Church v. CNH Indus. Am., LLC, No. WD 85103, 2023 WL 3470478, at *1 (Mo. Ct. App. May 16, 2023)
Plaintiff, an experienced mechanic, was hired to work on the hydraulics of a CNH Model 60XT skid steer. While working on the skid steer, Plaintiff was crushed when the cab fell and trapped him beneath, causing his death. A wrongful death action was filed against the manufacturer alleging among theories an action for strict products liability (failure to warn and instruct; design defect) and negligence. Specifically, Plaintiffs claimed that the skid steer had a defective design, that defendant CNH failed to warn users that the latch that held open the cab when undergoing maintenance (the hold-open latch) could easily break without the user’s knowledge, and that a broken latch would permit the cab to abruptly close.
Defendants raised comparative fault as a defense arguing Plaintiffs’ decedent improperly propped the skid steer before starting work, constituting misuse, and that decedent had been warned of the problem and advised of a safe method to perform the work, and failed to take protective measures such as tying the cab open.
In Missouri, strict product liability is a statutory cause of action governed by RSMo, §537.760-§537.765. Section §537.765 defines and allows only certain types of behavior to be pled and proved as comparative fault. These are:
- The failure to use the product as reasonably anticipated by the manufacturer;
- Use of the product for a purpose not intended by the manufacturer;
- Use of the product with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger;
- Unreasonable failure to appreciate the danger involved in use of the product or the consequences thereof and the unreasonable exposure to said danger;
- The failure to undertake the precautions a reasonably careful user of the product would take to protect himself against dangers which he would reasonably appreciate under the same or similar circumstances; or
- The failure to mitigate damages.
Missouri does not have an approved pattern instruction to give the jury in order to assess comparative fault. At the instruction conference, Defendant’s counsel tendered this instruction:
In your verdict, you must assess a percentage of fault to plaintiffs, if you believe:
- Decedent failed to use the skid steer as reasonably anticipated by the manufacturer; or
- Decedent used the skid steer for a purpose not intended by the manufacturer; or
- Decedent used the skid steer with knowledge of a danger involved in such use with reasonable appreciation of the consequences and the voluntary and unreasonable exposure to said danger; or
- Decedent’s use constituted an unreasonable failure to appreciate the danger involved in use of the skid steer or the consequences thereof and the unreasonable exposure to said danger; or
- Decedent failed to undertake the precautions a reasonably careful user of the product would take to protect himself against dangers which he would reasonably appreciate under the same or similar circumstances.
Second: Decedent, in any one or more of the respects submitted in Paragraph First, was thereby negligent, and
Third: Such negligence of decedent directly caused or directly contributed to cause the death of decedent.
The Court of Appeals agreed with the trial court that this instruction was not in proper form because it merely parroted the statutory language and did not hypothesize any actual “Facts.”
The Court explained that although “As a general rule, where the law is embodied in a statute, it is sufficient in instructions to the jury to follow the language of the statute… There are, however, exceptions to the rule, especially where the terms of the statute are general and indefinite… This is such a case, as “submit[ting] these defenses solely in their statutory form … would constitute a ‘roving commission.”
This case is important for pleading comparative fault as well. Many practitioners merely plead the statutory language, however Missouri, unlike Federal Court, requires fact pleading. So, to avoid a motion to dismiss, facts should be alleged with a correlation to the statutory categories.