Safeguarding dangerous design – a brief sample

John Mesman’s leg was cut off in an industrial accident that could have been cheaply and easily averted by inclusion of safety devices on a newly rebuilt crane. We sued Crane Pro and won at trial. But the judge took the verdict away, finding the danger was too “open and obvious” to allow recovery. Two recent Indiana appellate decisions had invoked the open and obvious doctrine. We argued that those decisions stood counter to a series of three decisions in 1990 by the Indiana Supreme Court. The Seventh Circuit agreed with our argument as to the open and obvious doctrine, and ordered a new trial.

Crane Pro’s crane had lifted its load of steel sheet into an overhead obstruction. The load tilted, and steel sheets fell off, slicing off John’s leg. Here’s a portion of our brief that followed our detailed factual statement and a discussion of the Indiana Supreme Court’s application of the Indiana Products Liability Act (IPLA) to eliminate the open and obvious hazard doctrine as an absolute defense.

From our brief:

Protecting the Crane, Endangering the Workers

Crane Pro made another design misstep, making its crane considerably more dangerous than the crane it replaced. While the former crane could stop on a dime, Crane Pro set its renovated crane to decelerate for up to three seconds — or about 12 inches — before coming to a halt. As a result, once the spreader beam clanged against the cab, there would be no time for a quick fix as there had been in the past. Although he tried, the operator couldn’t simply punch a button to throw the crane into reverse and re-balance the uneven load.

The trial judge paid particular attention to the delayed deceleration of the hoist in her determination that no reasonable jury could hold Crane Pro even partly responsible for the accident. No novel scientific theories were involved in the explanation of the accident. The spreader beam hit the cab. Crew members Alex Arce and Anthony Flores watched as the hoist continued to rise and the steel sheets pressed against the cab and tilted ever more precariously before falling. Crane operated Raymond Van Til testified to trying to put the hoist into reverse, and not realizing that he was unable to accomplish that maneuver immediately.

But the judge deemed what actually happened to be too “open and obvious” to be legally relevant. Instead of accepting the causal connection between the timed delay on the hoist and the crane losing its load, she demanded precise studies to show the crane should have been set to stop in less than three seconds.

No matter that defendant’s company magazine recognized that a mere quarter second timed delay for stopping poses a problem for crane operators. No matter than plaintiff’s experts testified in concrete terms comprehensible by any layperson about the danger posed by the delay. No matter that the threatened danger is, in fact, what happened, according to eyewitnesses. Because of her reliance on the “open and obvious” rule, the judge rejected the obvious, and insisted on the sublime. She demanded scientific evidence to establish that a three second delay itself posed an unacceptable risk.

But no novel scientific theory was at issue in this case. In and of itself, the crane’s three second deceleration posed no danger. Had a $500 limit switch been installed to prevent the crane from hoisting its load into the cab, the danger would have been averted, and the delay would have made no difference whatsoever. But, due to her unbending insistence on the “open and obvious” doctrine, the judge was unwilling to consider how the design defects related to the hazard and the resulting tragedy. Unwilling to consider the realities, the judge insisted upon transcendental proof in the name of science. Indiana law,however, is not so finicky in cases where hazards are clear.

Common Sense Defects

Consider the Indiana Supreme Court cases that applied the IPLA to avoid the “open and obvious” defect premise of Bemis. In Koske, the court did not insist on elaborate studies establishing as a matter of science that the open blades of a meat package machine constituted a defect. It was enough that the machine lacked inexpensive safety guards on its blades, which sliced Koske’s hand as she attempted to push through a frozen pork jowl, and that engineering experts had testified to other feasible, and safer, designs. Here, as in Koske, experts testified to feasible designs that would have guarded against the hazard at little cost.

Similarly, in FMC v. Brown the court did not insist upon studies showing how close a crane could be situated to power lines before it would be deemed scientifically too close. Expert testimony established that a proximity warning device was a feasible, available and well understood instrument to alert the operator to being too close to a power line. The testimony also established that insulation links could guard against electrocution. That was enough The court did not insist upon scientific studies proving, as an abstract matter, when such devices might best be deployed.

Judge Springmann, however, relied on the case Whitted v. General Motors Corp., 58 F.3d 1200 (7th Cir. 1995). That case involved a 265-pound plaintiff whose seat belt webbing in his six-year-old Chevrolet Nova separated when his car hit a tree at an uncertain speed. It was not clear whether the injuries Whitted sustained were due to the problems with the seatbelt. In upholding summary judgment for the defendant, the court found that Whitted failed to present evidence, other than the accident itself, to show the seatbelt’s design was flawed, and to show that a better, alternative design was feasible. In this case, in contrast, plaintiffs presented evidence establishing what happened, why it happened, and how it could have been avoided.

In distinguishing Whitted, the Indiana appellate court in Ford Motor Co. v. Reed, 689 N.E.2d 751 (Ind. Ct. App. 1997), noted that plaintiffs did not have access to the area of their car where a fire broke out, and that the car was only five months old. Though the court also noted that plaintiffs’ expert could only “indicate” that an electrical short caused the fire, and could not point to the specific wire at fault, the question of Ford’s liability was still up to the jury to decide. Again, the court required no precise scientific evidence to support the jury’s verdict.

In rejecting the use of the “open and obvious” doctrine to bar product liability lawsuits, the Florida Supreme Court discussed the outrageous absurdity of applying such a rule to allow fans to be built without a protective cage. Auburn Machine Works, Inc. v. Jones, supra. Under the theory applied by Judges Moody and Springmann, the lack of a cage might still be considered in a case where a user’s hand was chopped off. But plaintiffs would first have to present scientific studies establishing that fans without such cages are, in fact, more dangerous than fans with the safeguard. That Catch 22 would never be overcome because no research would bother with conducting such a study to prove the obvious.