Petition — McIntyre v. Everest & Jennings, Inc.

Supreme U.

| eZ 2 DB”

' JUL 24 1978

MICHAEL RODAK, JR., CLERK

In the Supreme Court of the United Sta

OCTOBER TERM, 1978

EDWARD C. McINTYRE and

CONNIE ELLEN McINTYRE,

Petitioners,

vs.

EVEREST & JENNINGS, INC.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

WruiaM H., Pickett

| 1801 Traders National Bank Building

1125 Grand Avenue

Kansas City, Missouri 64106

(816) 471-4881

Attorney for Petitioners

SMITH-GRIEVES, LAW PRINTERS, KANSAS CITY, MO.

TABLE OF CONTENTS

Statement of the Case—

Preliminary Statement ............:s:sssssssssessnessesssssessensensensenes

Pactual Background ........0..e.c.ccssssscsccscvsecsecsosensenessvensesseseets

Reasons for Granting the Writ

I.

Il.

III.

IV.

This Product Liability Case Presents Issues of

Exceptional Importance Regarding the Submission

on Theories of 9 ty Tt and Strict Liability and

Recovery on Only One of the Two Separate

SI ‘ecactechsetisinconneiienihceseniesneeniiencinnnmienaiaienniaiionsinine

The Decision of the Court of Appeals Represents

a Misapplication of the Provisions of Rule 49 of

the Federal Rules of Civil Procedure, and Repre-

sents a Complete Departure from the Accepted

and Usual Course of Judicial Proceedings in Jury

Trials Submitted on Multiple Theories of Liability

The Opinion of the Court of Appeals Represents

a Departure from Its Own Previous Decisions, and

Undermines the Plaintiffs’ Right to Trial by Jury,

in Its Failing to Grant Plaintiffs a New Trial on

the Theories of Negligence and Strict Liability...

The Opinion of the Court of Appeals Represents

a Significant Departure from the Acceptable

Standard of Review of a Trial Court’s Denial of

a Motion for Judgment N.O.V. ........csssssesseeseesecnees

ll

12

15

17

0

V. The Opinion of the Court of Appeals Conflicts

with Recent Missouri Law Which Held That

There Is No Legal Inconsistency Between a Ver-

dict for Plaintiff on a Theory of Negligent Failure

to Warn, and a Finding for Defendant on a Strict

ID sicsscsrcrinscinjisiuiainsimnpeinasonniacennimeonse 19

I 50 sotsaicnnnennssihsacinsedinnthdsesavsccsncssioonesnboeestebolaannsnesnontese 21

Appendix—

A. Opinion of the United States Court of Appeals for

RR MINIT Stents ctsisenicnshecsiuniessenntenanessnincatensinees Al

B. Order Granting Defendant’s Motion for Judgment

in Accordance with Its Motion fo: a Directed Ver-

dict on the Issue of Punitive Damages Oniy, Deny-

ing Defendant's Motion for a Judgment in Accord-

ance with Its Motion for a Directed Verdict on the

Issue of Actual Damages, and Denying Defendant's

Alternative Motion for a New Trial .............css000 Al2

C. Order of the United States Court of Appeals Deny-

IIIs chatiicicigrassiniinanelennevonceinainanesteninsisacsintveise Al6

D. Order of the United States Court of Ap Deny-

ing Reconsideration of Petition for Rehearing........A17

Table of Authorities

CasEs

Barker v. Lull Engineering Co., ........ Cal.3d ........ , CCH

Prod. Liability 18101 (No. 23519, 1/16/78) .........csss0 14

Blaw-Knox Food & Chemical Equipment Corp. v. Holmes,

MS NMI, BREE Pisinciecinsinscrsssesinsssensessccncsinpesessesee 19

Browder v. Pettigrew, 541 S.W.2d 402 (Tenn. 1976)........ 16

Campo v. Scofield, 301 N. Y. 468, 95 N.E.2d 802 0.00... 19

Collins v. Ridge Tool Co., 520 F.2d 591 (7th Cir. 1975)... 19

m

Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851 (8th

Cir. 1975) cert. denied, 423 U.S. 865 (1975)... 17

Hanson v. Ford Motor Co.,.278 F.2d 586 (8th Cir. 1960).. 17

King v. Deutsche Dampfs-Gel, 397 F.Supp. 618 (D.N.Y.

LOVE), aff. TES BBG Cap. TITS) oncenccssoresissnscenseessnsvensesessons 15

Ludwig v. Marion Laboratories, Inc., 465 F.2d 114 (8th

Rs TED siisdsnacevsotianeanianenipiasaaindiohohecdenbanisitinivaeaeetn 15, 16

Micallef v. Miehle Co., 39 N.Y.2d 376, 348 N.E.2d 571

COA II: sects chen etn cin 19

Morrison v. Frito-Lay, Inc., 546 F2d 154 (5th Cir. 1977).. 16

Missouri Pacific Railroad Co. v. Salazar, 254 F.2d 847 (5th

Cy BED sinshatald a eclecninitenicceaiiclininkscheaehainansibatieiaplesanadscnnnen 16

Outboard Marine Corp. v. Schupbach, 561 P.2d 450.......... 19

Peters v. American Ladder, No. 75-1400 (1st Cir. 2/23/76) 15

Rinker v. Ford Motor Company, No. KCD 28,550 (Mo.

Ril, SIRI TE) scvccitninvesiniinsicaeninetinsneniscinipisiiieisiiiicntiiticnn 19

Russ v. Ratliff, 538 F.2d 799 (8th Cir. 1976), cert. denied,

SF As. SN DED sinmintictlbanintnaciacebbiatlaunsaiadibineiananniiane 17

RULES

Rule 49, Federal Rules of Civil Procedure...............cccccc000 3,12

MSsCELLANEOUS

5A Moore’s Federal Practice 49.04 (1977 ed.)................ 15

6A Moore’s Federal Practice 59.08[4] (1977 ed.)............ 15

In the Supreme Court of the United States

OCTOBER TERM, 1978

ea

EDWARD C. McINTYRE and

CONNIE ELLEN McINTYRE,

Petitioners,

Vs.

EVEREST & JENNINGS, INC.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioners, Edward C. McIntyre and Connie Ellen McIntyre,

respectfully pray that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of Appeals

for the Eighth Circuit entered in this proceeding on February

13, 1978.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 575 F.2d

155 (8th Cir. 1978). The judgment and opinion of the District

Court is unreported. The District’s Judgment N.O.V. is un-

reported.

2

JURISDICTION

The judgment of the Court of Appeals which reversed the

judgment of the District Court, was entered on February 13,

1978. Subsequently, the Court of Appeals entered an Order

denying the Appellants /Cross-Appellees’ Petition for Rehear-

ing en Banc, on April 25, 1978. On May 5, 1978, Appellants/

Cross-Appellees filed a Motion for Reconsideration of Petition

for Rehearing en Banc. The Court of Appeals denied the

Motion for Reconsideration by its Order of May 16, 1978.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254. The jurisdiction of the District Court was based upon

28 U.S.C. §1332.

QUESTIONS PRESENTED FOR REVIEW

1. Did the Court of Appeals err when it held that in a

products liability case the Plaintiffs could not recover on the

theory of negligence when the jury verdict also contained a

verdict for the Defendant on the issues of strict liability?

