Nesselrode v. Executive Beechcraft, Inc.

371 coll, (Mo. State pending); No. 66852 cause O’Neal,

v. (Mo. pending).6 No. 67142 cause al., NESSELRODE, Jane W. et contraposition cases, seven above Respondents, there previous have been four occasions juries rejected penal where have the death ty imposed a life sentence where the BEECHCRAFT, EXECUTIVE INC. and aggravating same in circumstance was Corp., Appellants, Beech Aircraft Carr, (Mo. volved. State 14353 No. Stewart, State v.

App. pending); cause No. State v. (Mo.App. pending);7 cause Lynn Hultgren, Judith Hurt, 206 (Mo.App.1984); State S.W.2d Defendant Ad Litem. v. Zeitvogel, 655 S.W.2d 678. Suffice it to say that in none of the latter four was No. 67428. there statutory aggravating the additional Missouri, Supreme Court of prior capital circumstance murder con En Banc. Bolder,

viction. The Court’s comment 690, 635 S.W.2d at is appropriate here: 25, March 1986. “The appellant life sentence that is already Rehearing April Denied 1986. serving [capital] did murder not deter appellant committing from still another imposition

murder. yet another life

sentence purpose would serve no other

than signal that there is no real cost for

prisoners kill who while in confinement.”

V.

We have considered and ruled on the

points raised defendant in our re- record,

view of the determine that: imposed

sentence of death was not under passion,

the influence of prejudice, or any arbitrary factor;

other sup- the evidence

ports finding the jury’s statutory ag- of a

gravating circumstance as enumerated in 565.012; and the sentence death is

neither disproportionate excessive nor imposed cases,

the penalty in similar con-

sidering the crime and the defendant. Sec- 565.014,

tion RSMo (repealed effective 1984; 565.035,

October currently § Cum.Supp.1984).

RSMo

Judgment affirmed.

All concur. doing 6. We consider these no cases determine In so we intimate view as penalties juries imposed factually what have disposition. to their ultimate Bolder, similar See situations. State v. (Mo. 1982), n. banc cert. supra 6. 7. note denied, 459 U.S. 74 L.Ed.2d S.Ct. Ghertner, Gentry, Douglas 0.

Reed N. Kansas City, for appellant Beech Aircraft Corp. Robert Cotter, W. Roger Penner, W. Kan- City,

sas for appellant Executive Beech- craft, Inc. McCann, Welsh,

Glenn E. James Theresa” Hall, City, Shean Kansas Wigles- James T. worth, Dennis, Gregory Park, M. Overland Kan., Simmons, William E. City, Kansas respondents. BILLINGS, Judge. appeal

This Beech Air- defendants Corporation (Beech) craft and Executive Beechcraft, (Executive) Inc. involves the liability. law strict tort Suit was brought products liability as a action under statute, wrongful Missouri’s death 537.- 080(1), (1978 re- Supp.1981 RSMo statute 1979). on Judgment vised was entered jury’s verdict in of Jane Nessel- favor Nesselrode, rode, decedent, George wife of daughters by prior application and his three mar- such an our comparative riage. judgment. affirm We fault doctrine is not an issue raised party appeal either this and therefore is July 1981, George On Nesselrode and question not a for resolution in case. two business associates boarded char- airplane tered Beech Baron Model 58TC $1,500,- jury The returned a verdict of City, Airport. Kansas Missouri’s Downtown against plaintiffs 000.00 for Executive and twin-engine owned, airplane oper- The was pilot, Hultgren, Beech. was The Gerald ated and maintained Within Executive. fault, 0% of accordingly, assessed and he taking off, airplane three minutes after the did appeal judgment not the to the Missouri crashed, killing pilot, Hultgren, the Gerald Appeals, Court of Beech Western District. and passengers. his three Executive, however, sought and both re- Jane wrong- Nesselrode filed a six count appeals. view before the court of petition Beech, ful against death Executive court of appeals held that the trial court and Hultgren. the estate of Gerald sustaining erred Beech’s for motion three adult children of Nesselrode inter- subsequent a directed verdict and motion plaintiffs petition vened as filed and their for judgment notwithstanding a the ver- which petition mirrored the of the widow. Executive, dict. As appeals the court of petitions Plaintiffs’ pri- advanced two reversed for a sole- and remanded new trial mary liability against theories of Beech and ly damages. on the question of First, plaintiffs alleged Executive. granted gen- We transfer because of the negligently designed Beech had and manu- importance eral and interest of the issues important factured two flight compo- raised upon and now decide the case as if right nents —the left and elevator trim tab Const, original V, appeal. Mo. art. 10. parts actuators. These two are critical in controlling plaintiffs’ Beech’s chief contention is that upward the and downward evidence, law, of airplane. fatally movement the a matter In addition to of was negligent alleging design, plaintiffs alleged deficient and failed to make a negligence that Beech’s its included failure theory case under either a of submissible provide warning adequate to safe- design or fail- theory defective under of guard against possibility the of the reverse ure to warn. right installation of the and left elevator appeal, ques- Executive does not trim tab actuators. Plaintiffs’ second theo- liability challenges plain- tion its but the ry liability of liability was strict tort for presentation damages jury. tiffs’ of defective and failure to warn. point Because focal of in- the this case Executive, plaintiffs As to advanced two volves question the threshold of whether theories liability negligent of installation — Beech’s trim were elevator tab actuators inspection right and of the and left elevator way they defective of the were because trim tab actuators liability and strict tort designed, appropriate seem at this would supplying airplane for the in a defective juncture briefly explain purpose the and Finally, petition unsafe condition. the operation important actual of two these grounded stated a cause of in negli- action flight components. control gence against the pilot. In a Beech Baron Model 58TC there are trial, plaintiffs At abandoned their alle- parts right as the two that are known gations negligence against Beech and to be they left elevators and are considered Executive the sole- instructed flight primary control mechanisms ly on strict tort in connection with upward and downward movement Beech Executive. It airplane. The are located court, elevators should also be noted that the trial airplane and are approval parties, with the all the tail section of the comparative rectangular flaps submitted the case into the horizon- under our inserted However, fault doctrine. set propriety appears stablizer —which as a small tal wings located near the actuators, rear end of the way of two called or more airplane. precisely, elevator trim tab actuators. actuators, right There are two one and a pilot If the wants the airplane to climb left one. In undisputed this case it is upward he begins process by pulling a right actuator, belongs on the wheel, control situated in front of him in- right airplane, side of the was installed side cockpit, Moving toward his chest. Executive’s mechanics on the left side of signals control wheel in this fashion airplane. And installed the left elevators —which look flaps like rise. —to right actuator on the airplane, side of the This designed permit action is the ele- gone it should have on the left side of vators, on either airplane, side to use airplane. push flow the air to down the tail of Reversing proper placement the plane thereby pitching the nose of the — elevator trim tab actuators causes the trim airplane upward allowing airplane the tabs to move in a opposite direction from to by climb. This action itself is sufficient the in they supposed one are to climb; airplane however, to make the upon thereby preventing proper oper- the completion manuever, pilot of this will move— Thus, ation of the elevators. when Gerald begin to feel a coming tremendous force Hultgren, case, pilot in this attempted through the control wheel. Because of the climb, to airplane began make the by he strength force, pilot of this keep must signaling the elevators operation. into his hands on prevent the wheel to it from Next, signaled he the trim tabs to move moving away from him. downward, to assist in the climb and to Attached to each elevator is another relieve the forces he felt on the control flight control mechanism called a trim tab. But, wheel. right because the and left flaps trim tabs also look they like installed, reversely actuators had been are trailing edge attached to the of the trim tabs not failed to make the cor- appearing they as if were in- elevators — rect directional actually movements but serted into the elevators. The trim tabs airplane downward, forced the nose of the designed are help relieve the tremendous making virtually uncontrollable.1 by force created operation of the eleva- Thus, In pilot climb, tors. June a month before the fatal wants to crash, pulls chest, airplane performed he the control wheel toward his Executive a re- quired periodic inspection which causes the elevators to 100 hour on this rise. To particular relieve the by airplane, during forces created the course movement elevators, of the he inspection then “trims” the air- of the discovered that the air- plane by moving the plane’s original trim tabs in a down- actuators needed to be re- so, doing ward direction. In placed.2 the trim tabs Executive ordered new actuators serve as a sort of deflective Approximately days device in rela- from Beech. six be- tionship crash, forces created the move- fore the fatal Executive’s mechanics By working actuators, so, ment of the elevators. in such doing installed the new but in manner, the trim right tabs relieve the forces installed the actuator on the left that are on right exerted the control wheel and side and the left actuator on the side. pilot’s make the use of the control wheel plaintiffs’ theory The crux of the of de- much physical less of a burden. fective focuses on the that the fact actuators, The correct right designed by directional movement of the and left Beech, trim is mechanically accomplished by visually tabs are identical but functional- Immediately pilot initially 1. after takeoff the radioed he 2. Attention was focused on the elevator going got to "have to come back in—I trim in- trim tabs and actuators because Beech had problems.” inspector, viewing The FAA after by way structed its dealers of a service bulletin actuators, position concluded the ele- play to check the elevator trim tabs for free vator trim tabs showed “almost full nose down during inspection. the next 100 hour trim." distinct, ly such, they capable thereby excising concept and as are reasonable care, being negli interchanged i.e., during liability the limits test of — reversed — law, Relying facts, plain- gence on from installation. these Missouri’s rule of strict actuators, Blevins v. Mo liability.4 tiffs contend that as de- tort Cushman tors, 608; see signed, were also sold a defective and unsafe Comment condition. In connection their failure 402A. with Section theory liability, argue warn products liability Although the focus essentially very that the nature the de- brought theory suit under a of strict tort sign actuators created the need for a is the condition or character of warning warning the absence of a —and rather than on the nature detailing possibility of reverse installa- conduct, the defendant’s the doctrine consequences tion and its also caused not, strict tort nor was it ever actuators be sold in a condi- “defective be, enveloping intended to an net of abso- tion”. liability. Roger Traynor, lute As the emi- adopted This Court jurist responsible first strict tort nent liabili California most Dayton Keener v. Electric ty doctrine, pioneering the noted his 1965 Manufac turing Company, (Mo. article, Ways Meanings S.W.2d 362 of Defec- 1969). Keener, which was a Liability, tive Products and Strict involv case “[i]t manufacturing a defect in process should clear the manufacturer problem rather than a injuries associated an insurer for all caused his way product designed, the was originally see products.” (1965); 32 Tenn.L.Rev. 363 also, we forth adopting set our basic reasons for Baker v. International Harvester Co., strict tort liability,3 21, (not- and also delineated (Mo.App.1983) we 23 the doctrine. Keen the initial of contours duty manufacturer does not a have er Dayton v. Manufacturing Electric Rogers v. design product); proof accident Company, 445 S.W.2d at 364-65. Manufacturing Company, Toro In the 522 so, of doing 632, course we acknowledged (noting that (Mo.App.1975) S.W.2d 637 adopting we were the rule of liability strict tort strict tort does not mean absolute as liability set forth in of liability). Section 402A the (Second)

