[26] CRAHAN, Presiding Judge, concurring in result.

I respectfully concur in result. I would affirm the judgment on the ground that the issues on appeal were not properly preserved by a timely motion for new trial. On the merits, I agree that Plaintiffs made a submissible case but cannot join in the majority's analysis of the issue.

It is undisputed that Defendant's motion for new trial was untimely if, in fact, it was filed on January 10, 1995 as indicated by the official clerk's stamp on both the motion and the envelope it apparently arrived in, as well as the official minute entries filed by the clerk's office. The trial court, however, on Defendant's motion and without a hearing, found that the file stamped date of January 10, 1995 was a "clerical mistake" and, pursuant to Rule 74.06(a) ordered the record corrected nunc pro tunc to reflect filing on January 9, 1995.

For nearly one hundred years, Missouri has followed the rule that a nunc pro tunc order must be based upon the official records of the court.

The record must in some way show, either from the judge's minutes, the clerk's entries, or some paper in the cause, the facts authorizing such entries, and no such entries can be made from the memory of the judge, nor on parol proof derived from other sources.

Ross v. Kansas City, F.S. M. Ry. Co., 141 Mo. 390, 395, 38 S.W. 926, 42 S.W. 957 (Mo. 1897). "That no such order nunc pro tunc can be made on parol evidence is settled and not open to argument." Unterreiner v. Estate of Unterreiner, 899 S.W.2d 596, 598 (Mo. App. 1995) (quoting In re Marriage of Rea, 773 S.W.2d 230, 232 (Mo.App. 1989) and E.C. Robinson Lumber Co. v. Hazel, 271 S.W.2d 610, 612 (Mo.App. 1954)).

The majority upholds the nunc pro tunc order in this case on the basis of a handwritten notation on the Federal Express envelope, which was itself date stamped and filed in the clerk's office on January 10, 1995, one day late. A photocopy of the pertinent portion of the federal express envelope is attached. The printed, unsigned notation relied upon by the majority states: "To Division 10 Judge Koehr 1-9-95." According to the majority, this notation "indicated the motion was actually received in the clerk's office on January 9, 1995, although not date stamped until January 10, 1995." Op. at 824.

Had Defendant offered some competent evidence to support the assumption that the handwritten notation was made by someone in the clerk's office, I would have no problem affirming the nunc pro tunc order. The fact is, however, the present state of the record is that the handwritten notation is hearsay. Indeed, it is hearsay from an unknown source written at an unknown time under unknown circumstances. Although it is not parol evidence and thus may be considered in accordance with Rule 74.06, it is not substantial evidence which, standing alone, is sufficient to support the action of the court because it is hearsay. Unless admitted without objection, hearsay evidence is not competent and substantial evidence. Youngman v. Doerhoff, 890 S.W.2d 330, 337 (Mo.App. 1994); Hacienda Enterprises No. 2, Inc. v. Smarr, 841 S.W.2d 807, 811 (Mo.App. 1992). To be upheld on appeal, the ruling of the trial court must be supported by substantial evidence. Rogers v. Ricci Associates, Inc., 829 S.W.2d 63, 65 (Mo.App. 1992) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Without any competent evidence as to who made the notation and when they made it, the majority's assumption that the notation was made by the clerk's office is pure speculation. It is at least as plausible that the notation was placed on the envelope by one of Defendant's counsel's employees as a more specific indication of the place and date delivery was desired. Further, because there is no competent evidence as to when the notation was placed on the envelope, there is no assurance that the notation was not placed there after it became apparent that the document was not timely filed. Although I do not in any way suggest that Defendant or its counsel would engage in such subterfuge or did so in this case, we must nevertheless be cognizant of the potential for such unethical behavior in any case. The court's files are accessible by any member of the public. This is the reason why we have official stamps and have uniformly exacted a heavy burden of proof from parties seeking to challenge the record. To accept the flimsy record in this case as sufficient to overcome the official record of the clerk's action invites abuse in future cases.

