Robert and Sheila Carney, Plaintiffs/Appellants, v. BIC Corporation, Defendant/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Robert and Sheila Carney, Plaintiffs/Appellants, v. BIC Corporation, Defendant/Respondent. Case Number: ED74844 Handdown Date: 07/06/1999 Appeal From: Circuit Court of the City of St. Louis, Hon. Michael B. Calvin Counsel for Appellant: Paul Redfearn and Michael Holzknecht Counsel for Respondent: Daniel Wilke, Thomas Peters and Hal O. Carroll Opinion Summary: Plaintiffs appeal judgment on a defendant's verdict on their claim for wrongful death of their infant son. They contend two points of instructional error. REVERSED AND REMANDED. Division Five holds: (1) The jury instructions were reviewable where plaintiffs made a submissible case. (2)The court erred when it submitted defendant BIC's limiting instruction on consideration of evidence of other incidents because the instruction prohibited the jury from considering evidence of other fires, claims and lawsuits on the issue of notice of a potentially dangerous condition, defect or reasonably anticipated use; and, therefore, was misleading and a misstatement of the law. (3)There was no prejudicial error in the submission of BIC's converse instruction. It was not truly an affirmative converse and did not require additional evidence. Citation: Opinion Author: Kent E. Karohl, Judge Opinion Vote: REVERSED AND REMANDED. R. Dowd, C.J., concurs. Blackmar, Sr. J. concurs in separate opinion. Opinion:

Robert and Sheila Carney ("plaintiffs") appeal judgment on a defendant's verdict on their claim for wrongful death of their two-year-old son, Aaron Carney. Plaintiffs filed the suit against BIC Corporation ("BIC") as the manufacturer of a BIC model J-5 disposable mini lighter, which they alleged was defective and unreasonably dangerous when sold. The lighter featured no childproof protection. Aaron died in a house fire on January 30, 1992. Plaintiffs' two points on appeal argue the trial court erred in submitting Instruction Number 8, described by plaintiffs as an affirmative converse instruction, and Instruction Number 11, a non-MAI instruction described by plaintiffs as a limiting instruction. BIC argues the instructions were proper and if there was any instructional error it was harmless because plaintiffs failed to make a submissible case. We find: (1) plaintiffs made a submissible case; (2) no prejudicial error in the submission of BIC's converse instruction; and, (3) the court erred in submitting BIC's limiting instruction and rejecting plaintiffs' proposed limiting instruction. We reverse and remand for a new trial. Submissibility is an issue inherent in every plaintiff's appeal. Steward v. Goetz, 945 S.W.2d 520, 528 (Mo. App. E.D. 1997). Instructional error would be harmless if the evidence was insufficient to support a verdict for plaintiff. Corcoran v. Southwestern Bell Telephone Co., 572 S.W.2d 212, 214 (Mo. App. 1978). We view the evidence in the light most favorable to the plaintiff when determining whether a submissible case has been made. Steward, 945 S.W.2d at

1. We give the plaintiff the benefit of all reasonable and favorable inferences and disregard all contrary evidence. Id.

"The evidence and inferences must establish every element and not leave any issue to speculation." Id. We conclude the evidence and reasonable inferences were sufficient to support finding Aaron Carney, age thirty-two months, started the house fire using a BIC lighter that was unreasonably dangerous because young children could operate it. The evidence would support finding the following facts. On the evening of the fire, Mr. Carney took a nap before leaving for work. He placed a model J-5 disposable mini-BIC lighter on a table in the living room. There was no evidence offered that anyone was smoking or dropped cigarettes in or around the couch next to the table. One of his sons came to the bedroom and woke him, yelling that the couch was on fire. He ran to the living room and tripped over Aaron. He found the couch on fire toward the end nearest the living room front door. Mrs. Carney testified that she was not a smoker. She knew that her husband preferred the mini-BIC brand because it was small and fit easily in his pocket. She knew he often placed his lighter and other things on the table in the living room. On the evening of the fire, she left the house at approximately 8:35 to go to a grocery store. She expected to be gone no more than ten minutes. There were no matches or anything else in the living room to start a fire other than Mr. Carney's lighter. When she left, her eleven-year-old son, Alton, was the only person in the living room. She noticed Mr. Carney's cigarettes and lighter were on the table. She covered them with his cap. She specifically recalled the lighter

