Vicky Church v. CNH Indus. Am.

• Decision Date: 16 May 2023
• Docket Number: WD85103
• Parties: VICKY CHURCH, SARAH AUSTIN AND JACOB CHURCH, ON BEHALF OF ALL BENEFICIARIES, Respondents, v. CNH INDUSTRIAL AMERICA, LLC, Appellant.
• Court: Missouri Court of Appeals

1

VICKY CHURCH, SARAH AUSTIN AND JACOB CHURCH, ON BEHALF OF ALL BENEFICIARIES, Respondents,
v.
CNH INDUSTRIAL AMERICA, LLC, Appellant.

No. WD85103

Court of Appeals of Missouri, Western District, Third Division

May 16, 2023

APPEAL FROM THE CIRCUIT COURT OF HENRY COUNTY, MISSOURI THE HONORABLE JAMES K. JOURNEY, JUDGE

Janet Sutton, Presiding Judge, Cindy L. Martin, Judge and Edward R. Ardini, Jr., Judge

EDWARD R. ARDINI, JR., JUDGE

CNH Industrial America, LLC ("CNH") appeals from the judgment of the Circuit Court of Henry County awarding damages to Vicky Church, Sarah Jo Austin, Jacob Church, Norman Church, and Irene Church (collectively, "Plaintiffs") in their wrongful death suit against CNH alleging strict products liability and negligence following the death of Wayne Church ("Church"). Church, a mechanic, was crushed while repairing a CNH-manufactured skid steer. CNH argues the trial court erred in rejecting its proffered comparative fault instruction, erred in permitting evidence of three other cab-closure

2

incidents involving CNH-manufactured products, erred in permitting Plaintiffs' expert to testify about liability and causation, and erred in its award of post-judgment interest. We affirm in part and reverse in part.

Factual and Procedural Background

In March 2016, Church, an experienced mechanic, was hired to work on the hydraulics of a CNH Model 60XT skid steer owned by Cody Peery ("Peery"). While working on the skid steer, Church was crushed when the cab fell and trapped him beneath. No one was present at the time of the accident, but Church was able to call 911 from his cell phone. When emergency responders arrived, a single paramedic lifted the cab off of Church. After Church had been removed, the cab remained raised for a short time and then fell on its own. Church was transported to a hospital where he died from his injuries.

Plaintiffs filed a wrongful death action against CNH, alleging strict products liability (failure to warn and instruct; design defect) and negligence. Specifically, Plaintiffs claimed that the skid steer had a defective design, that CNH failed to warn users that the latch that held open the cab when undergoing maintenance (the hold-open latch) could easily break without the user's knowledge, and that a broken latch would permit the cab to abruptly close. A jury trial was held at which the following evidence was adduced:

In the early 2000s, CNH designed and manufactured skid steers with a new design for holding the cab open during maintenance. This design consisted of a cantilever and a hold-open latch, which allowed the user to pull the cab open until the hold-open latch engaged. The hold-open latch was not designed to support the weight of the cab; instead, when the cab was fully opened, gravity kept the cab from closing. The hold-open latch was

3

designed to engage before the cab could inadvertently close due to external forces such as wind or a mechanic bumping the cab.

The skid steer relevant to this case was outfitted with a hold-open latch which was broken at the time of the accident. According to CNH's expert, pushing on the grab handles, including for the purpose of confirming that the latch was engaged, could create enough force to break the latch. CNH acknowledged that a strong gust of wind could close the cab if the hold-open latch was not operational. Photographs of a properly functioning holdopen latch revealed no perceptive difference from a broken latch. Despite knowing of the fragility of the hold-open latch, CNH did not warn users of the associated danger.

According to Plaintiffs' expert, Russ Rasnic, Church fully opened the cab and began working on the skid steer's hydraulics. At some point, as a result of the hold-open latch being inoperative, either a strong wind or the cab being bumped caused the cab to close, trapping Church and ultimately leading to his death. Rasnic opined that the hold-open latch was defectively designed causing it to break under normal use, an inoperative hold-open latch was not readily apparent to a user, and CNH provided no warning that the latch could break rendering an opened cab unsecure and at risk of closing.

