Opinion
No. ED74823
OPINION FILED: December 21, 1999
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, HON. ROBERT L. CAMPBELL.
Dallas W. Cox, Jr., 111 West Port Plaza, Suite 610, St. Louis, MO 63146, for appellant.
Steven E. Danekas and Kevin B. Reid, 225 West Wacker Drive, Chicago, IL. 60606-1229, Clark H. Cole and Thomas B. Weaver, One Metropolitan Square, Suite 2600, St. Louis, MO 63102, for Respondent, Crosman Corporation.
Jerry R. Wilding, Suite 400, Pennsylvania Building, 217 N. 10th Street, St. Louis, MO 63101, for Respondent Susan and Travis Andrews.
Plaintiffs, Timothy Herman and his parents, appeal verdict and judgment for defendant Crosman Corporation (Crosman) on plaintiffs' claims of defective design, failure to warn and negligence with regard to a powerful air BB/pellet rifle. Plaintiffs also appeal verdict and judgment in favor of defendants Sue and Travis Andrews on plaintiffs' negligence theory. Plaintiffs filed a second amended petition for personal injury arising from injuries Timothy Herman (Tim), then a minor, sustained as a result of Aaron Blumenfeld (Aaron), also a minor at the time, shooting Tim in the eye using a Crosman Model 2100 combination BB/pellet air rifle on July 27, 1994. The jury found in favor of Crosman on plaintiffs' failure to warn theory. It also found in favor of Sue Andrews (Mrs. Andrews) and her son, Travis Andrews (Travis), on plaintiffs' negligence theory. The trial court entered its judgments in accordance with the verdicts. We affirm the judgment for the Andrews. We reverse and remand the judgment for Crosman.
Plaintiffs' claim against Aaron Blumenfeld was settled prior to trial.
BACKGROUND
On the date of the injury, July 27, 1994 Mrs. Andrews was a widow who worked during the week until approximately 5:30 p.m. During the school year, Travis arrived home at approximately 2:30 p.m. and would stay there by himself until Mrs. Andrews arrived. While Travis was home alone, Mrs. Andrews allowed him to invite no more than three friends into their home. She was aware that Travis' friends, Aaron and Tim, spent considerable time together at their home without any adult supervision. Further, she approved of the boys being on the premises alone as long as either she or Travis gave them permission to be there.
The Andrews' house had an attached garage. Travis and his friends often entered the house through the garage or entered the garage to retrieve sports equipment and bicycles. The sports equipment was stored in trash cans without lids.
Mrs. Andrews purchased a Crosman Model 2100 combination BB/pellet air rifle (Model 2100) for Travis. She normally stored the rifle at her father's house. She did not allow Travis to shoot the rifles around their house. The rule was that he could only use them at his grandfather's house or his uncle's house. However, there were occasions when Travis used the rifles at home. When she discovered that Travis and his friends used the rifles at her house, she locked the rifles in the trunk of her car. They remained in her car until she went on vacation, and Travis went to his grandparent's house with the rifles. When Mrs. Andrews came home from vacation, a couple of days before the injury, she picked up Travis and retrieved the rifles. She and Travis unloaded the car in her garage and placed the rifles in the trash cans where sporting equipment was stored.
In summer 1994, Travis worked as a lifeguard for the subdivision pool located near the Andrews' residence. On the day of the injury, Travis was working. Tim and Aaron met Travis at the pool and waited for him to finish work. Travis suggested that Tim and Aaron wait for him at his house while he completed his lifeguard duties for the day. Tim and Aaron walked to the Andrews' house. When they arrived, they entered the garage using the digital code to open the garage door. On previous occasions, Travis had given the garage door code to both boys so they were familiar with entering the Andrews' garage. Tim went to the back of the garage, sat on a step leading into the house and played with his shoelaces. Aaron went through a trash can containing the sports equipment and air rifles. He picked up one of the rifles, pumped it and shot it at Tim's foot. Tim testified that he did not sustain any injury from this shot. Aaron then put the rifle back in the trash can and picked up the Model 2100. He checked it to see if it was unloaded, walked around the garage and checked it one more time. He did not see a BB or pellet in the chamber. He walked to the entrance of the garage with rifle in hand. He aimed it at Tim, who stood up from the step at this point. Aaron raised the rifle, still pointing it at Tim, and shot him in the left eye. Tim immediately fell to the ground and covered his eye with his hand.