2. Did the Court of Appeals err in reversing the verdict

for Plaintiffs on the issues of negligence because of an in-

consistent verdict for the Defendant on strict laibility, when

the verdicts were submitted without special interrogatories

to the jury and when no objections to the inconsistent verdicts

were made by the Defendant prior to the jury being dis-

charged?

3. Did the Court of Appeals err in holding that as a matter

of law the Defendant had no duty to warn of the tipping

propensities of the wheeled portable commode to tip for-

ward, thereby setting aside the jury verdict for Plaintiffs on

the issues of negligence?

4. Did the Court of Appeals err in failing to make every

3

reasonable effort to harmonize the inconsistent jury verdicts

on the theories of negligence and strict liability, when there

were four separate theories of negligence submitted to the

jury and the Court of Appeals, without the benefit of special

interrogatories from the jury, surmised that the findings of

negligence were based on failure to warn?

5. Did the Court of Appeals err by exceeding its limited

scope of review of the trial court’s denial of a motion for

judgment notwithstanding the verdict, when it failed to con-

sider the evidence in the light most favorable to the plaintiffs,

when it failed to give the Plaintiffs the benefit of all favorable

inferences which may reasonably have been drawn from the

facts proven, and when it failed to recognize that reasonable

men could differ as to the conclusion to be drawn with regard

to the Plaintiffs’ submissible case on four separate theories of

negligence?

6. Did the Court of Appeals err in substituting its own

view of the facts for the trier of fact when it reversed outright

the verdict and judgment for plaintiffs on the theory of negli-

gence, and completely ignored the plaintiffs’ expert testimony

as to the computation of the center of gravity and the tipping

propensity of the portable wheeled commode, and in conclud-

ing on its own, contrary to the evidence and the jury findings,

that the tipping propensity was an “open and obvious danger”?

7. Did the Court of Appeals err in reversing outright the

judgment for Plaintiffs and in failing to grant Plaintiffs a new

trial where the jury had returned a verdict in favor of Plaintiffs

on the theories of negligence, and for defendant on the theory

of strict liability?

4

RULES INVOLVED

Rule 49 of the Federal Rules of Civil Procedure provides:

SPECIAL VERDICTS AND INTERROGATORIES

(a) Special Verdicts. The Court may require a jury to

return only a special verdict in the form of a special writ-

ten finding upon each issue of fact. In that event the

Court may submit to the jury written questions sus-

ceptible of categorical or other brief answer or may

submit written forms of the several special findings which

might properly be made under the pleadings and evi-

dence; or it may use such other method of submitting

the issues and requiring the written findings thereon as

it deems most appropriate. The Court shall give to the

jury such explanation and instruction concerning the

matter thus submitted as may be necessary to enable the

jury to make its findings upon each issue. If in so doing

the Court omits any issue of fact raised by the pleadings

or by the evidence, each party waives his right to a trial

by jury of the issue so omitted unless before the jury re-

tires he demands its submission to the jury. As to an issue

omitted without such demand the Court may make a find-

ing; or, if it fails to do so, it shall be deemed to have made

a finding in accord with the judgment on the special

verdict.

(b) General Verdict Accompanied by Answer to Inter-

rogatories. The Court may submit to the jury, together

with appropriate forms for a general verdict, written in-

terrogatories upon one or more issues of fact the decision

of which is necessary to a verdict. The Court shall give

such explanation or instruction as may be necessary to

enable the jury both to make answers to the interroga-

tories and to render a general verdict, and the Court

shall direct the jury both to make written answers and to

5

render a general verdict. When the general verdict and

the answers are harmonious, the appropriate judgment

upon the verdict and answers shall be entered pursuant

to Rule 58. When the answers are consistent with each

other but one or more is inconsistent with the general

verdict, judgment may be entered pursuant to Rule 58 in

accordance with the answers, notwithstanding the general

verdict, or the Court may return the jury for further

consideration of its answers and verdict or may order a

new trial. When the answers are inconsistent with each

other and one or more is likewise inconsistent with the

general verdict, judgment shall not be entered, but the

Court shall return the jury for further consideration of

its answers and verdict or shall order a new trial.

6

STATEMENT OF THE CASE

Preliminary Statement

This is a product liability case in which Plaintiff Edward

C. McIntyre sought compensatory and punitive damages on

four theories of negligence and on strict liability, arising out

of injuries he sustained when he tipped out of a portable

wheeled commode Model (5C25) manufactured and sold by

Everest & Jennings, Inc. His wife Connie McIntyre sought

damages under the same theories for loss of consortium with

her husband.

This case presents important and significant questions on

submission of dual theories or multiple theories of liability

in Federal Court jury trials. The case also presents important

questions on the use of special verdicts and special interroga-

tories to juries, and the scope and nature of proper Appellate

review in connection with the use of special interrogatories,

special verdicts 2nd multiple submissions of theories to juries.

Additionally, this case presents important questions on the

availability of punitive damages in product liability cases. The

ruling of the Court of Appeals in this case results in imposing

upon plaintiffs in product liability cases, a risk of inconsistent

verdicts which, under the Appellate Court's ruling in this case,

is necessarily fatal to a plaintiff's case, even though the jury

returns a verdict in his favor and awards damages. Addition-

ally, this case presents important questions on the availability

of punitive damages in product liability cases. Because of the

increasing amount of litigation in the field of product liability,

and because of the frequency with which product cases are

submitted on multiple theories of recovery, the questions

presented in this case require resolution by this Court. This

Court’s review is necessary so that Courts of Appeals and

District Courts may be guided in the proper procedure and

7

review of multiple submissions of liability in jury trials, es-

pecially in the area of product liability.

Factual Background

Edward McIntyre is a paraplegic having suffered a spinal

cord injury at the T-3, T-4 level. As a result of that spinal

cord injury he was paralyzed from the nipple line of his chest.

On July 5, 1970, while sitting in the portable commode chair

manufactured by Everest & Jennings, Ed McIntyre dropped

his toothbrush while in his lavatory. While bending down to

pick up his toothbrush, the plaintiff leaned forward in the

chair to a point where the back wheels of the commode came

off the bathroom floor and the front wheels moved backward.

This action caused McIntyre to be thrown forward out of the

commode and resulted in the injuries involved in this case.

Robert Birch, a vice president of Everest & Jennings, Inc.,

had known since 1947 that it was conceivable for a paraplegic

to lean forward with the wheels of the commode in an aft

position. He also stated that he knew the commode could tip

forward and he had that knowledge since 1947. Mr. Bruce

Blickensderfer, the president of Everest & Jennings, Inc., knew

of the tipping propensity characteristic of the portable wheeled

commode since 1947. He stated that he knew of the possibility

of tipping the portable wheeled commode if one leaned far

enough forward.

There has never been an operation manual furnished with

the 5C25 portable wheeled commode from 1947 til the date

of the trial of this cause in September, 1976. Even after

Everest & Jennings, Inc. knew of the possibility of the tipping

when a user leaned too far forward, the defendant chose not

to furnish instructions or warnings on the commode in an

operation manual or any instructions which could be placed

in an owners manual or on the commode.