was a mini-BIC, which she purchased for her husband. Adam Carney, plaintiffs' son, age five at the time of the fire, testified. After his mother left the house, he returned to the living room. He was watching television, Alton was asleep on the floor, and Aaron was moving around the living room. The next thing Adam knew, he smelled smoke. He found the fire on the side of the couch closest to the front door. Adam woke Alton, and Alton woke his father. Adam testified that he did nothing to start the fire. Alton Carney testified that after his mother left, he dozed off. Adam yelled fire. Alton jumped up and saw the fire at the end of the big couch closest to the front door. An investigator for the Missouri Division of Fire Safety testified that if the lighter were on the table at the time of the fire, there would be parts remaining. Mrs. Carney testified that the day after the fire, Mr. Carney's coins were on the table, but the lighter was not. The resulting, available inference is that Aaron used the BIC lighter. Accordingly, there was evidence to support finding that no one in the house, other than Aaron, started the fire. Mr. Carney was asleep in the bedroom, other children were either not in the living room or were sleeping, except for Adam who did not play with the lighter or light the fire. The only other potential source of ignition of a fire in the living room would have been a wood-burning stove, which was not in use. A fire investigator eliminated the wood-burning stove and any electrical fault as sources of ignition in the area of the origin of the fire. There were no book matches kept in the home on the night of the fire and some long, fireplace type matches were kept in a cabinet above an electric cooking stove in the kitchen. The wooden fireplace matches were out of reach of any of the children. BIC did not offer any evidence to support a finding of any other cause than that Aaron, using a BIC lighter, started the fire. Witnesses who testified for plaintiffs offered evidence, which would support a finding that Aaron started the fire using a BIC lighter that could be operated by young children. Dr. George Pearsall offered expert testimony, without objection, that the mini-BIC lighter was unreasonably dangerous because young children could operate it. This evidence of product defect based on defective design presents a submissible case, Miller v. Varity Corp., 922 S.W.2d 821, 832 (Mo. App. E.D. 1996), if the defective product is the cause of the plaintiff's injury. We conclude that the evidence and reasonable inferences from the evidence offered by plaintiffs support a finding of causation. Plaintiffs made a submissible case. Instruction Number 11 was offered by BIC and submitted by the court over plaintiffs' objections that the instruction: (1) was incomplete and, therefore, misstated the law; (2) failed to define "notice" so that it permitted the jury a roving commission; and, (3) was untimely, or waived, when BIC failed to request a limiting instruction at the time the evidence was offered. The court submitted the following:

