*1 to an immediate breach, rise giving POLK, Appellee, addition, Lugo’s action.17 Thomas
cause
benefits
seems to
retirement
claim
something
afterthought.
of an
have been
COMPANY, Appellant.
FORD MOTOR
attempts
get
his
record of
While
quite complete,
is
benefits
disability
MARSHALL, guardian,
Ethel Lee
quite
to this
is
respect
claim
with
record
Appellee,
in note 13
Indeed, as indicated
bare.
dispute
even some
as
there is
supra,
he
applied
whether
ever
for a retirement
COMPANY, Appellant.
FORD MOTOR
Also,
pension.
above,
as indicated
73-1255, 73-1256.
Nos.
impact
prior
of ERISA
to the time Lugo
age 60 will
reaches
undoubtedly be con-
Appeals,
Court of
United States
Eighth
To
Circuit.
siderable.18
embark on a lengthy
context,
analysis
meaning,
of the
this
Jan.
1975.
Submitted
and exclusive
“sole
benefit” in section
302(c)(5)
would seem unwise
Decided Jan.
1976.
unless neces-
sary
protect plaintiff against
immedi-
Rehearing Denied Feb.
1976.
ate harm.
Denied June
Certiorari
1976.
the district
Accordingly, we find
See
claimed disability
determining applications for section; not violate that does
benefits attack the 90/10 plaintiff’s
and that re- prevent
rule, him pension at
ceiving a standard retirement future, ripe for point
some affirm the therefore
adjudication. dismissing district court
judgment complaint.
plaintiff’s important parties. an reason was thus There two considerations serve to distin- 17. These immediately, resolving dispute while Inc., Technology, guish Computer Bird v. were of the relevant transactions (S.D.N.Y.1973), memories F.Supp. ex- in which two fresh, relatively future, than some ecutives, rather time who had been induced to leave one blurred, might be wit- memories employ by prom- when corporation for another’s lost. More- benefits, and documents nesses deceased retirement were ise of lucrative anticipatory over, plaintiff in Bird claimed declaratory judgment they had awarded many years of contract. breach right a payment case, to those benefits before actually would become due. In that however, parties disputed Indeed, ERISA claim that under their obli- defendants although contract, may change, gations parol plaintiffs situation under a evidence concerning by plaintiff. disputed received the intention of the *4 Mo., Kilroy, City, John M. Kansas appellant. Jr., Mo., Kelly, City,
Paul Scott Kansas for appellee. LAY, HEANEY, BRIGHT,
Before ROSS, WEBSTER, STEPHENSON and Judges. Circuit WEBSTER, Judge. Circuit again Once upon this Court is called forecast (this whether a state time Mis- souri) apply would the “second collision” or “enhanced injury” doctrine prod- to a ucts liability case within jurisdiction. its theory judgment a of strict reversed panel1 divided A Court, incorporated deem- the “second and this collision” or plaintiffs, favor “enhanced injury” re- significance, concept, following re- issue ing the jection by the District Court banc. case en Ford’s heard motion for a directed verdict. Following facts are well estab- operative a verdict awarding $200,000to Polk by the record. On October lished $50,000 to Marshall as guardian, driving Thomas Polk Ford filed alternative motions for judg- 45 to 50 approximately Ford Maverick ment notwithstanding the verdict and 70 in Kan- hour on Interstate per miles trial, for new which were overruled.3 passenger was His City, Missouri. sas The evidence at trial revealed that the by Ed- Martin. A car driven Demple flange-mounted Maverick used a at a direction Farage in the same ward fuel tank which an integral part was structure, 90 to 100 speed estimated to be rate of top the automobile’s its consti- Maverick at its per hour struck the miles tuting floor of trunk. section, jump causing rear right year the 1970 Maverick was manu- curb and strike a concrete re- nine-inch factured, cars, all other American-made dividing the taining wall eastbound excepting only low-priced compact Ford’s re- westbound lanes. Maverick models, strap-mounted used a fuel tank wall, retaining over- bounded from turned, underbody which was attached to the approximate- and slid on its roof integral part the car and was not an coming to rest. The ly 100 feet before It plaintiffs’ car’s structure. the car collapsed and burst supports roof *5 flange-mounted contention that the fuel Polk, par- who was thrown flames. into impact