8

Prior to July 5, 1970, the defendant had received complaints

regarding the tipping propensities of chairs with the same

stability characteristics as the 5C25. The Glideabout, a chair

for arthritics, had the same dimensions and stability charac-

teristics as the 5C25 portable commode. Another commode

known as the Hollywood commode also had the same stability

characteristics and front caster arrangement as did the 5C25

commode. Prior to July 5, 1970, the executives of Everest &

Jennings knew of the alleged instability of Marie Seiple’s

Glideabout because she had written a letter and filed a lawsuit

alleging such instability when she leaned forward. It was not

the normal procedure at Everest & Jennings, Inc. to test any

product for alleged instability after receiving notice of such

allegations. Before July 5, 1970, a 917 commode with the

same forward stability characteristics as the 5C25 commode

was alleged to have caused injury to a person from being

unstable when the user leaned forward. After notice of Mrs.

Young’s claim on the 917 commode and Mrs. Seiple’s claim on

the Glideabout, Everest & Jennings still did not test or consider

redesign or modification of the 5C25 which had the same

forward characteristics as the other two products.

After receiving notice of alleged instability characteristics

of commodes with the same dimensions and front caster ar-

rangement as the 5C25 commode, Everest & Jennings, Inc.

made a concious decision not to test either mathematically

or mechanically any of their units on which they had received

complaints, or units which were similarly designed, including

the 5C25 commode.

Mr. Bruce Blickensderfer, president of Everest & Jennings,

stated that the defendant’s concern was one of utility for

the patient rather than safety for the patient. Matthew Hall,

an executive for Everest & Jennings, Inc. and a member of

the Safety Committee, stated that he did not have a duty to

9

determine the safety of the product even though it is to be

utilized by handicapped persons.

Rudolph Leutzinger testified as an expert witness on behalf

of the plaintiff. Leutzinger testified from mathematical cal-

culations in which he computed the center of gravity and

the tipping propensities of the portable commode. Leutzinger

testified on technical variations of the length of a wheel base

on the chair, which would affect the point at which the center

of gravity shifts to such an extent that the commode tips

forward. The lengthening of the wheel base, according to

Leutzinger, directly affects the point at which the com-

mode tips forward, according to mathematical calculations

of Leutzinger.

The case was tried to a jury and was submitted to the jury

on special verdicts. One special verdict contained the sub-

mission on the general rule of strict liability in tort, as stated

in §402A of the Restatement 2d of Torts. Additionally, there

were four theories of negligence submitted to the jury in one

special verdict. The theories of negligence submitted in the

negligence instructions were (1) that the commode was un-

stable by reason of negligent design; (2) that the defendant

failed to perform tests on the commode’s stability characteris-

tics; (3) that the defendant failed to warn of the tipping

propensities of the commode; and (4) that the defendant

failed to instruct the user of the risk of tipping when the user

leaned too far forward in the commode. Additionally, an in-

struction on the issue of punitive damages was submitted

to the jury.

The jury returned a verdict in favor of Plaintiff Edward C.

McIntyre on the issues of negligence, and awarded him com-

penastory damages in the amount of $15,000. The jury awarded

his wife, Connie McIntyre, compensatory damages in the

amount of $5,000 on the issues of negligence. The jury also

10

awarded Edward C. McIntyre punitive damages in the amount

of $45,000, and returned a verdict in favor of the defendant on

the issues of strict liability. Prior to the District Court dis-

charging the jury in this case, there were no objections made

by the defendant to the form of the verdict, or to the incon-

sistency of the verdict. Neither the District Court nor the

defendant made any attempt to ascertain from the jury the

basis for its findings for plaintiffs on the issues of negligence.

Following the trial and the jury being discharged the Dis-

trict Court entered an Order Granting Defendant’s Motion

for Judgment in Accordance with its Motion for Directed

Verdict on the Issue of Punitive Damages Only, Denying

Defendant’s Motion for a Judgment in Accordance with its

Motion for a Directed Verdict on the Issue of Actual Damages,

and Denying Defendant's Alternative Motion for a New Trial.

Plaintiffs appealed from the District Court’s order vacating

the award of punitive damages. The defendant cross-appealed

from the District Court’s order refusing to set aside the verdict

with respect to compensatory dau» zes.

The Court of Appeals in its opinion found that the two jury

verdicts were inconsistent. The Appellate Court, reasoning

that the failure to warn was the only possible basis for the

verdict on the issues of negligence, found that as a matter of

law the risk of tipping in the commode chair was “known,

obvious, and apparent” and therefore held that the evidence

did not support a recovery for plaintiffs. The Appellate Court,

without the benefit of special interrogatories from the jury,

reversed the judgment in favor of plaintiffs on the issues of

negligence and further declined to reach the issue of whether

punitive damages are available in product liability actions.

The Appellate Court, in setting aside the jury verdict for

plaintiffs, did not order a new trial, but rather, reversed out-

right and remanded with instructions to enter judgment in

favor of the defendant.

Ll

REASONS FOR GRANTING THE WRIT

I. This Product Liability Case Presents Issues of Excep-

tional Importance Regarding the Submission on Theories of

Negligence and Strict Liability and Recovery on Only One

of the Two Separate Theories.

In this action, Plaintiffs sued on theories of negligence and

strict liability, seeking damages for personal injuries sustained

by Plaintiff Edward McIntyre when he was tipped out of a

portable commode that had been manufactured and sold by

the Defendant. The jury returned a verdict in favor of

Plaintiffs on the issues of negligence and in favor of the

Defendant on the issues of strict liability. Additionally, Plain-

tiffs were awarded $45,000, punitive damages, which award

was set aside by the trial court on Defendant’s post-trial

motion.

This Court has never before considered the question of

inconsistent verdicts on strict liability and negligence in a

products liability case. Because of its importance in this case,

and because of the trend toward increasing products litigation,

it is respectfully suggested that the question presented in this

case should be fully reviewed by this Court.

In his opinion on the appeal in this case, Senior District

Judge Roy W. Harper, sitting by designation, noted only two

published opinions which have addressed the question of in-

consistent verdicts on strict liabliity and negligence. The Court

in this case stated that it declined to reach the question of

whether a finding for the Defendant on strict liability pre-

cludes a finding of negligence for Plaintiffs. While the Court

of Appeals stated in its opinion that it was declining to rule

on this issue, it did in a roundabout and indirect manner, reach

and rule on that very issue. Since the issue was determined

by the Court of Appeals, this Court should review this case

and face the question head-on.

12

There has been an increasing trend in products litigation

toward submission of multiple theories of liability. Courts have

held that plaintiffs are entitled to have their claims considered

on theories of both strict liability and, negligence. See for

example, Lindsay v. McDonnell Douglas Aircraft Corp., 460

F.2d 631 (8th Cir. 1972): Jiminez v. Sears, Roebuck & Co.,

4 Cal. 3d 379, 482 P.2d 681 (1971). However, the net result

of the Court’s decision in this case is to subject plaintiffs to

an unwarranted risk when they elect to submit more than

one theory of liability to a jury on a products case. As the

California Supreme Court recently noted in Hasson v. Ford

Motor Company, 19 Cal. 3d 530, 564 P.2d 857 (1977):

A finding of inconsistent verdicts in this case would ignore

the jury’s express finding of negligence, and would render

superflous a legal theory submitted to the jury without

objection of either party.

The effect of the decision of the Court of Appeals in this case

is exactly that which the California Court ought to avoid in

Hasson. The issue presented here needs to be reviewed by

this Court.