Restatement Torts. Id. at 364. of liability in core concern strict tort Eight years in Blevins Cushman safety. later i See Comments through law is a Motors, (Mo. 1977), 551 Therefore, S.W.2d 602 banc primary to Section 402A. we held that the doctrine of inquiry design strict tort in a defect case whether applies liability equal purpose prod- product way of de- it is —because liability ucts involving problems signed cases of an unreasonable risk —creates way caused product danger a been put has to the consumer or user Motors, Blevins v. Cushman designed. generally, See to normal use. Owen and 551 S.W.2d at 607. Theory See also Duke v. theOn Montgomery, Gulf Reflections Manufacturing Co., & Western Tort and Administration Strict Liabil- 660 404, Products, ity For (Mo.App.1983). 411-12 In 27 S.C.L.Rev. Defective Blevins, 804, (1976). we took care in liability to stress that under 812-13 To establish theory liability, case, a of strict tort design plaintiff the focal defect bears point litigational process of the demonstrating product, is the condi- burden tion product designed, dangerous or character and not the unreasonably as “defective”, character of the defendant’s conduct— and therefore and that modern, judicial negligence-rooted concept 3. Although The first articulation 4. utility policy justifications liability fault basic has little if theoretical for strict tort J., liability, proximate law of strict tort causation by Traynor, concurring opinion in his foreseeability concepts factor into are 453, Bottling Escola Coca-Cola 24 Cal.2d tort calculus of in a strict 462, 436, (1944). 150 P.2d 440 however, Foreseeability, action. is a determi- nant it is of harm. of use: determinant 376 Keeton, (1973); ucts, injuries. 44 Miss.LJ. 825

demonstrated defect caused his Liability Products abbreviated, Meaning Though obviously fore- of Defect Principles, Basic Law—A Review going explanation describes the heart and Fischer, (1980); Products Mo.L.Rev. liability design defect soul of a strict tort 39 Mo. Meaning Defect, Liability danger and causation. case—unreasonable —The see, Henderson, (1974). But L.Rev. cases, however, job defect Review Con- Judicial of Manufacturers’ legal defining giving content to the Ad- The Limits Design scious Choices: meaning of has taxed the crea- “defective” (1973). judication, 73 Colum.L.Rev. energies tive of courts and commentators the Restate The dissatisfaction with to de- alike and has led Professor Wade expectation consumer formula ment’s clare that “the determination of when a expression in the law reviews first found product is of the nature actionable because jurisdic has also taken hold in a number of design appears ag- of its the most Lull, 20 e.g., tions. Barker v. Cal.3d question itated controversial before 413, 225, 234-239, 573 P.2d Cal.Rptr. products liability.” courts the field of 443, (1978)(design defect is defined 452-57 Wade, Design On Product Defects by way plaintiff proving either 551, Actionability, Their 33 Vand.L.Rev. safely ordinary perform failed to as as Restatement, Under the expect by way of de consumer would product, designed, if the is actionable failing to that benefits of fendant show dangerous beyond product is to an extent design outweigh of its challenged the risk contemplated that which would be danger); Campbell Mo see also v. General consumer, ordinary purchases either who tors, Inc., Cal.Rptr. 32 Cal.3d it, ordinary knowledge or uses with the (1982); Muskin 649 P.2d O’Brien v. community as to its charac- common to the 463 A.2d Corp., 94 N.J. g i teristics.5 Comments to Section (1983)(defect through risk-utili determined 402A; generally, Magic Chef, Lester v. see duty to foreseea ty analysis with focus on Inc., 230 Kan. 641 P.2d 353 users); Mfg. v. Black & Decker ble Voss pioneering character of Despite the Sec- 398, Co., 102, 450 59 N.Y.2d 463 N.Y.S.2d 402A, consumer ex- tion the Restatement’s 204, 207-08, (1983) (product is not N.E.2d enthusi- pectation test has met with little balancing prod if reasonably safe after leading among legal asm6 scholars. The cost, utility against risks its uct’s commentators in this area of the law would latter, outweigh assuming this former give concept of defectiveness content to the knowledge produc time of was known at design through in cases the use of a Co., defect tion); 269 Phillips v. Kimwood Mach. standard, (1974) under which the utili- 485, (product multifactor is 525 P.2d 1033 Or. against product weighed is its manu ty dangerously of the defective if reasonable Wade, facturer, considering the facts and cir demonstrated risks. On the all See7 cumstances, put it onto the mar- would not Liability Tort Prod- Nature Strict of for Warranty] Negligence to Strict language commonly [to referred to as "the From 5. This is Defect: 593, Liability Negligence, Vand.L.Rev. 611- expectation to 33 consumer test”. 18 frequently of the more voiced criticisms 6. A few by no pointed that this list is should be out have been leveled at the Restatement’s 7.It (1) complete. ocean of There is a virtual approach determining means defectiveness are: Furthermore, pre- subject. language unnecessarily are re- literature on the dundant; and terms risk-utility analysis (2) proper warranty negli- cise contours of the it retains both characteristics; (3) vary commentator and applied commentator gence it fails when from defects; (4) to the law goes In addition open from court to court. reviews, and obvious too far given in subject full treatment subjectivity litigational introducing into the in Louis (5) of Professors work process; fiction that the con- the multivolume it rests on the Friedman, Liabili- Products expectations Frumer and Melvin even as to the or user has sumer 2, (1985); Bail- Hursh & workings ty, 16A see also Vol. complex features and or obscure more 2d, Liability chp. gen- ey, Law of Products American products. See technologically advanced Birnbaum, Design Unmasking 4 the Test erally, for

