Strang v. Deere & Co.

• Decision Date: 09 October 1990
• Docket Number: No. 16592,16592
• Citation: 796 S.W.2d 908
• Parties: Prod.Liab.Rep. (CCH) P 12,718 Clive STRANG, Plaintiff-Appellant, v. DEERE & COMPANY and Huff Equipment Company, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 908

796 S.W.2d 908

Prod.Liab.Rep. (CCH) P 12,718

Clive STRANG, Plaintiff-Appellant, v. DEERE & COMPANY and Huff Equipment Company, Defendants-Respondents.

No. 16592.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 9, 1990.

William W. Francis, Jr., Placzek & Francis, Springfield, Robert E. Salmon, Meagher & Geer, Minneapolis, Minn., Laurence M. Kelly, Montrose, Pa., for plaintiff-appellant.

B.H. Clampett, Gary R. Cunningham, Michael J. Cordonnier, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield for defendant-respondent Deere & Co.

Martin M. Loring, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for defendant-respondent Huff Equipment Co.

SHRUM, Judge.

This is a products liability case. Plaintiff sued for injuries he sustained when a model JD-300 Loader/Backhoe manufactured by defendant Deere and Company (hereafter Deere) tipped over, pinning plaintiff to the ground. Defendant Huff Equipment Company (hereafter Huff) sold the JD-300 to plaintiff's employer in 1981. Plaintiff's principal claim was that the JD-300 was in a defective condition, unreasonably dangerous when put to a reasonably anticipated use because it was not equipped with a rollover protection system (hereafter ROPS). The trial court submitted to the jury the MAI 32.23 affirmative defense instruction on contributory fault. The jury's verdict was for defendants. Plaintiff appeals from the judgment entered for defendants by the trial court on the jury verdict. ¹ This court affirms.

In the summer of 1983, underground cable was being laid along the east side of county road R-26, south of Stilson, Iowa. Initially, the cable was installed with the use of a large circular plow that dug a 4-foot deep furrow or "rip line" into which the cable was laid. The rip line was located on the shoulder of the county road, approximately 18 inches from the road. Plaintiff's employer, Push, Inc., was a subcontractor on the job. Push's job was to cleanup "flagged areas." Cleanup in flagged areas means to lower cable to proper depth where the plow had encountered rock, splicing cable, digging cable into transformer or splicer boxes, and back blade work. On September 13, 1983, plaintiff, while working for Push, Inc., was using a JD-300 Loader/Backhoe to perform the cleanup work. The model JD-300 Loader/Backhoe had been manufactured and sold by Deere in 1969. The JD-300 being used consisted of a utility-type tractor with a seat facing forward; a front loader/bucket; and a rear backhoe with boom, bucket and separate rear facing seat. The backhoe was equipped with stabilizers, also called outriggers, which extend from each side of the tractor that, when placed on the ground, lift the rear wheels off the ground and provide stability when using the backhoe. When operating the backhoe attachment, the operator sits in the rear facing seat and controls the backhoe bucket and attached boom with "waddle sticks."

No ROPS ² was on the JD-300 when Huff sold it to Push, Inc., in 1981. Plaintiff was present when the president of Push, Inc., bought the JD-300 in question. The intended use of the JD-300 by Push, Inc., was explained to Huff but the availability of a ROPS retrofit package was not discussed. Plaintiff first worked for Push in 1973 and first operated a model JD-300 backhoe in 1978.

On September 13, 1983 (accident date), plaintiff was doing cleanup work using the JD-300 purchased from Huff. Plaintiff straddled the "rip line" with the JD-300; that is, he positioned the tractor on the east side of the county road, facing south, with the backhoe boom to the north. At the site, county road R-26 was a two-lane concrete, north-south road, with a shoulder approximately 4 foot wide. The roadbed (pavement and shoulders) was approximately 10-15 feet above the surrounding grade and the slope was described as "quite steep." While digging with the backhoe, plaintiff got stuck; he was trying to dig out rocks and the back end of the JD-300 "slid down a little bit." The tire furthest up the slope came to rest in the plow rip. At that point, plaintiff was in the backhoe seat, facing north (facing the backhoe, facing the rear of the tractor). He moved from the "backhoe seat" to the tractor seat intending to try to drive the tractor out of the plow rip. He raised the stabilizers in order to get the wheels back on the ground, raised the front loader, moved the backhoe boom toward the road side and tried to drive the equipment out of the "plow rip." He found he could not drive out because the positive traction ³ was not working and the tire in the plow rip continued to spin. At that time there were persons who worked as splicers and elbowers working and going up and down the road. Plaintiff was the only employee of Push, Inc., on the job. There were, however, other backhoe operators working, one of whom said that the backhoes were "pretty close together right then.... You could see one another." In his employment, plaintiff had been stuck before but had never gotten into trouble with his employer because of it or for having to get assistance to get out. Plaintiff admitted that his getting the JD-300 stuck was not something his employer would have penalized him for.