The case was tried and the jury returned a verdict on May 17, 1998. The jury found in favor of defendants Mrs. Andrews, Travis and Crosman.
APPEAL OF THE JUDGMENT FOR ANDREWS
Plaintiffs claim two points of error with respect to the judgment for Mrs. Andrews: (1) the court erred in instructing the jury that the legal standard of care, which applied to her, was that of ordinary care; and, (2) the court improperly excluded evidence of interrogatory answers of Sue and Travis Andrews regarding their knowledge of prior BB rifle use at their residence. In their petition, plaintiffs alleged that Mrs. Andrews breached her duty to use, maintain and supervise the Model 2100. Plaintiffs' allegation that she failed to properly supervise the use of the Model 2100 is unfounded. Missouri recognizes recovery on the basis of negligent supervision; however, "the duty to supervise runs not to an activity, but rather to an individual." Bequette v. Buff, 862 S.W.2d 921, 924 (Mo.App.E.D. 1993). The facts will not support a negligent supervision theory.
Plaintiffs argue that Mrs. Andrews should be held to the highest degree of care, as opposed to the duty of ordinary care. Therefore, they submit that the court erred in directing the jury to consider whether she breached a duty of ordinary care for the manner in which she used, handled and stored the Model 2100. They argue that her duty arises from the operation of the Model 2100. However, her duty to plaintiffs in Tim's use and her handling and storage arises out of the relationship between a possessor of real property and a licensee upon that property. The duty of care depends upon Tim's classification. Id. at 925. Generally, entrants onto land are classified as trespassers, licensees or invitees. Id. The possessor owes a different duty to each.Id. The duty owed to an invitee, a business visitor, is irrelevant. An entrant is considered a trespasser until the possessor gives that person permission to enter. Cochran v. Burger King Corp., 937 S.W.2d 358, 361 (Mo.App.W.D. 1996). An entrant can enter as a licensee, with the possessor's permission or invitation, but once he deviates from the scope of the permission or invitation, he reduces his status to a trespasser.Id. at 362. "Deviation from an invitation occurs when the entrant acts in a manner inconsistent with the scope of an express or implied invitation, thereby demonstrating a change in relationship between that person and the possessor." Id. Thus, the change in status of the entrant correspondingly changes the duty of the possessor. Id. As a matter of law, the common law categories of entrants onto property must be applied to analyze the status of Tim at the time of the injury. Id. at 361.
The evidence supports finding the following facts. Travis testified that he instructed Tim and Aaron to wait for him at his house. However, he did not give them express permission to enter the garage. Travis also testified that he was surprised to learn that they entered the garage. Plaintiffs presented evidence that Travis had given the garage combination to both Tim and Aaron the day before the incident and the morning of the incident. However, the permission to enter the garage did not extend to the afternoon when Tim and Aaron entered the garage, and Aaron shot Tim with the air rifle. Further, Mrs. Andrews testified that she did not have any prior knowledge of the boys entering her garage or home while she and Travis were not home. She did not consent to such use. She was surprised to learn that they had entered the garage when her son was not there. The analysis under this set of facts, at most, categorizes Tim as a licensee to whom the Andrews owed a duty of ordinary care. Id. at 362.