377 knowledge if of its harmful App.1983); Braun v. General Motors ket he had character); Azzarello v. Black Brothers 766, Corp., 769 n. 3 (Mo.App. 579 S.W.2d Co., 547, (1978) 480 Pa. 391 A.2d 1020 1979); Cryts v. Ford Motor 571 (product is defective and if supplier liable 683, This (Mo.App.1978). S.W.2d 688 Court product any necessary lacked element recently a formulation of most articulated use); to make for Turn- it safe its intended defect ease Elmore liability design in for a v. Corp., er General Motors 584 S.W.2d Owens-Illinois, Inc., v. 673 at 434. S.W.2d (Tex.1979) (defective design 844 means Elmore, brought In an asbestosis case un product is unreasonably dangerous, design, der a theory Judge of defective considering the utility product and Higgins, opinion, author of the principal included.) risk pointed out that the had satisfied Under Missouri’s rule strict tort liabili proving their design burden of the product’s defective, ty, design is deemed product they proved defective “when it was purposes imposing liability, when it unreasonably dangerous designed.”9 aby preponderance is shown of evidence Id. at 438. that the product renders the unrea Though adopted Missouri has the rule of sonably dangerous.8 Elmore v. Owens-Il strict tort as set the Re- forth linois, Inc., (Mo. 673 434 S.W.2d banc statement, yet formally we have not incor- 1984); see also Johnson v. Hannibal Mow porated, any meaningful way, Corporation, er Re- 884, (Mo. 885 S.W.2d Keller statement’s consumer App.1984); expectation International Har test into Corp., vester 584, (Mo. the lexicon our products liability law.10 121, 8. Corp., Cronin v. J.B.E. Olson 8 Cal.3d superseded by but has been since MAI 25.04 1153, Cal.Rptr. (1972), (3rd). 501 P.2d Supreme rejected California Court the use of the concept contemplation 10.The Restatement’s consumer danger” of "unreasonable as a factor stranger equation because, test is a virtual Missouri’s law of of strict tort ac- Through court, liability. cording indepen strict tort our own complexion the term has research, negligence. dent we have been able to find Corp., Cronin v. J.B.E. Olson reported Cal.Rptr. handful of cases decided our inter disagree at P.2d 1162. We mention, appellate mediate courts which point but do with this view. When focal fashion, necessarily apply litigation substantive is the character and not actions, contemplation the consumer quality test. See Racer v. of the defendant’s we think Utterman, (Mo.App.1981), concept danger cert. easily of unreasonable dismissed, appeal distinguishable denied and quite Racer Johnson different from unrea- Johnson, Green, 459 U.S. 103 S.Ct. Liability sonable conduct. See Strict Un- (1982); Liberty L.Ed.2d 42 Brawner v. Indus der Sections 402A and 4092B: A Decade Liti- tries, Inc., (Mo.App.1978); Cryts gation, 573 S.W.2d 376 (1976); 54 Texas L.Rev. see Wade, (Mo. Company, v. Ford Motor 571 S.W.2d 683 “Design also On Product and Defects" 551, 557-58, App.1978). Actionability, None of these cases indicate Their wheth 33 Vand.L.Rev. applied subjectively objec test be er the tively. is to or 570 Association, v. Uder Missouri Farmers Cf. Inc., (conclud (Mo.App.1983) 668 S.W.2d notwithstanding 9. This is so the circuitous ter- product that it is "when shown that a failed minology consistently employed that has been user, expectations to meet the reasonable adopted liability. since we first strict tort is inference there was some sort of e.g., Motors, v. Blevins Cushman defect, precise ("we is which unneces product may reaffirm that a be found definition of (our emphasis). sary") Nor do of these unreasonably be in to a defective condition dan- reported and, gerous decisions indicate whether should be to the user or consumer ... there- fore, 402A, exclusively appellate tool a decisional for an prod- actionable under when the court or whether it should also be available danger- is uct ous_"). found to be and defective ruling summary judg trial courts when ments, deciding directed verdicts and when pointed It should be also out that the critical judgment notwithstanding to enter a the verdict. Keener, language product set we forth "a dangerous”, must be defective and In Aronson’s Men’s Stores v. Potter Electric therefore Inc., precisely Signal Company, language does not mirror found in 632 S.W.2d 1982), (Mo. either Section 402A is or that which found in banc this Court noted that the Re- however, 25.04(3rd). 25.04(2nd), way by MAI MAI statement of con- did defined defectiveness Keener, short, incorporate language expectations. stopped we set forth in sumer We how- see, But Aronson’s Men’s Stores v. Potter by not have “a fictitious standard which to assault, Signal Inc., Electric Company, battery, imprison- determine false ment, nuisance, entry upon land, (Mo. 1982). S.W.2d 472 banc Nor have we taking of a chattel” and then suggests he yet require plaintiffs decided to travel or juries do need an external stan- path “[n]or travel the of risks and utilities. And by danger dard which to determine the of a connection, in this we note none of the product unreasonably dangerous in an de- parties present case, in the at either the Green, Liability Strict fective condition.” appeal, trial level or on has raised as an Under Sections A Decade 402A 402B: applicable by issue the standard which to Litigation, 54 Tex.L.Rev. is product, designed, determine when a (1976). He concludes his discussion with defective and therefore actionable. More- judgment indulged that “the ritual over, appellate posture of this case abstract, by giving abstruse stan- strongly against considering militates this dards, with, impossible comply only per- sponte. issue sua Because of these two petuates mystical by trial ordeal and constraints, decisional we choose not to de- may conceal a hook in a transcendental instead, question cide this limit our lure snag appellate that will an court.” edificatory discussion to ends. Id. at 1206. added) (emphasis Under our model of strict tort previously, As we noted at the trial of a concept danger, of unreasonable which case, design concept defect of unrea is determinative of whether a danger sonable is treated as an ultimate case, design presented defective jury gives concept issue. The content jury as an ultimate issue without fur- by applying intelligence their collective ther definition.11 See Aronson’s Men’s experience evidentiary spec to the broad Signal Compa- Stores v. Potter Electric presented trum of facts and circumstances Inc., ny, Accordingly, 632 S.W.2d at 472. case, parties. In the approved jury gov- our instruction which primary argument plaintiffs Beech’s is that case, erns in a defect MAI 25.04 failed, law, as a matter of to make a sub- (3rd) does compo- not contain as one of its concerning missible case their burden of paragraph nent elements a definitional proving that the elevator trim tab actua gives independent content to the con- unreasonably dangerous tors were cept danger. of unreasonable put anticipated to a reasonably use. To Notwithstanding minority character determine did whether make a Green, approach, of this Professor Leon case, submissible we must examine the suf article, his 1976 Texas Law Review Strict Blevins Cush ficiency of the evidence. Liability Under Sections man, J/.02A 402B: doing, In so S.W.2d at 606-08. A Decade Litigation, explains why an plaintiffs are entitled to the most favorable approach that avoids the use an external view of all of the evidence and the benefit standard which to determine unreason- fairly of all inferences to favorable danger i.e., prefer- able defectiveness—is Coulter from the evidence. drawn — Corp., Michelin Tire able to one which does use an external denied, cert. Michelin Tire points juries (Mo.App.1981), standard. He out first that do ever, reaching subject the issue which would have should be instructed of how the required concept, us to define therefore proper for the has and what is the role we did not hold that under Missouri law given by of commenta been attention a number standard of defectiveness was rooted in the Montgomery, tors and courts. See Owens and expectations ordinary consumer. Theory on the And Administration of Reflections Products, Liability Strict Tort For states, Defective they apply unitary 11. Most whether a Wade, 803, (1976); On the Na S.C.L.R. 830-45 analysis, test or a multifactor define definitional Products, Liability 44 Miss. ture Strict Tort appropriate for to some extent the standard to the 825, (1973); Phillips v. Kim L.J. 838-41 see also jury. e.g., Corp., Turner General Motors 1033, P.2d wood Machine 269 Or. (Tex.1979); Magic Lester v. (1974). Inc., Chef, 230 Kan. 641 P.2d 353 Corp. Coulter, dence, however, 456 U.S. 102 S.Ct. also showed that Lane and Adams, 72 L.Ed.2d 162 performing their day, duties that assumed that Beech designed had the actu- proof Plaintiffs’ question on the compliance ators in industry stan- whether Beech’s elevator trim tab actua- dard required parts, which critical flight unreasonably tors dangerous were like actuators, trim elevator tab contain to put reasonably anticipated to a use took design precluded features possi- which following form. Their evidence includ- bility of reverse installation. ed testimony of Robert Lane and Steve Adams, two Executive Throughout trial, mechanics who the course of the entire reversely plaintiffs installed the two actuators. consistently Tes- focused on the exist- timony Larry Doug- was also from design received ence of industry an criteria stan- las, the Executive inspector maintenance brought dard —which was jury’s first supervised who Lane and Adams and attention mechanics Lane and Adams. checked their day work the the new actua- The during two terms used most often reversely tors were installed. trial to describe industry this standard go” were or proof”. “work no and “murphy Garrelts, Weldon Earl an mainte- aircraft simply, Stated industry most this standard engineer charge nance of the University calls for manufacturers like to Beech de- of Illinois Federal Repair Aviation Certified sign flight way critical a Station and assistant professor at the Uni- physically impossible makes it install to versity Aviation, of Illinois Institute of tes- them or assemble way them but the expert tified as an testifying witness. Also right way. Roger Helms, were another Executive Graves, inspector, maintenance and A1 Ex- issue, In connection with this Inspector ecutive’s Chief and Director of offered into evidence an exhibit that con- Maintenance. In addition to the description oral testi- tained design of Beech’s own mony primary witnesses, of these six plain- policy. paragraph The exhibit was a from presented tiffs jury’s manual, engineering consideration Beech’s and it stated variety real following design policy: demonstrative evi- dence, which, exhibits, among other includ- Right Go or phrase, “go No Go. portion ed a engineering Beech’s manual right go” no assigned or has been to a describing design defendant Beech’s crite- design adopted by Army criterion ria policy. applicable particularly to aircraft. Essentially, requirement it is a that re- earlier, As airplane’s we noted eleva- placeable parts of aircraft must so tor trim tab were actuators discovered to designed that they cannot be installed during be worn a routine FAA required 100 any way right way. design but the As a inspection. hour New were actuators or- prod- shall to policy, apply all Beech dered from Beech and mechanics Lane and applications ucts in where the conse- assigned Adams were installing task of quence wrong assembly presents any Adams, the new actuators. Lane and both article, condition its oc- hazardous to of whom were FAA licensed airframe and cupants or users. power mechanics, plant each testified that accomplishments poli- For this possible it was inspection visual cy, examples drilling such consider right determine actuator from left locations, assembly angles bolts odd or They prior actuator. also testified that making providing unique keyway, crash, this airplane they were unaware that valves, the input output ends of it was physically possible reversely in- rods, etc., push-pull different diameters right stall the and left Plain- actuators. assembly important whenever correct brought tiffs through also out Lane and safety. testimony Adam’s that neither mechanic

had design policy literally referred to the apply maintenance manual Do not economically located their parts at work station. The evi- can more be designed interchangeable end, (1981) installing end for and that Beech’s actuators providing the intent of safety game installation amounted to a of Russian Roulette. jeopardized. Furthermore, he testified that there did industry exist an standard in connection Also introduced into evidence was design flight parts with the of critical 23.685(D) (1981), CFR regulation a FAA § that he first possible learned it was requiring following design characteris- reversely right install the and left actua- tics: tors on airplane this model when he became Each flight element of the sys- control involved with this case. tem must design have features or must distinctly be permanently key plaintiffs’ marked so A element theory as to possibility minimize the design incorrect feasibility defective was the of an assembly that could result in the mal- design alternative would have con- —which functioning system. of the control formed industry standard and which guarded against would have reverse instal- Larry Douglas, the inspector Executive witness, expert lation. Plaintiffs’ Mr. Gar- who checked Adams, the work of Lane and relts, provided examples of a number of carrying duties, testified that in out his he design alternative features that would have parts assumed that Beech’s “murphy were made the actuators safer. One possibility proof” and therefore in conformity with making the mounting holes for each industry Douglas standards. testified fur- Therefore, actuator two different sizes. crash, ther that before this he had never one actuator could not fit into the surface encountered in the course of his work two designed area for the other actuator. This which, although visually were identi- same result accomplished by could also be could, opposites, cal but functional never- misaligning mounting holes for one of theless, reversely installed. Additionally, sug- the two actuators. he Graves, Additionally, A1 Executive’s Di- gested physical- that the actuators could be Maintenance, rector of and former aircraft ly imprinted with a “R” and “L”. Evidence maintenance years instructor for seven plain- this issue was also elicited from school, FAA approved an testified that he tiffs’ other witnesses. too could not by way determine of visual facts, Notwithstanding body inspection which actuator belonged on the evidence, Beech contends that the as a mat- right belonged side and which one on the law, support ter of is insufficient to a find- left side. Nor could he determine the iden- unreasonably the actuators are tity simply turning of the actuators from dangerous put reasonably to a antici- actuators, body causing of the thus pated proves the evidence use—because attached rods to move either inward or that the actuators were used in an abnor- that, explained outward. Mr. Graves also mal fashion not intended the manufac- designed, the actuators could be reverse- simply, turer. Stated somewhat more installed, if ly they designed but had been argument Beech’s is that the evidence does proof” in accordance with “murphy stan- finding they not support a could have could way— dard be installed one reasonably anticipated the reverse installa- way. the correct tion of these two actuators. Garrelts, plaintiffs’ Weldon Earl expert action, witness, plain- In a strict tort having actually after demonstrat- required prove tiff is that the ed the reverse installation of two actuators being impugned put has been to a reason- por- on a horizontal stablizer —that replica Dayton use. Keener v. ably anticipated airplane containing tion the elevators Manufacturing Company, Electric and elevator trim tabs—testified that Cushman, Blevins designed Beech’s actuators were not S.W.2d at 607; Duke v. & minimize incorrect installation. He testi- S.W.2d at see also Gulf Company, Manufacturing Beech’s Western opinion fied further in his 23.685(D) ed.); see satisfy 411-12; (3rd failed to 14 CFR S.W.2d at MAI 25.04