After unsuccessfully trying to drive out, plaintiff tried other maneuvers to get the tractor unstuck. He got back on the rear seat (facing the backhoe, facing north, facing the rear of the tractor), put the stabilizers down, put the backhoe bucket down in the trench that he had been digging, and tried to push the JD-300 out of the ditch with the backhoe boom. He raised the stabilizers slightly as he started the pushing action, but this failed to extricate the JD-300. Plaintiff then used the backhoe attachment and the front bucket loader in conjunction to try to move the equipment forward out of the ditch. That too failed. Plaintiff continued his efforts to move the JD-300. He swung the backhoe boom and bucket downhill into the road ditch (as opposed to the ditch he had been digging). The stabilizers were still down, but plaintiff acknowledged that he knew: (a) that he was shifting the weight downhill; (b) that was going to increase the instability of the tractor; and (c) the tractor was more prone to roll if the weight was going downhill. Plaintiff then tried to push the back end of the JD-300 out of the plow rip so he could drive out again. After swinging the backhoe boom and bucket downhill, he tried to pick up the backhoe boom and the tractor started to "tip a little.... Started to roll." He placed the boom back on the ground and then lifted the boom more slowly; it started to tip again. At this point, plaintiff had the JD-300 on the side of a slope with the boom downhill, it had tipped twice, but he was able to keep it from rolling by having the boom serve as a brace. Plaintiff then used the backhoe boom and bucket to pull the JD-300 sideways, downhill at an angle, so he could back straight into the road ditch. Plaintiff had raised the stabilizers off the ground. The front end loader had been a foot off the ground at the time. Plaintiff was using the boom and backhoe bucket downhill trying to pull and turn the JD-300. He did pull it down so that both back wheels were on the slope, and in the process rolled the JD-300 over.

Plaintiff tried unsuccessfully to jump off the high side first but all he could do was jump as far out as possible into the ditch. The tractor came down and one of the stabilizers struck plaintiff, pinning him to the ground. Plaintiff was unable to get free until David Hartwig, another backhoe operator, arrived within 5-10 minutes. With the use of Hartwig's equipment, he was able to free plaintiff. Upon arrival, Hartwig found the JD-300 on its side (the driver's left side if driver was looking to the front of the tractor, toward the loader/bucket). Hartwig drove his backhoe down into the ditch. He then positioned his backhoe to the side of plaintiff's backhoe that had the seat, the side facing the field. He then used the backhoe boom on the Hartwig tractor to push on the upper rear tire of plaintiff's JD-300 sufficiently to release plaintiff's hand from where it was pinned by the stabilizer.

On the date of the accident, plaintiff knew backhoe tractors could roll and that this JD-300 did not have a roll bar. The maneuver being used by plaintiff at the time of his accident had been used by plaintiff previously without any trouble and he did not think he was in any danger. Plaintiff testified that he had no idea that operating a tractor without a ROPS was dangerous and it had never previously made any difference to him whether a tractor had a ROPS or not. On cross-examination, plaintiff acknowledged that on the day of the accident he knew: (a) if a tractor rolled on top of him it would injure or kill him; (b) the boom on his tractor was downhill; (c) the center of gravity had shifted on the JD-300 at the time he tried to pull the rear of the tractor downhill; (d) the stabilizers were off the ground; (e) that the stabilizers off the ground did not offer any stability to the tractor; (f) the tractor tires were on the ground; (g) he was pulling the tractor laterally to those tires; and (h) the tractor had tipped up twice prior to this accident. In deposition, plaintiff acknowledged he knew, before the accident, the theoretical protection that roll bars provided for equipment.

Plaintiff's expert witness opined that a rollover protection structure was necessary to make a backhoe safe for its intended use; that a tractor such as the JD-300 without ROPS was not reasonably crashworthy but would be more crashworthy with ROPS; and, that it was feasible to install ROPS into this JD-300 backhoe when manufactured in 1969 and when sold by Huff in 1981. He testified that in his opinion the JD-300 was unreasonably dangerous when built and sold in 1969 without ROPS. It was the expert's further opinion that if the JD-300 had been equipped with a ROPS, plaintif...