INSTRUCTION NUMBER 11 Information regarding other fires, claims, and lawsuits was admitted on the issue of notice to defendant BIC Corporation about those incidents. You are not to consider such evidence for any other purpose in arriving at your verdict. Plaintiffs offered, and the trial court refused, to give the following alternate instruction: INSTRUCTION NUMBER "B" Information regarding other fires, claims, and lawsuits was admitted on the issue of notice to BIC Corporation of a potential dangerous condition, defect or reasonably anticipated use and not as proof of the truth of the occurrence identified in such fires, claims, and lawsuits. Plaintiffs argue Instruction Number 11 failed to instruct the jury that it could consider evidence of other fires, claims and lawsuits on the issues of: (1) BIC's notice of a potentially dangerous condition; (2) defect of BIC lighters; and, (3) reasonably anticipated use of BIC lighters by children. Specifically, plaintiffs argue the In-Depth Investigation Reports (IDIRs), which contained information on other fires, claims and lawsuits, and were produced from BIC's own records, were offered and received in evidence on all of these issues. However, Instruction Number 11 foreclosed the jury's consideration of evidence that would support finding: (1) BIC had notice of a potentially dangerous condition; (2) roll and press lighters sold without child guard features were defective; and, (3) BIC could reasonably anticipate use by children. The instruction was misleading and a misstatement of law. See Patterson v. Thompson, 277 S.W.2d 314 (Mo. App. 1955) (held that a declaration of the law made to the jury, which omitted qualifying words, was misleading and a misstatement of the law). "Plaintiffs' Alternate Instruction 'B'" offered the trial court an opportunity to submit a limiting instruction that referred to all three uses the jury could properly make of the evidence and, which BIC was entitled to, if requested. We review jury instructions for accuracy and prejudice. Instruction Number 11 is a non-MAI instruction, although allegedly patterned after an old form of MAI-CR 3.58. However, it is incomplete and, therefore, misleading and a misstatement of law. See Id. The submission of a jury instruction in error is presumed to be prejudicial. Powers v. Ellfeldt, 768 S.W.2d 142, 146 (Mo. App. 1989). The burden is on BIC, who offered the instruction, to demonstrate that there is no substantial potential for prejudicial effect. Id. Instead of demonstrating the lack of prejudice, BIC argues that plaintiffs had not established a sufficient threshold of similarity to permit the evidence of prior incidents to be used for any purpose other than notice to BIC of the claims. We disagree. The trial court has wide discretion on the admission of similar incidents into evidence. Budding v. Garland Floor Co., Inc., 939 S.W.2d 419, 426 (Mo. App. E.D. 1996). Our review of the record finds evidence to support a finding that the jury was only informed of similar prior incidents contained in the IDIRs. The record indicates that a conference, out of the hearing of the jury, was had to determine if any IDIRs involved similar occurrences. Only those IDIRs, if any, would be

admitted as evidence. It is clear that the court accepted several IDIRs because of nearly identical factual situations, while it disallowed some without sufficient evidence of similarity. "[O]ur review is limited to whether the trial court determined that the evidence is relevant and that it bore sufficient resemblance to the injury causing incident." Id. We find no abuse of discretion on the admission of similar occurrences. However, plaintiffs submitted exhibits that were read into evidence, which provided the jury with evidence of BIC's knowledge of a potentially dangerous condition and defect of its "roll and press" lighters sold without child guard features. Evidence of similar incidents is relevant to show that a defendant had notice of a potential danger of a particular type of accident. Stacy v. Truman Medical Ctr., 836 S.W.2d 911, 926 (Mo. banc 1992). The jury may consider whether a reasonably careful defendant would have taken further precautions under all the facts and circumstances. Id. Defense counsel acknowledged in closing argument that the evidence of prior occurrences was the source of "[n]otice on the issue of whether BIC knew whether small children were operating lighters, their lighters, other lighters. Yes, that's true. We knew about it." Because the instruction failed to include all three uses the jury could properly make of the evidence of other fires, it was prejudicial and reversible error. Crabtree v. Bugby, 967 S.W.2d 66 (Mo. banc 1998). Plaintiffs further argue that BIC was not entitled to Instruction Number 11 because it did not request a limiting direction at the time the evidence of prior incidents was offered. Plaintiffs rely on the general rule that there must be a request for a limiting instruction at the time the evidence of other occurrences was admitted in order to preserve a complaint for failure of the court to give a limiting instruction. Dyer v. Globe-Democrat Publishing Co., 378 S.W.2d 570, 581 (Mo. 1964). Dyer supports the general rule, but does not hold that an objecting party has a preliminary obligation to object before the evidence is admitted in order to preserve the right to request a limiting instruction. BIC did not waive its right to request a limiting instruction. However, the instruction, which BIC offered and the court presented to the jury, was misleading and a misstatement of law. Plaintiffs' second claim of error is that the court submitted Instruction Number 8 as an affirmative converse instruction not supported by the evidence. Instruction Number 8 reads: INSTRUCTION NUMBER 8 In your verdict you must not assess a percentage of fault to defendant BIC Corporation if you believe the fire was not caused by Aaron Carney's use of the lighter. During the instruction conference, plaintiffs offered a single objection to the submission of this instruction. Their objection stated "there is no independent evidence to support the converse, therefore we object." Plaintiffs now argue the court erred in submitting an "affirmative converse Instruction Number 8" for two reasons: (1) because there is no independent