381 generally, Hursh and Bailey, American Ever since the doctrine of strict tort liabili 2d, (1974). Law of Liability ty Products 4:40 Traynor was first articulated Justice § The concept reasonably anticipated use, concurring of opinion his v. Escola Coca however, Co., 453, includes misuse 462, and abnormal use Cola 24 Bottling Cal.2d 150 which is objectively 436, (1944), Cryts proximate foreseeable. v. P.2d 440 cause has Co., 683, (Mo. Ford Motor 571 recognized S.W.2d 688 been conceptual as a means of App.1978); Rogers limiting scope v. Manufacturing Toro ain strict tort Co., 632, Wade, 522 (Mo.App.1975). S.W.2d 637-38 See action. theOn Nature This majority jurisdictions Products, is so in the Liability Strict Tort 44 825, adopted (1973); that have 828 liability. strict tort Miss.L.J. generally See see e.g. Baily, Co., Brown Hursh and Law of v. United American Prod States Stove 98 2d, 155, 1234, Liability N.J. ucts 4:17 (1984); 484 A.2d see also Cobb Insured Lloyds, v. 387 So.2d case, Beech, present under (La.App.1980), 13 cert. denied Cobb v. In guise argument, of a submissibility (La.1980). Lloyds, sured 394 So.2d 615 seeks its liability by to limit contending purported negligence that plaintiffs in Execu case tive’s proxi mechanics constitutes the sole presented a host evidence com accident, mate cause of which was the bination established the existence of an in George immediate cause of dustry Nesselrode’s standard that is intended to safe argument, death. though Beech’s guard against admit the incorrect installation of distance, tedly symmetrical appealing from a parts shy falls flight asym that have upon inspection. mark closer metrical Under plaintiffs’ functions. Additionally, principles causation, established evidence demonstrated industry proximate injury cause an event adopted standard need had been Beech as a design be a substantial factor or efficient policy. criteria Our review of the agent. causal Harned, Dura sufficiency Corp. See respect of the evidence with 396, (Alaska 1985); 703 P.2d 406 the issue of Brown v. normal use leads us but one Co., 155, United States N.J. Stove 98 484 ample conclusion—that there was evidence 1234, (1984); A.2d 1243 support finding Foss Black & that the actuators had Co., 102, Mfg. Decker 59 put N.Y.2d 463 N.Y. reasonably anticipated been to a use. 398, (1983); S.2d 450 N.E.2d Sum posits Beech argument additional U.S.A., Toyota Inc., nicht v. Motor Sales have failed to establish that 121 Wis.2d N.W.2d George proximate Nesselrode’s death was ly caused by of the actuators. already determined, As we have Proving proximate cause in a strict support tort there was sufficient evidence liability case is a finding fundamental burden that that Executive’s use” of “abnormal 25.04(3rd); must be met. MAI reasonably Duke v. the actuators could have been & Manufacturing Compa anticipated. contention, Western Beech’s real how Gulf ny, 409; ever, 660 S.W.2d at see also v. Eli is that actions of Executive’s me Zaft Lilly Co., (Mo. chanics, & law, banc as a matter of constitute a 1984). case, In a strict tort liability proxi superseding sufficient to relieve cause mate through cause enters liability. argument, a number of Beech of any This however, different conceptu doors. Underneath the good is one that we cannot proximate al umbrella of accept. cause can be conscience entire stra- Plaintiffs’ misuse, concepts tegem found proving abnormal directed toward use, anticipated reasonably use and physically sym contrib the incorrect installation of utory e.g. asymmetrical fault. Baker functionally v. Internation metrical but (Mo. al Harvester conse expected was a natural and App.1983); Keeton, generally, quence manufacturing see Prod without actuators Liability Defenses—Intervening “murphy proof” design ucts We find features. Misconduct, 1979). (Fall support 15 Forum legally the evidence sufficient to

finding design proxi- product that Beech’s 4. the was used in a manner was a George mate cause of Nesselrode’s death. reasonably anticipated; summary, we think a jury composed damaged plaintiff 5. was as a direct of reasonable men and women could come product being sold with- result of the to the conclusion lacking that actuators adequate warning; out an features, “murphy proof” design put when 25.05(3rd) MAI use, to normal do an unreasonable prod- recognizes The that a Restatement danger. ample risk of There was evidence may unreasonably danger- uct be rendered from jury which the could infer that the ous and because of the therefore actionable risk of incorrect installation is reduced or concerning use warning absence of a or flight components eliminated when critical misuse, warning or that has because “murphy proof” design contain features. given informationally been deficient. They way also could conclude that the Noel, generally, See Products designed which these actuators was were Defective Inadequate Because Directions accident, the efficient cause notwith- (1969). Warnings, 23 S.W.L.J. 256 This standing alleged negligence. Executive’s theory expressly recog- has been connection, jury In this was free to nized Missouri. Duke v. See &Gulf disbelieve defendant’s evidence to the con- Manufacturing Western trary. provided jury a number of 418; Rogers at Manufacturing Toro “murphy proof” alternative de- feasible 632; Company, see also signs. They were free to infer that an Utterman, Racer v. 629 S.W.2d at alternative would have been safer (the provide warnings need to for unavoid- prevented It and would have this accident. ably products). unsafe duty is the function and of the upon presented reason the evidence products The determinative issue a draw inferences and reach conclusions. liability failure to warn case is whether the quantum of evidence We think accompanying product ef information plaintiffs presented jury to do allowed the fectively communicates the consumer or just that. dangers product user inhere in the Next, during dangerous use and the con ques- we turn our attention to the normal sequences from mis tion of whether made a submissi- that can or will result theory case under a failure to warn product. ble use or abnormal use of the See liability. again, plaintiffs Once are entitled Bailey, Hursch & American Law generally, to the most favorable view of the evidence Liability of Products 2d 4:13 advantageous and the benefit of all infer- Warnings concerning and directions might reasonably be from ences that drawn proper product use of a and the conse the evidence. See Coulter Michelin primarily quences of misuse are intended Corp., 622 S.W.2d at 426. Tire e.g., risk. Pell v. to lessen the level of See School, 123 Ill. High Andrew Victor J. on the merits in a strict tort To succeed 739, 462 N.E.2d 858 App.3d 78 Ill.Dec. brought theory action under a warn, plaintiff failure to must establish following by prepon- each of the elements over the Although there is little debate derance of the evidence: case, legal of a failure to warn destination product in the 1. the defendant sold the late date courts and commentators at this business; course of his on what remain “betwixt and between” unreasonably 2. was then traveling. they theoretical road should dangerous put to a reasonable commentary accompanying Section knowledge use without of its charac- warn pertains 402A which to failure to teristics; imposi- sanction the cases would seem to defendant liability only when the give tion 3. the defendant did not an ade- knowledge knowledge or should have quate warning danger; has of the from risk product’s dangerous of serious propensities. tect themselves j Comment products to Section Some defects 402A. injury caused leading also espouse And, complex commentators the more purchase. view that the successful maintenance of opportunity there is less product, the Section 402A failure to warn re- action against guard deleterious the consumer quires showing negligence. See, e.g., extent, the consumer must defects. To this (5th Prosser and Keeton On Torts 99§ upon integrity competency rely ed.). A substantial number of courts also History, community. how- the business position. See, take this e.g., v. Flaminio ever, taught negligence that liability has us Co., Ltd., (7th Honda Motor 733 F.2d 463 provides inadequate remedy an tort alone Cir.1984) (applying law). Wisconsin injured and does little to for consumers Missouri, Under the decisional of a law in the manufactur- greater stimulate care plaintiff options. has two He bring can his ing process. liability tort is rooted in Strict theory failure to warn case a under realities. these Co., negligence, v. Morris Shell Oil 467 imposition liability The of strict tort is (Mo.1971)(adopting S.W.2d 39 the Restate- justified grounds on the that the manufac negligent ment’s Section 388 model of fail- always turer or seller is almost better warn), bring ure or he can his action equipped than consumer endure the under Section 402A. Duke v. & West- Gulf consequences economic of accidents caused Co., Manufacturing ern 660 S.W.2d at by products. Everything defective in the 418. theory, knowledge Under former marketplace price, profits. including has a is a relevant consideration. But under the responsibility debilitating Economic for the theory, liability may latter be imposed with- consequences injuries caused defec regard out to the knowledge defendant’s or products many tive is one but costs conduct. This comports very view with the doing associated with business earning raison d’etre of liability strict tort law. In Elmore, profits. considered, principle things we reaffirmed the All we find no strict is lihbility predicated tort holding on the unfairness manufacturers and presence of fault or the existence of knowl- economically sellers and socially respon edge: injuries actually sible caused products they place manufacturer’s standard for profit of care in the stream

irrelevant because relates to the connection, rea- In agree commerce. we sonableness manufacturer’s de- Washington with the of Appeals Court sign choice; fault is an irrelevant consid- policy justify holding concerns which a eration on the issue liability manufacturer liable for or manufac Thus, strict plaintiffs context. turing regard defects without to the rea Kaylo product] established that was [the justify sonableness his conduct also they proved “defective” when that it was holding a manufacturer liable without re unreasonably dangerous designed; gard to the reasonableness his conduct “ required were not to show addition- product poses danger ‘where ally designer that the manufacturer or public lurking danger because of a ” fault,” as concept was “at is em- exposed by was not the manufacturer.’ ployed negligence in the context. Mining Haugen v. Minnesota and Manu Owen-Illinois, Inc., Elmore v. 379, Wash.App. 71, 15 facturing, 550 P.2d at 438. (1976), quoting L. Fraumer and M. Friedman, liability recognizes Liability p.

