Moore v. Ford Motor Co.

FISCHER, J.,

concurs in opinion of PRICE, C.J.

RUSSELL, J., not participating.

*770 WILLIAM RAY PRICE, JR., Chief Justice.

In this case a six foot tall, three hundred pound woman, Ms. Moore, was driving a 2002 Ford Explorer. The Ford was struck from behind by another vehicle, causing Ms. Moore’s seat to collapse backward, despite the seat being one of the more secure in the industry. The collapse resulted in the fracture of Ms. Moore’s T9 vertebra.

At trial, Ford was granted a directed verdict on the Moores’ failure to warn claims. The only remaining claim, strict liability for design defect, was submitted to the jury. The jury returned with a finding that the seat was not defectively designed.

Notwithstanding the failure of the plaintiffs to offer any evidence of a feasible, adequate warning that would have avoided the injury, the majority reverses the trial court’s directed verdict ruling. I respectfully dissent and would affirm the trial courts ruling with respect to the failure to warn claims.

To establish a cause of action in Missouri for strict liability or negligent failure to warn plaintiffs must prove, among other things, that “defendant did not give adequate warning of the danger” and that plaintiff was “damaged as a direct result of the product being sold without an adequate warning.” Tune v. Synergy Gas Corp., 888 S.W.2d 10, 13 (Mo. banc 1994); MAI 25.09. The Moores, however, offered no evidence of what the “adequate warning” should have been and, thus, failed to prove what is required.

To assist the Moores in making their case, the majority invokes the “heeding presumption,” announced in Duke v. Gulf & W. Mfg. Co., 660 S.W.2d 404, 419 (Mo.App.1983) and Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. banc 1992). The “heeding presumption” assumes that had an adequate warning been given, it would have been heeded. Id. This presumption, however, does not establish that a warning was required or what an “adequate warning” would have been. “[T]he most the presumption does is establish that a warning would have been read and obeyed.” Kovach v. Caligor Midwest, 913 N.E.2d 193, 199 (Ind.2009).

Missouri adopted the heeding presumption from Indiana in Duke, 660 S.W.2d at 418 , specifically stating “[a]s to the sufficiency of evidence whether Mr. Duke would have heeded a warning not to operate the press without a guard, we would agree with the court in Craven v. Niagara Mach. & Tool Works, Inc., 417 N.E.2d 1165, 1171 (Ind.App.1981), that a rebutta-ble presumption must arise that a warning would be heeded.” Having adopted the “heeding presumption” from Indiana, Missouri should follow the additional eviden-tiary requirements imposed by Indiana with respect to failure to warn claims.

To make a submissible failure to warn case in Indiana, a plaintiff must offer some evidence of the content or placement of a warning that would have prevented the danger posed by the product in question. Nissen Trampoline Co. v. Terre Haute First Natl Bank, 265 Ind. 457 , 358 N.E.2d 974, 978 (1976); Morgen v. Ford Motor Co., 797 N.E.2d 1146, 1152 (Ind.2003). Such evidence is “indispensable to a rational conclusion that the product was defective and unreasonably dangerous to the user without warnings, and to a rational conclusion that such unreasonably dangerous condition was the proximate cause of the accident and injury.” Nissen Trampoline, 358 N.E.2d at 978 . Failure to offer evidence of this nature imposes upon courts the onerous duty of hypothesizing warnings that would alter a plaintiffs behavior or, as is the case here, they may *771 choose to ignore the inquiry altogether. Id.

Other jurisdictions also require plaintiffs to offer evidence as to what specific warnings would have been sufficient to avoid injury in order to establish a prima facie case for failure to warn. David G. Owen et al„ Madden & Owen on PRODUCTS Liability 586 (West Group, 3rd Ed.2000) (“Plaintiff should not prevail in a warnings suit if the record is bereft of evidence as to what type of warning might have prevented the accident”); Coleman v. Chesebro-Whitman Co., 262 A.D.2d 265 , 690 N.Y.S.2d 729 (1999) (where Appellate Division of the Supreme Court of New York affirmed summary judgment dismissing a cause of action for strict liability based on failure to warn because “plaintiffs failed to allege what the labels would have warned against and in what way the lack of such warnings was proximate cause of the accident”); see also Meyerhoff v. Michelin Tire Co., 852 F.Supp. 933, 947-948 (D.Kan.1994) (plaintiff must not only propose a warning, but “establish that warning’s feasibility, adequacy, and effectiveness”); Pelman v. McDonald’s Corp., 237 F.Supp.2d 512, 540 (S.D.N.Y.2003) (standard for failure to warn liability includes such issues as “feasibility and difficulty of issuing warnings in the circumstances”); Downing v. Overhead Door Corp., 707 P.2d 1027, 1033 (Colo.App.1985) (warning must be feasible to establish strict liability for failure to warn); Oxford v. Foster Wheeler LLC, 177 Cal.App.4th 700, 717 , 99 Cal.Rptr.3d 418 (2009) (whether the absence of a warning makes a product defective involves several factors, including “the feasibility and beneficial effect of including such a warning”). To require anything less invites not only a roving jury instruction, but the danger of subjecting a manufacturer to liability for failing to do the impossible.

The majority makes a leap by presuming that an adequate warning would have been heeded, without any evidence of what that adequate warning would have been or whether it was even feasible to construct one. The Court need look no further than the instant case to see the folly invited by the majority’s extension of the “heeding presumption.” Despite the fact that the seat in question was one of the safest in the industry, the Moores argue that when people of a particular size are traveling at a particular speed the seat may fail. Thus, a hypothetical warning, as to the likelihood that the seats might collapse, must be in the form of a sliding-scale, varying among a myriad of factors, including weight of occupants, height of occupants and the velocity of impact. Tellingly, the Moores failed to offer any evidence as to the wording of this problematic warning, its feasibility or where it might have been placed.

While it is true that Duke and its progeny make no reference to a requirement that a plaintiff specifically plead an adequate warning, those cases involved relatively simple, common sense warnings that are a far cry from the complex calculations required here. See Duke, 660 S.W.2d 404 (operating power press without a guard); Arnold, 834 S.W.2d 192 (exposing air compressor’s electrical switch to gas fumes); Tune, 883 S.W.2d 10 (propane tank overfilled).

Because the Moores failed to offer any evidence as to what a feasible, adequate warning might say or where it might be placed, they did not make a submissible case. At least some evidence of a feasible, adequate warning should be required before application of the “heeding presumption.”