II. The Decision of the Court of Appeals Represents a

Misapplication of the Provisions of Rule 49 of the Federal

Rules of Civil Procedure, and Represents a Complete De-

parture from the Accepted and Usual Course of Judicial Pro-

ceedings in Jury Trials Submitted on Multiple Theories of

Liability.

In his opinion, Senior Judge Harper has approached this

case as though it were submitted on special interrogatories

which were inconsistent with each other. This is not the case.

The jury received instructions on two different and separate

theories of liability, and were only requested to designate in

the form of the verdict the parties for which they found on

13

strict liability, negligence and punitive damages. The jury

was never polled to ascertain the basis for its verdict on either

strict liability or negligence, and the inconsistency in the

verdicts was not objected to in this case prior to the jury

being discharged. Defendant did not raise the inconsistency

until its post-trial motions and this appeal. There was no

attempt made in the trial court to ascertain the basis for the

jury’s findings for the Defendant on the issues of strict li-

ability, and further, there was no attempt made by the trial

court to ascertain which of the four contentions of negligence

the jury relied on in returning a verdict for plaintiffs on negli-

gence. The jury was never requested to divulge its findings

on each element of the theories submitted.

On this appeal, the Court of Appeals speculated as to the

basis for the jury’s verdicts on both theories of liability. It has

been assumed by the Court of Appeals that the jury’s verdict

on strict liability was “predicated on the lack of a defective

condition in the commode . . .” This assumption on the part

of the Court of Appeals is not supported anywhere in the

record. It amounts to nothing more than speculation and

conjecture as to the jury’s factual findings.

On the appeal in this case, the Court of Appeals speculated

that the jury found the portable commode was not defective.

There is no such specific finding in the record. On the theory

of strict liability the jury was instructed that a verdict for

plaintiffs required a finding that the commode was in a “de-

fective condition unreasonably dangerous to the user or con-

sumer . . .” Under Missouri law, this is a two-pronged test.

The jury might have found that the commode was defective,

but was not unreasonably dangerous. The Court of Appeals,

in its one-sided speculation, failed to give plaintiffs the benefit

of this inference.

The California Supreme Court recently reviewed the two-

14

pronged requirement of 402A in the case of Barker v. Lull

Engineering Co., 2... > eae , CCH Products Li-

ability 18101 (No. 23519, 1/16/78). There the California

court reiterated its departure from the essential elements set

forth in 402A:

. . . we rejected the defendant’s contention, concluding

“that to require an injured plaintiff to prove not only that

the product contained a defect but also that such defect

made the product unreasonably dangerous to the user

or consumer would place a considerably greater burden

upon him than that articulated . . . . We are not pur-

suaded to the contrary by the formulation of section 402A

which inserts the factor of an ‘unreasonably dangerous’

condition” into the equation of products liability. CCH

Prod. Liab. 18101 at 16,648.

In light of the dual test of defectiveness and unreasonable

danger which is present in the Missouri rule of strict liability,

and on which the jury was instructed, it is impossible to

conclude in this case the jury’s verdict for the defendant on

strict liability was based upon a finding of no “defect.” There

is no way to ascertain from the record in this case which

finding supported the defendant’s verdict on strict liability.

The jury could have found that the commode was defective,

but not unreasonably dangerous, and thus reached its verdict

for the defendant under 402A. Therefore the Court should

not in this case, allow the defendant’s verdict under 402A to

be treated as though it were special interrogatories to the

jury. See Ludwig v. Marion Laboratories, Inc., 465 F.2d

114, 119 (8th Cir. 1972). This erroneous reasoning of the

Court in its own decision in this case resulted in assuming

that the jury had found the commode was not defective, and

therefore eliminated two of the Plaintiffs’ four theories of

negligence in its attempt to reconcile the “inconsistent” ver-

15

dicts. Instead, it is suggesetd that similar to the California

Court’s reasoning in Hasson, supra, and Peters v. American

Ladder, ....... F.2d (No. 75-1400, 2/23/76, Ist Cir.). the

Court of Appeals should have afforded plaintiffs every rea-

sonable inference in reviewing the “inconsistent” verdicts in

this case. The rule as it relates to inconsistent general ver-

dicts is stated at 6A Moore’s Federal Practice {59.08[4] at

p. 59-141 (1977 ed.):

. . . [BJut if a verdict for or against a party is proper

that verdict should not be set aside because the jury,

albeit inconsistently, did not similarly find on another

claim ...

Juries are permitted to return inconsistent verdicts. King

v. DeutscheDampfs-Gel, 397 F.Supp. 618 (D.N.Y. 1974),

affd. 523 F.2d 1042 (2d Cir. 1975), 5A Moore’s Federal Prac-

tice 149.04 (1977 ed.) >

III. The Opinion of the Court of Appeals Represents a

Departure from Its Own Previous Decisions, and Undermines

the Plaintiffs’ Right to Trial by Jury, in Its Failing to Grant

Plaintiffs a New Trial on the Theories of Negligence and

Strict Liability.

Rule 49(b) of the Federal Rules of Civil Procedure provides

that when answers are inconsistent with each other, the Court

shall “return the jury for further consideration of its answers

and verdict or shall order a new trial.” The opinion of the

Court of Appeals in this case violates the provisions of Rule

49(b) inasmuch as the Court of Appeals considered the spe-

cial verdicts to be in the nature of special interrogatories.

Moreover, the opinion of the Appellate Court amounts to a

departure from its own previous decision on inconsistent jury

16

findings. In Ludwig v. Marion Laboratories, Inc., 465 F.2d

114 (8th Cir. 1972) it was held:

Plaintiff did not object to the answers given to any of the

interrogatories prior to the discharge of the jury, neither

did he request that the jury be returned to the jury room

to reconsider its general verdict or the answers to the

interrogatories. Under these circumstances plaintiff

waived any right to now claim any inconsistency in the

answers or with the general verdict . . . the trial court

should have been given the opportunity to correct error,

if any existed, by resubmitting the matter to the jury. 465

F.2d at 118. (citations omitted, emphasis added. )

No objection to the apparent “inconistent” verdicts was

raised by the defendant in this case prior to the jury being

discharged. No attempts was made to seek clarification from

the jury, as to the basis for its verdicts. Instead, plaintiffs have

been subjected to the speculation and second-guessing of an

Appellate Court, which has resulted in depriving them of

their rights to have the issues of fact decided by a jury. The

course of events in this appeal violates Rule 49(b) of the

Federal Rules of Civil Procedure. In Missouri Pacific Railroad

Co. v. Salazar, 254 F.2d 847 (5th Cir. 1958), for example,

it was held that the jury’s findings were so inconsistent that

the verdict would not support a judgment. The cause was re-

versed and remanded for new trial. Even in Browder v. Petti-

grew, 541 S.W. 2d 402 (Tenn. 1976), where the Tennessee

Supreme Court determined that a verdict for the defendant

on strict liability and for plaintiff on negligence were con-

tradictory, it was described as “a contradiction which, under

the rules, must be resolved by the jury.” The case was re-

versed and remanded for new trial. Also in Morrison v. Frito-

17

Lay, Inc., 546 F.2d 154 (5th Cir. 1977) it was determined that:

... [I]n order for a verdict to stand the answers must

be consistent and, if not consistent, on appeal the case

must be remanded for a new trial. 546 F.2d at 160.