Strict tort that in to- 2 Products 16A§ day’s (1960).12 do to pro- world consumers can little 3-336.3 674, (1979); following rejected appli- Berkebile v. 12. courts have Colo. 604 P.2d Brantly Helicopter Corp., negligence principles of traditional Pa. cation 337 A.2d (1975); See v. Mauch Sales strict tort failure to warn cases. Manufacturers Sullivan, Inc., Service, (N.D. (Alaska Patricia R. & 631 P.2d 345 N.W.2d Inc., Co., Eng’r. 1981); 1984); Anderson v. Heron Olson A.W. Chesterton N.W.2d Missouri, pivotal phy proof” design concerns in a features or distinctive litigated markings. case under a theo- failure to warn (1) ry liability are: of strict tort whether First, it should be noted that unreasonably dangerous presented testimony from Executive’s me- put proper normal use without inspectors chanics and that the identifica- and; (2) warnings adequate whether warn- stamped tion numbers in ink on the actua- ings any warnings given. at all were independent meaning have no tors without 25.05(3rd). MAI Our decisional con- And, parts catalog. reference to Beech’s plain- cern in the case is whether notwithstanding the fact that the numbers produced sup- tiffs sufficient evidence parts catalog in the were correlated with a port finding that the actuatros were not right-hand designation, plain- or left-hand accompanied by adequate warning. an presented parts evidence that Beech’s tiffs catalog warning that the cata- proof Plaintiffs on this issue consisted of contained First, plaintiffs log’s function to facilitate order- following evidence. es- sole in connec- through testimony Larry and was not to be used tablished Douglas, inspector, airplane. A1 tion the maintenance of the an Executive with Maintenance, Graves, Additionally, plaintiffs presented further Director of that the they showing service bulletin from Beech evidence that the identification received advising appearing to check the elevator trim on the actuators them- them numbers during illegible. and tear selves were often tab actuators for wear inspection 100 did not warn next hour argument also that Beech advances possibility reversely installing about manual detailed its maintenance contained dangerous the actuators and the conse- proper on the installation of instructions quences of reverse installation. however, arguments, er- actuators. These roneously equate and identifi- By way testimony oral and documen- instructions giving evidence, warnings. tary plaintiffs established that cation numbers do not as a matter of law Beech’s maintenance manual for this model of the former for the latter. Notwith- airplane warnings concerning did eliminate the need contain standing fact that Beech’s maintenance procedures maintenance that affected the contained detailed instructions and operation airplane. safe of the These manual installation, regarding proper printed type. directions warnings were bold letter however, warning brought Plaintiffs, that presented also evi- did not contain possibility of re- that Executive’s attention the dence which showed the maintenance dangerous and the conse- any warnings contain con- verse installation manual did not installing in a quences of the actuators cerning possibility of reverse installa- any fashion. Nor was such warn- consequences. and its In this connec- reverse tion themselves. tion, to the actuators every almost witness testified that the affixed proce- was a installation of the actuators held there is a A of courts have number operation of dure which affected the safe and warn instructions distinction between airplane. ings. Staley v. A.E. e.g., Fiorentino 428, Co., observed, Mass.App. 11 416 N.E.2d plaintiffs Mfg. already As we have 998, (1981); Casualty Bituminous presented evidence that the 1003 uncontradicted Co., Mfg. 518 Corp. v. Black & Decker visually themselves were identi- actuators 868, (Texas Civ.App.1974). See Beech, however, argues that because cal. Noel, Because Products identification numbers also the actuators had Defective Warnings, them, distinctively Inadequate Directions stamped they were signal 256, (1969). Warnings FAA S.W.L.J. comply with the marked so as principally serve danger while instructions regulation requiring each element of information neces- user with provide “mur- flight system control to have either Industries, (N.D.1977); 269 Or. Phillips Kimwood Machine Little v. PPG 525 P.2d P.2d Wash.2d Cf. proper cerning actuators, to make sary and efficient use of he would alert- have case, ed his mechanics. product. plaintiffs In presented ample support evidence a find- plaintiffs’ We think evidence would allow ing that Beech’s maintenance instructions warning to conclude that a was not warning did constitute a and did not needed in the maintenance manual signal danger inhered these also affixed to actuators. but Further- say actuators. We simply cannot that as a more, A1 Graves testified that he read service, of law matter failed to meet their Beech’s and it too bulletin lacked producing warning. Lane and burden sufficient evidence Mechanics Adams tes- they showing any tified assumed deviation that the were actuators unreason- from the industry standard would be noted dangerous ably without used knowl- by way warning of a caution or and if that edge of propensities the hazardous case, they were have been made would products’ design features. warning aware of such and the dan- challenge Beech’s final to the submissi- Furthermore, gers to be plain- avoided. plaintiffs’ bility case on a failure to warn tiffs’ evidence showed that the Executive theory proximate concerns the element of employees responsible ordering parts heavily Beech cause. relies on the fact dangerous were also notice of the without that mechanics Lane and Adams did not propensities of actuators. Beech’s consult the maintenance manual when conclusion, we think the evidence Therefore, installed actuators. Beech jury composed sufficient to allow reasons inclusion “additional men and women with reasonable minds to warnings” in the maintenance manual infer that had affixed Beech either a warn prevented would not have in- incorrect ing themselves, to placed the actuators a stallation of the They actuators. contend warning in or the maintenance manual that mechanics’ failure read the man- manual, way or warned Executive negates any ual connection between the bulletin, aof service Executive would have warnings absence of cause of the appropriate prevent taken action the ac crash. fatal being reversely tuators from installed. In making argument, this Beech has respect, this was sufficient to evidence omitted critical evidence adduced at trial permit jury the in to conclude supports plaintiffs’ position. which Our re- in structions and directions found Beech’s view, however, permit does not us to do the maintenance manual and the identification Larry same. Douglas stamped numbers actuators did not testified that he was warning provide adequate and that had ad familiar with the contents of the mainte- equate given, warnings the accident been nance manual because he had cause to read find that would have occurred. We prior it on upon occasions when called pro their burden of plaintiffs satisfy did replace worn Additionally, actuators. A1 ducing on the element sufficient evidence Graves, Executive’s of Director Mainte- proximate of cause. nance, testified that he was unaware of warnings any in the maintenance manual point The which we must final of error presence warnings or the in other appeal consider this raises an issue con- published by instructional literature Beech stated, cerning Fairly damages. both gave possibility notice of re- assign Beech and Executive as error the verse installation. He testified present further plaintiffs’ failure to establish the that had he any warnings known of expected con- worth13 decedent Nesselrode’s concept present earning 13. The worth value rests tional of the assumed dollars. Because assumption money earning power pow- money paid today, on the er. has most a sum of Therefore, today jurisdictions the value of one dollar American that a a loss of subscribe to the notion payable worth more plaintiffs damages representing than one dollar aat future award of can, paid today date—because the one dollar should be reduced to future income through investments, grow upon safe present and earn in- addi- reflect is safe worth—which loss of future income. specific assign- give The requested a instruction or giv- error, however, ment of goes to the trial improper of an gener- instruction. See court’s permit jury decision to to exam- Stein, ally Damages Recovery 170- §§ during ine the course of their deliberations present case, In the however, (exhibit 63) a listing chart in table format the issue arose not in connection with an expected loss of future income—with- alleged instructional developed error but out present reduction to its worth. De- from a series of exchanges events and in- fendants allowing contend that the use volving court and counsel. table, which does not reduce the present issue of appeared value first projected stream of loss income to its at the close of Executive’s case in chief. present value, and permitting plaintiffs to time, At that Executive offered for admis- use this table a foundation for their sion into evidence a set of unofficial inter- closing argument nothing constitutes short est tables present from which value could of reversible error. Up be point trial, calculated. to this in the begin We with the proposi- fundamental parties none of the upon had touched purpose tion that awarding compen- matter of value. When Executive satory damages in a civil tort action is to sought tables, admission of these interest make plaintiff again whole place or to plaintiffs, objecting, conceded that him in position as near the one he would freely court could by way judicial do so occupied have injured had he not been as a notice14 but added that absent further result of defendant’s tortious conduct. explanation, foundation and the interest ta- Damages, McCormick on bles would jury not assist the and should Therefore, awarding plaintiff something not be admitted. After dialogue, further just excess compensation constitutes the trial court noted that it would reserve falling an act purpose outside the of com- ruling on the admission of the tables pensatory damages. “pending what further evidence [Executive In wrongful Missouri, death action produce would on the issue].” damages affirmative instruction 5.01(3rd). may given MAI This appeared issue next after requires instruction to “award presenting had finished rebuttal evidence plaintiff you such sum as fairly believe will at the close of Beech’s case chief. Exec- justly compensate plaintiff for again utive sought once to offer for admis- damages you plaintiff believe sustained sion into evidence their interest table for ... sustain the future.” In [will] calculating present value. After Executive respect, among Missouri is not those briefly explained purpose of the tables jurisdictions present which allow a value court, judge inquired to the the trial how given upon instruction to be proper re- Executive intended to utilize them at trial. quest by defendant. e.g., Lees v. No- responded they Executive in- that did not lan, 121 N.H. 433 A.2d 1287 argue upon tend to read from them or not, them, present give

More often than the issue of but rather wanted to value arises connection jury. with refusal them to the fully compensate plaintiff justice vestment will permitting for his will best be served Stein, generally, loss of future income. See Damages compute earnings trier of fact to loss of future Recovery, § 170-170.5 present without reduction to value." Id. at 671. 1967, however, Supreme Beaulieu, however, minority Alaska Court remains a view. Elliott, (Alaska in Beaulieu v. P.2d 1967), rejected 14. We note that Executive concept present represented their in- value. that, "[sjince plaintiff, The court concluded being part terest tables as of our Missouri Re- through the defendant’s fault has been ... They statutory vised Statutes. are not tables. placed position having in the no assurance They provided by publishers are tables earnings, that his award of future present reduced to Statutes, private Vernons Annotated Missouri value, can be utilized so that he will publication. and unofficial ultimately earnings, realize his full we believe During dialogue, the course of this Exec- incidentally er—which he had worked for utive conceded that the Fifties, entire matter was since the middle Fifties —could subject argument. And, to the court have worked until he was Plaintiffs’ opined giving jury the tables with- Exhibit 63 would indicate he would evidentiary out further support argu- or $980,194.00 have earned instructions and ference held to ment roving commission. The next present would amount to value occurred at a bench con- event to prior closing arguments. transpire giving giving the jury a respect Beech jury was worth worth on that. But let me make one more observation # $980,000.00 ^[*] If $980,000.00 George ^[*] to his ^[*] Nesselrode was to his employer, ^[*] family. ^[*] he objections noted its plaintiffs’ proof After had begun retired and damages plaintiffs’ and to failure to reduce deliberating, they requested the use of their claim of future loss present income to plaintiffs’ chart which showed decedent’s objection value. Part of this plain- went to projected stream of loss income. The court (exhibit 63) tiffs’ chart listing the dece- conference, convened an during inchambers projected dent’s loss of income. The chart which Beech and objec- Executive offered prepared by Roberts, general Otis allowing tions to the jury to examine the manager vice-president company of the chart. considering parties’ After views worked, which Nesselrode and he used subject the court ordered the exhibit the chart when he during testified plain- sent to jury. tiffs’ case in chief. And it was at that time the chart was admitted into evidence— Notwithstanding the substance of any objection without by any defendant. arguments, defendants’ we do not think the Additionally, neither Beech nor Executive real presented by issue foregoing facts raised the issue of by way value propriety rulings the trial court’s cross-examination plaintiffs’ witness. concerning jury’s plaintiffs’ use of the loss of future income

However, scope chart and the at the bench conference that plaintiffs’ closing Instead, arguments. was held later in the immediately trial and we believe the true issue is giving before the whether a of instructions and clos- statements, litigant permitted assign should be both error Beech and Executive ruling to a trial court’s entered an which concerns his objection any arguments plaintiffs’ opponent’s presentation genuinely intended of a dis to make which would be puted factual issue litigant based on the when the claim information contained in the showing ing error chart decedent’s has wholesale projected loss of fashion aban doned responsibility bring income. The court his rejected considered and forth evi objections these dence position and refused to favorable to his limit the at the scope plaintiffs’ very closing challenge least the accuracy statement. of his adversary’s evidence. closing