The fact that the unsigned notation on the envelope was addressed to the judge that tried the case (Op. at p. 824) is of no import. As noted above, there are logical reasons why such a notation might appear on the envelope even if it was made by someone unconnected with the clerk's office. To the extent that the majority's observation suggests that Judge Koehr could properly rely on his recollection of the document being forwarded to him on January 9, 1995, the law is indisputably otherwise. See, e.g., Grimes v. Bagwell, 728 S.W.2d 688, 689 (Mo.App. 1987) ( nunc pro tunc cannot be based on judge's recollection of what took place); Warren v. Drake, 570 S.W.2d 803 (Mo.App. 1978) (same).

Nor is the incompetent and insubstantial character of the handwritten notation on the envelope cured or otherwise corroborated by the parol evidence offered by Defendant in support of its motion. Wholly aside from the fact that parol evidence will not support a nunc pro tunc order, all of Defendant's evidence on the issue of when the motion was delivered to the clerk's office is hearsay. The secretary's affidavit and records are competent evidence that the documents were given to Federal Express for delivery on January 6, 1995, but the act of depositing a document in the mail does not constitute filing. Norman v. Landing, 681 S.W.2d 8, 9 (Mo.App. 1984). The affidavit is not competent to establish that the document was received by the clerk on January 9, 1995 because the secretary's only knowledge as to whether the document was received by the clerk on that date is based on what the clerk allegedly told her on the telephone — i.e., hearsay. Likewise, the unsigned letter from Federal Express and associated billing records are not competent to establish delivery to the clerk because these documents are also hearsay and Defendant made no effort to lay a foundation for the documents as business records. Incompetent evidence cannot be used to "corroborate" other incompetent evidence and thereby cure its incompetent and insubstantial character. Parol evidence restrictions aside, there is no competent and substantial evidence to support the trial court's finding that the official file stamp date of January 10, 1995 was a "clerical mistake." Thus, the trial court erred in entering its nunc pro tunc order and Defendant's motion for new trial must be deemed untimely. Absent timely filing of a motion for new trial, neither submissibility nor any other issue raised by Defendant is preserved for our review. Rule 78.07; Noland v. State Farm Mutual Auto Ins. Co., 853 S.W.2d 327, 329 (Mo.App. 1993). Accordingly, I would affirm the judgment on that basis.

Assuming arguendo that the issue of submissibility was properly preserved, I agree that Plaintiffs made a submissible case but respectfully disagree with the majority's analysis of what Plaintiffs must prove to make a submissible case or its conclusion that § 537.765.3(3) RSMo 1994 relegates the obviousness of the product's condition exclusively to a question of comparative fault.

At the time of the accident, the Massey Ferguson tractor which is the subject of this case was nearly twenty-five years old. It was originally sold in 1966 to Mr. Tietjens, an unrelated third party not involved in this case, and was resold by the dealer to decedent's father in 1968. It was not equipped with a ROPS, which consists of a roll bar and seat belt or harness. The nature of the ROPS is such that one can tell at a glance whether a tractor is equipped with ROPS or not. Decedent's father had several tractors, one of which, originally purchased by decedent, was equipped with a ROPS.

It is generally known that tractors will roll over under certain circumstances and there was no evidence that this particular tractor. was more prone to roll over than others. A ROPS does not affect the tendency of a tractor to roll over. Rather, it is intended to provide protection if and when a rollover occurs.

Defendant urges that the Plaintiffs failed to meet their burden of proof because they did not, and could not, establish that the tractor was more dangerous than would be contemplated by an ordinary user or consumer. This is because the absence of a ROPS is open and obvious from even the most cursory glance at a tractor. Because those who use tractors know that tractors sometimes roll over and, in the absence of a ROPS, there is nothing to prevent serious injury or death if it does roll over, Defendant maintains the absence of a ROPS does not and cannot render the tractor any more dangerous than would be contemplated by the ordinary user.

