Richardson v. Holland, 15038

• Decision Date: 29 October 1987
• Docket Number: No. 15038,15038
• Citation: 741 S.W.2d 751
• Parties: Prod.Liab.Rep. (CCH) P 11,668 Troy A. RICHARDSON, Plaintiff-Appellant, v. Steve HOLLAND and Donald L. Bryant, Jr., Dennis C. Dunaway, Malcolm McNeill, O. Bruce Mills, John R. Musgrave, General Partners of SIIGCO, a General Partnership, d/b/a Sheraton Inn and Conference Center of Springfield, Missouri, Defendants, F.I.E. Corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 751

741 S.W.2d 751

Prod.Liab.Rep. (CCH) P 11,668

Troy A. RICHARDSON, Plaintiff-Appellant, v. Steve HOLLAND and Donald L. Bryant, Jr., Dennis C. Dunaway Malcolm McNeill, O. Bruce Mills, John R. Musgrave, General Partners of SIIGCO, a General Partnership, d/b/a Sheraton Inn and Conference Center of Springfield, Missouri, Defendants F.I.E. Corporation, Defendant-Respondent.

No. 15038.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 29, 1987.

Motion for Rehearing or Transfer Denied and Overruled Nov. 20, 1987.

Application to Transfer Denied Jan. 20, 1988.

William H. McDonald, Richard C. Miller, Douglas W. Greene, III, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for plaintiff-appellant.

John C. Shepherd, Paul N. Venker, Shepherd, Sandberg & Phoenix, P.C., St. Louis, for defendant-respondent.

MAUS, Judge.

In this action the plaintiff alleges he was intentionally shot by defendant Holland with a F.I.E. Derringer, Model D, .38 caliber handgun. Three counts of his petition seek recovery upon the basis of strict liability against F.I.E. Corporation (F.I.E.) as the manufacturer of that handgun. A fourth count against F.I.E. is based upon the allegation of negligent distribution. Other counts are against Holland and the motel at which he was shot.

Upon an appropriate motion, the trial court dismissed the four counts against the manufacturer. The order of dismissal was designated final. Rule 81.06. The dismissed counts stated a claim for recovery against the manufacturer upon a basis distinct from the basis of liability alleged against the other defendants. The order of dismissal designated final was appealable. Southern States v. Southwest Missouri Bank, 714 S.W.2d 956 (Mo.App.1986); Yount v. Board of Education for City of St. Louis, 712 S.W.2d 455 (Mo.App.1986).

The petition alleges the following basic facts applicable to all counts of that petition. On July 11, 1985, the plaintiff was attending a performance or show in an inn and conference center in Springfield. While on those premises, he was, without cause, shot in the abdomen by defendant Holland. He was shot when near a bar and restaurant operated in the inn and conference center. He was shot with a Derringer Model D, .38 caliber handgun manufactured by defendant F.I.E. The plaintiff was seriously injured and damaged.

As stated, by four counts of the petition the plaintiff seeks recovery against F.I.E. upon alternate theories of liability. Each of these counts is premised upon the proposition that the Derringer manufactured by F.I.E. is a "Saturday Night Special." The Derringer is alleged to be a Saturday Night Special in that its principal use is for criminal activities and it has no legitimate value because: it is a small handgun with a short barrel and little or no accuracy; it is easily concealable; it is of inferior quality by reason of cheap materials and poor manufacturing; it is inexpensive; it is not accurate; and it cannot be used for legitimate activity such as target shooting, bench shooting, hunting, etc.

The sufficiency of each of the four counts to state a cause of action must be measured by generally applicable criteria. Those criteria include the following. A petition or a count must allege ultimate facts, as distinguished from conclusions, that establish the defendant's liability. Meadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718 (Mo.App.1983). Those allegations must include ultimate facts from which it can be found that a breach of duty by the defendant was the proximate cause of plaintiff's injury. Nappier v. Kincade, 666 S.W.2d 858 (Mo.App.1984); Duke v. Gulf & Western Mfg. Co., 660 S.W.2d 404 (Mo.App.1983); 63 Am.Jur.2d Products Liability § 907 (1984). The petition does not allege any defect in manufacturing or design which caused the Saturday Night Special to malfunction. The decisive question is whether or not any count invokes a legal principle that causes the manufacturer of such a handgun to be per se liable for the plaintiff's injuries.