It is therefore clear that there was no basis for the Court

of Appeals determining by its own speculation and conjecture

that one of four theories of negligence furnished the basis for

the jury’s verdict on negligence. Petitioners, for the reasons

previously set forth in this Petition, suggest that the Appellate

Court should not have limited its review of the negligence

verdict to the issues of failure to warn or instruct. Four theo-

ries of negligence were submitted to the jury, and any one of

these may have furnished the jury’s basis for its verdict in

favor of plaintiffs on the negligence instruction.

IV. The Opinion of the Court of Appeals Represents a

Significant Departure from the Acceptable Standard of Re-

view of a Trial Court’s Denial of a Motion for Judgment

N.O.V.

The Appellate Court overlooked ...nificant evidence in the

trial of this case which would ~ »s°~ .:e Plaintiff's verdict

on the negligent failure to wa: ~ dering the question

of whether plaintiffs made a « case on their negli-

gence theory based upon failv’. co warn or instruct, plaintiffs

are entitled to have all of the vidence viewed in the light

most favorable to them, and they are also entitled to rely on

all reasonable inferences which can be drawn from the evi-

dence. Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851

(8th Cir. 1975), cert. denied, 423 U.S. 865 (1975); Hanson v.

Ford Motor Co., 278 F.2d 586 (8th Cir. 1960); Russ v. Ratliff,

538 F.2d 799 (8th Cir. 1976), cert. denied, 429 U.S. 1040

(1977). Although the Court of Appeals has paid lip service

18

to this rule, it is clear that the rule was not followed in this

case, and plaintiffs were not afforded the benefit of all rea-

sonable inferences which could have been drawn from the

evidence in this case. In fact, the Court’s reasoning amounts

to an oversimplificatoin of the issues presented in the trial of

this case, and deprives plaintiffs of reasonable inferences

drawn from the evidence presented. It is suggested that the

Court of Appeals grossly oversimplified the issue in its

statement that “it is common knowledge that any chair in-

cluding a chair with casters, will tip if the seated person leans

too far forward.” The expert testimony in this case consisted

of detailed and technical variations of the length of the wheel-

base on a chair which would affect that point at which the

center of gravity shifts to such an extent that the commode

tips forward. Further, the Court of Appeals overlooked crucial

evidence and inferences from the evidence in its statement

that plaintiff “received training in the use of a commode with

casters, similar to the one at issue. . . .” That statement over-

looks all favorable inferences which plaintiff should be af-

forded in determining the appropriateness of denying a mo-

tion for judgment n.o.v. The portable commode of the type

on which Ed McIntyre was trained was subpoenaed and was

offered into evidence in this case. The Court of Appeals over-

looked the crucial difference in the Everest & Jennings com-

mode in question and the Kansas University Medical Center

commode which was brought to the courtroom during the

trial. The difference in the two commodes consisted of a dif-

ference in the length of the wheelbase—the very thing which

plaintiff's expert stated is directly related to the forward sta-

bility of the commode. Plaintiff's expert testified that the

lengthening of a wheelbase increases the forward stability of

a chair on casters.

Lastly, with respect to the Appellate Court’s conclusion that

plaintiffs failed to make a submissible case on failure to warn,

19

the Appellate Court overlooked substantial changes in the law

regarding a manufacturer's liability for dangers which are open

and obvious. The Court of Appeals relied upon the duty to

warn which was enunciated in the case of Stevens v. Durbin-

Durco, 377 S.W. 2d 343 (Mo. 1964). However, the Stevens

case was based upon the doctrine previously enunciated by

the New York Court of Appeals in Campo v. Scofield, 301 N.Y.

468, 95 N.E. 2d 802. The Campo doctrine, which held that a

manufacturer’s duty to warn extended only to hidden defects

and concealed dangers, has now been rejected by the highest

court of New York in the case of Micallef v. Miehle Co., 39

N.Y. 2d 376, 348 N.E. 2d 571 (N.Y.App. 1976). The trend

away from Campo has been significant. Outboard Marine

Corp. v. Schupbach, 561 P.2d 450; Blaw-Knox Food & Chemi-

cal Equipment Corp. v. Holmes, 348 So. 604 (Fla.App. 1977);

Collins v. Ridge Tool Co., 520 F.2d 591 (7th Cir. 1975). Plain-

tiffs did, indeed, make a submissible case on the theory of

negligent failure to warn or instruct on the proper use of the

Everest & Jennings portable commode in question. The Court

of Appeals simply overlooked significant portions of the evi-

dence, and failed to draw reasonable inferences therefrom.

Moreover, the Court of Appeals overlooked a significant

change in the law which had previously been followed in

Missouri.

V. The Opinion of the Court of Appeals Conflicts with

Recent Missouri Law Which Held That There Is No Legal

Inconsistency Between a Verdict for Plaintiff on a Theory of

Negligent Failure to Warn, and a Finding for Defendant on a

Strict Liability Theory. 3

On May 1, 1978, the Missouri Court of Appeals for the

Kansas City District decided a case which directly applies to

the issues addressed in this case. Rinker v. Ford Motor Com-

pany, No. KCD28,550 (Mo. App. 5/1/78) was a product li-

20

ability action in which the plaintiff was awarded compensatory

and punitive damages on a submission of negligent failure to

warn. In the same case, the jury returned a verdict for the

defendants on the strict liability theory. The Missouri Court

of Appeals in the Rinker case held:

We believe the better rule to be that where separate

causes of action are joined under the permissive authority

of § 509.460 [R.S.Mo.] and tried together, a general ver-

dict will not be held to be fatally defective for incon-

sistency unless there is error in the pleadings, proof, or

submission of the action.

There is no legal inconsistency between a finding

against Ford in this case on the negligent failure to warn

theory and a lack of finding against Ford and Woods on

the strict liability theory. They are separate and distinct

theories of liability. What prompted the jury to act as it

did in this case is at best a matter of speculation and con-

jecture. The jury’s inquiry did indicate some difficulty

with the term “defective” used only in the strict liability

submission. The inquiry affords no basis for presuming

that the jury failed to follow the Court’s instructions. The

presumption of course, is that they did. Assuming, as do

both appellant and respondent Rinker, that the verdict

in favor of Rinker was based upon Instruction No. 4, the

jury could correctly arrive at a verdict against Ford on

the basis of that instruction, regardless of what conclusion

the jury might have reached on the strict liability submis-

sions. The assignment of error is without merit.

This most recent applicable decision of the Missouri Court

of Appeals addresses the identical issue as that which was

addressed in this case by the United States Court of Appeals

for the Eighth Circuit in its opinion filed February 13, 1978,

21

its Order denying petition for rehearing, and its Order deny-

ing the Motion for Reconsideration of Petition for Rehearing.

Only tive days after the United States Court of Appeals for the

Eighth Circuit denied rehearing to these petitioners, the Mis-

souri Court of Appeals entered the Rinker decision which

would have controlled the issues raised in this case. The

opinion of the Eighth Circuit Court of Appeals is inconsistent

not only with previous decisions of this Court on the con-

struction of inconsistent verdicts on separate theories of li-

ability, it also completely conflicts with existing law in the

State of Missouri. It would therefore only be fitting that this

Court review this case, and reconcile the conflicting decisions

under state and federal law as set forth above.