Plaintiffs’ statement included the following argument: judicial Missouri there exists no Now, monetary the verdict—the ver- rule of barring law a defendant from damage dict—-the composed verdict—is presenting otherwise admissible evidence parts: income, of two the loss of and the Bair v. present on the issue of value.

loss of companionship love and and con- Co., St. Louis-San Ry. Francisco sortium; services, care, the loss of socie- (Mo. 1983), S.W.2d 507 reh’g granted banc ty, guidance. curiam, per cert. de at The Northern, Bair, really loss of income is Burlington nied not that Inc. v. compute. difficult to compute You can it 464 U.S. 104 S.Ct. 78 L.Ed.2d 109 with some mathematical function. The A may by defendant raise the issue evidence, know, we is that Mr. way Nessel- of cross-examination or on direct ex rode could have employ- worked with his during amination his case in chief. Id. so, doing

513. After he of course is free to present the issue of value. Whether de- address the during closing issue his state fendants’ failure to do so was a result of Bair, ment. From our discussion in strategy trial in the concern that —rooted should present be clear that the issue of emphasize to do so would legit- or further value is a appropriate factual matter plaintiffs’ imate damages claim of —or argument by those who hold an interest — reason, whether it was tied to some other subject. See also Anderson v. Bur they now seek relief from the conse- lington Northern R. quences of their own actions. (Mo.App.1985). plaintiffs’ When loss of future income transcript present The in the case reveals evidence, chart was offered into neither any little if by bring effort defendants to to Beech nor objection Executive entered an jury’s position attention their concern- to its admission. The trial properly court present First, the issue of value. we admitted the exhibit. The trial court on consider the matter of Executive’s interest provided numerous occasions defendants tables. Executive conceded they did put the opportunity to on evidence of their not intend anything pass to do but own in connection with the present issue of jury. tables to the There was no intention However, value. defendants failed to do present any to foundational evidence or Instead, so. they preferred to have the supporting other evidence. Defend- trial court act in their stead. ants, however, opportu- were afforded the nity produce to further evidence on the Though unwilling put we are our issue, but declined to do so. In es- stamp approval plaintiffs’ presenta sence, portrayed process defendants damages, tion of equally unwilling we are reducing present an award to its value as to denominate as reversible error the trial largely a cut and dried arithmetical formu- court’s plain decision to allow into evidence court, however, la. The trial considered tiffs’ loss of process future income chart and its something more than a scope rote refusal to restrict position plaintiffs’ arithmetical formula. The comports closing argument. taken the trial practical import court with the Stein, view held authority Jacob a noted holding our is that before a defendant can subject damages. on the Mr. Stein’s assignment base an plain of error on the view is that process reducing “... presentation tiff’s damages respect with an award present to its value has far less reducing a stream of lost future income precision arithmetical than a statement of value, present defendant, to its at the general Stein, rule would indicate.” least, very evidentiary must meet the re Damages Recovery, p. 329 sponsibilities upon him by cast our adver system. sarial Although defendants refrained from illu- judgment is affirmed. minating position respect their value, they ably challenged the ba- HIGGINS, C.J., and ROBERTSON and plaintiffs’ sic foundation of claim for dam- RENDLEN, JJ., concur. ages. This by presenting was done evi- dence connection with history decedent’s BLACKMAR, J., separate concurs problems, of health questioning the three opinion filed. daughters’ decedent, monetary reliance on by pointing through out cross-examina- DONNELLY, J., separate dissents in tion that projected decedent’s stream of opinion filed. lost income does not take into consideration obligations. his income tax WELLIVER, J., separate in dissents opinion separate The filed in fact of the matter is that defendants and concurs dis- DONNELLY, did not make senting opinion credible effort to contest of J. BLACKMAR, Judge, concurring. There no so- the defective condition. utility product cial in the as manufactured. I Judge Billings’ concur in opinion, and primarily separately response write in to II. Judge Welliver’s dissent. under # The submission Instruction warn, appropri- on failure to is also based I. course, of no plaintiffs, way ate. The had (Sec- Section 402A of the Restatement either, which, if of theo- knowing of their ond) of statutory Torts is not law. Nor might eyes ries find favor in the does it questions may answer all the which jury. presented by be disagree future cases. I argument Judge Welliver’s that a “fail- Judge suggestion with Welliver’s that we appropriate ure to warn” is submission lay should down a rule future cases only required jury if the is to that the find involving prefer different I facts. the tra- defendant “knew or have known” should of practice case-by- ditional common law of danger particularly inappropriate is in development Maybe of case the law. there case, in which Beech manufactured the will be more if reversals we decline to replacement parts and charged is with us, decide issues not before but the alterna- knowledge of properties, including their of judicial legislation tive broad is a less holes its Jury which fit. desirable one. is required genuinely instruction on system jury Under our practice, disputed in- issues fact. This is not a case given are in structions outline. in danger presents bare Much which an unknown itself placed reliance is opportunity product, counsel’s in a such as a previously medicine argue. to As principal opinion points assumed to be safe and In- beneficial. out, concept “the danger unreasonable 12 properly permitted jury struction # presented ... is the jury argue to on an ultimate to warning. the issue absence of issue without further definition.” I believe warning, absence of means of that the amply supports evidence the sub- ready right differentiation and left mission of “defective condition unreason- actuators, might is a circumstance which ably dangerous” regard with re- replace induce to believe placement actuators furnished Beech. parts danger ment were “unreasonably Also, reasonably Beech could anticipate agree Billings I Judge ous.” people that the replacement who install its utility introducing concepts there no in always carefully, will not act case, foreseeability into this and that the may always continuing not make reference result is in line with Elmore Owens-Illi # gave manual. Instruction both nois, (Mo. Inc., 1984). banc ample Beech opportunity speculate needWe about what submis argue respective positions. their might required prod sion when useful properly instruction submitted the ultimate present previously uct found unantic issues. ipated dangers.1 I am not certain that the unadorned sub- III. danger mission of unreasonable an ulti- as products is appropriate perhaps mate issue for all consider Our courts should I particular cases. have reserva- instruction on whether an worth loss, appar- required tion cases which a has in FELA cases future utility ent social and cannot be made whol- Railway St. Louis Co. v. Southwestern — U.S.-, ly presented Dickerson, safe. But no such issue is 105 S.Ct. correcting (1985), here. Beech had the means of 84 L.Ed.2d 303 should be Judge products drugs 1. Welliver cites Feldman v. Lederle Labor other beneficial atories, unsafe,” point. "unavoidably 97 N.J. 479 A.2d 374 This and so is not are warnings required case treats cases involv- and,

made available in other civil In regulations required, actions. that the Execu- Bair v. Ry. St. Louis-San Francisco personnel tive did not follow their own (Mo. 1983), however, manual, 647 S.W.2d 507 operations banc required such parties may argue we held that the the consultation with the Beech maintenance evidence, value that, issues without be- manual. Beech further notes as dem- cause it is a matter of knowledge. case, common onstrated proof all the in the may The issues also be raised evidence. mechanics who did experi- the work had no installation, in ence did not have the Plaintiffs’ properly Exhibit 63 shows use, manual available for immediate gross figures. I agree holding in perform did not the installation man- principal opinion the defendants points ual directed. Beech testimony to the appropriate failed to take and available all of the witnesses who were knowl- steps put figures these in perspective edgeable about the installation before complain and cannot recep- now about the flight. aircraft was certified for In further evidence, tion of the argu- exhibit into support position, of its Beech details the ment based on it. inspector activities of the who did not con- I in join principal opinion in manual, sult the improper but followed an judgment of affirmance. inspection procedure verify which did not proper installation. The evidence from all DONNELLY, Judge, dissenting. subject clearly who testified on the estab- view, my this cause should be re- inspection lished that if the procedures out- versed and remanded with en- directions to lined in the Beech maintenance manual had judgment ter for Beech Corpora- Aircraft followed, been the misinstallation would marks, adopt, quotation tion. I without apparent. been have This is so because pertinent portions opinion in written inspection procedures provided that the Appeals by Judge the Court of David J. cockpit placed specific posi- control be in a in by Judge Dixon and concurred P. Jack tion and then directed that the trim tabs be Judge Shangler: Pritchard and Charles inspected if to determine had moved Turning to Beech’s claim that its directed degrees right in the correct direction. judgment verdict and n.o.v. motions should that, inspector upon admitted based sustained, puts have been Beech’s brief improper inspection procedure he fol- straight-forward issue manner. Plain lowed, “slightest he did not have the idea” tiff’s submission was under instructions responsive if the trim tabs were 25.05, patterned on MAI MAI 25.04 and setting cockpit. indicated in the Beech fur- predicated upon which are the strict liabili argues Reg- ther that the Federal Aviation (SECOND) ty doctrine of RESTATEMENT ulations have the force and effect in Keener explicated OF TORTS 402A as Lines, Inc., McClenny v. United Air law. Dayton Electric Manufacturing Com Tilley (W.D.Mo.1959), F.Supp. pany, 445 S.W.2d 362 (Mo.1969). Beech States, (4th v. United 375 F.2d 678 Cir. points jury finding, first out that the 1967). right presume, Beech had the product being “put reasonably was to a contrary, of evidence to the absence anticipated use” and that the was that the law would be the in observed reasonably anticipated,” “used in a manner Brown, parts. Highfill stallation of the required by the law and the instruc (Mo. 1960); 340 S.W.2d banc Gerdeman, tions in the case. Beech no asserts that Branstetter v. Mo. supports finding evidence of such essen Plaintiffs’ ex facts, plaintiff’s witness, Garrelts, tial and that evidence dem pert also testified that contrary. argues onstrated the Beech the manufacturer was entitled to assume regulations what is obvious from the factual statement: the manual would that the that, that, if the parts, the installation of the Execu be followed. He further stated employees comply inspector tive and its did not with mechanics and had followed manual, procedures Beech FAA in the the acci- maintenance manual as the outlined dent happened. (Mo.App.1975), would have Beech the court stated proposition notes that there is no evidence in the case the as follows: suggest that a similar incident had ever liability equate Strict does not past. occurred in the All of the witnesses liability. absolute Before the defendant who testified said had never even theory can held under the be of strict heard of such an occurrence. af- Beech’s liability, plaintiff only prove must not the that, firmative in evidence was the effect dangerous article was defective and thus airplanes thousands of over a substantial put reasonably anticipated, when to a use years, number no such misinstallation prove he must also the article was had occurred ever before. being reasonably used in a manner an- ticipated damage and that resulted as a

