Morrison v. Kubota Tractor Corp., WD

• Decision Date: 01 November 1994
• Docket Number: No. WD,WD
• Citation: 891 S.W.2d 422
• Parties: Prod.Liab.Rep. (CCH) P 14,099 E. Jeanne MORRISON, Clifton Morrison, Mildred Morrison, Paula J. Likens, and Pamela Willig, Appellants, v. KUBOTA TRACTOR CORPORATION, Respondent. 48515.
• Court: Missouri Court of Appeals

Page 422

891 S.W.2d 422

Prod.Liab.Rep. (CCH) P 14,099

E. Jeanne MORRISON, Clifton Morrison, Mildred Morrison Paula J. Likens, and Pamela Willig, Appellants, v. KUBOTA TRACTOR CORPORATION, Respondent.

No. WD 48515.

Missouri Court of Appeals Western District.

Nov. 1, 1994.

As Modified Dec. 27, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 27, 1994.

Application to Transfer Denied

Feb. 21, 1995.

Steven W. White, Independence, for appellants.

Thomas R. Larson, Kansas City, for respondent.

Before HANNA, P.J., and BRECKENRIDGE and ELLIS, JJ.

ELLIS, Judge.

David Morrison was killed August 9, 1989 when his four-wheel model L-235 DT utility tractor, manufactured by Kubota Tractor Corporation ("Kubota") and sold to him by O'Dell Tractor Company, Inc. ("O'Dell"), apparently rolled over on top of him as he was mowing the inside slope of a dam on a farm pond in rural Jackson County. He was survived by his parents, Clifton and Mildred Morrison, his wife, E. Jeanne Morrison, and two children, Paula J. Likens and Pamela Willig ("the Morrisons"). They sued for wrongful death on theories of negligence and strict liability, claiming that the tractor was defective and unreasonably dangerous both when originally manufactured and sold by Kubota and when resold by O'Dell ¹ because it was not equipped with a Roll Over Protection System ("ROPS"), which is a roll bar and seat belt or harness combination designed to prevent a tractor from rolling more than 90 degrees and to keep the tractor operator restrained within a protective envelope in the event of a roll over.

Morrison was not the first owner of the tractor, which was originally manufactured and sold by Kubota in 1982. At that time, Kubota had a "delete option" program whereby ROPS would be installed as standard equipment and included in the base price of the L-235 DT unless the purchaser chose to delete it and receive a discount from the base price. If the customer wished to delete ROPS, he was required to sign a written "ROPS waiver" form provided to the dealer by Kubota attesting that he voluntarily declined to purchase ROPS after being advised of its availability and safety benefits. There was no evidence whether the original retail purchaser of the tractor involved in this case signed a ROPS waiver or chose to participate in the "delete option" program.

In the spring of 1985, the American Society of Agricultural Engineers (ASAE) adopted a standard requiring all new wheeled agricultural tractors to be sold with ROPS. Shortly thereafter, on June 1, 1985, Kubota made ROPS mandatory on its new L-235 DT tractors and the "delete option" was prohibited unless the purchaser signed a ROPS waiver and certified that the tractor would be used exclusively in an orchard or other low-clearance work environment where the ROPS roll bar assembly would be impractical or create additional hazards for the operator by catching on overhead objects.

Morrison's Kubota model L-235 DT tractor, which he bought used from O'Dell in November, 1987, was equipped with a front-end loader and a brush hog, but no ROPS. Just before the accident, to which there were no eyewitnesses, Morrison was mowing the inside slope of the dam with the brush hog along lines parallel to the top of the dam. A surveyor testified that the slope on the inside surface of the dam being mowed ranged from eight to twenty-seven degrees depending on location. One witness characterized the area as a "steep embankment." Morrison's owner's manual warned users of the tractor to "[s]tay off hills and slopes too steep for safe operation." The Morrisons' engineering experts testified that if it had been equipped with a ROPS, the side roll would have been limited to 90 degrees and Morrison's tractor would not have turned upside down on him. They also introduced expert testimony that although it was not unstable, the absence of ROPS made the tractor defective and unreasonably dangerous when put to a reasonably anticipated use. Kubota countered with expert testimony to the effect that although a ROPS would likely have limited the roll to 90 degrees, the tractor was not defective and unreasonably dangerous when put to a reasonably anticipated use and that Morrison was operating the tractor while roped into the driver's seat on too steep a slope and at too great a speed. The Morrison's expert estimated that the proper mowing speed in the steeply sloped area being mowed by Morrison was approximately 1 to 3 miles per hour. However, there was testimony that Morrison was mowing at a speed of approximately 5 to 7 miles per hour with the front-end loader bucket in the up position, further raising the center of gravity and increasing the risk of a roll over.

