IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
LISA ANN FORD and )
DAVID JACOB FORD, )
Respondents, )
)
v. ) WD81832
)
FORD MOTOR COMPANY, ) FILED: June 25, 2019
Appellant. )
Appeal from the Circuit Court of Clay County
The Honorable Janet L. Sutton, Judge
Before Division Two: Edward R. Ardini, P.J., and
Alok Ahuja and Gary D. Witt, JJ.
David Ford’s wife and son (the “Plaintiffs”) brought a wrongful death suit
against Ford Motor Company after Mr. Ford died as a result of injuries he suffered
while working as a contractor at Ford Motor’s Kansas City Assembly Plant. Mr.
Ford was delivering vehicle seats to the plant when he was crushed between a
stationary guard rail and a moving piece of machinery. The Plaintiffs alleged that
Ford Motor was negligent for failing to remove or barricade the dangerous pinch
point, or to effectively warn visitors of its existence. After an eight-day trial in the
Circuit Court of Clay County, a jury found Ford Motor to have 95% comparative
fault for Mr. Ford’s injuries, and awarded the Plaintiffs $38 million in compensatory
damages. The jury awarded the Plaintiffs an additional $38 million in aggravating
circumstances damages.
Ford Motor appeals. It argues that the circuit court erred by:
(1) preventing a key Ford Motor witness from testifying because he had
not been adequately disclosed during discovery;
(2) failing to direct a verdict for Ford Motor on the basis that Mr. Ford was
a trespasser in the part of the plant where he was injured;
(3) refusing to submit an instruction requiring the jury to determine
whether Mr. Ford was trespassing;
(4) failing to direct a verdict for Ford Motor on the basis that the pinch
point presented an “open and obvious” danger;
(5) refusing to submit a jury instruction on the “open and obvious” issue;
(6) submitting an erroneous aggravating circumstances instruction; and
(7) admitting evidence of other incidents involving the equipment which
caused Mr. Ford’s injuries.
We affirm.
Factual Background1
David Ford was killed when he was crushed by machinery in the Kansas City
Assembly Plant operated by Ford Motor in Claycomo, where Ford Motor assembles
its F-150 model pickup truck. Mr. Ford was not employed by Ford Motor. Instead,
he worked as a delivery driver for Walkenhorst Transportation, a trucking
company. Walkenhorst had contracted with Ford Motor to deliver vehicle seats
(manufactured by Johnson Controls in Riverside) to the Claycomo plant.
The Claycomo plant operated twenty-four hours a day, six days a week.
Walkenhorst delivered seats to the plant in a constant loop, so that Ford Motor had
an uninterrupted supply of seats during the entire duration of the assembly plant’s
operating hours. The seats delivered by Walkenhorst would be immediately
integrated into the vehicle assembly process. On arrival at the Claycomo plant,
Walkenhorst’s delivery trucks would back into a loading dock, where pallets of seats
1 “We view the facts in the light most favorable to the jury’s verdict.” Randel v.
City of Kansas City, 467 S.W.3d 383, 384 n.1 (Mo. App. W.D. 2015) (citation omitted).
2
were removed by a piece of equipment called a “seat stripper.” The seat stripper
consisted of an L-shaped pair of conveyor lines. The seat stripper operated in
conjunction with a number of dual-pronged, ceiling-mounted carriers which
resembled the mast system of a forklift. The carriers would pick up pallets of seats
from a lift table at the end of one of the seat stripper’s conveyor lines. The carriers
would convey the pallets of seats to the assembly line so that the seats could be
installed into trucks. Once the seats were delivered to the assembly line, the
carriers would return the empty pallets to a lift table on the second conveyor line of
the seat stripper. After the empty pallets were removed, the carriers crossed a gap
between the lift tables at the end of the seat stripper’s two conveyor lines, in order
to pick up new pallets loaded with vehicle seats. A dangerous “pinch point” existed
where the carriers traveled across the gap from one lift table to the other.
Evidence indicated that the seat stripper was one of the oldest pieces of
equipment in the plant at the time of Mr. Ford’s injury. One of the Plaintiffs’
experts testified that the seat stripper was “a cobbled-together and inferior piece of
equipment.” The testimony indicated that the seat stripper frequently jammed, and
had to be cleared by repositioning seats or pallets. Even when the seat stripper and
carrier system were not malfunctioning, the testimony indicated that the carrier
system frequently and unpredictably stopped, sometimes for several minutes at a
time, and then resumed operation without any type of warning to workers. One of
the Plaintiffs’ experts, Franklin Darius, testified that “[e]rratic motion or
intermittent motion is much more dangerous than consistent motion”; he testified
that “if [machinery] can stop for a long period of time and then suddenly move
without warning, it’ll catch people by surprise.” Darius testified that, unless it was
physically isolated from workers, the carrier system should have issued an audible
and/or visible alarm whenever it resumed its motion: “[i]f there’s a possibility of a
3
human being [getting] caught off guard by the movement of the conveyor system,
there must be an alarm of some type.”
Mr. Ford was injured at the Kansas City Assembly Plant on December 8,
2015. At the time, he had been delivering seats to the plant for only 13 days. While
delivering seats on December 8, Mr. Ford entered the area between the seat
stripper’s two conveyor lines to manually clear a fault or jam in the system. After
telling a Ford Motor employee that he had cleared the fault, Mr. Ford stepped into
the “pinch point” between the lift tables. Mr. Ford was pinned against a stationary
guard rail by one of the dual-pronged carriers crossing from one of the seat
stripper’s lift tables to the other. A forensic pathologist retained by Plaintiffs, Dr.
Judy Melinek, testified that the amount of force inflicted on Mr. Ford was
comparable to the force inflicted in a “high-velocity motor vehicle accident[ ]” at
approximately fifty or sixty miles per hour, or when an individual falls from a four-
story building.
As a result of the crushing injury, Mr. Ford suffered fractures of his sternum,
multiple ribs, and multiple thoracic vertebrae. The compression of Mr. Ford’s
thorax transected his inferior vena cava vein, and the vein had largely separated
from the right atrium of his heart, causing massive bleeding in the pericardium,
and compressing Mr. Ford’s heart muscle. Mr. Ford underwent extensive open-
heart surgery immediately following his injury.
Dr. Melinek testified that the amount of “bone-crushing pain” Mr. Ford
experienced at the time of the accident caused him to lose consciousness. Although
sedated, Mr. Ford was responsive to his family members and “not completely
unconscious” following his thoracic surgery. Mr. Ford’s surviving spouse, Plaintiff
Lisa Ford, testified that “[h]e was in a lot of pain” while hospitalized; she testified
that, “[i]t’s not anything that you ever want to see.” Mr. Ford was on a ventilator
from the time of his surgery until the time of his death. Mr. Ford died on December
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15, 2015, as a result of the traumatic blunt-force injuries he sustained on December
8.
On January 6, 2016, Mr. Ford’s wife and son filed a wrongful death petition
in the Circuit Court of Clay County against Ford Motor, in which they sought both
compensatory and aggravating circumstances damages. The petition alleged that
“[a]t all times relevant to this Petition, David Scott Ford was an invitee at the Ford
Motor assembly plant.” The petition alleged that the “conveyor belt and
surrounding area of Ford Motor’s assembly plant was not reasonably safe, in that it
could cause serious injury to any person who was caught within the belt.” The
petition alleged that Mr. Ford’s injuries were a “direct and proximate result of the
negligence, carelessness, failure and violations of Ford Motor to exercise ordinary
care . . . to remove the dangerous condition on its property and/or to warn visitors
such as David Scott Ford of its existence.”
An eight-day jury trial was held beginning on February 13, 2018. At trial, a
key issue was whether Mr. Ford was authorized to enter the seat stripper system or
whether he was an unauthorized trespasser at the location where he was injured.