This case does not involve a mismanufac- being direct result of the article defec- operation ture or other defect in the Dayton tive. Keener v. Electric Manu- actuator assemblies themselves. Until the Co., facturing 445 S.W.2d manner, 366[7] were installed a reverse (Mo.1969). they presented danger no arising from their use. The “manner of use” made the Thus, the issue under applicable law parts malfunction and caused the fatal supported is whether the finding evidence a Thus, crash. that Beech did not that Beech reasonably should have antici- parts in “go go” accordance with or no pated determining the manner of use. In principles designate or that Beech failed to component of the seller of a right-hand them as or left-hand some part by utilized another defendant in creat- permanent goes fashion only to the issue of product consumer, a by for use a preventing negligent installation or the inquiry upon reasonably must focus manner of installation. The “manner of anticipated by manner of use assem- use” must be one that is reasonably antici- unequivocally bler. The evidence demon- pated. In Dayton Keener v. Electric reasonably anticipated strates supra, 445 S.W.2d at the court held: manner of use would have in a resulted verdict-directing instruction, [Plaintiff's proper assembly discovery or at least a require finding failed to a of an essential plane error before flew. Stated element.... conversely, reasonably Beech could not an- The prejudicially instruction is erroneous ticipate that Executive would mishandle require finding

because it failed to assembly simply as it did. There is no pump, by Dayton, sold was defec- support evidence to even an inference that tive and dangerous put therefore palpable negligence anticipa- such could be to a use reasonably anticipated, Ordinarily, anticipated ted. misuse would that it was used Harold Keener in a be shown other incidents of such mis- reasonably anticipated. manner mechanics, experienced use. None of the requirement person injured that the be inspectors, experts, and other had ever using product way in a it was in- heard of such an occurrence. No basis plain- tended to be used is an element finding exists for a that Beech could fore- tiffs cause of action. It is not a defense improper see the installation. available to the manufacturer or seller as Foreseeability proximate cause “contributory fault.” products liability upon cases focuses

(Emphasis supplied.) foreseen, uses to not the harm be That direction of distinguishes products Keener has been fol- caused. This liabili- lowed without variation in ty negligence. Cryts embodied v. Ford Motor language 25.05, Co., of MAI (Mo.App.1978). 25.04 and 571 S.W.2d 683 require use, specific finding by present, duty if foreseeable raises the that the “was used in a manner use safe. If the use or misuse to make the duty to reasonably anticipated.” Rogers anticipated, Toro cannot there is no Manufacturing Company, guard against injury arising from such ab- products Moreover,

normal use. The law of case, in the instant the lack of imposes duty upon products adequate warning sellers of could not even have been make them a cause fact of the reasonably safe or crash. There is no non-defec- causal relationship between tive. the lack of duty by The limits of that are defined warning and the posi- event because of the the foreseeability anticipa- or reasonable proof tive of the actions of employees product’s tion of the use or misuse. of Executive. The maintenance manual disposes What has been said thus far was not consulted and given the directions design both the issues of defective ignored. were The mechanics involved did warn, failure to predicate because the pay enough not parts attention to the the failure-to-warn submission is the same say even be able to whether or not the as in design a defect case—the use parts present. numbers were No further and the manner of use must be reasonably warning in the maintenance manual or des- anticipated warning before required. a ignation parts of the could have made Obviously, a manufacturer cannot warn of difference under the facts of this case. “unanticipated an use” or a “manner of presumption may aWhile exist that if a Baker v. Interna warning use” anticipated. not given, heeded, has been it will be Co., tional Harvester 23 Racer, supra, presumption cannot (Mo.App.1983). relates, duty The to warn in positive proof stand the face of that the not unanticipated to an use or manner of given directions were not heeded and that use, reasonably but to a “use anticipa parts’ identifying numbers were not product ted.” When the has a defect or even noticed. danger unknown to the user when used in simply Plaintiffs do not meet the central reasonably manner to be anticipated, by issue raised Beech. Plaintiffs reiterate to warn arises. Racer v. Utter duty standard, proof of the Beech man, 629 S.W.2d 387 (Mo.App.1981). regulation, FAA right- the lack of a Plaintiffs have cited dictum from Duke v. hand, designation left-hand on the assem- Mfg. & Western 660 S.W.2d 404 Gulf They “fifty- blies. then assert there was a (Mo.App.1983), support in of the submis They fifth chance” of reverse installation. sion of failure to warn. The sentence ex Garrelts, witness, quote expert their who Duke tracted from as follows: roulette,” likened this chance as “Russian adequate warning lack of an in itself and then conclude that “the reverse instal- product only reasonably

renders a defective or lation was not unreason foreseeable dangerous argument a near ably meaning certainty.” within the but This sim- ignores product ply posed by the issue these Alman Bros. liability law. facts: Mill, whether Beech Feed Inc. v. “reasonably could have an- & Diamond Farm ticipated Laboratories, Inc., by the manner of use” Executive 437 F.2d parts Beech furnished. (5th Cir.1971); Martinez v. Dixie Carri ers, Inc., (5th Cir.1976); 529 F.2d Plaintiffs also assert that there was no Niagara Gordon v. Mach. and Tool affirmative evidence that the actuators Works, supra F.2d at 1190 [574 1182] were misused. That assertion miscon- [(5th Cir.1978)] applicable Although ceives rule law. the actuators were for their utilized intend- Duke, supra, 660 S.W.2d at 418. Duke use, the manner use was not one ed dealt with a machine with an inherent de- reasonably anticipated by be Beech. dangerous, fect that rendered it and the that, sentence states the correct rule Under the law and the evidence cases, duty such to warn exists. The case, the manner of use of the actuators support cases cited involve vaccines with reasonably anticipated could not have been dangers supplier, posi- inherent known to the by any person in Beech’s reasonable case, assessment, is, machinery involving and a making an inher- tion. danger course, supplier. necessary ent known to the to consider Executive’s user, technical expertise every skill as ter inherent case strict Beech, tests, which was known well approving as one of the knowledge regulations. effect, Beech’s of the FAA principal opinion, if all leaves future repair one No can undertake such as was triers of strict cases done in this case without licensure from the peril choosing theory proof their as to Federal Government. Beech that the knew at trial. by trained, would used licensed mechanics and that the installation was II subject inspection by inspec- a licensed principal opinion further errs in its tor. The entire scheme the control and necessary resolution what is to establish inspection such repairs was thwarted liability theory. under a “failure to warn” employees. the actions of To Executive’s principal opinion The correctly notes that say that a of for air- manufacturer leading agree commentators and courts is in products liability craft liable a sense liability that to establish a to under “failure

under these facts making would amount to theory warn” the defendant must either a such manufacturer an insurer know or danger- should have known of the performed by work Executive. then, ous propensities product. of the It respectfully I dissent. believe, I unwisely rejects this view be- “very cause is said it to conflict with the

WELLIVER, Judge, dissenting. raison liability d’etre strict tort law.” respectfully I dissent. principal opinion The upon relies Elmore Owens-Illinois, (Mo. Inc. While I am inclined to that believe 1984). There, however, banc majority court of appeals appropriately dealt with design Court treated the case as a defect, this case design on the issue of and defect case and not as a to failure warn in separate concur dissenting opinion of Comment, case. When De- the Best Donnelly, J., I compelled am Cf. to address fense is no Defense: The Future State- Iwhat are glaring believe three other defi- Liability Of-The-Art Evidence in Product opinion ciencies in principal failure —its Actions in Missouri-Elmore v. Owens-Illi- adopt for danger- test “unreasonably nois, (1985). And, Mo.L.Rev. in ous,” its misapplication law “fail- Grady Optical Corp., v. American cases, ure warn” and its erroneous treat- (Mo.App.1985), S.W.2d 911 court in a ment of damages. issue liability strict failure to warn case noted negligence difference between and I proceeded strict hold the agree I expectation that consumer liable defendant because the defendant test, developed first in the area of contract potential knew of harm and failed to implied under warranty law an theory, has adequate warnings prod- include its with increasing come under scrutiny and criti- mixing uct. such It is theories with cism courts and Al- commentators. has, doubt, analysis little no or no led though law, not yet introduced into our suggest some commentators courts may well prudent-manufacturer be that the creating refrain from strict tort (or risk-utility test or the test the risk-utili- inquiry for to warn further failure without ty analysis) test combined with a factor is theory. generally policy into both See cannot, approach. the better reasoned I Epstein, Commentary, 58 N.Y.U.L.Rev. however, agree principal opinion’s with the Wade, (1983); On Effect in limiting of “edificatory” its discussion to Knowledge Liability Product Una- sanctions, ends. The approach this Court Marketing, vailable Prior to 58 N.Y.U.L. judice whether the case sub or future Rev. 734 cases, govern will how cases shall be ar- gued then, inadequate if appropriate, It is sometimes said that or on appeal. warnings briefed This is a no are threshold mat- at all constitute—and ** * “defect;” danger? Con- knowledge of the merely one form of—a and, danger- knowledge knowledge embraces knowl- because structive product imputed is in a ous character of a have been based on edge that should liability design case it should reasonably strict defect avail- information that was imputed plaintiff alleges also be have alert- or and should able obtainable that the is defective unless there reasonably prudent person to act. ed a warning dangerous accompanying an of its person of rea- way, Put another would a Unfortunately, analysis such an character. intelligence superior sonable overly simplistic and not warranted both charged expertise of the defendant purpose policy. as a matter of The initial knowledge defendant such conclude that allowing recovery a failure to under pub- consuming should have alerted products are theory warn was that certain lic? their intended or inherently dangerous for Laboratories, 97 N.J. Feldman v. Lederle uses, products these should foreseeable but (1984) (citations 479 A.2d dangerous unreasonably considered omitted). R. generally W. Kimble & they are beneficial to designed as because (1979); Lesher, Liability Products designed flawlessly and eco- society and Keeton, Meaning of Defect Products possible. theory nomically feasible as of Basic Princi- Liability Law—A Review cases, drug and be- arose vaccine 579, (1980); ples, 45 Mo.L.Rev. 586-87 create approach cause other would Robb, Approach A to Use of State Practical liability, many courts and the “absolute” in Products Lia- of the Art Evidence Strict require Restatement that the manufacturer 1, (1982); Cases, 12 bility 77 Nw.U.L.Rev. should have known of the either know or Schwartz, Duty The to Warn: Post-Sale dangerous quality of the before to a Forks in the Road Two Unfortunate adequate imposing liability for lack of an 892, Doctrine, N.Y.U.L.Rev. Reasonable 58 warning. j section 402A of Comment to al, (1983); Twerski et Use Restatement, therefore, provides Liability— Warnings in Products Abuse of warning “if he part give that the seller Age, 61 Design Litigation Defect Comes knowledge, application has or Comment, (1976); Re- L.Rev. 495 Cornell reasonable, fore- developed human skill and Duty Warn of quiring to Omniscience: sight knowledge, of ... should have Product De- Scientifically Undiscoverable (Second) danger.” also Restatement See fects, (1983). Similarly, a 71 Geo. L.J. Jersey Supreme of Torts 388. The New § Court noted California Court, example, for has held: plaintiff warning if the in all cases—even liability the strict defect consists When analyze failure to court claims to or the warning, improper an or rea- warning in the inadequacy or warn conduct is sonableness of the defendant’s * * * products a strict context of determining liability. a factor actually applied condi- claim—the tests in de- Generally, the state of the art defend- on the imposition tion cases and available knowl- sign defect constructively actually or having ant is edge warning in defect situations are triggers the warn- of the risk that known measuring reason- relevant factors * * * ings. of conduct. ableness Laboratories, 172 Cal. v. Lederle Kearl Similarly, warnings, generally as to 453, 812, Cal.Rptr. App.3d measured knowl- conduct should be Co., 135 Kay Hayes also v. Chemical See edge the time the manufacturer dis- 482 N.E.2d 90 Ill.Dec. Ill.App.3d Did the defendant product. tributed Arizona, And, in (Ill.App.1985). know, should he have known or approved: following instruction has been scientific, given technologi- danger, sells a party A who manufactures cal, information available when and other to foresee he has reason distributed; or, product which in other product was use, injury particular from a may cause words, or constructive did he have actual there warning instructed that required give adequate properly was not an so, he is danger. If he fails to do either actual or constructive must be any injury resulting from the theory, liable knowledge under a failure to warn failure to warn. requires and remand. the cause reversal Prod Aircraft, CCH Schneider Cessna 28,916 (Ariz.App.1985). Liability No. ucts Ill Manufacturing