In contrast, CNH's experts opined that the cab on this particular skid steer was too heavy for a single person to lift because one of the struts that assists in lifting the cab was depleted of nitrogen, which would have made it more difficult to raise. CNH's experts believed that Church used three-foot pry bars, which were found on the ground near the skid steer following the accident, to help keep the cab open. One of the experts testified that Church's injuries were more consistent with a cab falling from a partially opened

4

position, which could have been achieved using the pry bars. Therefore, CNH argued that Church had misused the skid steer. CNH also asserted that Peery knew that the latch was broken and had informed Church that he had previously experienced difficulty opening the cab and had needed to tie the cab in an open position to perform maintenance on the skid steer. Thus, CNH asserted that Church should have known that the latch was broken and should have taken protective measures such as tying the cab open.

The jury returned a verdict in favor of Plaintiffs, awarding $3,000,000 in compensatory damages and $10,000,000 in punitive damages. On November 17, 2020, the trial court entered a judgment on the verdict and awarded Plaintiffs post-judgment interest. CNH appealed, which was dismissed by this Court because the trial court had failed to apportion the damages among the beneficiaries and thus the judgment was not yet final. On November 23, 2021, the trial court entered a judgment apportioning the compensatory and punitive damages and awarding post-judgment interest as of the date of the original November 2020 judgment. CNH appeals. Additional facts will be recited throughout this opinion.

Discussion

CNH raises four points on appeal. In its first point, CNH alleges that the trial court erred in refusing to submit a comparative fault instruction to the jury. In Point II, CNH claims that the trial court erred in allowing evidence of three other incidents involving holdopen latches to be presented to the jury. In its third point, CNH asserts that the trial court erred in permitting Rasnic, Plaintiffs' expert, to testify about liability and causation. Finally, in Point IV, CNH argues that the trial court erred in awarding post-judgment

5

interest from the earlier, non-final judgment instead of the judgment later entered after damages had been apportioned.

Point I - Instructional Error

In Point I, CNH asserts that the trial court erred by refusing to submit a proffered comparative fault instruction, arguing that "sufficient evidence exists to support submission of the instruction in that both parties adduced evidence regarding Wayne Church's actions and whether his conduct caused or contributed to cause his death, including whether he failed to follow the manufacturer's instructions to fully open the cab and ensure the hold open latch is engaged before undertaking maintenance on the machine, failing to inspect the condition of the 60XT, or adhere to the warning and instructions provided by Peery, and instead used pry bars found at the scene to only partially open the cab."

Facts

During the instructions conference, CNH offered the following comparative fault instruction:

In your verdict, you must assess a percentage of fault to plaintiffs, if you believe:

First:

Decedent failed to use the skid steer as reasonably anticipated by the manufacturer; or

Decedent used the skid steer for a purpose not intended by the manufacturer; or

Decedent used the skid steer with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger; or

6

Decedent's use constituted an unreasonable failure to appreciate the danger involved in use of the skid steer or the consequences thereof and the unreasonable exposure to said danger; or

Decedent failed to undertake the precautions a reasonably careful user of the product would take to protect himself against dangers which he would reasonably appreciate under the same or similar circumstances.

Second, decedent, in any one or more of the respects submitted in Paragraph First, was thereby negligent, and

Third, such negligence of decedent directly caused or directly contributed to cause the death of decedent.

The trial court refused to submit the proffered comparative fault instruction to the jury.

Standard of Review

"The trial court's refusal to give a party's proffered instruction is reviewed de novo, evaluating whether the instructions were supported by the evidence and the law." Cluck v. Union Pac. R. Co., 367 S.W.3d 25, 32-34 (Mo. banc 2012) (citing Marion v. Marcus, 199 S.W.3d 887, 893 (Mo. App. W.D. 2006)). This standard of review is compelled by Rule 70.02(a),^[1] which provides that jury instructions "shall be given or refused by the court according to the law and the evidence in the case." Marion, 199 S.W.3d at 892. "The imperative 'shall' in Rule 70.02(a) does not admit discretion on the part of the trial judge if the proffered instruction is supported by the evidence and the law and is in proper form." Id.

7

Analysis

CNH argues on appeal that it should have been permitted an instruction on comparative fault. However, in doing so, CNH sidesteps a critical fact - it proffered a faulty instruction.

"Whenever Missouri Approved Instructions contains an instruction applicable in a particular case that the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other instructions on the same subject." Rule 70.02(b). "Where an MAI must be modified to fairly submit the issues in a particular...