evidence to support the ultimate fact that the fire was not caused by Aaron Carney's use of the lighter; and, (2) because the ultimate issue of fact hypothesized in the instruction, that "the fire was not caused by Aaron Carney's use of the lighter", even if true, would not defeat plaintiffs' claims for product defect. We review only the first issue raised in this claim of error, that the converse instruction was not supported by independent evidence. Plaintiffs are not entitled to argue on a different theory than presented to the trial court. Wise v. Sands, 739 S.W.2d 731, 734 (Mo. App. 1987). Further, objections to instructions must be made specifically and a failure to make a specific objection waives any claim of error. Pace Properties, Inc. v. American Mfrs. Mut. Ins. Co., 918 S.W.2d 883, 887 (Mo. App. E.D. 1996); Rule 70.03. At the instruction conference, BIC objected to plaintiffs' verdict directing Instruction Number 6 because it was incomplete. BIC contended the court should submit that Aaron Carney used the BIC model J-5 disposable mini lighter in a manner reasonably anticipated. A submission in that form would require only a true converse. Over objection, the court submitted the verdict directing instruction according to MAI 25.04, with no reference to Aaron Carney. It submitted the instruction without reference to the infant after counsel for plaintiffs told the court: (1) "our position has been throughout the trial that it is unreasonably dangerous for five years and younger;" (2) there was no evidence to suggest that anyone other than Aaron had access to the lighter; and, (3) counsel agreed with the court that it would be impossible for the jury to find fault of BIC "unless they found that Aaron actually started the fire." BIC told the court it would not request an affirmative converse instruction if the court included a requirement that the jury make a finding that Aaron Carney used the BIC lighter. The court refused to modify the verdict directing instruction. BIC offered Instruction Number 8. It is not clear that Instruction Number 8 is an affirmative converse. "An affirmative converse instruction is appropriate where the verdict director assumes as true or omits a disputed ultimate issue." Hiers v. Lemley, 834 S.W.2d 729, 735 (Mo. banc 1992). It may be appropriate where it submits an ultimate issue erroneously excluded from a plaintiff's verdict director. Id. at 736. The verdict directing instruction, as submitted, required a finding that the BIC model J-5 disposable mini lighter directly caused or directly contributed to cause fatal injury to Aaron Carney. The instruction offered BIC an opportunity to argue the lighter did not cause or contribute to cause the injury unless used by Aaron Carney, and there was no evidence to support a finding that he did use the lighter. For that reason, we find no error in the submission of the verdict directing instruction. However, the instruction assumes as true the ultimate issue that Aaron Carney used the BIC lighter. Plaintiffs conceded this was the ultimate issue and that they could recover only if Aaron Carney used a defective lighter to start the

fire. The two contested factual issues were: (1) whether a BIC lighter was used in starting the fire; and, (2) whether Aaron Carney used the BIC lighter. Plaintiffs' theory was that Aaron Carney used the lighter, and that they were entitled to recover only if the jury finds that he did use the lighter. BIC's converse instruction rests upon its claim that the verdict directing instruction failed to require the jury to decide these factual issues and plaintiffs failed to offer evidence to support a finding Aaron Carney used the BIC lighter. The form of the instruction was that the jury must find for BIC if it believed the fire was not caused by Aaron Carney's use of the lighter. The instruction did not hypothesize that anyone else caused the fire; such hypothesis would require affirmative evidence to support its submission. Rather, it converses one element of the verdict director, causation. It is not a typical affirmative converse, which requires independent evidence, nor is it a true converse, which does not. For a number of reasons, we find that the submission of Instruction Number 8 was not reversible error. First, it offers an alternative finding on an issue which the verdict director assumes as true, that Aaron Carney used the lighter. Plaintiffs' consistent position throughout the trial and at the time of the jury instruction conference was that Aaron caused the fire with a BIC lighter. The verdict director did not expressly require the jury to consider Aaron's use of a lighter. The converse instruction did no more than allow the jury to reject plaintiffs' assumed fact in a case where it was agreed BIC was liable only if Aaron, a child under the age of five years, started the fire; and, where there was no direct evidence to support a finding that he did use the lighter. Second, plaintiffs are not entitled to argue on appeal that there was an alternative theory of recovery available to them, namely, placing a dangerous instrument in the home was sufficient to support a plaintiffs' verdict. Plaintiffs did not adopt that position or make that argument before the trial court. See Wise, 739 S.W.2d at 734. Third, the instruction was not prejudicial. It did not hypothesize a fact to support a defense or a basis to find someone else caused the fire, either of which would have required submission of independent affirmative evidence. It merely offered the jury an opportunity to find BIC was not liable if the fire was not caused by the act assumed by plaintiffs to have caused the fire. Because the instruction negated an element of the verdict directing instruction it was in the nature of a true converse, not an affirmative converse. It only opposed an element submitted in the verdict directing instruction. We reverse and remand.

