Abnormal Use » Missouri http://abnormaluse.com Brought to you by the attorneys at Gallivan, White and Boyd Wed, 22 May 2013 12:16:04 +0000 en hourly 1 http://wordpress.org/?v=3.1.3 Failure-to-Warn Claims Fail Without Evidence Plaintiff Would Have Pursued Alternative Course of Action http://abnormaluse.com/2010/02/failure-to-warn-claims-fail-without.html http://abnormaluse.com/2010/02/failure-to-warn-claims-fail-without.html#comments Tue, 02 Feb 2010 13:30:00 +0000 Laura Simons http://abnormaluse.com/2010/02/failure-to-warn-claims-fail-without-evidence-plaintiff-would-have-pursued-alternative-course-of-action.html An overweight plaintiff who was seriously injured when her car’s seat failed in a collision recently lost her failure-to-warn case against Ford Motor Company. The plaintiff, who weighed more than 300 pounds, was driving a 2002 Ford Explorer at the time of the accident. She had stopped to make a turn and was rear-ended by an SUV travelling approximately 30 miles per hour. During the collision, the plaintiff’s seat collapsed backwards, and her head and shoulders hit the back seat. The impact with the back seat fractured her vertebra rendering her a paraplegic.

The plaintiff claimed that the Explorer’s seats were not designed for a person of her size and that Ford should have provided warnings. She claimed that she would not have purchased the vehicle if she had known that the seats were not designed or tested to perform with occupants of her size. She also claimed that Ford was negligent in failing to design and test seats for occupants who weighed more than 220 pounds.

The trial court granted Ford’s motion for directed verdict. The Missouri Court of Appeals upheld the directed verdict as to a plaintiff’s failure to warn claims. The court held that the plaintiff failed to present evidence that she would have taken an alternative course of action had Ford provided her with warnings. Moore v. Ford Motor Co., — S.W.3d —, No. ED 92770, 2009 WL 4932736 (Mo. Ct. App. Dec. 22, 2009).

The Court of Appeals held that it was it was essential to plaintiff’s failure to warn claim that she prove that “a warning would have altered the behavior of the individuals involved in the accident.” Id. (citing Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. 1992)). Although Missouri law calls for a rebuttable presumption that the plaintiff would have heeded a warning had it been available, the court held that the plaintiff must still offer evidence that she would have pursued an alternative course of action in heeding the warning. Here, the plaintiff offered no evidence of what alternative course of action she would have taken had she been warned of the fact that Ford’s seats had not been tested for a person of her size.

The court found it significant that the plaintiff admitted she did not review the owner’s manual until after she had purchased the car. This undermined her theory that she would have altered her behavior before buying the vehicle, had Ford provided adequate warnings. The court held that there simply was no evidence that plaintiff would have altered her conduct in purchasing the Ford even if there had been warnings. That fact precluded recovery on plaintiff’s failure to warn claims.

]]> http://abnormaluse.com/2010/02/failure-to-warn-claims-fail-without.html/feed 0 An Exception to the Firefighter’s Rule in Missouri http://abnormaluse.com/2010/01/exception-to-firefighters-rule-in.html http://abnormaluse.com/2010/01/exception-to-firefighters-rule-in.html#comments Wed, 27 Jan 2010 13:30:00 +0000 Kevin Couch http://abnormaluse.com/2010/01/an-exception-to-the-firefighters-rule-in-missouri.html A recently released opinion from the Missouri Court of Appeals addresses some interesting points of law involving the Fireman’s Rule. In confronting that issue, the appellate panel in Martin v. Survivair Respirators, Inc., 298 S.W.3d 23 (Mo. Ct. App. 2009) [PDF] affirmed a $27 million verdict and sustained an abnormal use of “but-for” causation.

Regrettably, Martin involves the death of a firefighter. For this particular firefighting squad, each firefighter had a face mask with a valve that expelled the firefighter’s exhaled breath and a PASS alarm. The PASS alarm would screech when it was motionless for twenty seconds. At a fire in St. Louis, Firefighter Morrison, with the above-described equipment, entered a building in which the fire flared up. Morrison became disoriented and eventually non-responsive. After another firefighter, Walters, was unable to rescue Morrison, Walters left the building and informed other firefighters, including Martin, that Morrison was down. Morrison’s PASS alarm failed to activate. Martin entered the building and quickly radioed a personal distress call. Martin activated his PASS alarm in order to be found, but he proved difficult to locate because “the sound bounced off the walls.” Id. Martin was recovered, but not before he died of smoke inhalation. In response to the suit brought against it, the manufacturer, Survivair, claimed, among other things, that the Fireman’s Rule barred recovery, and that there was not a sufficient causal link between the failure of Morrison’s PASS and Martin’s death. Addressing the issue, the panel recited the Fireman’s Rule as follows:

The Fireman’s Rule states that a fireman who is brought in contact with an emergency situation solely by reason of his status as a fireman and who is injured while performing a fireman’s duties may not recover against the person whose ordinary negligence created the emergency.

298 S.W.3d at 32. The panel found that the Fireman’s Rule was inapplicable because the failure of the PASS alarm was not the cause of the fire and not within the “range of anticipated risks” involved with firefighting. It quickly moved to causation. Survivair argued that the failure of Morrison’s PASS was not the cause of Martin’s death. This makes sense. First, Martin was in a place of safety, outside of the burning building, when the PASS malfunctioned. Second, Martin went in the building voluntarily. The court gave weight to testimony that tended to show that because of Morrison’s malfunctioning PASS, Martin was in the building for much longer that he needed to be: Several firefighters testified that had Morrison’s PASS worked, he would have been found much sooner, meaning Martin could have left sooner. (This is in spite of the fact that, when Martin activated his PASS, there was testimony that the sound was bouncing off of the walls making him difficult to find.) Moreover, Martin’s own mask malfunctioned, and he was not wearing it when he was found. Nevertheless, under the approved jury instructions, because the plaintiffs submitted “substantial evidence” that the PASS directly “contributed to [the] cause” of the death of Martin, the case was properly submitted to the jury. Id. There are obviously several things at play here, like a deferential standard of review and terrible facts, but sustaining such a large verdict on speculative testimony and a weak (but approved) standard is troubling.

]]> http://abnormaluse.com/2010/01/exception-to-firefighters-rule-in.html/feed 0