Although Defendant strenuously urges that Missouri has adopted the consumer contemplation test in this sort of case, the most that can fairly be said is that the law in this area is muddled. In Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo. 1969), the Missouri Supreme Court adopted the doctrine of strict liability as embodied in the Restatement (Second) of Torts § 402A, imposing liability upon "[o]ne who sells any product in a defective condition [un]reasonably dangerous to the user or consumer. . . ." 445 S.W.2d at 364. Keener did not specifically address the definitions of "defective condition" or "unreasonably dangerous" set forth in the comments to § 402A. However, those definitions were adopted and applied in Aronson's Men's Stores, Inc. v. Potter Elec. Signal Co., 632 S.W.2d 472 (Mo. banc 1982). Specifically, the court held that a "defective condition," as provided in Comment g to § 402A, "is a `condition not contemplated by the ultimate consumer which will be unreasonably dangerous to him.'" 632 S.W.2d at 474. "Unreasonably dangerous," as explained in Comment I to § 402A, "means that: `The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.'" Id. Together, these definitions encompass what may generally be termed the consumer contemplation test. They are consistent with the general approach of § 402A in that they impose strict, but not absolute, liability, and generally preclude liability where a consumer's knowledge and appreciation of any danger is equal to the seller's, such as where an adequate warning is given. See, e.g., Restatement (Second) of Torts, Comments j, k. Where the product is in precisely the condition contemplated by the consumer and any danger presented by anticipated use is fully appreciated by consumers generally, there is no liability. Consumers can perform the risk/utility equation for themselves and conduct themselves accordingly.

Although Aronson's appeared to settle the law with respect to the consumer contemplation principles embodied in § 402A, four years later in Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371 (Mo. banc 1986), the Missouri Supreme Court said that it had "not yet formally incorporated, in any meaningful way, the Restatement's consumer expectations test into the lexicon of our products liability law." Id. at 377. Although the passage in which this language appears was clearly labeled by the court as dicta, Aronson's was characterized as merely noting the Restatement definitions and not as necessarily adopting the standard of defectiveness embodied therein. Id. at 377-78 and n. 10.

Based on this discussion in Nesselrode, the Eighth Circuit later observed that while the Missouri Supreme Court had not adopted the consumer contemplation test, it had not rejected it. Pree v. Brunswick Corp., 983 F.2d 863, 867 (8th Cir. 1993). Noting that several Missouri cases had nonetheless applied the consumer contemplation test as embodied in Comment i's definition of "unreasonably dangerous," the Eighth Circuit proceeded to apply the test in holding, as a matter of law, that unguarded boat propellers were not unreasonably dangerous beyond the expectations of the ordinary consumer, thus barring recovery under Missouri product liability law. Id. at 868.

Nesselrode is also significant in that it states, contrary to the definition set forth in Comment g adopted in Aronson's, that the concept of unreasonable danger is determinative of whether a product is defective in a design case, thus essentially equating the terms "defective condition" and "unreasonably dangerous." 707 S.W.2d at 378. It is not clear whether this was intended to be a change in the law and it does not appear that such a change, if intended, would have affected the outcome of Nesselrode. If a change was intended, it would be significant because it would remove a previously required element of the plaintiff's case — i.e., that the product was, when it left the seller's hands, in a condition not contemplated by the ultimate consumer. See Aronson's, 632 S.W.2d at 474; Restatement (Second) of Torts, § 402A, Comment g. This would also be inconsistent with Blevins v. Cushman Motors, 551 S.W.2d 602, 606-08 (Mo. banc 1977), which first set forth the test for strict liability in design defect cases. See Blevins, 551 S.W.2d at 608 ("To establish the manufacturer's liability it was sufficient that the plaintiff proved that he was injured while using the [golf cart] in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the [golf cart] unsafe for its intended use," quoting Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 901 (1963) (emphasis added)). In view of the fact that Nesselrode relied on and did not purport to change Blevins, however, and the fact that the plaintiff in Nesselrode provided proof that the design defect was neither apparent nor appreciated, Nesselrode should not be construed as eliminating the "defective condition" element of the plaintiff's case.

Further, whatever significance Nesselrode might have had on the development of the product liability doctrine as a matter of common law has been substantially diminished by the enactment of § 537.760 RSMo 1994 et seq., defining the elements of a product liability claim and the defenses applicable thereto. Specifically, § 537.760 defines a products liability claim as a claim for damages on a theory that the defendant is strictly liable because the defendant transferred a product in the course of his business, the product was used in a manner reasonably anticipated and, either or both of the following:

(a) The product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use, and the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold; or

(b) The product was then unreasonably dangerous when put to a reasonably anticipated use without knowledge of its characteristics, and the plaintiff was damaged as a direct result of the product being sold without an adequate warning.