Although Ford Motor presented several witnesses who testified that Walkenhorst
drivers were not authorized to enter the seat stripper, Plaintiffs introduced evidence
that Walkenhorst drivers routinely entered the machine, that Ford Motor expected
the Walkenhorst drivers to clear jams in the seat stripper themselves without
summoning Ford Motor employees, and that Ford Motor managers and employees
were aware of this practice. Thus, David Martin, the former Head of Operations at
Walkenhorst, testified that a delivery driver could “seldom get through a trailer
load without having to [access the seat stripper area], and pull a pallet or something
that would get lodged in there sideways or stuck.” Martin testified that Ford Motor
managers witnessed Walkenhorst’s drivers accessing the interior portion of the seat
stripper system, and that occasionally Ford Motor employees would assist the
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Walkenhorst drivers in fixing a seat stripper fault. Martin testified that Ford
Motor employees had placed hooks, ladders, and poles at various locations near the
seat stripper so that drivers could more easily fix a jam in the system, and that
Ford Motor had even placed several chairs in the interior portion of the seat
stripper for drivers to sit in as the seats from their trucks were unloaded.
Walkenhorst driver Stephen Andrews testified that Ford Motor’s
maintenance employees expected delivery drivers to fix a stuck pallet or seat by
freeing it with a hook, and that the Ford Motor employees would “get a little
irritated” if they were called “to do this misdemeanor little thing that you guys
could fix.” Andrews said that Ford Motor employees routinely saw him standing on
the interior of the seat stripper, but none of the employees ever reproached him, or
told him not to access the seat stripper. Andrews said that he was instructed to “do
whatever’s necessary to keep the line moving, that’s part of the service you provided
to Ford [Motor].”
Another delivery driver, Scott Brown, testified that he would sit on the inside
of the seat stripper while his truck was unloading, so that he could more easily clear
jams. Brown testified that he never shut down the machine before attempting to
unclear a jam, nor did anyone ever train him on how to shut the seat stripper down.
Brown said that one of his trainers told him, “Do whatever you got to do to keep the
line going. If you can’t get it fixed, hit the call button.”
Finally, Walkenhorst delivery driver Rick Allen testified that in his 14 years
of experience, he would routinely enter the seat stripper in order to fix faults or
jams. Allen estimated that, on average, he fixed jams in the seat stripper
approximately ten times during a twelve-hour shift. Allen said that he would
occasionally call the Ford Motor maintenance team for assistance in clearing a jam,
but that the maintenance workers were “pretty slow,” sometimes taking as long as
thirty minutes to respond to a call. Allen testified that he never saw a sign that
6
stated the seat stripper was for “authorized personnel only,” nor was he ever
warned not to enter the seat stripper system.
Evidence was also presented at trial that other persons had been injured at
the pinch point where Mr. Ford suffered his fatal injury, or had narrowly avoided
injury. In 1996, just one year after the seat stripper was installed, the maintenance
foreman of the plant, Stephen Bray, was caught in the pinch point and crushed,
causing a broken rib. A nearby electrician hit a kill switch when he saw that Bray
was pinned against the guard rail. If the electrician had not shut down the line,
Bray acknowledged that he “wouldn’t have walked away from it.”
Less than six months before Mr. Ford’s accident, Timothy Van Vickle, a Ford
Motor electrician, narrowly avoided an injury in the pinch point. Van Vickle
testified that he was working as an apprentice in the seat stripper with a
journeyman, near where Mr. Ford was injured. Van Vickle testified that his
journeyman warned him to step back because the area was dangerous. Van Vickle
“backed up and they . . . watched that thing cross over.” He acknowledged that, if
he had not been told to step away, “that could have been [him] who was killed.”
Van Vickle testified that “you get tunnel vision when you’re focused so you’re not
really looking at your surroundings.”
Another incident occurred in September 2015, approximately three months
before Mr. Ford was killed. In that incident a Walkenhorst driver named Sal
Cangelosi had entered the seat stripper to fix a fault. While Cangelosi was standing
in the pinch point area, a carrier unit came towards him. Another Walkenhorst
driver who was nearby, described as a “pretty good sized guy,” grabbed the carrier
and yelled at Cangelosi, who moved away. The carrier hit Cangelosi’s shoulder as it
went by, and both he and the other driver suffered minor injuries as a result of the
incident. After hearing about the incident, a Ford Motor maintenance employee
7
told Cangelosi that he was “lucky,” because the pinch point could have “hurt him”
more seriously.
The Plaintiffs also presented evidence that indicated that Ford Motor was
aware of the dangers presented by the pinch point, and that it had failed to follow
its own policies, industry standards, and applicable regulations when it failed to
remove, or adequately barricade or warn of, the pinch point. Thus, Plaintiffs
presented evidence that when the seat stripper was installed in 1995, Ford Motor
policy required that a risk assessment be conducted, but it was not. “[T]he first
question” on the risk assessment would have been to identify any pinch points in
the equipment. Plaintiffs also presented evidence that such a risk assessment
should have been conducted – but was not – following Stephen Bray’s injury
accident in 1996. Further, Plaintiffs presented evidence that, as a result of citations
issued during a “wall-to-wall” inspection conducted by the Occupational Safety and
Health Administration (OSHA) in 1999, Ford Motor entered into a settlement in
which it agreed to “conduct a joint risk analysis [with the United Auto Workers
union] of all crossover locations in the facility by January of 2000 to determine
which areas needed guarding.” Plaintiffs also presented evidence that, as part of a
comprehensive safety audit in 2007–2008, Ford Motor employees identified, or
should have identified, the pinch point in the seat stripper as an area requiring
additional guarding.
After the Plaintiffs rested, Ford Motor attempted to call their corporate
representative at trial, John Lawson, to testify as a fact witness. Plaintiffs objected
on the basis that Lawson’s name had not been disclosed in response to Plaintiffs’
Interrogatory 4, which required Ford Motor to identify “every person who has any
knowledge or information about Plaintiffs’ claims set forth in the pleadings.”
Plaintiffs contended that the interrogatory had required Ford Motor to identify all
of the witnesses it intended to call at trial. Although Lawson had not been disclosed
8
in response to Interrogatory 4, he had served as one of Ford Motor’s designated
representatives during a deposition of the corporation conducted pursuant to
Supreme Court Rule 57.03(b)(4). (The deposition was conducted on January 25,
2018, less than three weeks before trial began on February 13.) Ford Motor argued
that the corporate representative deposition had given the Plaintiffs adequate
notice of Lawson’s planned testimony. For their part, the Plaintiffs argued that
they had not deposed Lawson in his personal capacity, and would have prepared
differently for a personal deposition, and would have conducted such a deposition
earlier in the discovery process. The circuit court sustained Plaintiff’s objection,
and prohibited Lawson from testifying.
After the first phase of trial, the jury assessed 95% of the fault for Mr. Ford’s
death to Ford Motor, and awarded the Plaintiffs $38 million in compensatory
damages. The jury also found that Ford Motor’s conduct satisfied the substantive
standard for an award of aggravating circumstances damages. Following a second
phase of trial, the jury awarded the Plaintiffs an additional $38 million in
aggravating circumstances damages. The trial court entered its final judgment on
February 26, 2018, awarding Plaintiffs the total sum of $74.1 million. After the
denial of its post-judgment motions, Ford Motor filed this appeal.
Analysis
I.
In its first Point, Ford Motor argues that the trial court erred when it refused
to allow Ford Motor’s corporate trial representative, John Lawson, to testify during
the first phase of trial. The trial court excluded Lawson because Ford Motor had
not identified him in response to an interrogatory asking it to identify those persons
with “any knowledge or information about Plaintiffs’ claims set forth in the
pleadings.”
9
“‘Trial courts have broad discretion in administering rules of discovery, which
this Court will not disturb absent an abuse of discretion.’” State ex rel. BNSF Ry.
Co. v. Neill, 356 S.W.3d 169, 172 (Mo. 2011) (quoting State ex rel. Delmar Gardens
N. Operating, LLC v. Gaertner, 239 S.W.3d 608, 610 (Mo. 2007)). A trial court
abuses its discretion when the court’s ruling is “clearly against the logic of the
circumstances then before the court and is so arbitrary and unreasonable as to
shock the sense of justice and indicate a lack of careful consideration.” Lewellen v.