See also Dart Wieve princi- question damages, On the (1985); Inc., Ariz. 709 P.2d pal opinion holding the real errs Co., Gosewisch v. American Honda Motor court’s propriety issue is not the of the trial 29,267 (Ariz. Liability No. CCH Products ruling closing scope respondent’s on the Sears, App.1985); Brown v. Roebuck & argument. That issue is before Court. (Ariz.App. 667 P.2d 750 136 Ariz. enti- Victims of a nonintentional tort are 1983). monetary equal tled to a award may It be that the confusion sur- well damage they have suffered due to the tor- rounding this area of the lies not in the law McCormick, tious conduct. C. Handbook itself; rather, might Restatement test be Damages Law of § argued theory may that a failure to warn Compensatory damages provide relief to necessary not be either under or consistent injured party, deter unreasonable and enough merely 402A. It is not behavior, inefficient create an incentive for product may that a “defective” assert suit, wrongfully injured persons bring warning absent a and not “defective” with avoiding and serve as a mechanism for warning. That would mean that the con- precautions potential vic- or, uneconomic tort cept unreasonably dan- “defective”— injuries tims would undertake if were not gerous upon a time continuum —rests Posner, compensated. Analy- R. Economic parimeters remain undefined. whose Wade, (1977). ordinary An tort generally On The Effect Product sis of Law 6.12 § Liability Knowledge Prior Unavailable is not entitled to more than he or she victim (1983). Marketing, 58 lost, N.Y.U.L.Rev. 734 giving has and him or her more vio- And, product it also if is overlooks that lates the common law of Missouri and warning “defective” without the strict lia- improper would foster incentives. imposed bility should be not because there damage in this One of the elements of warning was no but because the earnings. loss of future To case is the danger- unreasonably has been found to be overcompensation, lump-sum avoid anticipated Injecting ous for its uses. earnings damage for loss of future award warning issue of in this context con- equal sum of the is not to the arithmetical by telling jury fuses the issue that an earnings future annual lost. C. McCor- arguably unreasonably dangerous product mick, Damages Handbook on the Law simple could have been made safer a (1935); Posner, Analysis 87 R. Economic § warning; may a this be relevant under (1977). of Law 6.13 § risk-utility analysis for a defect case lump-sum award for The measure of a place separate but it has no as a action arising from a pecuniary losses future under 402A. The case at bar illustrates § of the full present tort is the worth point. principal opinion holds that loss of would have amount of the what unreasonably the trim tab actuators were the later time. been received at therefore, and, dangerous actionable under (Second) 913A of Torts Restatement appellant might § That have 402A. Beech § (1977). Accord, St. Louis Southwestern excaped liability adequate warnings, had — U.S.-, Dickerson, instructions, Railway accompanied parts Co. is but 1349, (1985); 1347, 84 L.Ed.2d might 105 S.Ct. why parts one of the reasons Pfeifer, Corp. v. unreasonably dangerous. Conversely, Laughlin Jones & Steel had 523, 103 76 L.Ed.2d dangerous S.Ct. unreasonably not been U.S. is in accord of Missouri apply. then 402A would not Because the The law plaintiff these and a is body authorities this courtroom—Plaintiff’s Ex- $980,190.00. entitled to than more value of hibit 63—was earnings. Hoover, lost future Mattan v. (1942); Mo. Mickel That did not include funeral ex-

v. Thompson, 348 Mo. 156 S.W.2d 721 dollars, penses of a thousand and the money that Jane Nesselrode must ex- During opening argument, respondents’ pend period George’s over a lifetime argued: since he is not there for maintenance or performed for the he

Now, services that for monetary the verdict—the ver- her— It approxi- amounted ... damage composed dict—the verdict—is $1,200.00 mately year. a But over parts: income, two the loss of and the George's you span, multiply life if by it loss of companionship love and and con- expectancy, his life sortium; care, it would have come to services, the loss of socie- $19,200.00. ty, guidance.

The loss income really not that compute. compute difficult to You can I submit you, she’s entitled to re- with some mathematical function. The fringe ceive loss of income and bene- evidence, ..., is that Mr. Nesselrode fits that Mr. Nesselrode would have re- could have worked ... until was 75. period he ceived over the of his lifetime. Had he until he worked was Plain- tiff’s 63 would Exhibit indicate that he best formula that we could come [T]he $980,194.00. would have earned with, up thought which we was fair and per- evidence also clear that he you, reasonable to was submit to that if house_ formed services around the wages fringe the loss of benefits for Jane testified Nesselrode was about $980,194.00, his lifetime certainly was twelve dollars year. hundred And nonpecuniary loss that Jane and the again, computa- with some mathematical daughters equal sustained worth an you know that he had life ex- amount. tions— pectancy years: you multiple those deliberating, jury While requested two up numbers come with an it, Plaintiff’s Exhibit No. received amount; $19,200.00. I think that’s $1,500,000.00. returned verdict for Plaintiffs are also entitled to recover Respondents’ argument mis- expenses, the funeral which was clearly prejudicial.2 stated law and was $1,000. you, IAnd would submit Carefully avoiding any “present mention of $1,000,394.00.

those losses total value,” respondents’ attorney equated the trial, During respondents introduced damages which should be awarded to the 63, depicting Plaintiff’s No. Exhibit chart non-present net value amounts on Plain- alleged the deceased’s wage history future Exhibit tiff’s No. 63. but figures the chart did reduce the principal opinion contends “that the present value.1 present issue of value is factual matter During closing argument, respondents I appropriate argument.” disagree. argued: present legal The issue of is a mat- value lived, ter, plaintiff simply he he would have worked and a not entitled to

[H]ad ages until he And present was 75. the loss more than the value of the lost benefits, [wages] fringe See, earnings. e.g., which came future Bean v. Nor- 395, Co., objection part any- Ry. Ill.App.3d without on the 84 39 and W. folk 1. Since the plaintiff proving 2. The lack of a present has the burden of value instruction allows damages specificity, Sampson easily v. Missouri to be more misled. Co., (Mo. R.R. 573 banc Pacific 1978), plain- there be situations must where the tiff must evidence of value. introduce

397 665, (1980); Ill.Dec. 405 N.E.2d 418 Padu AUCTION,

cah Area Library Terry, al., Public v. et METRO AUTO (Ky.App.1983); S.W.2d 19 Fiting, Currie v. Plaintiffs-Respondents, 440, (1965); 375 Mich. 134 N.W.2d 611 Har v. Shoes, Inc., per Mich.App. v. National REVENUE, al., et DIRECTOR OF 353, (1979); 296 N.W.2d 1 Oberhelman v. Defendants-Appellants, Blount, 42, Neb. N.W.2d 355 (1976); Britt, King v. 267 N.C. Blunt, Secretary Roy D. (1966); S.E.2d 594 Plourd v. Southern Pa State, Intervenor. Co., Transp. 266 Or. 513 P.2d cific No. 67180. (1973); Bessonette, Osborne v. (1973); Ore. 508 P.2d 185 Johnson v. Supreme Missouri, Court of Inc.,

Pearson Agri-Systems, 119 Wis.2d En Banc. (1984); 350 N.W.2d 127 DeChico March 1986. R.R., Metro-North Commuter 758 F.2d (2nd Cir.1985); Westbrook v. General Co., (5th Tire and Rubber 754 F.2d 1233

Cir.1985); Technologies Metz v. United

Corp. (2nd Cir.1985); 754 F.2d 63 Culver v. (5th

Slater Boat 722 F.2d 114 Cir.

1983); Abernathy Superior Hardwoods,

Inc., (7th Cir.1983); 704 F.2d 963 Hoskie v. States, (10th

United 666 F.2d 1353 Cir.

1981); Service, Chiarello v. Domenico Bus

Inc., (2nd Cir.1976). 542 F.2d 883 principal opinion also asserts that

appellants preserved have not this issue on however,

appeal. Appellants, objected to

respondents’ argument valuation

close of the evidence immediately before

respondents’ closing argument, and their

objection compliance was in with the Com-

mittee’s Comment to MAI 5.01:

During the instruction conference the

parties (off and the Court should discuss record) just damages what sup- are

ported by the properly evidence and can argued jury. way, In this

jury arguments proceed can un- without interruptions.

due

Appellants’ objection was overruled. Be- respondents’ closing argument

cause

damages improper prejudicial,

cause should be reversed and remanded.

Case Details

Case Name: Nesselrode v. Executive Beechcraft, Inc.

Court Name: Supreme Court of Missouri

Date Published: Mar 25, 1986

Citation: 707 S.W.2d 371

Docket Number: 67428

Court Abbreviation: Mo.