CONCLUSION

For all of the foregoing reasons, Petitioners respectfully

submit that this Petition should be granted and a Writ of

Certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Eighth Circuit.

Respectfully submitted,

WruiaM H. Picketr

1801 Traders National Bank Building

1125 Grand Avenue

Kansas City, Missouri 64106

(816) 471-4881

Attorney for Petitioners

Al

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

Nos. 77-1198 and 77-1244

Edward C. McIntyre, et ux.,

Appellants /Cross-Appellees,

Vv.

Everest & Jennings, Inc., etc.,

Appellee /Cross-Appellant.

Appeal from the United States District Court

for the Western District of Missouri.

Submitted: November 15, 1977

Filed: February 13, 1978

Before BRIGHT and ROSS, Circuit Judges, and HARPER,

Senior District Judge.°

HARPER, Senior District Judge.

Plaintiff, Edward McIntyre, brought this products liability

action for compensatory and punitive damages, suing under

theories of strict liability and negligence. His wife, Connie

McIntyre, joined in this suit seeking damages under the same

theories for the loss of consortium with her husband.

This suit was tried before a jury in the United States Dis-

~ The Honorable Roy W. Harper, Senior United States District Judge

for the Eastern District of Missouri, sitting by designation.

A2

trict Court for the Western District of Missouri, Judge Col-

linson presiding. A jury verdict was returned in favor of the

defendant on the issue of strict liability. With respect to the

question of negligence, the jury found in favor of the plain-

tiffs. Edward McIntyre was awarded $15,000.00, and _ his

wife $5,000.00, as compensatory damages for their injuries.

Additionally, the jury awarded $45,000.00 to Edward Mc-

Intyre (hereinafter the term plaintiff refers solely to Edward

McIntyre) as punitive damages.

Thereafter, the defendant made a motion for a judgment

in accordance with its motion for a directed verdict. The de-

fendant’s motion was sustained by the trial court with respect

to the award of punitive damages, but was denied as to the

compensatory damages. The plaintiff appeals from the trial

court’s order vacating the award of punitive damages. The

defendant cross-appeals the trial court’s refusal to set aside

the verdicts with respect to the compensatory damages.

The plaintiff is a paraplegic, having received a spinal cord

injury at the T-3, T-4 level in June of 1968. McIntyre is

paralyzed from the nipple line of the chest on down. After

receiving rehabilitation training at the University of Kansas

Medical Center, McIntyre obtained an over-the-toilet com-

mode chair from the defendant.

The defendant, Everest & Jennings, Inc., is the manufac-

turer of the commode chair involved herein. The particular

commode in question was originally designed in 1941 and has

been in production since then. The commode itself is quite

simple in design and function, consisting primarily of a chair

on caster wheels. Caster locks were available on this particular

commode, however the plaintiff chose not to purchase them.

On July 5, 1970, while sitting in the commode chair, plaintiff

dropped his toothbrush in the lavatory before him. While

A3

bending down to pick up the toothbrush, the plaintiff leaned

forward in the chair to a point where the back wheels of the

commode came off the bathroom floor and the front wheels

moved backward. This action caused McIntyre to be thrown

forward out of the commode and resulted in the injuries in-

volved herein.

The defendant asserts on appeal that the evidence and ver-

dict of the jury establish as a matter of law that the defendant

was not negligent. At the outset an apparent inconsistency

exists in the special verdicts submitted to the jury. In its

verdicts the jury found in favor of the defendant on the theory

of strict liability, finding no defect in the commode chair.

However, on the issue of negligence, the jury found in favor

of the plaintiffs.

Special answers or findings by the jury must be consistent

with each other. If they are irreconcilably inconsistent, they

destroy each other. It is, however, the duty of the Courts to

make ever reasonable effort to harmonize the answers. Gallick

v. Baltimore & Ohio R. Co., 372 U.S. 108, 119 (1963); Ludwig

v. Marion Laboratories, Inc., 465 F.2d 114, 118 (8th Cir. 1972);

Stockton v. Altman, 432 F.2d 946 (5th Cir.), cert. denied, 401

994 (1971).

This case was submitted to the jury under the general rule

of strict liability in tort as stated in Restatement (Second)

of Torts § 402A. That rule has been adopted in Missouri.

Keener v. Dayton Electric Manufacturing Co., 445 S.W. 2d 362,

364 (Mo. 1969). It provides:

(1) One who sells any product in a defective condi-

tion unreasonably dangerous to the user or consumer or

to his property is subject to liability for physical harm

thereby caused to the ultimate user or consumer, or to

his property, if

A4

(a) the seller is engaged in the business of sell-

ing such a product, and

(b) it is expected to and does reach the user or

consumer without substantial change in the condi-

tion in which it is sold.

The jury herein found that the portable commode chair

was not in a defective condition unreasonably dangerous to

the consumer. The jury verdict was clearly predicated on the

lack of a defective condition in the commode, inasmuch as

the other elements to this cause of action, that the defendant

was engaged in the business of selling portable commodes,

and that the commode reached the consumer without sub-

stantial change, were admitted by the defendant.

As to the negligence count, the case was submitted to the

jury under four theories: First, that the commode was un-

stable by reason of negligent design; second, that the de-

fendant failed to perform tests of the commode’s stability

characterictics; third, that the defendant failed to warn that

the commode would tip; and fourth, that the defendant failed

to instruct the user of the risk of tipping if the user leaned

forward.

Generally, in order to recover under either negligence or

strict liability it is necessary to prove that a defect existed

in the product at the time the manufacturer parted with

possession. Lindsay v. McDonnell Douglas Aircraft Corp.,

460 F.2d, 631, 636 (8th Cir. 1972). A verdict in favor of the

defendant-manufacturer on the issue of strict liability, finding

no defect in the product, would in some jurisdictions preclude

recovery under the theory of negligence. In Browder v. Petti-

grew, 541 S.W.2d 402, 404 (Tenn. 1976), the court stated:

We agree with counsel that in a products liability action

AS

in which recovery is sought under the theory of negli-

gence, the plaintiff must establish the existence of a

defect in the product just as he does in an action where

recovery is sought under the strict liability theory or for

breach of warranty, either express or implied. The only

significant difference is that under the negligence theory

the plaintiff has the additional burden of proving that the

defective condition of the product was the result of negli-

gence in the manufacturing process or that the manufac-

turer or seller knew or should have known of the defec-

tive condition.

. . . [W]Jhile proof of a malfunction alone should be

sufficient under the strict liability and warranty theories

in a products liability case, a higher standard of speci-

ficity of proof of defect is required in order to recover

under the negligence theory. (citations omitted. )

However, in Hasson v. Ford Motor Co., 19 Cal. 3d 530, 564

P.2d 857, 138 Cal Rptr 705 (1977), the California Supreme

Court reached a contrary conclusion. Therein the Court held

that recovery under a negligence theory is possible where

there was no finding of strict liability. Particular emphasis

was placed by the California Court on the submission of.neg-

ligence and strict liability counts to the jury as independent

theories, without an instruction to the effect that a failure to

find a defect under strict liability necessarily precluded all

liability on the defendant’s part. Hasson v. Ford Motor, supra,

138 Cal Rptr at 712.

The Courts of Missouri, the forum state in this diversity ac-

tion, have not decided this issue. While we are required to

apply state law in diversity cases, we are not bound to predict

state law developments when it is not necessary to do so.

