Miller (Mo Lawyer's Weekly)

'Open And Obvious' Danger Is No Bar To Product Claim

By Keith R. Krueger

Even though it was "open and obvious" that a farmer's tractor lacked a Roll Over Protection System, that did not bar his family's product liability claim against the tractor manufacturer for the wrongful death of the farmer, says the Court of Appeals' Eastern District.

But the jury could properly consider the open and obvious nature of the defect in apportioning fault to the dead farmer.

The ultimate jury question in the product liability lawsuit was whether the tractor, because of its design, created an unreasonable dan-ger when used normally, said Judge William H. Crandall Jr. in his opinion for the court.

Judge Lawrence G. Crahan wrote a lengthy opinion concurring in the result.

He said the farmer's family properly prevailed because they met their burden to prove two things: the tractor was in a "defective condition"; and this made it "unreasonably dangerous" for the farmer to use the tractor.

This is an objective test, Crahan said.

The manufacturer may then attempt to show the injured person assumed the risk, which is a sub-jective test.

The court affirmed a $2 million verdict and 10 percent allocation of fault to the farmer in Miller, et al. v. Varity Corp., MLW No. 15924, on April 2.

Applying A Statute

"It has always been the law in negligence cases that an open and obvious defect is a complete bar," said Robert L. Langdon of Lexington, who represented the farmer's family. "But that's not so in a strict liability case."

Langdon thought the court's decision was a straightforward application of § 537.765, RSMo.

"When [the legislature] brought comparative fault into products liability, that's the way they did it," he said. "They did away with [contributory negligence] and gave comparative fault."

Kansas City attorney Thomas R. Larson, who represented the manufacturer, disagreed.

"The legislature would be surprised to find that when they enacted the strict liability statute they eliminated one aspect of the burden of proof: that the product was unreasonably dangerous," he said.

No ROPS

The farmer's father bought the used tractor in 1968, when it was two years old. It was not then equipped with a Roll Over Protection System, even though ROPS technology was then available.

A ROPS is a roll bar and seat belt or harness combination designed to prevent tractors from rolling more than 90 degrees and to restrain the operator within a protective envelope in the event of a rollover.

A ROPS does not reduce the likelihood of a rollover; its purpose is to reduce the seriousness of the operator's injury in the event of a rollover.

The absence of a ROPS was "open and obvious from even the most cursory glance," Crahan said in his concurring opinion.

On September 29, 1990, the farmer was mowing the side of a levee on his father's farm, pulling a shredder. The left wheel of the tractor dropped in a hole and the tractor rolled over, killing the farmer.

The farmer's wife and daughter sued the manufacturer of the tractor. The trial court entered judgment on a jury verdict for $1,800,000. The manufacturer appealed.

'Consumer Contemplation'

The manufacturer contended the farmer's family did not make a submissible case. It said the tractor was not dangerous to any greater extent than an ordinary user of the tractor would contemplate, a theory known as the "consumer-contemplation approach."

But Crandall said Missouri has not adopted this test for defectiveness.

"[T]he salient inquiry in a design defect case is whether the product - due to its design - creates an unreasonable risk of danger to the consumer or user when put to its normal use," wrote Crandall.

"The concept of unreasonable danger is determinative of whether a product is defective and is presented to the jury as an ultimate issue without further definition," he continued.

'Open And Obvious'

The manufacturer claimed the "open and obvious" absence of a ROPS on the tractor would bar recovery by the plaintiff since the danger of rollovers would be readily apparent, citing a 1994 decision of the Court of Appeals.

But Crandall said the 1994 case dealt with a claim of negligence and did not apply to a claim of strict liability.

The standard for a strict liability claim is set forth in § 537.765, RSMo.

That statute abolished contributory fault as a complete bar to plaintiffs' recoveries in products liability claims, but allows the application of pure comparative fault.

Subsection 3(3) of the statute allows allocation of fault to plaintiffs if they use a product "with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger."

The manufacturer had a right to present evidence that the lack of a ROPS was open and obvious to the farmer and that he was aware of the danger of a rollover. As it was allowed to present this evidence, the manufacturer was not harmed.

The court affirmed the trial court's judgment.

Concurring Opinion

Crahan agreed that the farmer's family had made a submissible case.

But he disagreed on what constitutes a submissible case and he did not agree that the obviousness of the product's condition is only relevant to the question of comparative fault.

Crahan first addressed the manu-facturer's argument that Missouri has adopted the "consumer contemplation test."

He reviewed at length the recent decisions of the Missouri Court of Appeals and Supreme Court and the U.S. Eighth Circuit Court of Appeals which touched on the issue.

"[T]he most that can fairly be said is that the law in this area is muddled," he concluded.

The uncertain status of the common law became less important when Missouri enacted § 537.760, RSMo, which defines the elements of a product liability claim and the defenses applicable to it, he said.

Two Requirements

That statute required the farmer's family to prove the tractor was "in a defective condition unreasonably dangerous when put to a reasonably anticipated use," Crahan said.

Clearly, he said, this imposed two requirements: that the tractor was in a "defective condition" and that it was "unreasonably dangerous."

The meanings of those two terms are as the Supreme Court defined them in a 1982 case, Crahan said.

A "defective condition" is one "not contemplated by the ultimate consumer which will be unreasonably dangerous to him." And "unreasonably dangerous" means "dangerous to an extent beyond that ... contemplated by the ordinary consumer ..."

This is an objective test and is applied to determine whether the burden of meeting it is on the plaintiff.

The manufacturer may then seek to show the plaintiff has assumed the risk, and this is a subjective test.

The Dangerous Condition

The dangerous condition in this case, according to Crahan, was not the absence of a ROPS.

Rather it was the dynamic instability of tractors, which makes them more prone to roll over than farmers generally understand and appreciate. This is especially pronounced when the tractor is pulling an implement or operating on uneven terrain as this farmer's tractor was.

The evidence tended to show the only way to remedy this was by installing a ROPS.

Crahan concluded the farmer's family made a submissible case and the judgment should be affirmed.

Comment

"This is a good opinion, well-reasoned and concise," said St. Louis attorney Wayne T. Schoeneberg. "It is a good road map on where you need to go on these cases.

"[The critical issue] is not not having the ROPS on the tractor, which is obvious, but how the tractor is used, which the farmer may not appreciate," Schoeneberg added.

He said the 'defective condition unreasonably dangerous' is really a single issue for the jury. "I don't think we need to get into all the definitions of those terms," he said.

But Larson, the losing attorney, thinks definitions are needed. "Missouri is one of a handful of states which does not officially define 'defective condition' and 'unreasonably dangerous,' " he noted.

"The Supreme Court has not been presented with a case that requires them to appropriately define these terms. This may be such a case."

* * *

(The full text of the Eastern District's opinion in Miller, et al. v. Varity Corporation, No. 15924, is available from Missouri Lawyers Weekly - 29 pages.)