a submissible products liability case, we need not and do not reach any of Armour's other claims of error.

Our standard of review is well settled. In considering Armour's contention that the District Court erred in denying Armour's motions for directed verdict and judgment notwithstanding the verdict, we must "review[ ] the entire record in the light most favorable to the party opposing the motion." Laney v. Coleman Co., 758 F.2d 1299, 1303 (8th Cir.1985). And we must do so mindful of the requirements of the governing substantive law for the imposition of liability.

The parties agree that Missouri substantive law controls in this diversity case. Under Missouri products liability law, plaintiff potentially had available to her three theories of recovery: negligence, strict liability, and breach of warranty. Ragland Mills, Inc. v. General Motors Corp., 763 S.W.2d 357, 359 (Mo.Ct.App.1989). In 1969, the Missouri Supreme Court adopted section 402A of the Restatement (Second) of Torts, which imposes strict liability in tort upon sellers and manufacturers for selling "any product in a defective condition [un]reasonably dangerous to the user or consumer" that results in injury to the user or consumer. Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362, 364 (Mo.1969) (quoting Restatement (Second) of Torts Sec. 402A). ² The strict liability theory is further divided into liability for defective design of a product and liability for failure to warn of an inherent danger in the product. See, e.g., Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo.1977) (en banc) (defective design); Grady v. American Optical Corp., 702 S.W.2d 911 (Mo.Ct.App.1985) (failure to warn). ³ Although here the first amended complaint stated claims against Armour on all of Missouri's products liability theories, ⁴ plaintiff later elected to dismiss all claims except Count I, strict liability for defective design, Joint Appendix Vol. I at 8-22 (complaint), Vol. II at 556-59 (motion in limine including motion to dismiss all claims except Count I), and the case was submitted to the jury only on that theory.

To recover under a theory of strict liability in tort for defective design, Missouri law requires that a party prove the following elements:

(1) [the] defendant sold the product in the course of its business;

(2) the product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use;

(3) the product was used in a manner reasonably anticipated;

(4) [the] plaintiff was damaged as a direct result of such defective condition as existed when the product was sold.

Fahy v. Dresser Indus., 740 S.W.2d 635, 637-38 (Mo.1987) (en banc), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988). The jury instructions in this case tracked the applicable law. ⁵

While there is some dispute between the parties over various of the elements, we predicate our reversal on the dearth of plaintiff's evidence of element (2). We conclude that, as a matter of law, the contour vest Trooper Linegar was wearing when he was murdered was not defective and unreasonably dangerous.

Under the Missouri law of strict liability in tort for defective design, before a plaintiff can recover from the seller or manufacturer he must show that "the design renders the product unreasonably dangerous." Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 377 (Mo.1986) (en banc). Ordinarily, that will be a jury question, and "the concept of unreasonable danger, which is determinative of whether a product is defective in a design case, is presented to the jury as an ultimate issue without further definition," id. at 378, as it was here. In this case, however, there was simply no evidence that the vest's design made it unreasonably dangerous, and the District Court should have declared that, as a matter of law, the vest was not defective, and directed a verdict or granted judgment for Armour notwithstanding the verdict. See Racer v. Utterman, 629 S.W.2d 387, 394 (Mo.Ct.App.1981) ("Unless a court can say as a matter of law that the product is not unreasonably dangerous the question is one for the jury."), cert. denied, 459 U.S. 803, 103 S.Ct. 26, 74 L.Ed.2d 42 (1982).

The Missouri cases leave the meaning of the phrase "unreasonably dangerous" largely a matter of common sense, the court's or the jury's. The Missouri Supreme Court has stated, however, that a product is defectively designed if it "creates an unreasonable risk of danger to the consumer or user when put to normal use." Nesselrode, 707 S.W.2d at 375. Among the factors to be considered are "the conditions and circumstances that will foreseeably attend the use of the product." Jarrell v. Fort Worth Steel & Mfg. Co., 666 S.W.2d 828, 836 (Mo.Ct.App.1984). The conditions under which a bullet-resistant vest will be called upon to perform its intended function most assuredly will be dangerous, indeed life-threatening, and Armour surely knew that. It defies logic, however, to suggest that Armour reasonably should have anticipated that anyone would wear its vest for protection of areas of the body that the vest obviously did not cover.

Courts applying Missouri law also have applied what has become known as the "consumer expectation" test for unreasonable dangerousness: "The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Restatement (Second) of Torts Sec. 402A comment i (1965); accord id. comment g; see Cowens v. Siemens-Elema AB, 837 F.2d 817, 822 (8th Cir.1988) (applying Missouri law); Aronson's Men's Stores, Inc. v. Potter Elec. Signal Co., 632 S.W.2d 472, 474 (Mo.1982) (en banc). But see Nesselrode,...