As a general rule, a possessor of land owes no duty to a trespasser. Id. at 364. Any exception to the general rule of non-liability must be specifically pleaded. Id. at 365. Here, plaintiffs alleged that Mrs. Andrews breached a duty of the highest degree of care in light of the minors frequenting her residence. With respect to children trespassers, a possessor of land owes a duty of reasonable care. Crawford v. Pacific Western Mobile Estates, Inc., 548 S.W.2d 216, 218 (Mo.App. 1977). Additionally, we have held that "more vigilance and caution is required" when exercising reasonable care to child trespassers.Wadlow by Wadlow v. Lindner Homes, Inc., 722 S.W.2d 621, 632 (Mo.App. 1986) (further citation omitted). The trial court did not err in instructing the jury to apply the ordinary care standard to Mrs. Andrews where such duty is appropriate whether Tim was a licensee or a minor trespasser. Point denied.
In their second claim of error with respect to Mrs. Andrews, plaintiffs argue that the trial court erred in excluding from evidence interrogatory answers of Sue and Travis Andrews. Just before the close of their case, plaintiffs' attorney offered into evidence their answers to interrogatories regarding a previous use of the air rifle. Defendants' attorney objected on the ground that the evidence was cumulative. After hearing the interrogatory questions and answers, the judge sustained the objection.
The trial court is vested with sound discretion to admit or exclude evidence. Belden v. Chicago Title Ins. Co., 958 S.W.2d 54, 57 (Mo.App.E.D. 1997). We will reverse its decision if there is substantial or glaring injustice. Id. Thus, we must determine whether the trial court abused its discretion in the exclusion of the evidence, not whether the evidence was admissible. Id. Throughout the course of the trial, there was testimony of prior use of the air rifle. The answers were cumulative. Accordingly, we do not find any error in excluding the interrogatory questions and answers. Point denied.
APPEAL OF THE JUDGMENT FOR CROSMAN
Plaintiffs argue the trial court erred in restricting their discovery requests of Crosman to a four-year period. Plaintiffs requested that Crosman produce information known to it regarding an air rifle within a ten-year period prior to the date of service of the requested discovery. In particular, plaintiffs requested Crosman to produce the following documents:
17. All petitions for damages and/or complaints of users or those claiming injury in connection with any lawsuits or other documents in which it was claimed of the product type or product type substantially similar in design that a cause of such damages was in the design or materials of the following product parts:
(a) Product part known as the safety;
(b) Absence of automatic safety;
(c) Inability of a visual examination of the open chamber of the product or product type to reveal presence of a loaded pellet upon pulling the bolt rearward;
(d) Absence of a warning indicator to alert the user that a pellet is loaded in the chamber;
(e) Failure to adequately warn of any dangers of use.
Additionally, plaintiffs' request contained a definition section, which included the following definition of "substantially similar":
H. When referring to product type, the phrase "substantially similar" should be interpreted to mean product type which utilizes any of the same mechanism, absence of mechanism, or design of the product parts which plaintiffs set out in Count III, paragraph VI, and all subparagraphs thereof, at pages 10 and 11 of Plaintiffs' First Amended Petition.
Crosman filed a motion in limine requesting, among other things, that the trial court limit the scope of discovery. The court sustained Crosman's motion in part, limiting the discovery to the four-year period prior to the date of injury.
A transcript of the motion in limine hearing is not included in the legal file or record.
Trial courts have broad discretion in administering the rules of discovery. State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. 1998). We review the trial court's decision for an abuse of discretion. Id. As there has been a tendency towards liberality in discovery, "the trial court's discretion to deny discovery is commensurately more limited." State ex rel. Stolfa v. Ely, 875 S.W.2d 579, 581 (Mo.App.W.D. 1994).