The allegations of Count IV are that F.I.E. is liable because the Derringer "was defective and unreasonably dangerous in that it belongs to a class of guns commonly referred to as 'Saturday Night Specials.' " He supports that allegation by the following argument. Restatement (Second) of Torts Section 402A (1965) was adopted as the law of this state in Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969). Strict liability may result from a defect in design or in manufacturing. Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977). In Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986), the Supreme Court rejected the consumer expectation test and the risk utility test for defining a defective product. He places his principal reliance upon the following statement from that case: "Under our model of strict tort liability 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." Nesselrode, at 378 (footnote omitted). From this argument and statement he concludes, "Properly pleading that the product is defective and unreasonably dangerous is sufficient to create a prima facie case and to create a jury issue."

The sweeping scope of this statement demonstrates the fallaciousness of the plaintiff's position. It is not necessary to determine if Nesselrode rejects the two tests for use by the court in determining if the characteristics of a product provide a basis for a submissible case. The proposition underlying strict product liability is stated: "One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, ...." Restatement (Second) of Torts § 402A(1) (emphasis added).

It was not the intention of the drafters of § 402A to propose strict liability for all harm caused by the use of products. Nor was it their intention to propose liability for all harm caused by products that might be considered (by some) to be socially undesirable because of the hazards they pose when they are perfectly made. The liability they proposed then was limited to harm caused by products because there was 'some thing wrong' with them.

5 F. Harper, F. James, O. Gray, Law of Torts, Products Liability § 28.32A, p. 581 (2d ed. 1986) (footnotes omitted). In Nesselrode the design of the parts in question was defective in that they were not distinctively marked and could be easily interchanged. When so interchanged, those parts would seriously malfunction. The court found that in the absence of a warning, a jury could find that the parts so designed were unreasonably dangerous.

In this case the Derringer did not malfunction. Certainly there was no duty to warn anyone of the obvious, that the Derringer was inherently dangerous. Riordan v. International Armament Corp., 132 Ill.App.3d 642, 87 Ill.Dec. 765, 477 N.E.2d 1293 (Ill.App. 1 Dist.1985); Patterson v. Gesellschaft, 608 F.Supp. 1206 (D.C.Tex.1985); Armijo v. Ex Cam, Inc., 656 F.Supp. 771 (D.N.M.1987).

The cases uniformly hold that the doctrine of strict liability under the doctrine of 402A is not applicable unless there is some malfunction due to an improper or inadequate design or defect in manufacturing. "[A] product is in a 'defective condition' where the condition is one not contemplated by the ultimate consumer (Restatement (Second) of Torts Section 402A comment g (1965)), which condition causes the product to fail to perform in the manner reasonably to be expected in light of its nature and intended function." Riordan v. International Armament Corp., supra, at 1298. "There can be no valid products liability claim without a product which has a defect." Patterson v. Gesellschaft, supra, at 1211. "Implicit in this analysis is the understanding that a product which has inherent and obvious dangers, which the average consumer would certainly recognize, is not 'defective,' merely because it was placed on the marketplace with such obviously dangerous propensities." Armijo v. Ex Cam, Inc., supra, at 773.

Similarly, a handgun is dangerous because its normal function is to propel bullets with deadly force. That alone is not sufficient for its manufacturer to incur liability under § 402A. For the handgun to be defective, there would have to be a problem in its manufacture or design, such as a weak or improperly placed part, that would cause it to fire unexpectedly or otherwise malfunction.

Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143, 1148 (1985). Additional cases are listed in Kelley. Count IV, alleging a conclusion of unreasonably dangerous, does not state a cause of action.

Count V pleads that F.I.E. is liable because it "gave substantial assistance to defendant, Steve Holland," by the manufacture and sale of the Derringer. To support this allegation of liability, the plaintiff relies upon the following rule from the Restatement (Second) of Torts:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he....

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

Restatement (Second) of Torts § 876 (emphasis added).

If this section is applied as it is construed by the plaintiff, it would extend liability to any injury caused by the product of a manufacturer whose product is often used in a manner to cause harm to others. An injury cannot be the basis for recovery unless there is an act of the defendant which is the proximate cause of that injury. The quoted section has not been adopted as the law in this state. Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. banc 1984). In any event, this section is authority...