Franklin, 441 S.W.3d 136, 149 (Mo. 2014) (citation and internal quotation marks
omitted). “The trial court has broad discretion in admitting or excluding testimony
on the basis of nondisclosure in interrogatories.” DeLaporte v. Robey Bldg. Supply,
Inc., 812 S.W.2d 526, 533 (Mo. App. E.D. 1991); see also, e.g., Jones v. City of Kansas
City, 569 S.W.3d 42, 61 (Mo. App. W.D. 2019).
Plaintiffs’ Interrogatory 4, served on March 24, 2016, made the following
request:
Please state the name, address, telephone number, employer,
title, and occupation [of] each and every person who has any
knowledge or information about Plaintiffs’ claims set forth in the
pleadings, who witnessed the Incident, was present at the scene, or
arrived thereafter, and what defendant believes they witnessed; or has
knowledge or information about David Ford’s condition or actions prior
to the Incident, and what information defendant believes he or she has.
Ford Motor responded to Interrogatory 4 on April 22, 2016, identifying
approximately 30 people. The company’s response objected to Interrogatory 4 on
several grounds: that several of the identified individuals were represented by
counsel, and therefore could only be contacted through counsel; that the nature of
each person’s knowledge was a more appropriate topic for deposition testimony
rather than a narrative interrogatory response; and that the interrogatory would
require Ford Motor to speculate concerning Mr. Ford’s actions before his accident.
Notably, Ford Motor did not object to Interrogatory 4 on the basis that it was
10
overbroad, vague, or confusing (although it did assert a general objection directed at
all of the Plaintiffs’ interrogatory requests on this basis). Ford Motor did not
identify John Lawson in its April 2016 response to Interrogatory 4.
In a series of e-mail exchanges, Plaintiffs’ counsel made it clear that they
intended to depose each and every one of the fact witnesses identified by Ford Motor
in response to Interrogatory 4. On February 23, 2017, Plaintiffs’ counsel sent the
following e-mail to counsel for Ford Motor:
Our firm has served various discovery requesting [sic] requiring
Ford to list all people with potentially relevant information. You are
right in your belief that we have asked for and intend to depose every
one of those individuals.
[I]f you identify a previously undisclosed fact witness we ask
that you comply with the rules by supplementing your discovery
responses. In such case, it is our intent to take the deposition as set
forth above.
In an e-mail dated November 2, 2017, Plaintiffs’ counsel stated,
We have requested and are again requesting to take the
depositions of any and all current or former Walkenhorst, JCI,
Universal, Ford Employees, First Responder and/or treaters who have
relevant information – unless Ford Motor Company agrees not to call
them at trial.
Ford Motor filed a supplemental response to Interrogatory 4 on December 15,
2017. That supplemental response did not identify John Lawson as a potential
witness.
Plaintiffs’ counsel provided further notice of the need to disclose potential
witnesses during a hearing on January 3, 2018, five weeks before trial began on
February 13. At the hearing, counsel stated that he would seek to exclude at trial
any witness who was not disclosed by Ford Motor in the course of discovery:
The last matter, and that I believe – matter of fact, I know that
in light of the Court’s rulings that this is understood, but just for the
record I want to say, we’re going to work with them to narrow the list
of witnesses down. But at some point, we’re going to file a motion in
limine that says, look, they’ve identified these witnesses. If they
11
haven’t made them available for deposition, or they haven’t otherwise
disclosed them, that they be excluded.
I guess it’s just more – it’s not really asking for any kind of
ruling other than to put opposing counsel on notice. If they have
people they’re planning to call, who they should have disclosed in
response to discovery, the time to do that is now so we’re not, the week
of trial, scrambling around dealing with later [disclosed] witnesses.
Ford Motor still did not disclose John Lawson, nor did it ask for any clarification
regarding the nature of the required disclosures.2
Despite clear and repeated notifications that Interrogatory 4 required it to
disclose the fact witnesses that it intended to call at trial, Ford Motor failed to
supplement its response by disclosing John Lawson as a fact witness. Plaintiffs’
first notice that Ford Motor intended to call Lawson as a fact witness came on the
first day of trial, when he was identified on a Ford Motor witness list.
In its oral ruling sustaining Plaintiffs’ objections to Lawson’s testimony, the
circuit court noted that, despite “extensive interrogatories submitted on both sides”
over the course of approximately two years, Lawson was not disclosed until less
than one month before trial, and even then he was disclosed merely as a corporate
representative to testify at a Rule 57.03(b)(4) deposition. The court noted that Ford
Motor never attempted to supplement its interrogatory responses by identifying
Lawson as a fact witness, and only did so on the first day of trial.
2 Ford Motor argues that, during a January 31, 2018 motions hearing, the
parties and the court expressed confusion as to what Interrogatory 4 required. Although
Plaintiffs’ counsel at that hearing contended that Ford Motor had not asked comprehensive
interrogatories which required Plaintiffs to disclose all of their trial witnesses, Plaintiffs
argued that they had served such discovery. The relevant exchange closed with the
following understanding:
THE COURT: I don’t think either side wants either side calling
somebody that’s not been named in an interrogatory and disclosed to the
other side.
DEFENDANT’S COUNSEL: (Nodding head.)
PLAINTIFFS’ COUNSEL: If there was an interrogatory that was
asked.
THE COURT: Right. Correct.
12
The circuit court did not abuse its “broad discretion” when it concluded that
Lawson should have been disclosed in response to Interrogatory 4, because Lawson
“ha[d] . . . knowledge or information about Plaintiffs’ claims set forth in the
pleadings.” Lawson testified during the corporate representative deposition that he
played a primary role investigating Mr. Ford’s accident, starting immediately after
the accident occurred. He was designated by Ford Motor to give deposition
testimony on the company’s behalf with respect to the facts of the accident; Ford
Motor’s investigation of the accident and its conclusions as to the accident’s cause;
any discipline of employees as a result of Mr. Ford’s accident; any subsequent
remedial measures Ford took as a result of the accident; the design and operation of
the seat stripper and carrier system; and safety reviews and prior injuries involving
that machinery.
Ford Motor argues that it interpreted Interrogatory 4 as calling for the
identification only of witnesses who witnessed Mr. Ford’s accident, or its immediate
aftermath. But Interrogatory 4 was not limited to such witnesses; it asked Ford
Motor to identify “each and every person who has any knowledge or information
about Plaintiffs’ claims set forth in the pleadings.” Ford Motor’s current argument
is belied by its own conduct during discovery. Before trial, Ford Motor disclosed
three categories of witnesses in response to Interrogatory 4: (1) persons who
responded directly to the scene; (2) persons who provided care to Mr. Ford directly
following the accident; and (3) persons who participated in the investigation of the
accident. Thus, it is clear that Ford Motor did not interpret Interrogatory 4 as
limited to individuals who personally witnessed the accident or its aftermath.
Even though Lawson should have been disclosed in response to Interrogatory
4, however, a “failure to correct or supplement [a discovery response] may not, in all
circumstances, be fatal to the answering party’s cause.” Crompton v. Curtis-Toledo,
Inc., 661 S.W.2d 645, 650 (Mo. App. E.D. 1983) (citation and internal quotation
13
marks omitted). “Even where this duty to supplement has been established, prior
to imposing sanctions on the errant party ‘the trial court will first determine
whether in the particular situation the opposing party has been prejudiced.’” Id.
(citations omitted).
In making a determination as to prejudice to the adversary the
trial court should not ignore the spirit of the rule; i.e. that the rules of
discovery were designed to eliminate, as far as possible, concealment
and surprise in the trial of law suits to the end that judgment therein
be rested upon the real merits of the causes and not upon the skill and
maneuvering of counsel.
Id.
[I]n cases where a party is surprised and prejudice could have
resulted [from a party’s failure to disclose a witness], the [trial] court
will have to determine, in its discretion, whether to exclude the
evidence, or to continue the case, or whether under some
circumstances it would be sufficient to recess the case long enough to
permit the complaining party to make necessary inquiry and
investigation.