rigid tanks were on and more the rear the car at window tially outside likely produce explosion a fire or side, gasoline on the driver’s observed rear, that the impact from the and col- the from the rear of flowing toward him lapsed contributed supports roof to the extricate He was able to automobile. injuries by of Polk and death of Martin through the himself from the automobile words, obstructing escape. In other which he window. The serious burns that the plaintiffs contended 1970 Mav- process were his in- suffered unreasonably dangerous erick was pinned in the Maver- juries. Martin was user. burned to death. ick and of complained The did not oc- Marshall, guardian Polk and Ethel cur until after the Maverick had come to children, each Demple of Martin’s minor rest, down, upside caught and fire. District filed suit United States Thus, presented the issue for decision is District of Mis- Court for Western liable plaintiffs whether Ford be Company, the against souri Ford Motor the “second collision” or under “en- Maverick.2 of the 1970 manufacturer injury” appeal, hanced doctrine. On negligence in complaints alleged Ford contends that was error to sub- Maverick, breach of design of the mit the case theory on this merchantability, and strict warranty of (1) liability because thereunder is not in ultimately was liability in tort. The case (2) accord with the law of Missouri theory of jury on the submitted to the there was insufficient evidence defec- design and test and negligent failure diversity upon of citi- Mehaffy opinion Judge was based 2. Jurisdiction 1.Chief controversy exceed- zenship adopt in a and an amount would not the doctrine Missouri $10,000. suits Judge ing liability See 28 products § Leonard U.S.C. case. Senior Circuit, subsequently sitting by consolidated for trial. des- were of the Second P. Moore thought ignation, the manufacturer could $10,000 guard possibly or be held to 3. An alternative motion for a not foresee credit of judgment against against granted, the colli- the factual circumstances Polk’s and no by cross-appeal by presented was taken and accident this case. Polk. sion Judge Webster was of the view that Missouri liability would extend the law of strict to reach presented. the facts design. tive Ford contends further the construction or of a design prejudicially instructions were erro- which causes greater inju- enhanced or neous. trial errors Additional are also ries in the course of following or an ini- reject asserted. these contentions tial accident or collision brought about and affirm judgment of the District by some independent cause. The land- Court.4 mark decision Larsen v. General Motors Corp., F.2d 495 1968),
I
adopted
enhanced
doctrine
Michigan
in a
diversity case and held:
Application of the
Injury
Enhanced
Doctrine in Missouri
The intended use
purpose
of an
automobile is to travel on the streets
and highways, which travel more often
In undertaking the sometimes
anticipating
thankless task
predis
than not is in close proximity to other
positions of a state court on an issue of
vehicles and at speeds that carry the
determined,
state law
yet
not
we are
possibility, probability,
potential
admonished
injury-producing impacts. The
* *
reali-
*
regard
any
have
per-
ties of the intended and actual use are
available,
suasive data that is
such as
well known to the manufacturer and
to the public and these realities should
compelling inferences
logical
impli-
cations from other
adjudica-
related
squarely
be
faced
the manufacturer
tions and
pronouncements.
considered
perceive
courts. We
of no
The responsibility of
federal
reason,
sound
ence,
logic
either in
or experi-
courts, in
law,
matters of local
is not
any
nor
in precedent,
command
to formulate the legal mind of the
why the manufacturer should
state,
merely
but
ap-
ascertain and
held to a
duty
reasonable
care
ply
Any
it.
convincing manifestation
design
of its vehicle consonant
law,
of local
having a clear root in
with
state of the art to minimize
judicial conscience and responsibility,
the effect of accidents. The manufac-
whether resting in
expression
direct
turers are not
but
insurers
should be
implication
obvious
inference,
to a
held
standard of reasonable care
should accordingly be given appropri-
*6
in design
provide
a reasonably safe
ate heed.
vehicle in which to travel.
v.
