Richardson v. Holland
741 S.W.2d 751
Mo. Ct. App.
1987
Check Treatment

*1 significant facts which The record this and education refutes claim. Moreover, claim. guilty plea belie movant’s court testified at his When movant issue thirty-three previously addressed the same raised hearing years he old and State, Chapman here in twelfth-grade He did not had a education. Chapman find (Mo.App.1982). We de- from mental defect or disease and suffer on cisive on the issue the basis of facts of alcohol or was not under the influence by the record made at the time of guilty plea proceeding or disclosed drugs during his plea guilty. he the case time when discussed clearly attorney. his indi with record Judgment affirmed. guilty plea, accepting cated before questioned trial movant exten KELLY, JJ., concur. SMITH and sively to the voluntariness his ensure Moreover, plea. counsel in movant’s agreement

formed the court of con

secutive sentences. Thereafter movant specifically questioned con about sentencing:

secutive

Q. [By part Is reason Court] pleading guilty today you’re here be- RICHARDSON, Troy A. your lawyer agree- reached an Plaintiff-Appellant, your ment on behalf with the Assistant Attorney? right? Is Circuit [By Yes, your

A. Honor. Defendant] Bryant, L. and Donald Steve HOLLAND agreement, THE Jr., Dunaway, COURT: What is that Malcolm Dennis C. Mills, Ms. Marxkors? McNeill, R. Mus Bruce John O. SIIGCO, grave, Partners MS. MARXKORS COUN- General [DEFENSE Honor, Partnership, Sheraton is recom- General Your the State d/b/a SEL]: Spring mending Inn years on this and Conference Center a sentence four field, Missouri, Defendants, consecutively case to run to the sentence probation Q. [*] (By Mr. Sinn [*] Court) revoked. is on [*] Mr. parole [*] Sinn, is that [*] should [*] your his Defendant-Respondent. No. 15038. Corporation, understanding plea agreement? of the Appeals, Court of Missouri District, Southern A. Yes.

n [*] n [*] : n » Division Two. Q. Do the four you understand Oct. years is run to whatever consecutive Rehearing or Transfer Denied Motion for happens probation revocation out 20, 1987. Nov. and Overruled County?

in the Denied Application Transfer Yes, your Honor. A. 20, 1988. Jan. record, the motion On that movant understood court concluded understood plea agreement and that he year run consecu- four sentence would imposed a result

tive sentence find these probation revocation. We supported by the record

conclusions to partic- clearly erroneous. addressing

ipation of movant’s counsel age movant’s together agreement *2 McDonald, Miller,

William H. Richard C. Greene, III, Douglas Fisher, Woolsey, W. McDonald, Springfield, Whiteaker for plaintiff-appellant. Venker, Shepherd, Shep-

John C. Paul N. herd, Phoenix, P.C., Louis, Sandberg & St. defendant-respondent. MAUS, Judge. plaintiff alleges