Laws v. City of Wellston, 435 S.W.2d 370, 375 (Mo. 1968).
In this case, the circuit court did not abuse its “broad discretion” in choosing
to exclude Lawson from testifying as a fact witness in the first phase of trial. On
appeal, Ford Motor argues that the Plaintiffs did depose Lawson, because he was
one of Ford Motor’s designated representatives at the organizational deposition
conducted under Rule 57.03(b)(4). Plaintiffs’ counsel argued to the trial court,
however, that Lawson’s identity as Ford Motor’s corporate representative on certain
deposition topics was only disclosed a couple of days before the deposition. Counsel
argued that he would have taken Lawson’s deposition earlier, and would have
prepared and conducted the deposition differently, if he had known that Lawson
would be a fact witness at trial. Plaintiffs’ counsel argued:
We did not take Mr. Lawson’s deposition. We took the
deposition of Ford Motor Company. He was speaking on behalf of Ford
Motor Company. During that deposition, we asked him about the
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position of Ford Motor Company. He weaved in and out during that
deposition between things that were told to him.
As a corporate rep, he can pull information from everyone. Now,
the fact that pieces of that has to go to his individual knowledge,
there’s no – they had an obligation under the rules then to disclose
him. And had they disclosed him under the rules to our interrogatory,
we would have taken him last year and we would have gone through
these 60,000 pages of documents, find out what emails he had, what
information he had. He would have told us things. We would have
gone down those avenues. We didn’t do any of that.
They told us about Mr. Lawson a day or two before his corporate
rep deposition. And he came in and testified as a corporate rep. I did
not ever once in my life prepare to take John Lawson’s deposition in
his individual capacity. I am not prepared here to cross-examine him
in his individual capacity. I have not reviewed his emails. I have not
reviewed his documentation. I have not reviewed all the
correspondence of his, and so there would be extreme prejudice.
It may be that, because Lawson was a designated Rule 57.03(b)(4)
representative witness for Ford Motor, he was required to provide information
within his personal knowledge in responding to questioning by Plaintiffs’ counsel.
But even if Plaintiffs’ counsel was entitled to examine Lawson concerning his
personal knowledge, “[t]he purpose of deposing a corporate representative is not to
uncover the representative’s personal knowledge or recollection of the events at
issue.” State ex rel. Reif v. Jamison, 271 S.W.3d 549, 551 (Mo. 2008). Instead, “the
testimony of the corporate representative designated pursuant to Rule 57.03(b)(4) is
not the deposition of that individual for his or her personal recollections or
knowledge but is instead ‘the deposition of the corporate defendant.’” Id. (citation
omitted). While Plaintiffs’ counsel may have been entitled to explore Lawson’s
personal knowledge, that was not the purpose of the deposition.
In addition, in this case Plaintiffs’ counsel engaged in exhaustive pretrial
preparation, deposing every individual disclosed by Ford Motor in response to
Interrogatory 4. Plaintiffs ultimately conducted more than sixty total depositions.
In light of these painstaking discovery efforts by Plaintiffs’ counsel, the circuit court
15
was entitled to credit counsel’s statement that he would have engaged in more
thorough – and different – preparation if he had known that Lawson was a
potential fact witness (for example, by reviewing all of the voluminous discovery
documents authored by or transmitted to Lawson). Given the short notice between
Lawson’s identification as a corporate designee and the Rule 57.03(b)(4) deposition,
the circuit court could conclude that the Plaintiffs were prejudiced by being denied
the opportunity to engage in the level of preparation they had conducted prior to the
numerous fact-witness depositions they had taken. The trial court could also
reasonably conclude that, if Plaintiffs had been given the opportunity to depose
Lawson as an individual fact witness earlier, Plaintiffs may have discovered the
identity of additional witnesses whom they would have deposed, or other lines of
investigation they would have pursued. Ford Motor’s claims that Lawson was its
key witness only heighten the prejudice to Plaintiffs (who were denied the
opportunity to depose him in his individual capacity). The circuit court could
justifiably conclude that Plaintiffs should not be disadvantaged by Ford Motor’s
failure to disclose its key fact witness prior to the first day of trial.
The trial court could also conclude that because the case was specially set for
trial, granting a continuance of the trial was not a reasonable option in response to
Ford Motor’s belated disclosure of Lawson. Moreover, in the context of an eight-day
jury trial in a complex case, the circuit court in its discretion could determine that it
was not reasonable to expect Plaintiffs’ counsel to prepare for, and conduct, a
deposition of an important – but untimely disclosed – fact witness while trial
progressed.3
3 Ford Motor cites Dane By Dane v. Cozean, 636 S.W.2d 87 (Mo. App. E.D.
1982), and Claude T. v. Claire T., 579 S.W.2d 141 (Mo. App. E.D. 1979), to argue that a
circuit court errs when it refuses to allow an undisclosed witness to testify following a
recess. In both Dane and Claude T., a party failed to disclose a witness in response to an
interrogatory; despite the nondisclosure, the trial court in each case permitted the
undisclosed witness to testify after a recess which allowed the opposing party to depose the
16
Point I is denied.
II.
In its second Point, Ford Motor argues that the trial court erred in denying
its motions for directed verdict and for judgment notwithstanding the verdict. Ford
Motor contends that the evidence at trial established – as a matter of law – that Mr.
Ford was a trespasser when he entered the seat stripper, and thus that Ford Motor
owed him no duty of care. Although Ford Motor concedes that Mr. Ford entered the
plant as its business invitee, it argues that Mr. Ford exceeded the scope of the
invitation when he entered the seat stripper, and thus became a trespasser.
In reviewing a trial court's denial of motions for judgment notwithstanding
the verdict or for a directed verdict, we determine “whether the plaintiff made a
submissible case.” Med. Plaza One, LLC v. Davis, 552 S.W.3d 143, 153 (Mo. App.
W.D. 2018) (citation and internal quotation marks omitted). “In order to make a
submissible case a plaintiff must present substantial evidence for every fact
essential to liability.” Id. (citation and internal quotation marks omitted).
A case may not be submitted unless each and every fact
essential to liability is predicated on legal and substantial evidence.
Whether the plaintiff made a submissible case is a question of law that
this Court reviews de novo. To determine whether a directed verdict or
judgment notwithstanding the verdict should have been granted this
Court applies essentially the same standard. To determine whether
the evidence was sufficient to support the jury’s verdict, an appellate
court views the evidence in the light most favorable to the verdict. A
motion for directed verdict or JNOV should be granted if the defendant
shows that at least one element of the plaintiff's case is not supported
by the evidence.
witness. See Dane, 636 S.W.2d at 90; Claude T., 579 S.W.2d at 143. The circuit court’s
ruling was affirmed in both cases, with the appellate court noting that “[t]he guiding rule in
this issue is that examination of a witness whose name has not been disclosed, though
requested, is a matter resting within the sound discretion of the trial court.” Dane, 636
S.W.2d at 90; see also Claude T., 579 S.W.2d at 143. While Dane and Claude T. found no
abuse of discretion where a trial court permitted an undisclosed witness to testify, nothing
in those decisions suggests that the circuit court was required to permit the testimony, or
that a trial recess is always an appropriate remedy for a witness’ late disclosure.
17
Holmes v. Kansas City Pub. Sch. Dist., 571 S.W.3d 602, 611 (Mo. App. W.D. 2018)
(quoting Ellison v. Fry, 437 S.W.3d 762, 768 (Mo. 2014)).
A person generally enters another person’s land with a legal status falling
within one of three broad categories: that of a “trespasser, licensee, or an invitee.”
Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490, 495 (Mo. App. E.D. 2015)
(citation omitted). “When a plaintiff sues a possessor of land for injuries arising out
of an unreasonably dangerous condition on that land, the relationship between the
possessor of the land and the plaintiff determines the standard of care owed the
plaintiff.” Christian v. St. Francis Med. Cntr., 536 S.W.3d 356, 358 (Mo. App. E.D.
2017) (citation omitted).