Yoder Nu-Enamel Corp.,
488,
117 F.2d
265
Missou-
of
Court
1969,
Supreme
our
In
not aid
alone
cases
does
opposing
of
liability in
strict
of
view
ri embraced
cited
(1) some of
cases
since
inquiry
set
products
for defective
entirety
its
applied
as
the doctrine
rejected
have
Torts
of
(Second)
Restatement
(2)
in
forth
before them
facts
particular
Elec-
Dayton
v.
Keener
(1965).9
under
402A
the doctrine
§
considered
have
some
362,
Co.,
S.W.2d
445
Manufacturing
e.,
tric
recovery,
i.
com-
of
theories
various
succeeding years
(Mo.1969).
implied
364
negligence, breach
law
mon
reinforced
have
of Missouri
courts
liability in tort.7
and strict
warranty,
opportunity.10
every
cases
commitment
negligence
is
issue in
critical
Supreme
Missouri
recently,
Most
duty
has a
manufacturer
whether
protection
extended
Court
injuries to occu-
cars so
its
design
thus
bystanders,
liability to
of strict
rule
not be
accidents will
involved
pants
any vesti-
with
break
complete
making
defect
of some
because
enhanced
the-
from
derived
privity
concepts
gial
theory
rejecting
Courts
automobile.
war-
upon
liability based
of strict
declining to im-
ories
so
usually done
have
Co., 504
Motor
Ford
v.
ranty. Giberson
enhancing
design against
pose
duty
(Mo.1974).
8
particular
S.W.2d
declaring (1)
reasonably foreseeable
not
collision
pre-Keener
that some
cases
It
true
a collision is
(2)
manufacturer
by the
being
speak of
manufacturer
not
auto
intend-
which the
for
a use
Durbin-Durco,
insurer”,
“an
Stevens v.
ed.8
expected
does reach the
(La.
(b)
to and
Co.,
713
191 So.2d
Motor
Rogers v. Ford
change
Corp.,
substantial
without
or consumer
user
Motors
v. General
Keahl
App.1966);
5995,
sold.
it is
Reporter
Liability
6042
the condition
¶¶
Products
CCH
(Mich.Cir.Ct.1968);
applies
(1)
(2)
in Subsection
Chrysler
stated
The rule
Motor
v.
Walton
1969); Snipes
although
(Miss.
v.
Corp.,
priate
being used in a man-
product which was
Hig
anticipation.
reasonable
area
anticipated in the course
reasonably
ner
Inc.,
Hardeman,
457 S.W.2d
Paul
v.
gins
following
of or
initial accident
said:
an
court
943,
(Mo.App.1970),
* * *
brought
by
independent
about
some
issue
directs
[of
Keener
cause.
language
be submitted
misuse]
“in
the article
use
hypothesizing
anticipated”.
reasonably
a manner
II
defend-
effect
statement
Sufficiency of the Evidence
result-
injuries
for
not liable
ants are
true if
use
abnormal
ing from
District Court refused Ford’s
motion
use
such abnormal
directed verdict and instruct
of fore-
one
“The issue
ed
foreseeable.
on the theory of enhanced
foresee-
may be
injuries
seeability, and misuse
by
caused
defects in manufac
&
Liability, Frumer
ture or design.
Products
Appellant
able.”
Friedman,
contends that
use
Foreseeable
even
15.01.
if Missouri
recognize
§
would
use
intended
from its
be different
second collision
injury
enhanced
doc
which trine,
use
any particular
and includes
evidence was insufficient
reasonably pru-
to a
submit
be known
the case
should
on this theo
ry. Specifically,
manufacturer.
appellant
dent
contends that
there was no
evidence
which a jury
case, the Missouri
post-Keener
In each
could find that
the 1970 Maverick was
purpose,
their
reaffirmed
have
courts
defectively designed
light
Keener,
insure
“to
stated
originally
“state of the art” in 1969. See Larsen v.
resulting from
the costs
General Motors Corp., supra, 391 F.2d at
by the man-
borne
are
products
defective
502-03.
put
sellers]
ufacturers [and
by
than
rather
on the market
products
strap-mounted
testified that
Experts
powerless
are
who
injured persons
use
manufac-
general
were in
tanks
Keener, supra, 445
themselves.”
