Welsh v. Bowling Elec. Machinery, Inc.

• Decision Date: 29 April 1994
• Docket Number: No. 18955,18955
• Citation: 875 S.W.2d 569
• Parties: Marjorie WELSH, Plaintiff-Appellant, v. BOWLING ELECTRIC MACHINERY, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 569

875 S.W.2d 569

Marjorie WELSH, Plaintiff-Appellant, v. BOWLING ELECTRIC MACHINERY, INC., Defendant-Respondent.

No. 18955.

Missouri Court of Appeals,

Southern District,

Division Two.

April 29, 1994.

William B. Smith, Nancy E. Emmel, Dubail Judge, P.C., St. Louis, for plaintiff-appellant.

David T. Welch, Phillips, McElyea, Walker & Carpenter, P.C., Camdenton, for defendant-respondent.

GARRISON, Judge.

Plaintiff appeals from the trial court's order sustaining a motion for summary judgment filed by Respondent, Bowling Electric Machinery, Inc. (Bowling Electric). In the underlying suit, Plaintiff alleged that she was injured on June 24, 1990 as the result of an accident involving a tram. The tram was used to convey passengers at a vertical angle between a boat dock on Lake of the Ozarks and a restaurant known as the Old Swiss Village. At the time of the accident, Plaintiff was riding in the tram which was descending toward the lake when it increased in speed causing Plaintiff to be thrown into the lake water below.

From the meager record before us, it appears that the tram consisted of a car which was raised and lowered on a track. Its movement was controlled by a cable which caused the car to descend and ascend the hill and which was attached to rotating drums located at each end of the track.

The tram was built by Gerald Havener (Havener) for Larry Wilkerson (Wilkerson), who operated the restaurant. Havener purchased some of the component parts for the tram from Bowling Electric. Those components consisted of a drive motor, an electrical control box, an electromagnetic brake, and a gearbox together with a wiring diagram. Plaintiff acknowledges that Havener designed all of the tram except the parts furnished by Bowling Electric. There is no evidence, however, that Bowling designed the parts it furnished, but instead it apparently supplied the parts meeting the specifications requested by Havener. ¹

The electrical control box provided power for the motor, which in turn was connected to the gearbox. The electromagnetic brake, which was attached to the electric drive motor, served a dual function. If power to the motor was interrupted for any reason, the brake would lock the gearbox, causing the tram to stop. Additionally, there were devices called "whisker switches" at the top and bottom of the tram track which were activated when the car touched them and caused the car to consistently stop in the same place for loading and unloading. ²

There is no contention that any of the components supplied by Bowling Electric failed to function properly. Rather, the tram failed due to an inadequacy in the upper lift mechanism because the cable drum assembly and the supporting structure were inadequate to maintain the correct alignment of the mechanical components. We gather from the record that a structural failure at the point of the upper cable drum permitted it to freewheel, which caused the car to descend faster than normal, throwing the occupants out upon reaching the bottom.

Plaintiff filed suit against Havener, Wilkerson and Bowling Electric. The claims against Wilkerson and Havener were settled, leaving Bowling Electric as the sole defendant. Summarized, Plaintiff's theories against Bowling Electric were strict liability for design defects concerning the component parts which rendered the tram defective and unreasonably dangerous; strict liability for failure to warn; negligent design, assembly and sale of the component parts, as well as failure to warn; and breach of express and implied warranties.

Central to Plaintiff's theories is the contention that Bowling Electric is liable for failing to design and include an independent safety mechanism in its component parts. In this regard, Plaintiff contends that Bowling Electric should have designed and provided devices to be attached to the tram car which would sense increased speed of the car or would permit passengers to activate a switch, which in turn would activate the electromagnetic brake, thereby stopping the motor and also activating a mechanical stopping device between the car and the track.

STANDARD OF REVIEW

In considering an appeal from the entry of a summary judgment, an appellate court reviews the record in the light most favorable to the party against whom the judgment is entered. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). The review is essentially de novo with the appellate court employing the same tests as should be employed by the trial court in determining the propriety of the motion. Id. Whether the summary judgment motion should be sustained is purely an issue of law. Id. Therefore, where the motion for summary judgment and the response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, summary judgment is to be entered in favor of the moving party. Rule 74.04(c)(3), V.A.M.R.