Even a cursory review of this statute establishes that the legislature has not equated the terms "defective condition" and "unreasonably dangerous." If the legislature intended the term "defective condition" to mean "unreasonably dangerous," there would have been no reason to employ both terms in § 537.760.3(a) — i.e., "The product was then in a defective condition unreasonably dangerous. . . ." If "defective condition" were construed to mean "unreasonably dangerous," the term "defective condition" would thereby be rendered superfluous and redundant. In determining the meaning of words intended by the legislature the general rules of statutory construction require that meaning be given to each word used in the statute insofar as possible, and one word should not be considered a needless repetition of another. J.S. DeWeese Co. v. Hughes-Treitler Mfg., 881 S.W.2d 638, 643 (Mo.App. 1994). In this particular instance, the fact that the legislature intended the term "defective condition" to have some meaning other than "unreasonably dangerous" is further confirmed by comparing the language of § 537.760.3(a) and (b). An action based on an alleged product defect as provided in subsection 3(a) requires proof that the product was in a "defective condition unreasonably dangerous" whereas an action based on failure to warn as provided in subsection 3(b) only requires a showing that the product was "unreasonably dangerous." It necessarily follows that the legislature intended both that the term "defective condition" should be accorded an independent meaning and that it does not mean "unreasonably dangerous."

In the context of § 537.760, the only reasonable construction that can be accorded the terms "defective condition" and "unreasonably dangerous" is to accord them the same meaning they were accorded by the Missouri Supreme Court in Aronson's. Not only is the language "in a defective condition unreasonably dangerous" precisely the language employed in the Restatement (Second) of Torts § 402A adopted in Keener, the Restatement definitions of these terms were expressly adopted in Aronson's and represent the only judicial construction of the terms prior to the adoption of § 537.760. "When the legislature enacts a statute referring to terms which have had other judicial or legislative meaning attached to them, the legislature is presumed to have acted with knowledge of that judicial or legislative action." Citizens Electric Corp. v. Director of Dept. of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989). Thus, under the plain language of § 537.760.3, to make a submissible product defect case, the plaintiff must establish both that the product was then in a defective condition — i.e., in a condition not contemplated by the ultimate consumer which will be unreasonably dangerous to him, and that the product was unreasonably dangerous — i.e., that it was dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

The burden of establishing that the product be shown to be in a condition not contemplated by the consumer must not be confused with the defendant's burden of pleading and burden of proving assumption of the risk or other species of comparative fault enumerated in § 537.765. The focus of the plaintiff's burden is on the defectiveness of the product. Thus, whether the product was in a condition not contemplated by the ultimate consumer refers to the knowledge and appreciation of danger to be expected of any consumer or user of the product as defined in Restatement (Second) of Torts § 402A Comment 1. It does not and cannot be construed to mean that the plaintiff must prove that the condition was not known and appreciated by the injured party. At the time the defendant transfers the product in the course of his business the identity of the injured party would not be known. The injured party's knowledge is therefore irrelevant in determining whether the plaintiff has made a submissible case. Thus, the issue of whether the condition is one not known to the consumer is essentially an objective test, requiring proof as to what would be apparent to and appreciated by any consumer of the product, not the consumer that happens to be injured. The injured party's knowledge is a matter of comparative fault. As provided in § 537.765.2, the defendant may plead and prove the knowledge of the plaintiff as an affirmative defense. Assumption of the risk as defined in § 537.765.3(3) thus necessarily refers to the plaintiff's knowledge of the risk and appreciation of the danger. This is necessarily a subjective test. See also Restatement (Second) of Torts § 402A, Comment n. (Plaintiffs subjective discovery of the defect and appreciation of the danger constitutes assumption of the risk.)