There was conflicting testimony as to whether Morrison was secured in his seat by a rope when the tractor was lifted off his body by a tow truck. ² One paramedic present testified that although he couldn't see exactly what it was that restrained him, Morrison appeared to be held in his seat by something. The tow truck operator and the captain of the local fire protection district testified that Morrison was tied to the seat by a rope when the tractor was lifted off the ground and had to be cut loose. Another wrecker operator who arrived at the scene a little later said that when he got there, he heard people "asking for a pocket knife or something to cut the rope." The presence of a rope was not mentioned in their written reports. Other witnesses told a different story. Two paramedics who left the scene before the tractor was actually removed from Morrison's body saw no evidence Morrison was restrained by a rope. A deputy who investigated the accident for the Jackson County Sheriff's Department and watched the tow truck pull the tractor off the ground testified there was no rope holding Morrison's body in the seat. The acting medical examiner's report said nothing about a rope, and a neighbor testified that when the tractor was lifted off Morrison's body, he saw no evidence of his being tied to the seat.

At the close of all the evidence, the trial court directed a verdict for Kubota on the Morrisons' two negligence claims, saying, after hearing arguments from the parties' attorneys: "I don't think there was a duty. A legal duty." ³ Those claims, both of which arose from Count I of the Morrison's petition, were based on Kubota's failure to install a ROPS at the time of the tractor's manufacture and initial sale and its subsequent failure to retrofit the tractor with a ROPS following its original sale. The question of strict liability was submitted to the jury, which returned a verdict finding Morrison 100% at fault. When their motion for new trial was denied after a hearing, the Morrisons brought this appeal. We affirm the judgment of the trial court.

In Missouri, a products liability case can be based on strict liability, breach of warranty, or negligence. For products liability to be founded in negligence, the plaintiff must prove the existence of a duty, the defendant's breach thereof, and proximately caused damages. Commercial Distribution Ctr., Inc. v. St. Regis Paper Co., 689 S.W.2d 664, 671 (Mo.App.1985). In a negligence action, whether a duty exists is entirely a question of law for the court. Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131-32 (Mo.App.1993); Aaron v. Havens, 758 S.W.2d 446, 447 (Mo. banc 1988).

In their first point, the Morrisons argue the trial court erred in directing a verdict in favor of Kubota on their claim alleging that Kubota negligently failed to install a ROPS on Morrison's tractor when it was originally manufactured. We disagree.

Research has revealed only four Missouri products liability cases involving ROPS, none of which are particularly helpful in resolving this issue. See Limbocker v. Ford Motor Co., 619 S.W.2d 757 (Mo.App.1981); Strang v. Deere & Co., 796 S.W.2d 908 (Mo.App.1990); Siebern v. Missouri-Illinois Tractor & Equip. Co., 711 S.W.2d 935 (Mo.App.1986); and Goff v. Schlegel, 748 S.W.2d 813 (Mo.App.1988). This is not to say, however, that Missouri case law provides no guidance in resolving this issue. In Stevens v. Durbin-Durco, Inc., 377 S.W.2d 343 (Mo.1964), a negligence action, the plaintiff was seriously injured when the handle of a "load binder," which is a device used to take the slack out of a chain securing a load on a trailer, "kicked back" and struck him in the face. At the conclusion of the plaintiff's case, the trial court sustained a motion for directed verdict made by the defendant, who manufactured the load binder. 377 S.W.2d at 344.

The plaintiff had alleged that the defendant negligently failed to equip the load binder with a safety ratchet device to prevent it from "kicking back," or suddenly springing open when the force on the binder was dissipated or no longer applied to the end of the handle on the binder. He further alleged that such a device could have been reasonably and effectively employed on the load binder, and that use of the safety ratchet would have prevented the "cheater" or extension pipe attached to the binder handle from flying around and hitting him in the face. Id. at 345-46. Finally, he claimed that the manufacturer was "obligated to exercise ordinary care to eliminate the danger before exposing a user of its product to [the] risk [of a "kick back"], where the manufacturer had 'knowledge of some potential danger.' " Id. at 346.

Our Supreme Court affirmed the trial court's entry of a directed verdict in favor of the manufacturer, holding that the plaintiff "failed to show the existence or breach of any duty owed" him. Id. at 348. The Court began its analysis by stating that the manufacturer of a product which is potentially dangerous when used in its intended fashion, or reasonably certain to place life and limb in peril when negligently constructed, is under a duty to the user to exercise ordinary care in its manufacture, and is liable to a user injured thereby...