Edwards v. Sears, Roebuck & Company, 512 F.2d 276, 291

(5th Cir. 175). We decline to establish a rule on this issue,

A6

but rather we hold only that insufficient evidence exists to

support a verdict in favor of the plaintiffs on the issue of

negligence.

In determining the sufficiency of the evidence, the issue is

raised as to whether the state or the federal test of sufficiency

of evidence to support a jury verdict should govern in a di-

versity action in Federal Court. The Supreme Court has de-

clined to resolve this issue. Dick v. New York Life Ins. Co.,

359 U.S. 437, 444-45 (1959). This Court, has, however, held

in prior diversity cases that where state and federal tests for

sufficiency of the evidence are similar and neither party has

raised the issue, we hold the state standard to be applicable.

Harwell v. Westchester Fire Ins. Co., 508 F.2d 1245, 1247

(8th Cir.), cert. denied, 421 U.S. 949 (1975); Gisriel v. Uni-

royal, Inc., 517 F.2d 699, 701 n.6 (8th Cir. 1971). Both parties

have argued the case on the basis that Missouri law applied.

Missouri state standards for testing the sufficiency of evidence

are substantially the same as federal standards. Meitz v. Gar-

rison, 413 F.2d 895, 896 (8th Cir. 1969); Lewis v. Nelson, 277

F.2d 207, 210 (8th Cir. 1960).

Review of a trial court’s denial of a motion for judgment

notwithstanding the verdict is severely limited. In Griggs v.

Firestone Tire & Rubber Co., 513 F.2d 851, 857 (8th Cir.),

cert. denied, 423 U.S. 865 (1975), citing Hanson v. Ford Motor

Co., 278 F.2d 586, 596 (8th Cir. 1960), we held that, in passing

upon a motion for judgment n.o.v., the trial court and the

Appellate Court are:

(1) to consider the evidence in the light most favorable

to the . . . parties prevailing with the jury; (2) to as-

sume that all conflicts in the evidence were resolved

. . in favor of the [prevailing parties]; (3) to assume

as proved all facts which [the prevailing parties’) evi-

dence tends to prove; (4) to give the [prevailing parties]

A7

the benefit of all favorable inferences which may reason-

ably be drawn from the facts proved; and (5) to deny

the motion if, reviewing the evidence in this light, rea-

sonable men could differ as to the conclusion to be drawn

from it.

An Appellate Court may not substitute its view of the facts

for that of the trier of fact unless it is in a position to hold

that reasonable minds, viewing the evidence in the light most

favorable to the prevailing party, could only have found other-

wise than the trier of fact. Russ v. Ratliff, 538 F.2d 799, 804

(8th Cir. 1976), cert. denied, 429 U.S. 1040 (1977).

The jury’s finding in favor of the defendant on the issue of

strict liability precludes a finding of negligent design of an

unstable commode or a negligent failure to perform tests of

the commode’s stability characteristics. The only basis upon

which the jury’s verdict could lie is either in a failure to warn

or instruct on the commode’s propensity to tip when the user

leaned forward.

With respect to a manufacturer’s duty to warn, Missouri

has adopted the rule stated in Restatement (Second) of Torts

§ 388 (1965). Griggs v. Firestone Tire and Rubber Co., supra

at 856; Morris v. Shell Oil Co., 467 S.W.2d 39, 42 (Mo. 1971).

It provides:

One who supplies directly or through a third person a

chattel for another to use is subject to liability to those

whom the supplier should expect to use the chattel with

the consent of the other or to be endangered by its prob-

able use, for physical harm caused by the use of the chat-

tel in the manner for which and by a person for whose

use it is supplied, if the supplier

(a) knows or has reason to know that the chattel

A8

is or is likely to be dangerous for the use for which

it is supplied, and

(b) has no reason to believe that those for whose

use the chattel is supplied will realize its dangerous

condition, and

(c) fails to exercise reasonable care to inform

them of its dangerous condition or of the facts which

make it likely to be dangerous.

Even assuming that the commode can be characterized as

“dangerous for the use for which it is supplied,” manufac-

turer’s liability here is not proper. “The law does not impose

upon manufacturers any duty to warn of many common dan-

gers, for no one needs notice of what he knows or reasonably

may be expected to know.” LaPlant v. E. I. DuPont de Ne-

mours & Co., 346 S.W.2d 231, 245 (Mo. App. 1961).

In Kerber v. American Machine & Foundry Co., 300 F.Supp.

1205, 1206 (W.D. Mo.), aff'd 411 F.2d 419 (8th Cir. 1969),

the trial court stated:

We believe that the case of Stevens v. Durbin-Durco, 377

S.W.2d 343, 346-348 (Mo. S.Ct. 1964) correctly states

the applicable rule of law:

“The manufacturer of a product which is potentially

dangerous when applied to its intended use (citing

cases) or reasonably certain to place life and limb in

peril when negligently made (citing cases) is under

a duty to a remote user to exercise ordinary care in

its manufacture, and is liable to a remote user in-

jured thereby if the injury results from a latent defect

bespeaking lack of ordinary care in making the

product.”

AQ

“[W ]here the danger is open, obvious and appar-

ent, or the user has actual knowledge of the defect

or danger, there is no liability on the manufacturer.”

Under that rule, we do not believe that reasonable

men could differ in finding that the danger was not

latent or concealed, but on the contrary, it was open,

obvious and apparent to all who used it, particularly

the plantiff who had—by his own admission—actual

knowledge of the danger and an awareness that he

could be hurt if he stuck his hand in the uncovered

opening.

In Coleman v. Buehner, 444 S.W.2d 16, 22 (Mo. App. 1969),

the Court stated:

Defendant could not be found negligent in failing tc

warn plaintiff of facts of which he had full knowledge.

There is no duty to warn a person on the premises of

dangers which are known, or are as well known to such

person as to the owner or occupant, or which are obvious

or should have been observed by such person in the exer-

cise of ordinary care.

Plaintiff was also guilty of contributory negligence as

a matter of law for the reason that he intentionally ex-

posed himself to a known and appreciated danger. (cita-

tions omitted. )

The plaintiff herein was fully aware of any danger involved

in the use of the commode. It is common knowledge that any

chair, including a chair with casters, will tip if the seated

person leans too far forward. Further, it is well known that

chairs with casters will tip more readily with the casters in a

trail position than with the casters in the forward position. In

testimony before the trial court, the plaintiff acknowledged

Al0

that as a part of growing up he was aware that if a person

leans too far forward in a castered chair it will tip and the

occupant will fall out.

The evidence in this case established that the plaintiff re-

ceived training in the use of a commode with casters, similar

to the one at issue, during his rehabilitation training at the

University of Kansas Medical Center. McIntyre also received

training in body balance and the limitations of movement due

to physical disability. The plaintiff was specifically instructed

not to lean forward in a chair because of the hazard of falling.

Additionally, McIntyre was provided with, and trained in the

use of reaching tongs to allow him to pick up objects without

leaning forward.

When the plaintiff acquired the commode involved herein,

he elected not to obtain caster locks because he was trained

at the medical center to transfer to a commode that did not

have caster locks. Thereafter, the plaintiff used this commode

daily or every other day for a period of sixteen months prior

to his fall without incident. This Court concludes that the

risk of tipping in the commode chair was known, obvious, and

apparent to the plaintiff.