As noted above, Defendant's position in this case is essentially that Plaintiffs failed to establish that the tractor was in a condition not contemplated by the ordinary user or consumer because the absence of a ROPS is obvious to anyone looking at a tractor. Further, Defendant urges that the propensity of tractors to roll over and the consequences of a rollover in the absence of a ROPS are known and appreciated. Thus, Defendant reasons, the absence of a ROPS cannot render the tractor more dangerous than would be contemplated by the ordinary user or consumer. In its brief, Defendant analogizes ROPS to automobile air bags or side impact air bags, the absence of which would be equally apparent to a user or consumer.

Although Defendant's argument undoubtedly has a superficial appeal, it ignores the evidence adduced by Plaintiffs in this case and subtly misportrays the nature of Plaintiffs' defect claim. Although Defendant seeks to portray the dangerous condition in this case as the absence of a ROPS, the dangerous condition identified by Plaintiffs' experts was the dynamic instability of tractors which makes them more prone to roll over than farmers generally understand and appreciate. Plaintiffs' experts testified that although a tractor may safely be operated on an even slope of up to thirty degrees or more, the stability of the tractor is dramatically diminished when it is pulling an implement, as this one was, and diminished further still when the tractor encounters unevenness in terrain or a small depression as this one apparently did. According to Plaintiffs' experts, this dynamic instability is inherent in the design of a tractor and cannot be completely removed through changes in design. Plaintiffs' experts testified that farmers, however, do not fully understand and appreciate the manner in which a tractor's stability will be diminished when pulling farm implements or by relatively minor changes in terrain which can cause a tractor to roll over even when the situation appears completely safe to the farmer. Because it is impossible to design a tractor which will not be subject to such unpredictability, Plaintiffs' experts maintained that the only way to make the tractor safe for reasonably anticipated farm operations is to add a ROPS, which will not prevent rollovers, but will, if properly utilized, significantly diminish the likelihood of serious injury or death if a rollover occurs.

This evidence was sufficient to make a submissible case of product defect based on defective design. If believed by the jury, Plaintiffs' evidence was sufficient to permit the jury to find that the design of the tractor presented a risk of rollover in unpredictable situations not fully appreciated by farmers generally and that in the absence of a ROPS, this inherent dynamic instability condition of tractors presents a danger beyond that which would be contemplated by the ordinary consumer with knowledge common to the community as to its characteristics.

It is certainly true, as Defendant maintains, that anyone looking at the tractor would realize it did not have a ROPS and therefore nothing to protect the operator if the tractor did roll over. But that is not the issue. What is not apparent to the user is the likelihood that the tractor will roll over even in circumstances which appear to be safe. The absence of ROPS is surely no more obvious than the absence of a fourth wheel or the narrow wheel base on the golf cart in Blevins. 551 S.W.2d at 608. It is no doubt frequently true that the design of a product is fully apparent from a casual inspection. Yet where the design presents a dangerous condition of which the consumer would not be aware, the manufacturer may be held strictly liable for harm resulting from that condition.

Finally, it is perhaps worth noting that Defendant's attempt to equate a ROPS and an air bag overlooks a fundamental distinction. The danger presented by the dynamic instability of the tractor is a danger created by the product itself which, under the evidence, is a condition not fully understood or appreciated by farmers generally. The ROPS is designed to protect against that danger. The danger addressed by air bags is a danger external to the design of the vehicle — i.e., collision with another vehicle or object. There is generally nothing about the design or manufacture of an automobile which would enhance the likelihood of a collision beyond what the consumer would contemplate. Thus, consumers are fully apprised of the danger and can make their own risk/utility decisions about whether the added safety of an air bag is worth the added expense. On this record, at least, the same cannot be said of roll bars on tractors.

I agree that Defendant's remaining points of error may properly be affirmed pursuant to Rule 84.16(b). Most of Defendant's points pertain to matters within the discretion of the trial court. Although in many instances the circumstances would have supported a contrary ruling, none of the rulings complained of on appeal can fairly be characterized as an abuse of the trial court's discretion. The balance of the points are either unsupported by authority or legally without merit based on established precedent.

For the foregoing reasons, I would affirm the judgment of the trial court.