protect
designed
in 1969 when Ford
turers
364,
Greenman
quoting
S.W.2d
the 1970 Mav-
tank for
flange-mounted
Inc., 59 Cal.2d
Products,
Yuba Power
flange
erick,
use of a
and that
P.2d
Cal.Rptr.
rupture un-
the tank to
mounting caused
Ford Motor
(1962); see Giberson
in this acci-
the conditions involved
der
supra,
269 366, at Co., grounds objection. Op- and the of his supra, 445 S.W.2d ing jury portunity given the was held shall be to make the to so instruct ob- failure erroneous”, requiring jection hearing jury.” out of the of the “prejudicially (emphasis added). objection a new trial. form of hardly Mis- could be said to be “sufficiently under case collision a second In foreseeability specific bring precise into focus the of law, the element souri misuse, alleged be- nature of the error.” Palmer v. of anticipation) (reasonable Hoffman, 109, 119, 477, manufac- 318 U.S. 63 S.Ct. significant. more comes 483, (1943). consider 87 jury L.Ed. 645 See 9 C. a have is entitled turer Miller, precipi- Wright A. Federal which & Practice and factors not the or whether were of (1971), Procedure 2554 and cases cited § accident the tated therein. We therefore examine manufacturer the in- that nature such anticipated, plain struction to see whether the error have reasonably should 51; terms, use of rule applies. such See Fed.R.Civ.P. general least Cover, (8th O’Malley circumstances.14 v. 221 F.2d 159 under automobile that a 1955). Cir. Wright has held See also 9 C. & A. court a Missouri While Miller, lia- strict Federal Practice Procedure held in may be manufacturer (1971). of consequences at 672 § the foreseeable for bility for support no .find misuse,15 we Keener, In only theory of strict foreseea- is collision any that proposition liability was In jury. submitted to the automatically will any misuse or that case, ble the issue failure negligent fore- to its reference without be covered to test and detect design defects manufacturer a example, For seeability. flange-type assembly was also submitted a car producing liable held be cannot jury. directing In its verdict in- a from fall a not withstand will issue, which struction on this court did im- “reasonably antici- the test It cliff. pose requirement that the automobile keeps Keener applied pated” dangerous be under fore- “unreasonably strict application added). (emphasis seeable In conditions” making situations collision second describing theory liability, of strict insurer absolute an the manufacturer plaintiffs’ contention explained court unjust absurd an producing thus that Maverick was defective “in the 1970 in- “use” or Whether result. subjected people that in that car to reasonably an- awas this case volved injury in the event unreasonable risks of disputed sharply one ticipated of a of the kind that was de- collision parties. (emphasis scribed in this evidence.” add- ed). you “If don’t The court then said: When the instruction was offered find that that defective condition existed without the language, however, Keener plaintiff you and the has not convinced Ford made objection blanket that, your then on that issue verdict the instruction was not the law of Mis- should be for the defendant.” souri. provides Fed.R.Civ.P. 51 instruction, while it did party may assign giv- as error the think this “[n]o ing terminology, give or the failure Keener precise an instruction not use unless he whether the objects thereto before the to assess required verdict, unreasonably dangerous retires to consider stating its dis- automobile accident, tinctly the matter objects to which he of the the circumstances under Thus, proper Co., (3rd 1972). limits In v. W. 481 F.2d 679 Cir. 14. Eshbach T. Grant’s & (3rd responsibility here 1973), defendant-seller for the 943 the court said: Cir. product which the the “use” to is whether (objec- put or foreseeable was intended was tively brought pursuant “[t]he to 402A§ actions reasonable) by the defendant. supplier limited duty a manufacturer Higgins Hardeman, Inc., v. Paul foreseeing probable of the nor- 457 results S.W.2d (Mo.App.1970); Hoppe which can see a use Midwest mal use Conveyor anticipated.” Kaczmarek Company, 675 at F.2d Machine Mesta say, is to whether it was defective A. and therefore dangerous put to a when Appellant contends *11 use anticipated.16 “Unreason- permitting plain District Court erred in risk”, able as used in Larsen and in the expert tiffs’ counsel to its cross-examine District Court’s instruction read as a respect model changes witness with to whole, is a term permits which which occurred in Mavericks manufac to take into account the improbability of subsequent tured to the 1970 model. in assessing circumstances the re- The District Court had ruled in advance sponsibility of the to pro- manufacturer testimony could be received which vide safeguards reasonable against inju- using showed Ford had flange- ceased ry under such circumstances.17 Thus mounted fuel tanks strap- in favor of viewed, we say cannot the instruc- mounted tanks because “it would abe given tions require the application of the question of they gone had to a pri- back plain error rule.18 type and had type abandoned this might very be possibly considered