In this action the he was intentionally shot defendant Holland D, Derringer, with a F.I.E. Model .38 cali- handgun. Three counts of his ber recovery upon the of strict seek basis liabil- (F.I.E.) ity against Corporation handgun. the manufacturer of against fourth count F.I.E. is based negligent distribution. against and the Other counts are Holland he was shot. motel at which motion, the tri Upon appropriate the four counts al court dismissed The order of dismissal the manufacturer. designated final. Rule 81.06. was a claim for recov dismissed counts stated upon a against the manufacturer ery from the basis of distinct The order of against the other defendants. appealable. designated final was dismissal Missouri v. Southwest States Southern (Mo.App.1986); Bank, 714 S.W.2d 956 City Board Education Yount v. Louis, (Mo.App.1986). St. following basic petition alleges the peti- of that applicable to all counts facts 11, 1985, was July plaintiff On tion. inn in an or show attending performance Springfield. center and conference was, without premises, he While on those cause, by defendant in the abdomen shot near a bar He was shot when Holland. confer- in the inn and operated restaurant Derrin- with a center. ence Dayton Keener D, handgun manu- the law of this state Model .38 caliber ger, Manufacturing Company, Electric F.I.E. The by defendant factured injured damaged. (Mo.1969). liability may seriously S.W.2d 362 Strict design or in manu- result from defect *3 stated, petition by four counts of the As Motors, facturing. Blevins v. Cushman recovery against F.I.E. seeks (Mo. 1977). In Nessel- 551 S.W.2d 602 banc liability. Each alternate theories Beechcraft, rode v. Executive premised upon propo- is these counts (Mo. 1986), Supreme banc S.W.2d Derringer manufactured sition that the expectation rejected Court the consumer Night Special.” The “Saturday F.I.E. is a utility defining test a test and the risk Saturday Night Derringer a is product. places principal He his defective crimi- principal use is for Special in that from reliance statement legitimate it no value nal activities and “Under our model of strict tort that case: handgun a short a small it is because: liability concept of unreasonable dan- accuracy; easily or it is and little barrel is determinative whether a ger, which concealable; quality by it is inferior case, design in a is defective cheap poor manu- reason of materials jury facturing; presented it not accu- as ultimate issue inexpensive; it is Nesselrode, rate; legitimate used for definition.” and it cannot be without further shooting, target (footnote omitted). as bench argu- From this shooting, hunting, concludes, “Proper- etc. ment and statement he pleading is defective ly that four sufficiency of each of the The unreasonably dangerous is sufficient state a cause of action counts to a prima facie case and to create to create a by generally applicable criteria. measured jury issue.” pe following. A Those criteria include the facts, allege or ultimate tition a count must sweeping scope of this statement The conclusions, that es distinguished as from the fallaciousness demonstrates liability. Meadows the defendant’s tablish necessary to It is not plaintiff’s position. Warehouse, Salvage v. Friedman R.R. rejects the two determine if Nesselrode allega (Mo.App.1983). Those S.W.2d 718 determining if by the court tests for use from include ultimate facts tions must product provide a the characteristics it a can be found that breach proposi- The case. a submissible basis for proximate cause by the defendant was the underlying strict tion Kincade, injury. Nappier plaintiffs any product in a who sells stated: “One (Mo.App.1984); Duke 666 S.W.2d 858 unreasonably danger- condition defective Co., Mfg. Western to his consumer or user or Gulf ous (Mo.App.1983); Lia Am.Jur.2d Products physical liability property is bility The dees not § thereby to the ultimate user caused harm manufacturing or de allege any defect in consumer, Re- property.” his or to or Spe Night sign which caused the 402A(1) (em- (Second) of Torts statement question cial to malfunction. decisive phasis legal count is whether or invokes of the drafters the intention It was not the manufacturer of principle that causes liability for all propose 402A to for the per se liable products. use of caused harm injuries. plaintiff’s propose intention to Nor it their by products caused liability for all harm allegations of Count IY some) to be (by might be considered Derringer “was liable because the haz- because of socially undesirable unreasonably dangerous defective and they perfectly pose they ards when commonly belongs it to class of ” then they proposed made. ‘Saturday Specials.’ referred to by products caused to harm was limited by the follow supports wrong’ thing ‘some there was ing argument. Restatement with them. (1965) adopted as 402A Torts Section James, Harper, design,