Where the moving party is "a defending party" who does not bear the burden of persuasion at trial, that party need not controvert each element of the non-movant's claim in order to establish a right to summary judgment. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d at 381. Rather, a "defending party" may establish a right to judgment by showing among other things, that there is no genuine issue concerning any one of the necessary elements of the claimant's case. Id.

DISCUSSION

In its motion for summary judgment, Bowling Electric contended that there were no genuine issues of fact concerning its liability. We agree with the trial court that Bowling Electric was entitled to a judgment as a matter of law and affirm the entry of the summary judgment.

In Missouri, a plaintiff has three theories of recovery available in a products liability case: strict liability, negligence, and breach of warranty. Ragland Mills v. General Motors, 763 S.W.2d 357, 359 (Mo.App.1989). In the instant case, Plaintiff pleads alternative claims under each theory.

A. STRICT LIABILITY AND NEGLIGENCE FOR DESIGNING AND FURNISHING THE PARTS

In order to recover under a strict liability theory in a products case, a plaintiff must prove, among other things, that "[t]he product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold." § 537.760. ³ Under this theory, the alleged defect must have existed when it left defendant's control and entered the stream of commerce. Sperry v. Bauermeister, Inc., 4 F.3d 596, 598 (8th Cir.1993); Lewis v. Envirotech Corp., 674 S.W.2d 105, 110 (Mo.App.1984). In the instant case, there is no evidence that the component parts supplied by Bowling were defective when they were sold to Havener. In fact, there was no evidence that the components supplied by Bowling failed, did not function as they were designed to do, or caused the initial failure in the tram system. ⁴

Plaintiff's theory is that Bowling Electric failed to incorporate safety features into its components beyond those specified by Havener. She argues that a mechanical failure of the tram from independent causes, such as occurred here, was foreseeable and that Bowling should have, but failed to, design and furnish, as a part of its components, an electrical system which would activate the electromagnetic brake if triggered by a passenger or if the car exceeded a certain speed. In either circumstance, Plaintiff contends that the activation of the electromagnetic brake should have also activated a mechanical braking device on the car. Therefore, the essence of Plaintiff's complaint is not that Bowling Electric's components were defective and created an unreasonable danger, but that Bowling failed to design or furnish parts which would safeguard against a danger created by Havener's faulty design and construction of the other portions of the tram.

Under the facts of this case, we believe that, as a matter of law, Bowling had no duty to design or furnish those additional features in the components furnished by it. Havener specified the components he desired without inviting, requesting or indicating a desire or need that Bowling participate in the design of the remaining portions of the tram. ⁵ There was no evidence that Bowling was furnished with the plans, design, or information concerning the manner in which the remaining portions of the tram would be constructed. There were no industry standards which suggested that an independent stopping device should be included in the parts furnished by Bowling Electric. Bowling was not asked to supply any stopping devices beyond the electromagnetic brake. The additional components referred to by Plaintiff would have been attached to the tram car, whereas those furnished by Bowling Electric pursuant to Havener's request were not directly attached to the car itself. ⁶ Therefore, use of the additional parts would have depended on Havener incorporating them into the design of the car. The record, however, indicates that Havener had intentionally omitted an unspecified safety device utilized on other trams because "[i]t looked too complicated and looked too prone to failure and maintenance problems to use."

We have not been cited to Missouri cases deciding the liability of the supplier of component parts under similar facts and our own research has revealed none. Other courts have, however, considered the liability of suppliers of non-defective component parts.

In Sperry v. Bauermeister, Inc., 786 F.Supp. 1512 (E.D.Mo.1992) (Sperry I ), an airlock supplied by the defendant was incorporated by the purchaser into a milling system which itself was defectively designed. There was no contention that the airlock was defective, but rather the evidence indicated that the defects were in the milling system because of the lack of an interlock which would prevent operation of...