The plaintiff also seeks to reinstate the jury verdict awarding

punitive damages against the defendant. The plaintiff's asser-

tion in this regard raises a novel question under Missouri law

as to whether punitive damages are available in product li-

ability actions.

This Court declines to reach this issue because the evidence

herein was insufficient to warrant any recovery. In Missouri

the plaintiff's inability to make a meritorious case for com-

pensatory damages necessarily precludes recovery of punitive

damages. Porterfield v. Burger King Corp., 540 F.2d 398, 403

(8th Cir. 1976); Decker-Ruhl Ford Sales, Inc. v. Ford Motor

All

Credit Co., 523 F.2d 833, 836 (8th Cir. 1975); Koenig v.

Skaggs, 400 S.W.2d 63, 68 (Mo. 1966).

For the reasons stated above, the District Court’s order

denying recovery of punitive damages is affirmed. The District

Court's order permitting recovery of compensatory damages is

reversed, and the case is remanded with directions to enter

judgment in this case in favor of the defendant, Everest &

Jennings, Inc., with each party to bear its own costs on appeal.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT

Al2

7 APPENDIX B

ORDER GRANTING DEFENDANT'S MOTION FOR JUDG-

MENT IN ACCORDANCE WITH ITS MOTION FOR A

DIRECTED VERDICT OF THE ISSUE OF PUNITIVE

DAMAGES ONLY, DENYING DEFENDANT'S MOTION

¥OR A JUDGMENT IN ACCORDANCE WITH ITS MO-

TION FOR A DIRECTED VERDICT ON THE ISSUE OF

ACTUAL DAMAGES, AND DENYING DEFENDANTS

ALTERNATIVE MOTION FOR A NEW TRIAL

(Filed February 15, 1977)

The Court submitted both the issues of actual damages

and punitive damages to the jury in this case. The jury

awarded the injured plaintiff (the husband) $15,000 actual

damages and awarded his spouse $5,000 actual damages. In

addition, the jury awarded the husband the sum of $45,000

punitive damages.

The defendant has filed herein a motion for “Judgment in

Accordance With Its Motion for Directed Verdict or in the

Alternative for a New Trial.” On the issues of liability and

actual damages the Court has carefully considered all of the

points raised in this motion. This is a products liability case

and the plaintiffs insisted upon submitting it to the jury both

on the theory of strict liability and the theory of negligence.

The jury found the issues in favor of the defendant on the

strict liability theory and in favor of the plaintiffs on the negli-

gence theory. The defendant strongly urges that these verdicts

are inconsistent but have cited no authority directly in point

on this bothersome question. The Court does not find any

merit in any of the other alleged errors in the trial of the case.

Al3

However, the Court has determined from reviewing the

evidence, and the governing law of the State of Missouri bear-

ing on the question of punitive damages, that this question

should not have been submitted to the jury and that the

Court should have granted defendant’s motion for a directed

verdict at the close of all the evidence on this issue.

Because the jury’s finding of liability was based solely upon

the theory of negligence, the Court is not faced with the

bothersome question of the awarding of punitive damages in

a strict liability case, about which so much has been written

recently. There are numerous cases in Missouri characterizing

the necessary conduct to support an award of punitive dam-

ages. In the case of McClellan v. Highland Sales & Invest-

ment Company, 484 S.W.2d 239 (Mo. Sup. 1972), the Court

held that to support an award of punitive damages “there must

be some element of wantonness or bad motive.” In the case

of Warner v. Southwestern Bell Telephone Company, 428

S.W.2d 596 (Mo. Sup. 1968), the Court stated:

“The acts of a defendant which justify the imposition of

punitive damages are those which are willful, wanton,

malicious or so reckless as to be in utter disregard of the

consequences. Such acts are clearly distinguished from

negligence. While they need not always include an intent

to do harm, they must show such a conscious disregard

for another’s rights ‘as to amount to willful and intentional

wrongdoing.’ ”

Many other cases could be cited from the Missouri Appellate

Courts to the same effect or containing even stronger language.

See Pashalian v. Big-4 Chevrolet Company, 348 S.W.2d 628

(St. L. Ct. App. 1961), which holds that the act “must be

Al4

done under such circumstances that the law will imply the

evil intent” in order to justify the award of punitive damages.

In this case, the negligence of the defendant cannot be

characterized, by any stretch of the imagination, as being

wanton, malicious or so reckless as to be in utter disregard of

the consequences. Under the controlling Missouri authorities,

the Court erred in submitting the issue of punitive damages

to the jury and defendant’s motion for a judgment on its

directed verdict on that issue must be granted.

It is therefore

ORDERED that the defendant’s motion for judgment in

accordance with its motion for directed verdict is granted on

the issue of punitive damages alone and that a judgment not-

withstanding the verdict be entered in favor of the defendant

on the issue of punitive damages; and it is

FURTHER ORDERED that the defendant’s motion for

judgment in accordance with its motion for directed verdict

on the issue of actual damages be, and is hereby, denied;

and it is

FURTHER ORDERED that the defendant’s alternative mo-

tion for a new trial be, and is hereby, denied.

Dated: 2/15/77

Judgment

This action came on for trial before the Court, Honorable

William R. Collinson, United States District Judge, presiding,

and the issues having been duly tried and a decision having

been duly rendered.

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It is Ordered and Adjudged that the defendant’s motion

for judgment in accordance with its motion for directed verdict

is granted on the issue of punitive damages alone and that a

judgment notwithstanding the verdict be entered in favor of

the defendant on the issue of punitive damages; and it is

FURTHER ORDERED that the defendant’s motion for

for judgment in accordance with its motion for directed verdict

on the issue of actual damages be, and is hereby, denied; and

it is

FURTHER ORDERED that defendant’s alternative motion

for a new trial be, and is hereby, denied.

Actual damages of plaintiff Edward C. McIntyre assessed

at $15,000.00. Plaintiff Connie Ellen McIntyre damages as-

sessed at $5,000.00.

Dated at Kansas City, Missouri, this 15th day of February,

1977.

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APPENDIX C

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

Nos. 77-1198 and 77-1244

Edward C. McIntyre, et al.,

Appellants,

Vv.

Everest & Jennings, Inc., etc.,

Appellee.

Edward C. McIntyre, et al.,

Appellees,

v.

Everest & Jennings, Inc., etc.,

Appellee.

Appeals from the United States District Court

for the Western District of Missouri

September Term, 1977

The Court having considered petition for rehearing en banc

filed by counsel for appellants/cross-appellees and, being fully

advised in the premises, it is ordered that the petition for

rehearing en banc be, and it is hereby, denied.

Judge Lay and Judge Heaney dissent from a denial of peti-

tion for rehearing en banc.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

April 25, 1978

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APPENDIX D

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

Nos. 77-1198 and 77-1244,

Edward C. McIntyre, et al.,

Appellants,

v.

Everest & Jennings, Inc., etc.,

Appellee.

Edward C. McIntyre, et al.,

Appellees,

V.

Everest & Jennings, Inc., etc.,

Appellant.

September Term, 1977

Appeals from the United States District Court

for the Western District of Missouri

Motion of Appellants/Cross-Appellees Edward C. McIntyre

et al., for reconsideration of Court’s Order of April 25, 1978

denying petition for rehearing en banc and rehearing is denied,

May 16, 1978