5 F. F. Gray, Law of such as a weak or improperly Torts, 28.32A, Liability p. Products part, that would cause it to fire (2d 1986) (footnotes omitted). ed. In Nes- unexpectedly or otherwise malfunction. design parts question selrode 304 Md. they was defective were not distinc- 124, 1143,1148 (1985). Additional tively easily marked and could be inter- in Kelley. IV, cases are listed alleg- Count changed. interchanged, When so ing a conclusion of unreasonably danger- parts seriously malfunction. The ous, does not state a cause of action. court found that in the absence of warn- pleads Count V that F.I.E. is liable be- ing, jury parts could find that so “gave cause it substantial assistance to designed unreasonably dangerous. were *4 defendant, Holland,” by Steve the manu- In Derringer this case the did not mal Derringer. facture and sale of the sup- To Certainly duty function. there was no to port liability, plaintiff this obvious, anyone warn that the Der relies rule from the ringer inherently dangerous. Rior (Second) Restatement of Torts: Cory., v. dan International Armament resulting person For harm to a third 642, 765, Ill.App.3d 132 87 Ill.Dec. 477 another, from the tortious conduct of one Dist.1985); (Ill.App. 1 N.E.2d 1293 Patter liability is to if he.... (D.C. Gesellschaft, F.Supp. son v. 608 1206 (c) gives substantial to the assistance Tex.1985); Cam, Inc., 656 accomplishing in other a tortious result (D.N.M.1987). F.Supp. 771 conduct, seyarately and his own con- uniformly The cases hold that the doc sidered, duty constitutes a breach of to liability trine of strict under the doctrine of person. third applicable is 402A not unless there is some (em- (Second) Restatement of Torts 876 § improper malfunction due to an or inade phasis quate design manufacturing. or defect product is in a ‘defective condition’ “[A] applied If as it is this section is where the condition is one not contem extend by plaintiff, construed it would (Restate plated by the ultimate consumer by product liability any injury caused (Second) ment of Torts 402A com Section product is often of manufacturer whose g (1965)), ment which condition causes the cause harm to others. used in a manner to perform to fail to in the manner recovery injury An cannot be the basis reasonably expected light the defendant there is an act of unless nature and intended function.” Riordan v. injury. proximate cause of that is the which Cory., supra, International Armament at adopted as quoted has not been section products 1298. “There can be no valid Lilly state. v. Eli & the law in this Zafft liability claim without a which has (Mo. Co., 241 676 S.W.2d banc Gesellschaft, su a defect.” Patterson v. event, authority for the any this section “Implicit analysis in this pra, at 1211. state a cause that this count does not fact understanding that a which that count allegations of action. dangers, and which the inherent obvious manufacturing the act establish average certainly recog consumer would considered, did Derringer, seyarately ‘defective,’ nize, it merely is not not constitute breach marketplace on the alleged in that F.I.E. obviously dangerous propensities.” Armi It is Count VI Cam, Inc., and sale supra, the manufacture jo Ex is liable because Derringer an abnormal “constitutes dangerous be- Similarly, a activi ly dangerous and/or ultrahazardous propel function is to cause its normal to abso ty subjects defendant said deadly alone is force. That bullets with harm which liability and all lute its manufacturer not sufficient for of said misuse from the use and/or results 402A. For the incur under § allegation, the handgun.” To defective, there would handgun to be (Second) relies Restatement problem in its manufacture have to be a (1977). Dist.1986); Riordan v. Internation- App. of Torts He cites § § Bennett al approval those sections (Mo. Mallinckrodt, Inc., jurisdic Every decision in common law App.1985), denied, 1176, 106 cert. 476 U.S. of which we are held tions aware has and Ma (1986); S.Ct. 90 L.Ed.2d the manufacture sale hand Leasing, ryland Heights Inc. Mallinc general public con 218 (Mo.App.1985). krodt activity. See stitute an ultrahazardous theory of strict embodied & Martin Restatement of Torts Cir.1984, 1200; Patter 743 F.2d Fletcher, from Rylands 520 stems N.D.Tex.1985, son v. Rohm aff’d, (1866), L.R.-Ex. 265 3 L.R.-E. Fiella Ban F.Supp. [1985]; LApp. 330 (Pa. gor Punta No. 756 of 1984 As of Torts ed. Prosser 7,1985); Moore County [Law Beaver Feb. C.P. Rylands explains, the ‘true rule’ No. 1971] C-82-1417-MHR v. Fletcher makes limited rule. It (N.D.Cal. 1984); Mavilia v. Aug. damages he Indus., D.Mass.1983, the defendant liable ‘when Stoeger activity unduly thing another 107; International F.Supp. *5 dangerous inappropriate place to and the Corp., No. 81 L (Pa. 27923 maintained, light the where it in the of 21, d, July 1983), County Cook aff Cir.Ct. place 642, character of and surround- Ill.Ct.App.1985, IIl.App.3d III. 87 ings.’ [Prosser, Law Torts Id. of Fran 765, [1985]; § 78] Dec. 477 N.E.2d 520, at 508. 519 and Restate- Nos. Sections cis Int’l v. Diamond CV82- (1977), of ment Torts reflect (Ohio C.P. But 11-1279 & CV83-02-0215 principle, listing six factors with 22, County ler Mar. pertinent determining ac- in whether an Corp., supra, at 1266 f. Perkins F.I.E. tivity abnormally dangerous. added). For stat- (emphasis the reasons Mallinckrodt, Inc., supra, Bennett authorities, VI does not ed in these Count observed, It also been “the ‘rule 867. has state a cause of action. Rylands v. Fletcher’ very narrowly of again allegations of VII recite Count The applied in Missouri.” Id. at 868. the characteristics a Sat- and embellish rule have That and said 519 and in Night Special. urday respect in handguns been considered to imposing that count for majority numerous cases. The vast dan- it failed to warn the is that F.I.E. hold, activity cases an "The with the distribution of gers associated relating to immov- land to other regulate or limit and failed to handgun Corp., v. F.I.E. ables.” Perkins 762 F.2d handgun as so and sale of distribution Ship Cir.1985). 1250, (5th Also see in criminal activities. prevent its use to Firearms, Jennings man v. 791 F.2d regulating adopted statutes This has state Cam, (11th Cir.1986); Armijo Ex and sale manufacture possession, Inc., supra; Kelley 571.080, 571.020, 571.060 firearms. §§ Inc., most is true of 1986. same RSMo conclusory allegation of a failure is, activity itself states. A second limitation “The limit the distribution regulate or injury cause the and the defendant must duty of F.I.E. to directly handguns invokes engaged in the have must been that under Linton [v. hold Perkins activity.” injury-producing “[W]e 676, Wesson, Ill.App.3d Smith Corp., supra, No at 1267. case (1984)] 469 N.E.2d Ill.Dec. limita- contrary found to that been cited or defendant, handgun manufacturers in eases such approved It tion. has been plaintiffs owed no distributors Martin v. following: handguns, control the distribution Cir. 743 F.2d negligent and allegations of upon the Cam, based 1984); (Fla. wanton distribution.” wilful and DeAngelo, 493 So.2d Coulson supra, apparent v. International Armament 1160. The price basis is the Special. 87 Ill.Dec. at 477 N.E.2d at 1296. The decision has been characterized in lan- A further discussion of the merits of this guage: required. count is not The count This Court finds it unnecessary to en- allege the manner in which Holland ac- gage any lengthy discussion of the quired Derringer. He could have sto- Kelley recognize doctrine. To factory. len it from the There is no factual action New Mexico would allegation from which it could be found require abrogation an of the commonlaw part act or act failure to on the way bordering in a judicial legisla- on F.I.E. in the distribution tion_ All capable firearms are of be- proximate plain- could cause of the ing activity. used for criminal Merely to injuries. Handguns tiffs and Products Li- impose liability upon the manufacturers ability, 97 Harv.L.Rev. Cf. cheapest types handguns will Gesellschaft, supra. Patterson Instead, not avoid that basic fact. claims Running throughout plaintiffs brief against gun manufacturers will have the public policy requires is the contention that only persons anomalous result that anyone feloniously shot with a Satur- cheap guns recover, will be able to day Night Special permitted to recover expensive guns, while those shot with handgun. the manufacturer of that Kelley admitted court to be more emphasizes argu- that contention deadlier, accurate and therefore ment of Count IV. nothing. take argument following point: he states the Cam, Inc., Armijo supra, at v. Ex public policy, “As a matter of Missouri law legislative empha- nature of *6 recognize ‘Saturday Night should that a the doctrine “will also sized the fact Special’handgun is defective and unreason- accruing apply to all causes of action other ably dangerous put reasonably when to its in this case after the date of our mandate use, anticipated injure which is to or kill marketing unless it that the initial is shown people.” point To he relies Night Special to a Saturday of the member recog- the Kelley. Kelley public, usually of the will be first which Saturday Night Specials nized as a distinct a gun by gun sale of the a retail dealer to category handguns. of It found that such customer, prior