An invitee is a person who “enters the premises of another with the consent
of the possessor for some purpose of benefit or interest to the possessor, or for the
mutual benefit of the invitee and the possessor.” Id. (citation omitted). If a visitor
is an invitee, the possessor of the land may be liable for the visitor’s injuries if the
visitor shows that “1) a dangerous condition existed on the premises that was not
reasonably safe; 2) the possessor knew of the condition, or through the use of
ordinary care should have known of it; and 3) the possessor failed to use ordinary
care to remove, remedy, or warn of the dangerous condition.” Id. (citation omitted).
On the other hand, a person is generally a “trespasser” if they enter without
the landowner’s permission. Wilson ex rel. Wilson v. Simmons, 103 S.W.3d 211, 218
(Mo. App. W.D. 2003). With certain exceptions (one of which we discuss in § III,
below), “the possessor owes a trespasser no duty of care.” Id. at 219 (citation
omitted).
When a theory of liability is premised on “invitee” status, a person must show
that they remained an “invitee” at the time of the injury:
[I]t is incumbent upon the plaintiff to show, not only that her
entry upon the premises was by invitation of the owner, but also that
18
at the time the injury was received, she was in that part of the premises
into which she was invited to enter, and was using them in a manner
authorized by the invitation, whether express or implied.
Gruetzemacher v. Billings, 348 S.W.2d 952, 958 (Mo. 1961) (quoting Glaser v.
Rothschild, 120 S.W. 1, 4 (Mo. 1909) (emphasis added in Gruetzemacher)).
“Deviation from an invitation occurs when the entrant acts in a manner
inconsistent with the scope of an express or implied invitation . . . .” Hogate v. Am.
Golf Corp., 97 S.W.3d 44, 48 (Mo. App. E.D. 2002) (citation and internal quotation
marks omitted) (finding that a bicyclist who was an invitee in a public park became
a trespasser when he entered a golf course located within the park).
“[T]he test for whether certain conduct constitutes an invitation is not what
the possessor of land intended, but what a reasonable man would interpret the
conduct to mean.” Singleton v. Charlebois Const. Co., 690 S.W.2d 845, 848 (Mo.
App. W.D. 1985) (citing RESTATEMENT (SECOND) OF TORTS § 332 cmt. c (1965));
accord Taylor v. Union Elec. Co., 826 S.W.2d 57, 59 (Mo. App. E.D. 1992). An
“invitation ‘may be implied from dedication, customary use, or enticement,
allurement, inducement to enter or manifested by the arrangement of the premises
or the conduct of the owner.’” Schumacher v. Barker, 948 S.W.2d 166, 170 (Mo.
App. E.D. 1997) (quoting Singleton, 690 S.W.2d at 848). “Any words or conduct of
the possessor which lead or encourage the visitor to believe that his entry is desired
may be sufficient for the invitation.” Taylor, 826 S.W.2d at 59 (quoting Singleton,
690 S.W.2d at 848)); see also Mobley v. Webster Elec. Co-op., 859 S.W.2d 923, 928
(Mo. App. S.D. 1993).
Plaintiffs presented substantial evidence that Mr. Ford was a Ford Motor
invitee at the place where he was injured, and was not acting in excess of the
invitation he had been given. As described in our factual statement above, several
Walkenhorst employees testified that they routinely accessed the interior portion of
the seat stripper in order to fix faults and jams, with the knowledge of Ford Motor
19
employees (including management-level employees). These witnesses testified that
Ford Motor supplied them with tools to clear jams in the seat stripper, and provided
them with chairs in the interior of the seat stripper in which to sit while their
trucks were unloaded. The testimony indicated that Walkenhorst drivers had fixed
faults in the seat stripper with the assistance of Ford Motor employees, and that
some Ford Motor employees had expressed frustration when Walkenhorst drivers
did not fix faults in the equipment themselves. Two different Walkenhorst drivers
testified that they had been instructed to do whatever was necessary to keep the
system operating, and to summon Ford Motor employees for assistance only if they
could not fix the problem themselves. The testimony also indicated that Ford Motor
had not placed any signs restricting Walkenhorst drivers from entering the seat
stripper, had not verbally instructed or warned the Walkenhorst drivers not to do
so, and had not placed a barricade or gate at the point at which Mr. Ford entered
the seat stripper (which the evidence indicated was a common access point).
Although management employees of Ford Motor testified that Walkenhorst
drivers were not authorized to enter the interior of the seat stripper, Plaintiffs
presented substantial evidence that Mr. Ford was an invitee at the location where
he was injured. The circuit court did not err in denying Ford Motor’s motions for
directed verdict and for judgment notwithstanding the verdict on the basis that Mr.
Ford was a trespasser as a matter of law.
Point II is denied.
III.
In its third Point, Ford Motor argues that the circuit court erred when it
refused to submit an instruction directing the jury to return a verdict for Ford
Motor if it determined that Mr. Ford was a trespasser. Ford Motor maintains that
even if Mr. Ford was not a trespasser as a matter of law, there was a genuine
20
factual dispute concerning Mr. Ford’s status, and the issue should have been
submitted to the jury for decision.
The trial court’s refusal to submit a party’s proffered instruction
to the jury is a matter that this Court reviews de novo. Cluck v. Union
Pacific R. Co., 367 S.W.3d 25, 32 (Mo. banc 2012); Marion v. Marcus,
199 S.W.3d 887, 893 (Mo. App. W.D. 2006). We evaluate whether the
proffered instruction was supported by the evidence and the law. Id.
An instruction must correctly state the law. SKMDV Holdings, Inc. v.
Green Jacobson, P.C., 494 S.W.3d 537, 555 (Mo. App. E.D. 2016). It is
not error for a trial court to refuse to give a requested instruction that
is incorrect. Id. at 555–56.
Barth v. St. Jude Med., Inc., 559 S.W.3d 923, 925 (Mo. App. E.D. 2018). “In
circumstances where no approved instruction applies, Rule 70.02(b) allows for the
use of not-in-MAI instructions. However, the not-in-MAI instruction must follow
the applicable substantive law.” Id. (citing Am. Equity Mortg., Inc. v. Vinson, 371
S.W.3d 62, 64–65 (Mo. App. E.D. 2012)).
Generally, in a premises liability case like this one, “[t]he scope of a
defendant’s duty is a question of law for the court to resolve.” Tharp v. St. Luke’s
Surgicenter-Lee’s Summit, LLC, No. SC 96528, 2019 WL 925542, at *3 (Mo. Feb. 26,
2019); accord Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 199
(Mo. 2014). But when the facts surrounding an entrant’s status on the land are in
dispute, “[a] party is entitled to a verdict-directing instruction predicated on his
theory of the case . . . .” Adams v. Badgett, 114 S.W.3d 432, 436 (Mo. App. E.D.
2003) (citation omitted).
Even if we assume that the evidence at trial presented a disputed factual
issue concerning Mr. Ford’s status at the time and place of his injury, the circuit
court did not err in refusing Ford Motor’s proffered instruction, because that
instruction did not correctly state the substantive law. Ford Motor offered the
following instruction (Refused Instruction G):
21
Your verdict must be for the defendant if you believe that at the
time of the accident, David Ford was in a part of the Kansas City
Assembly Plant that defendant had not given him permission to enter.
Refused Instruction G would have told the jury that they were required to return a
verdict for Ford Motor, if they found that Ford Motor had not given Mr. Ford
permission to enter the place where he was injured.
Ford Motor’s proffered instruction presumes that possessors of land owe no
duty to trespassers, in any circumstances. But that is not Missouri law. As
relevant here, § 537.351, RSMo, which was enacted in 2012, provides:
2. A possessor of real property may be subject to liability for
physical injury or death to a trespasser in the following situations:
....
(2) The possessor knew or should have known that
trespassers consistently intrude upon a limited area of the possessor's
land where the trespasser was harmed, the harm resulted from a
dangerous artificial condition on the land; and
(a) The possessor created or maintained the artificial
condition that caused the injury;
(b) The possessor knew that the condition was likely to cause
death or serious bodily harm to trespassers;
(c) The possessor knew or should have known that the
condition was of such a nature that trespassers would not discover it;
and
(d) The possessor failed to exercise reasonable care to warn
trespassers of the condition and the risk involved.