IV probative evidence that experience their with flange-mounted tank was un Trial Other Errors satisfactory, and I proper it’s a think assignments subject We have considered other for cross-examination of an ex pert of trial and find them to be witness.” error with- Faced this ruling, with out merit. which we think was within trial Wade, Liability 16.See Strict “unreasonably Tort dangerous,” of Manufac- uct is because turers, (1965): 19 condition,” Sw.L.J. 14-15 applied “defective if it is to be all, depends liability ap- on that. Strict is Section 402A of the sets Restatement forth cases, propriate for these and it would be requirements liability two product for —that any require- in better them not to to refer “in a be defective condition” and fact, of defectiveness. ment even As a matter of “unreasonably dangerous.” that it be requirement type in the first cases which the easily of a defective condition is something article defective because understandable in the usual situation in wrong manufacturing proc- that went particular which a wrong something article has ess, problem the true end is whether with it. Because of a mistake the the product unreasonably that defect makes the manufacturing process, product example, (footnotes omitted) dangerous, parts was adulterated or one of its properly was attached, broken weakened or not recognized As the Fourth Circuit 17. in Drei expect- and it did not function as Volkswagenwerk, A.G., sonstok 489 F.2d occurs, ed. If this prov- there is no need of (4th 1974): “Moreover, Cir. in a ing letting fault in it come to be in that ‘crashworthy’ case, necessary it is to consider only condition. But a defect be a minor the circumstances of the accident itself.” one, and the Restatement indicates that imposed strict is not to be unless it opinion, dissenting The author of this while product unreasonably makes dangerous. panel opinion rejecting from the the second problem The more difficult arises with law, original- doctrine collision ly under Missouri product way which was thought made in the it was that failure to follow the Keener intended be to made and in the condition formulation haec verbae mandated reversal. planned yet proves danger- (See dissenting opinion Ross.) Judge ous. Is such an Perhaps article held, defective? No other Missouri courts have so improperly can be designed, said to be opportunity this Circuit has declined the to do design may the bad be called a Higgins Hardeman, defect. Inc., But so. See v. Paul design then only is “defective” because (Mo.App.1970); Mary- S.W.2d land 946 n. 1 product it made unreasonably danger- Casualty Dondlinger Co. v. & Sons Con- ous. Or what of a which a cer- struction people tain allergic. number of are Is it de- A more careful consideration of the depends upon fective? This too whether it full instructions convinces him that no mani- unreasonably dangerous. injustice cases fest has occurred a result of such general phrase type the “defective condi- oppor- variances and that the tunity did have an independent tion” attempt meaning, has no and the to consider the “use” involved in terms apt prove to use it misleading. which did not make the manufacturer of the ' problem prod- real is whether the against injury. automobile an insurer all be without contention counsel elect- discretion,19 appellant’s defense find court’s addi- reject appellant’s flange also fact out bring merit. ed erred in discontinued, court that the contention tional mounting had been testify con- experts to cross-examination permitting counsel in plaintiffs’ flange- involving es- accidents opened to other subject cerning thus pursued Mavericks. on 1970 tanks fuel returned Ford had mounted tablish that establish used to Objections testimony design. strap-mounted Such under substan- meritorious, experts were experience if testimony, even such Again, circumstances. tially similar waived. thereby for the testimony was