Separate Opinion:

I. A plaintiff in a products liability case is not entitled to go to the jury simply by adducing evidence of a "defective condition unreasonably dangerous" unless there is substantial evidence that the condition caused or contributed to the injury upon which plaintiff sued. Hagen v. Celotex Corp., 816 S.W.2d 667 (Mo. banc 1991). I have had substantial doubts about the evidence of causation, but after reflection, I am persuaded that Judge Karohl's well-reasoned and well-crafted opinion correctly resolved the issue. There was no eyewitness who saw the 32-month old Aaron with the BIC lighter in hand, but causation may be established by circumstantial evidence. The plaintiffs proceeded by process of elimination, first, by excluding other sources of fire through expert testimony, and, next, by the testimony of other members of the household that they had not used the lighter. From this evidence the jury could have concluded that the most likely cause of the fire and Aaron's death was Aaron's use of the unprotected lighter. Causation may be established by showing probability. Certainty is not required. Some may believe that the plaintiffs' proof does not rise above the speculative, but the analysis of the proof is for the jury. II. I also agree with the holding that Instruction Number 11 unduly circumscribed the plaintiffs' argument and the jury's consideration of the evidence. I have nothing to add to Judge Karohl's analysis. It is unfortunate that the case must be retried. We cannot be sure that the result would have been different if the plaintiffs' version, alternative Instruction B, had been given in lieu of Instruction 11. I strongly suspect that the result would have been the same. The plaintiffs, however, met their obligation under Rule 70.03, by submitting an alternate form of instruction, which the court considers to be more legally correct. The plaintiffs are entitled to correct instructions. I strongly suggest that counsel, when confronted by objections to instructions, consider whether it would be in their clients' interest to examine their opponents' proposals carefully, consider whether they might avoid the urge to fight, and consider accepting the opponents' submissions as insurance against reversal. Rule 70.03 has potential for avoiding reversals on account of instructional problems. Counsel should take advantage of the opportunity. I have always believed that errors in instructions, which counsel cannot perceive in a relatively quick examination, are not likely to have substantial effect on the jury. The court should allow such time as might be needed for a meaningful instruction conference. Some habits from days when sandbagging was the order of the day seem to persist.

III. I have long believed that the current approved instructions in products liability cases may not provide adequate guidance to juries. The term "unreasonably dangerous" is a very broad one. It has been suggested that counsel could provide guidance in argument, but, after having read many arguments in products liability cases, I find that they are often unenlightening, concentrating more on such matters as the supposed evils of the corporate defendants, or the residence of the counsel in the case, or on other factors which really do not help the jury. Complaints are often met by the statement that counsel should have leeway in argument. I believe that more guidance from the court might be helpful. In this case, the plaintiff tendered a verdict director, which did not clearly submit the theory to which the plaintiffs committed themselves. The defendants were faced with the necessity, under Rule 70.03, of providing alternatives to this submission. The method they elected submitted a clear summary of the theory to which the plaintiffs, in arguing with the trial court about submissibility, committed themselves. This was a proper emendation of an incomplete submission, and is certainly in order. For the long run, I suggest a study of products liability submissions, and whether there should be more guidance for the jury. With the foregoing observations, I concur. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.