See also Humphrey v. Glenn, 167 S.W.3d 680, 683–85 (Mo. 2005); MAI 22.10 (7th
ed. 2018). Even if the jury were to have concluded that Mr. Ford was a trespasser,
that finding alone would not necessarily have negated Ford Motor’s liability for his
death.
In the context of this case, Ford Motor’s proffered instruction also had the
potential to mislead the jury when it asked jurors to consider only whether Ford
Motor had “given [Mr. Ford] permission to enter” the seat stripper area. As
22
discussed in § II above, a possessor’s conduct may create an invitation, even if the
possessor did not intend it, depending on “what a reasonable man would interpret
the conduct to mean.” Singleton, 690 S.W.2d at 848. An “invitation ‘may be implied
from dedication, customary use, or enticement, allurement, inducement to enter or
manifested by the arrangement of the premises or the conduct of the owner.’”
Schumacher, 948 S.W.2d at 170 (quoting Singleton, 690 S.W.2d at 848); see also,
e.g., Davidson v. Int’l Shoe Co., 427 S.W.2d 421, 423 (Mo. 1968); Glaser v.
Rothschild, 120 S.W. 1, 3 (Mo. 1909) (“The word ‘invitation’ used in the rule covers
and includes in it enticement, allurement, and inducement . . . . Also, the invitation
may be implied by a dedication, or it may arise from known customary use.”
(citation omitted)).
Moreover, in this case, Ford Motor concedes that it extended Mr. Ford an
invitation to enter the Kansas City Assembly Plant – it disputes only whether the
invitation extended to the interior of the seat stripper system. An invitation
extends to “the part of the land upon which the possessor [has] give[n] [a visitor]
reason to believe that his presence is desired for the purpose for which he has
come.” RESTATEMENT (SECOND) OF TORTS § 332 cmt. l (1965). “In determining the
area included within the invitation, the purpose for which the land is held open, or
the particular business purpose for which the invitation is extended, is of great
importance.” Id. As explained in another treatise:
The area of invitation extends to all parts of the premises to
which the purpose may reasonably be expected to take the invitee, and
to those which are so arranged as to lead the invitee reasonably to
think that they are open to him or her. The test applied to determine
whether or not a person is an invitee at the place of injury is whether
the owner of the premises should have anticipated the presence of
someone such as the injured person at that particular place on the
premises.
62 AM. JUR. 2D Premises Liability § 99 (2019) (footnotes omitted). Other authorities
similarly hold that, in determining the scope of an invitation, the critical question is
23
what a visitor would reasonably understand to be the areas to which he or she had
been given access, based on all of the relevant circumstances, including the purpose
of the visitor’s visit; the possessor’s statements and conduct; past use; and the
physical layout of the premises.4
By asking the jury only whether Ford Motor had “given [Mr. Ford]
permission to enter” the seat stripper system, Ford Motor’s proffered instruction
omitted other factors – such as Mr. Ford’s reasonable belief based on Ford Motor’s
conduct; the physical layout of the premises; the customary use of the premises by
Walkenhorst drivers; and whether Ford Motor could have reasonably anticipated
Mr. Ford’s presence – that were relevant to a determination of whether Mr. Ford
was an invitee rather than a trespasser at the place of his injury. This provides an
additional justification supporting the circuit court’s rejection of Refused Instruction
G.
Trial courts are “under no duty to draft a correct instruction” for a party
requesting an instruction to submit their theory of the case. Cluck v. Union Pac. R.
Co., 367 S.W.3d 25, 34 (Mo. 2012); accord Barth v. St. Jude Medical, Inc., 559
S.W.3d 923, 925, 927 (Mo. App. E.D. 2018); SKMDV Holdings, Inc. v. Green
Jacobson, P.C., 494 S.W.3d 537, 556 (Mo. App. E.D. 2016). The circuit court did not
err in refusing to submit Ford Motor’s proposed instruction concerning Mr. Ford’s
purported status as a trespasser.
4 See, e.g., 65A C.J.S. Negligence § 524, at 343–45 (2010) (invitation includes
areas “where the invitee may reasonably be expected to go, or where the owner or occupant
ought in reason to understand that invitees would understand were for their use”; “An
invitation may extend to those parts of the premises which are so arranged as to lead an
invitee reasonably to think that they are open to the invitee.”; “An invitation to do business
extends . . . to all parts of the premises as it is reasonable for the visitor to believe are held
open to the visitor, and in determining the area included in a business invitation, the
nature of the business to be transacted is of great importance.” (footnotes omitted)); W.
PAGE KEETON ET AL, PROSSER AND KEETON ON TORTS § 61, at 424–25 (5th ed. 1984) (area of
invitation “extends to all parts of the premises to which the purpose [underlying the
invitation] may reasonably be expected to take him, and to those which are so arranged as
to lead him reasonably to think that they are open to him” (footnotes omitted)).
24
Point III is denied.
IV.
In Point IV, Ford Motor argues that the circuit court erred in denying its
motions for directed verdict and for judgment notwithstanding the verdict, because
the pinch point area was an open and obvious danger as a matter of law.
“[W]hen the dangerous condition is so open and obvious that the invitee
should reasonably be expected to discover it and realize the danger, a possessor of
land does not breach the standard of care owed to invitees ‘unless the possessor
should anticipate the harm despite such knowledge or obviousness.’” Harris v.
Niehaus, 857 S.W.2d 222, 226 (Mo. 1993) (quoting RESTATEMENT (SECOND) OF TORTS
§ 343A(1) (1965)). “As a general matter, therefore, a possessor’s actions do not fall
below the applicable standard of care if the possessor fails to protect invitees
against conditions that are open and obvious as a matter of law.” Harris, 857
S.W.2d at 226; see also Coomer, 437 S.W.3d at 193 n.4 (Mo. 2014) (“even after
comparative fault, the open and obvious nature of the risks is an issue for the court
to use ‘in determining a possessor of land’s standard of care’” (quoting Harris, 857
S.W.2d at 227) (emphasis added by Coomer)). An “obvious” danger is one in which
“both the condition and the risk are apparent to and would be recognized by a
reasonable man . . . exercising ordinary perception, intelligence, and judgment.”
Smith v. The Callaway Bank, 359 S.W.3d 545, 547 (Mo. App. W.D. 2012) (quoting
RESTATEMENT (SECOND) OF TORTS § 343A(1) cmt. b (1965)).
Ford Motor argues that the dangers of the seat stripper should have been
apparent to Mr. Ford if he was exercising ordinary perception, intelligence, and
judgment, and that Mr. Ford was actually aware of those dangers. Ford Motor cites
deposition testimony from a Walkenhorst driver who agreed that it was “common
sense” not to stand in the pinch point area of the seat stripper. Ford Motor
emphasizes that the area was guarded (on one side) by a bright yellow safety gate
25
which had an interlock that would turn the system off. Finally, Ford Motor argues
that the dangers of the seat stripper were actually known to Mr. Ford because a
fellow Walkenhorst driver told him to stay out of the area less than a week before
the incident.
The evidence in this case did not establish that the dangerousness of the
pinch point in the seat stripper was open and obvious as a matter of law. Although
one or more witnesses may have testified to their personal belief that the
dangerousness of the seat stripper system was open and obvious, the evidence also
indicated that Ford Motor had failed to comply with its own policies, with industry
standards, and with governmental regulations by failing to barricade, or post
warning signs, on both sides of the pinch point. In particular, warnings or a
barricade were lacking in the direction from which Mr. Ford entered the seat
stripper, which the evidence indicated was a common means of entry. In addition,
one of Ford Motor’s own employees testified that, although he was aware of the
pinch point and its dangerous potential, he was almost injured by it within the six
months before Mr. Ford’s injuries, because “you get that tunnel vision” when
performing a specific task in the middle of a noisy plant with a great deal of moving
equipment. Finally, one of the Plaintiffs’ safety experts, Franklin Darius, testified
that the erratic motion of the seat stripper and carrier system heightened its
dangerousness: “if [machinery] can stop for a long period of time and then suddenly
move without warning, it’ll catch people by surprise.”