Parties may obtain discovery of any relevant information, which includes material reasonably calculated to lead to the discovery of admissible evidence. Dandurand, 970 S.W.2d at 342; Rule 56.01(b)(1). In their second amended petition, plaintiffs filed claims against Crosman for defective design, failure to warn and negligence. Discovery of other reported or claimed injuries may lead to additional relevant and admissible evidence to support finding a product's defectiveness, Wilson Court, Inc. v. Teledyne Laars, 747 S.W.2d 239, 242 (Mo.App. 1988), and defendant manufacture's knowledge of damages. Carney v. BIC Corp., 1999 WL 504588 *1, *3 (Mo.App.E.D. July 6, 1999). However, admissibility of other accidents involving the same product is limited to accidents that occurred under "the same or substantially similar conditions as that involving the plaintiff, and with reasonable proximity in time." Wilson Court, Inc., 747 S.W.2d at 242. The trial court also weighs the "possibility of undue prejudice and confusion of issues." Budding v. Garland Floor Co., Inc., 939 S.W.2d 419, 425 (Mo.App.E.D. 1996). Evidence of other occurrences of reported injuries is highly relevant to support finding notice of a defect or dangerous condition. See Stacy v. Truman Medical Ctr., 836 S.W.2d 911, 926 (Mo.banc 1992); see Carney, 1999 WL 504588 at *4; State ex rel. Stolfa, 875 S.W.2d at 581.
In response to plaintiffs' request for document production described in paragraph seventeen, Crosman specifically denied "that any individual had ever been injured by any defect or defective condition in a Model 2100." It also objected to paragraph seventeen as "vague, ambiguous, overly broad, unduly burdensome, argumentative, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence." However, Crosman agreed to produce documents of general injuries from a Model 2100 occurring between August 27, 1990 and July 24, 1994.
We delineated the scope of discovery in State ex rel. Kawasaki Motors Corp., U.S.A. v. Ryan, 777 S.W.2d 247 (Mo.App. 1989). Requests for production are not overbroad, burdensome and oppressive if they are: (1) limited to the time frame in which the product was manufactured; (2) limited to the production model of the product involved and the alleged defective components; and (3) limited to the issues of alleged defects raised in the petition. State ex rel. Kawasaki Motors Corp., U.S.A. v. Ryan, 777 S.W.2d 247, 253 (Mo.App. 1989). Here, the Model 2100 was first manufactured and marketed in approximately 1983. Plaintiffs' discovery requests were directed at Crosman's predecessor, Coleman Airguns, Inc., on March 4, 1997. Plaintiffs limited their production requests to a ten-year period prior to the service of the discovery requests, which is after manufacture began. Plaintiffs further limited the request by seeking prior petitions in which users of the Model 2100, or a product substantially similar to the Model 2100, caused injury by the same alleged defects as in plaintiffs' claim caused by the Model 2100. Plaintiffs' requests for production were not overbroad or unduly burdensome.
Crosman argues plaintiffs have not shown there are substantially similar models to the Model 2100 for which they are seeking discovery. In Rinker v. Ford Motor Co., 567 S.W.2d 655, 663 (Mo.App. 1978), the Kansas City District of this court held discoverable owner reports of all Ford-made vehicles, which reported the same throttle "jamming" that the plaintiff claimed.Rinker v. Ford Motor Co., 567 S.W.2d 655, 663 (Mo.App. 1978). The reports were not limited to the plaintiff's specific type of automobile or motor. Id. Here, plaintiffs defined "substantially similar" and limited their request to the product models utilizing the same mechanism, absence of mechanism or design of the product part, which causes an inability when visually examining the open chamber to detect the presence of a loaded pellet when the bolt is pulled rearward. The request also sought product models, which lacked a warning indicator that a pellet is loaded in the chamber. Plaintiffs sufficiently defined "substantially similar," thereby effectively limiting the scope of discovery.
Further, the Western District of this court has held that a products liability plaintiff should have been allowed to make discovery back to the date of manufacture of the product.Wilson, 747 S.W.2d at 242. Plaintiffs' request for discovery for a ten-year period was well after the manufacture date of the Model 2100. The trial court abused its discretion in restricting plaintiffs' discovery request. The limit on discovery restricted plaintiffs' ability to discover evidence or information that might be reasonably calculated to lead to the discovery of admissible evidence. Rule 56.01(b)(1). The remaining arguments of error in support of a new trial are not reached or decided.
We affirm the judgment as to the Andrews. We reverse judgment for Crosman and remand for a new trial.
William H. Crandall, Jr., P.J. and Mary K. Hoff, J. concur.