occurred to the date handguns legitimate have little or no value supra, at 1162. It is Kelley, mandate.” any countervailing and that social useful- announced in fundamental that the doctrine concluded, negligible. ness The court require any attribute or Kelley does not recognize separate, shall a limited “[W]e Saturday Night Special characteristic of area of strict for the manufactur- the felonious proximate cause of be the ers, chain, marketing as well as all in the shooting aof Saturday Night Specials.” Kelley, of is to of that doctrine The end result (emphasis liability upon manufactur- fasten strict easy The rationale of that decision is not lawful er and vendor of a to follow. It relies statistics of the appellate court that by an it is determined handguns, misuse of such but considers no outweighs its the misuse of such Yet, legitimate use. it rec- statistics can accepted, If that doctrine social value. ognizes handguns have a value for as whis- many products such applied to Industries, Kelley busters, self-defense. vehicles and key, fuzz all-terrain Inc., supra. The basis for the decision Har- Martin v. overpowered automobiles. Inc., concealability supra. the small size or rington cannot be small, courts of weapon. high-quality, exception “A short Kelley, With legit- unanimously held that handgun, designed many for such barrelled states have handgun is not un- use, Saturday Night Special, manufacturer of a imate is not a by the person injured liability to a permit- not be der strict trier of facts should and the such a hand- use of Kelley, at misuse or the criminal speculate otherwise.” ted to Night Martin v. and Richard gun. edge Saturday who sell those son, Inc., supra; Stoeger Indus Mavilia Specials chief use “that the tries, De- F.Supp. (D.Mass.1983); activity.” at 1159. is for criminal Co., Inc., Remington Rosa v. Arms allege pleadings weapon here (E.D.N.Y.1981); Bennet v. F.Supp. 762 misuse, possibility but a only has not Inc., Co., Cincinnati Checker Cab weapon where its manufacturer knows F.Supp. 1206 (E.D.Ky.1973); Coulson v. probable improper is for and dan- use R.G. supra; DeAngelo, Rhodes v. Indus Many products gerous purposes. such as tries, Inc., Ga.App. S.E.2d alcohol, often firearms and automobiles are Fowler, (1984); Strickland v. So.2d misused, they designed but not Cir.1986); R.G. (La.App. knowing majority instances sold that the Industries, supra; Burkett Free According improper. of use will Arms, (Or.1985); dom 704 P.2d 118 case deter- petition on which this Co., Grogan Investment Robertson mined, used to shoot (Tex.App.-Dallas This is little, use, legitimate prob- had if dealing specifically with true of decisions illegal Seeking by help- to profit able use. alleged to weapons have the characteristics ing create create such should also Shipman Saturday Night Special. damages caused. responsibility for Firearms, Inc., supra; Jennings Moore v. holding liability here creates potential 789 F.2d 1326 danger to manufacturers distributors supra; Perkins v. F.I.E. Cir.1986); legitimate products but Cam, Inc., supra; Patterson improper use. Inter persons unjust It is to have national “cheap” guns guns manu- recover from the Whether or not on this individuals persons other facturer shot with when court, legislature, if members of the manufac- have no claim impose vote to ban the manufacture of or persons turer. some shot with Because liability upon the manufacturer weapons is no may not be able to recover Specials is immaterial. recovery for shot with deny reason to plain decisions that the The cited establish *7 weapons knows where the manufacturer not, judicial tiff’s under or dangerous creating likely it is principles, common law state cause offsetting good. or no situations with little negligence in strict action who such manufacturer cannot against F.I.E. This court create certainly “is more at among public Patterson v. legislation. by judicial one Kelley, fault” the innocent victim. than 19 Harv.L.Rev. 497 A.2d at 1159. judgment supra. The is affirmed. liable Holding a manufacturer FLANIGAN, JJ. concur. HOGAN legislation” “judicial but would not be concepts to application common law P.J., PREWITT, and files dissents allow the changes society. It would dissenting opinion. profit from recover those victims to PREWITT, Judge, dissenting. knowing profits are earned I would follow respectfully dissent. I expense of the innocent. the risk and 304 Md. Kelley v. respectfully I dissent. agree I do not finding the “end result” “is fasten strict of action and vendor of upon the manufacturer it is determined product because

lawful misuse of such appellate outweighs value.” its social Kelley sure almost knowl-