Ford Motor also contends that the evidence establishes that another
Walkenhorst employee, Ken Holland, actually warned Mr. Ford about the danger of
the pinch point approximately one week before Mr. Ford’s fatal injury. Although
Holland testified that he warned Mr. Ford generally about the danger of being
inside the seat stripper while the machinery was operating, he executed a written
statement saying that he “did not explain to him about the pinch point or why it
26
was dangerous, but instead told him to just first shut off the machine before putting
the seats back on the machine.” Holland testified that although he did not advise
Mr. Ford of the pinch point, “I would have hoped . . . [t]hat someone who trained
him would have showed him the pinch points.” In addition, Holland testified that in
response to his advice that Mr. Ford should shut down the machine before
attempting to clear jammed seats, Mr. Ford responded that “somebody else told him
to keep it running.” Thus, on Holland’s own testimony, Mr. Ford had received
conflicting advice as to whether or not he needed to shut down the seat stripper and
carrier system before entering it.
The evidence failed to establish, as a matter of law, that the danger of the
pinch point was open and obvious. The circuit court did not err in denying Ford
Motor’s motions for directed verdict and for judgment notwithstanding the verdict.
Point IV is denied.
V.
In its fifth Point, Ford Motor asserts that, even if the “open and obvious”
issue did not entitle it to a directed verdict or judgment notwithstanding the
verdict, it was entitled to a separate instruction telling the jury that its verdict
must be for Ford Motor if the jury found that the danger of the pinch point was open
and obvious.
This Court rejected this precise argument in Privitera v. Coastal Mart, Inc.,
908 S.W.2d 779 (Mo. App. W.D. 1995). In Privitera, as here, a defendant argued
that the circuit court should have granted it a directed verdict because an injury-
causing condition was open and obvious as a matter of law. In the alternative, the
defendant argued that it was entitled to a separate instruction on the open and
obvious issue. This Court rejected the defendant’s argument that the dangerous
condition was open and obvious as a matter of law. We then held that the
defendant was not entitled to a separate instruction on the “open and obvious”
27
issue, but that the issue should instead be submitted to the jury as part of its
consideration of comparative fault. We explained:
The trial court did not err in refusing to submit this instruction
to the jury because the issue regarding whether the condition was open
and obvious is a question of law to be decided by the court. If the court
finds the condition was, as a matter of law, open and obvious, the case
is not submissible to the jury in the first place because the plaintiff has
not established the failure to protect against the complained condition
fell below the applicable standard of care. Thus, once the court has
properly determined the condition was not open and obvious as a
matter of law, the jury is to be instructed under normal comparative
fault instructions, which was done in this case.
Id. at 782. We followed Privitera in Williams v. Junior Coll. Dist. of Cent. Sw.
Missouri, 906 S.W.2d 400 (Mo. App. S.D. 1995), where we explained that, if a
condition is not open and obvious as a matter of law, “then a plaintiff’s knowledge
[of a dangerous condition], or knowledge that the plaintiff should have, is
considered in determining comparative negligence,” and should not be the subject of
a separate verdict-directing instruction. Id. at 403.
Point V is denied.
VI.
In its sixth Point, Ford Motor argues that the trial court erred in submitting
Instruction 14, which instructed the jury on the relevant standard for awarding
aggravating circumstances damages.
“‘Whether a jury is properly instructed is a matter of law’ this Court . . .
reviews de novo.” Johnson v. Auto Handling Corp., 523 S.W.3d 452, 459 (Mo. 2017)
(quoting Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 90 (Mo. 2010)).
Instructional error is grounds for reversal if “the error resulted in prejudice that
materially affects the merits of the action.” Hervey v. Missouri Dept. of Corr., 379
S.W.3d 156, 159 (Mo. 2012).
28
The circuit court’s aggravated circumstances instruction, Instruction 14, was
patterned after MAI 10.07. It provided:
If you assess a percentage of fault to defendant Ford Motor
Company under Instruction Number 8 and if you believe that
First, defendant failed to remove or barricade an accessible
pinch point in the seat stripper area of the Ford Kansas City Assembly
Plant, and
Second, defendant knew or had information from which
defendant, in the exercise of ordinary care, should have known
that such conduct created a high degree of probability of injury,
and
Third, defendant thereby showed complete indifference to or
conscious disregard for the safety of others,
then, in Verdict A, you may find that defendant Ford Motor
Company is liable for damages for aggravating circumstances.
(Emphasis added.)
Ford Motor argues that MAI 10.07 was the wrong instruction because the
requisite knowledge element was already addressed in the underlying negligence
instruction. Ford Motor contends that the circuit court should have submitted an
aggravated circumstances instruction modeled after MAI 10.02, which states in
relevant part:
If you find in favor of plaintiff under Instruction Number ________
(here insert number of plaintiff's verdict directing instruction based on
negligence), and if you believe the conduct of defendant as submitted in
Instruction Number ________ (here insert number of plaintiff's verdict
directing instruction based on negligence) showed complete indifference
to or conscious disregard for the safety of others, then in addition to
any damages to which you may find plaintiff entitled under Instruction
Number ________ (here insert number of plaintiff's damage instruction)
you may award plaintiff an additional amount as punitive damages in
such sum as you believe will serve to punish defendant and to deter
defendant and others from like conduct.
Ford Motor argues that Instruction 14 had the effect of “emphasiz[ing] allegations
of negligence, and bur[ying] the heightened standard the jury was required to use
when awarding aggravating circumstances damages.”
29
An instruction patterned after MAI 10.07 was the proper instruction in this
case, because the highlighted language required the jury to find the level of
knowledge necessary to support an award of aggravating circumstances damages,
and that level of knowledge was not required by the underlying negligence
instruction. In Alack v. Vic Tanny Int’l of Missouri, Inc., 923 S.W.2d 330 (Mo.
1996), the Missouri Supreme Court held that a plaintiff’s proffered punitive
damages instruction, based on MAI 10.02, was inadequate when the underlying
negligence instruction failed to include the requisite knowledge element. The court
emphasized that, in order to justify an award of punitive damages, “[t]he evidence
must show that, at the time of the act complained of, the defendant had knowledge
of a high degree of probability of injury to a specific class of persons.” Id. at 339
(citing Kansas City v. Keene Corp., 855 S.W.2d 360, 375 (Mo. 1993)).
The instruction submitted by plaintiff, however, failed to include
this necessary element of knowledge. The instruction was patterned
on MAI 10.02. The notes on use to MAI 10.02 . . . state that 10.02 is
not to be used when the verdict directing instruction does not contain a
submission on the issue of the defendant's knowledge. In this case,
neither the verdict director, based on MAI 17.02, nor the proposed
punitive damage instruction would have required the necessary
finding by the jury of [the defendant’s] knowledge. As clearly noted,
MAI 10.07 should have been submitted instead.
Id.
In this case, as in Alack, the underlying negligence verdict director failed to
include the state of mind required to support the award of punitive damages.
Instruction 8 provided:
In your verdict you must assess a percentage of fault to
defendant Ford Motor Company if you believe
First, plaintiffs Lisa Ford and David Jacob Ford were the wife
and son of decedent David Ford, and
Second, there was an accessible pinch point in the seat stripper
area of the Ford Kansas City Assembly Plant and a result that spot
was not reasonably safe, and
30
Third, defendant knew or by using ordinary care could
have known of this condition, and
Fourth, defendant failed to use ordinary care to remove or
barricade it, and
Fifth, such failure directly caused or directly contributed to
cause the death of David Ford.