weight of B. *12 abuse its not court did trial jury, and the it in evidence. permitting in contends discretion Appellant not should expert witnesses plaintiffs’ C. their express to permitted have been the nature of the defective opinions on re the have considered no there were because supports roof like them find and maining contentions in independent an nor facts in evidence of a use merit. to be without wise opinion such an upon which vestigation court under in federal six-person course, must, of There based. could be in Col approved expressly rule was local already in evidence facts be sufficient 149, 93 S.Ct. Battin, 413 U.S. v. grove his as a result of by the witness disclosed procedural (1973); 522 2448, 37 L.Ed.2d testimony out investigation to take such law. federal under governed are matters specula and guesswork realm of of the 99, York, 326 v. U.S. Trust Co. Guaranty Corp., 175 F.2d v. Gulf Oil tion. Gilbert (1945). 2079 1464, 89 L.Ed. S.Ct. 65 1949). Fed.R.Evid. 705, (4th Cir. See record, we the of review Upon a full 703. errors which of no accumulation discern plain case, experts testified for In this from appellant prevented aggregate the in were defec supports the roof tiffs that trial. receiving a fair cause to caused or contributed tive and is affirmed. judgment escape difficult making injuries by the opinions their They based by collapsing. in (concurring ROSS, Judge Circuit that the automo the part in evidence on in dissenting part). and part once; factors other over bile rolled Judge Webster’s all of I concur be re need not were considered which the his determination opinion except of ex qualification here. The peated instructions proper the give failure admissibility opin of their the perts and error. plain not constitute did of the discretion in the sound ions lies Dayton Electric v. agree Keener I Coun Girl Scout Court. Lakota District mandates supra, Manufacturing Fund-Raising Manage cil, Havey v. Inc. requiring of giving instructions (8th Cir. ment, Inc., defective was Maverick that the find Inc., 517 F.2d Uniroyal, v. 1975); Gisriel ato put when dangerous therefore and Indeed, 701-02 Judge As anticipated. use Evi Rules of newly adopted Federal give out, failure points Webster may an expert clear that it dence make preju- held was an instruction such prior disclo without his conclusions give erroneous Keener. dicially facts. Fed.R. underlying of the sure Judge Webster opinion original In under Thé weakness Evid. 705. included he in which a dissent filed following paragraph: devel opinions such pinnings of cross-examination oped upon appellants contend that Appellees weight credi goes weakness assignment preserve testimony. We have re failed bility I 51. error, upon Fed.R.Civ.P. relying complained testimony viewed the 407. See Fed.R.Evid. 19. objected counsel Defense disagree. in enhanced MUKMUK, instruction known as any also giving A. Masia law not Appellant, contending this Cholmondeley,
jury, Sylvester objection think I Missouri. point. preserve sufficient does court the DEPART a trial OF event, while any COMMISSIONER when SERV error CORRECTIONAL reversible OF commit MENT an al., Appellees. existence et as true ICES assumes fact uncontradicted undisputed 74-1504. Docket No. Celatron, instruction, its it from omits Appeals, Court United States Co., 432 Engineering Cavic Inc. Circuit. Second ev (Mo.App.1968), S.W.2d foreseeability a made trial idence 12, 1975. Nov. Argued By issue. factual disputed sharply 13, 1976. Jan. Decided conceded, trial court it as treating con jury’s 1,1976. Denied June Certiorari the issue removed thereby affected 96 S.Ct. See sideration defendants rights substantial *13 substantial with inconsistent a manner 61; Edwards Fed.R.Civ.P. justice. See n. 1 F.2d Mayes, driv that to instruct (failure 1967) Cir. negligence speed was at excessive ing requiring error plain se constituted per ob adequate lack despite reversal Lip Mazer appellants); by jection 1964)(erro (3d schutz, F.2d on vicarious instruction neous requir error plain fundamental was ing fail appellants’ despite new trial 9 C. also thereto). See object ure Practico Miller, Federal A.& Wright n. 41 672 - 74 § Procedure omitted.) (Footnotes (1971). paragraph that I consider law; statement proper instruction proper give the failure instruc- error; alternative plain Judge Webster stressed tions error plain not cure do opinion refer to completely they fail man- by the anticipated” “use
ufacturer. new for a and remand reverse I would Judge stated reasons
trial dissent. original
Webster’s