Missouri Lawyers Weekly
April 30, 2007
‘Novel’ Second Collision Case Avoids Trial
Plaintiffs had pursued 'negligent-maintenance' theory, a first in Missouri
By Scott Lauck
It had the makings of a great appellate case: a seemingly logical extension of classic liability doctrine that nonetheless never has been subject to a Missouri court ruling. But it was not to be.
Missouri law already permits what is variously called the second-collision, crashworthiness or enhanced-injury doctrine; that is, manufacturers can be held responsible if some defect in their product causes greater harm to the plaintiffs than they would have otherwise sustained, even though the defect didn't cause the original accident.
But what if the enhanced injury was caused not just by the company that made the item, but also by the company responsible for maintaining it? That was the argument made in a case involving a 2003 car accident in Perry County. The plaintiffs' attorneys researched and briefed the concept of expanding the second-collision doctrine to include negligent maintenance. However, the case was settled the morning of trial for a confidential amount.
"It's a completely unresolved issue in Missouri," said Daniel Allen, an attorney with Langdon & Emison in Lexington.
In 2003, Anthony Spurgeon and Jennifer Kennon died after driving their Mazda Protege into the rear of a semitrailer on Missouri Highway 51. The truck had begun to move after stopping at a railroad crossing, and the occupants, who had been drinking, hit it while traveling at least 50 miles per hour. Spurgeon and Kennon died of massive head injuries when the floor of the trailer crushed the car's passenger cabin.
The truck was equipped with a metal guard meant to prevent vehicles from under riding it. Upon impact, the guard separated from the truck. Allen's firm argued that the two would not have died had the guard worked.
The question was, whom to take that claim against? Plaintiffs argued that Trailmobile Parts & Service Corp., a predecessor or merged affiliate that had designed the truck, should have welded the guard to the frame, instead of merely securing it with eight bolts.
However, at least two and as many as three of those bolts were missing when the accident occurred. That could have put the responsibility on Gilster Mary-Lee Corp., the truck's owner and operator, for failing to properly maintain its equipment.
Allen said that, in his opinion, there was no reason that the second-collision doctrine couldn't apply, in different ways, to both defendants.
"From our standpoint, why does it matter if it was the poor design of a product or the poor maintenance of a product that caused the enhanced injury?" he said.
But, he conceded, such an approach is "novel." Courts have made plenty of caselaw on the use second-collision doctrine in the products liability setting, but to date they've been almost silent on the maintenance issue. Allen said he was able to find only one case - Hill v. Town of Reading, a New York Supreme Court decision regarding an enhanced injury caused by a poorly maintained ditch - that supported his position.
Allen Roston, a law professor at the University of Missouri-Kansas City who aided in the search for applicable caselaw, agreed that "it seemed to be difficult to find" anything. He said it's possible that such a theory has been successfully used before without attracting much attention.
"In some sense, it just seems like such a logical proposition that probably judges don't go out and write an opinion on it," he said. "I'm sure it has occurred, and it just doesn't raise any particular attention or eyebrows in a case. It just makes sense, and so without really thinking about it the parties and the judge accept that you can have causation in these kinds of situations."
The defense attorneys had a different take. David Remley of Cape Girardeau was the attorney for Gilster Mary-Lee up until morning the trial, when the company's insurance company brought in other representation at the last minute. He had been prepared to argue that there was a reason no other cases had recognized a negligent-maintenance theory.
"Every one of the (second-collision) cases (previously decided by the courts) was against the designer or manufacturer, and we did not believe that it had any application to an end user," he said.
Remley noted that the second-collision doctrine is "risk-shifting, almost a public policy theory of law" that stemmed from a provision of the Second Restatement of Torts, and was only meant to apply to "a manufacturer, designer or someone who sells it and puts it in the stream of commerce."
As test cases for new theories go, the accident wasn't perfect. Both the driver and the passenger in the car were "probably well in excess of the legal (blood alcohol) limit," Allen said. The admissibility of the victims' drunken state became a major fight between the plaintiffs and the defense. The plaintiffs conceded that the victims had caused the crash but said that as far as the second-injury doctrine is concerned, the victims' intoxication should have been irrelevant.
Nonetheless, Allen noted that the issue would have been significant had it been allowed in at trial.
"What will a jury award to two individuals who had been drinking all night, got behind the wheel and drove into the rear of a semi?" he said.
Ultimately, the case never went before a jury. Trailmobile settled about three weeks before trial. Gilster Mary-Lee, the sole remaining defendant, chose to settle the morning of the trial date.
FACTS OF THE CASE
Type of Action: Products Liability, Wrongful Death
Type of Injuries: Wrongful Death
Court/Case Number/Date: Circuit Court of the City of St. Louis/ 042-07264/ Jan. 24, 2007
Caption: Kennon, Spurgeon, Crouch v. Gilster-Mary Lee Corp., Trailmobile Corp., Trailmobile Parts & Service Corporation
Judge, Jury or ADR: Jury
Name of Mediator: Dennis M. Schaumann
Verdict or Settlement: Confidential settlement
Special Damages: N/A
Allocation of Fault: N/A
Last Demand: N/A
Last Offer: N/A
Attorneys for Plaintiff: Robert L. Langdon and Daniel L. Allen, Langdon & Emison, Lexington; James G. Onder, Michael W. Shelton, and James Corrigan, The Onder Law Firm, St. Louis; Daniel T. Ryan, Bollwerk & Ryan, St. Louis.
Attorneys for Defense: For Gilster-Mary Lee: David Remley, The Remley Law Firm, Cape Girardeau; James Whaley, Brown & James, St. Louis. For Trailmobile: Clark Cole, Matthew Reh, and Wil Tomlinson, Armstrong Teasdale, St. Louis.
Insurance Carrier: N/A
Plaintiff's Experts: Dr. Joseph Burton, biomechanics, Alpharetta, Ga.; Kenneth Thompson, motor carrier safety, Kansas City, Mo.; Steve Christoffersen, accident reconstruction, San Antonio, Texas; Jerry Wallingford, design, San Antonio; Dr. Mariusz Ziejewski, design, Fargo, N.D.
Defendants' Experts: Christopher Long, toxicology, St. Louis; David Kemp, design, Woodstock, Ga.; Dr. Mitch McConnell, biomechanics, San Antonio; Carl Savage, accident reconstruction, Flint, Mich.