(Emphasis added.) The knowledge required by Instruction 8 (that Ford Motor
“knew or by using ordinary care could have known” of the unsafe condition in the
seat stripper) is different from – and lower than – the knowledge required by Alack
to justify a punitive damage award: “knowledge of a high degree of probability of
injury to a specific class of persons.” 923 S.W.2d at 339. In these circumstances,
use of MAI 10.07, to require the jury to find the state of mind essential to an award
of aggravating circumstances damages, was proper.5
Ford Motor also argues that Instruction 14 was erroneous because it
purportedly submitted a different allegation of wrongdoing than Instruction 8.
According to Ford Motor, “[i]n Instruction 8, Plaintiffs identify the existence of a
pinch point as the fault,” while in Instruction 14, “Plaintiffs allege Ford [Motor]
failed to remove or barricade an access point.” There is no variance between the
misconduct alleged in Instructions 8 and 14. Paragraph “fourth” of Instruction 8
specifies that Plaintiffs’ allegation is that Ford Motor “failure to use ordinary care to
remove or barricade” the pinch point – precisely the same conduct on which
Instruction 14 is predicated.
Point VI is denied.
5 Because the circuit court’s aggravating circumstances instruction imposed on
Plaintiffs a higher burden with respect to Ford Motor’s state of mind than would have been
required by MAI 10.02, we question whether Ford Motor could have established prejudice
from the court’s submission of Instruction 14, even if that instruction were otherwise
erroneous.
31
VII.
In its final Point, Ford Motor argues that the trial court erred in admitting
evidence of other incidents in which Ford Motor or Walkenhorst employees were
injured, or nearly injured, in the pinch point in the seat stripper. These incidents
(which we have described in greater detail in our statement of the facts) included a
1996 incident in which Ford Motor employee Stephen Bray was caught in the pinch
point, and suffered a broken rib; a 2015 incident in which another Ford Motor
employee, Timothy Van Vickle, was advised to step back from the pinch point by his
supervisor, and narrowly avoided being crushed; and another 2015 incident in
which a Walkenhorst driver, Sal Cangelosi, suffered minor injuries when he was hit
by a carrier in the pinch point area, but avoided more serious injuries due to a
warning from, and intervention by, another Walkenhorst driver.
“Trial courts have ‘wide discretion on issues of admission of evidence of
similar occurrences.’” Johnson, 523 S.W.3d at 468 (citation omitted). We review a
trial court’s admission of such evidence to determine “that the evidence was
relevant and that the occurrences bore sufficient resemblance to the injury-causing
incident, while weighing the possibility of undue prejudice and confusion of issues.”
Id. (quoting Newman v. Ford Motor Co., 975 S.W.2d 147, 151 (Mo. 1998)). “To be
sufficiently similar, each occurrence must: (1) be of like character; (2) occur under
substantially the same circumstances; and (3) result from the same cause as that
alleged to have caused the accident in question.” Peters v. Gen. Motors Corp., 200
S.W.3d 1, 10 (Mo. App. W.D. 2006) (citing Lopez v. Three Rivers Elec. Co-op. Inc., 26
S.W.3d 151, 159 (Mo. 2000)); see also Johnson, 523 S.W.3d at 468. “Particularly
where the evidence is sought to be admitted on the issue of notice, ‘the similarity in
the circumstances of the accidents need not be completely symmetrical.’” Johnson,
523 S.W.3d at 468 (quoting Pierce v. Platte-Clay Elec. Co-op., 769 S.W.2d 769, 774
(Mo. 1989)); accord Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 446 (Mo. 1998).
32
The proponent probably will want to show directly that the
defendant had knowledge of the prior accidents, but the nature,
frequency or notoriety of the incidents may well reveal that defendant
knew of them or should have discovered the danger by due inspection.
Since all that is required is that the previous injury or injuries be such
as to call defendant’s attention to the dangerous situation that resulted
in the litigated accident, the similarity in the circumstances of the
accidents can be considerably less than that which is demanded when
the same evidence is used for one of the other valid purposes.
Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 926 (Mo. 1992), abrogated on other
grounds by Southers v. City of Farmington, 263 S.W.3d 603 (Mo. 2008).
As a case alleging negligence for a dangerous condition on business premises,
Ford Motor’s notice of the dangerous condition was a key issue in determining its
liability. In order for Plaintiffs to make a submissible case, they needed to show
that Ford Motor had actual or constructive knowledge of the dangerous condition
(the pinch point). See Breckenridge v. Meierhoffer-Fleeman Funeral Home, Inc., 941
S.W.2d 609, 611 (Mo. App. W.D. 1997). Thus, the verdict director, Instruction No. 8
stated, in relevant part:
Second, there was an accessible pinch point in the seat stripper
area of the Ford Kansas City Assembly Plant and as a result that spot
was not reasonably safe, and
Third, defendant knew or by using ordinary care could
have known of this condition.
As the Missouri Supreme Court has stated:
Where the theory of recovery is negligence, any knowledge or
warning that defendant had of the type of accident in which plaintiff
was injured clearly aids the jury in determining whether a reasonably
careful defendant would have taken further precautions under all the
facts and circumstances, which include the knowledge of defendant of
prior accidents.
Stacy, 836 S.W.2d at 926. “To establish constructive knowledge or notice, the
[dangerous] condition must have existed for a sufficient length of time or the facts
must be such that the defendant should have reasonably known of its presence.”
Porter v. Toys ‘R’ Us-Delaware, Inc., 152 S.W.3d 310, 316 (Mo. App. W.D. 2004).
33
The previous incidents involving Bray, Van Vickle, and Cangelosi all had
sufficient similarity to be admitted as similar occurrences because the incidents
were of “like character,” occurred “under substantially the same circumstances,”
and resulted “from the same cause as that alleged to have caused the accident in
question.” Peters, 200 S.W.3d at 10. The previous incidents all involved persons
who were working at the Kansas City Auto Plant within the scope of their
employment, and who were injured, or nearly injured, at the same pinch point in
the seat stripper as Mr. Ford, while they were working to maintain or service the
seat stripper as it was operating.
Ford Motor argues that the incidents involving Bray and Van Vickle, who
were both Ford Motor employees, are dissimilar because only employees were
authorized to enter the seat stripper. But as we have explained in § II above,
Plaintiffs presented sufficient evidence to support a jury finding that Walkenhorst
drivers like Mr. Ford were likewise authorized – and even expected – to enter the
seat stripper.
Although Ford Motor argues that the Bray incident is distinguishable
because a safety gate was installed after his injury, Plaintiffs presented substantial
evidence that the gate was insufficient because it failed to guard the pinch point
from the direction in which workers most commonly approached it.6 While Van
Vickle was not injured in the “near miss” incident in which he was involved, his
experience (witnessed by a supervisory Ford Motor employee) supported a finding
that Ford Motor was, or should have been, aware of the equipment’s dangerousness.
And despite Ford Motor’s contrary claims, there was sufficient evidence that Ford
6 Because it is otherwise sufficiently similar, the fact that the Bray incident
occurred twenty years earlier goes to the weight of the evidence, not its admissibility.
Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 159–60 (Mo. 2000).
34
Motor employees – who had an obligation to report such incidents to the company’s
safety department – were aware of each incident.7
The circuit court did not abuse its “wide discretion” in admitting evidence
concerning the Bray, Van Vickle, and Cangelosi incidents. Point VII is denied.
Conclusion
The judgment of the circuit court is affirmed.
___________________________________
Alok Ahuja, Judge
All concur.
7 Ford Motor argues that the testimony of Cangelosi and another Walkenhorst
driver, that they told a Ford Motor maintenance worker about the incident in which
Cangelosi was involved, was inadmissible hearsay. This testimony was not hearsay:
Where the issue is what the defendant’s agents heard[,] . . . state of
mind testimony is not offered to show the truth of the statements made.
Instead, it is offered to show the fact that the statements, whether true or
false, were made to defendant and, as a result, defendant had notice of a
potentially dangerous condition prior to any injury. State of mind testimony
in this category is not admitted as an exception to the hearsay rule. It is
admitted because it is not hearsay.
Bynote v. Nat’l Super Mkts., Inc., 891 S.W.2d 117, 121 (Mo. 1995).
35