Products Liability Law Daily Wrap Up, DESIGN AND MANUFACTURING DEFECTS—INDUSTRIAL AND COMMERCIAL EQUIPMENT—Ill. App.: Evidence supported manufacturer’s liability for defective industrial cart, (Apr 29, 2015)

By Georgia D. Koutouzos, J.D.

An Illinois trial court did not err when it directed a verdict against the manufacturer of industrial carts on counts of negligence and product liability asserted against the cart maker by an individual who had sustained serious injuries when a cart being used to transport a 28,500-pound water pump at a power plant went awry and crushed him against a steel beam, an appellate panel in that state determined. Among other things, the verdicts were not against the weight of the evidence, which established that the defective cart had contributed to the accident victim’s injuries, the panel found (Dunning v. Dynergy Midwest Generation, Inc., April 28, 2015, Goldenhersh, R.).

Background. Gerald Dunning, a union pipefitter was seriously injured while providing labor services on a project at an electric power plant. While assisting in the removal of a 28,500-pound water pump at the plant via a cart that was being pushed by a forklift, Dunning was crushed between a steel I-beam support and a portion of the pump after the cart veered off its intended path.

Dunning filed a negligence action against the plant operator, later adding the cart manufacturer, AVI International, Inc. (AVI), as a defendant. Initially, Dunning’s claim against AVI sounded in negligence only, but subsequently he amended his complaint in order to assert a strict product liability claim alleging that the cart was defective at the time of the accident. AVI responded by filing a third-party claim against Dunning’s employer for negligent supervision.

The case went to trial and, at the close of Dunning’s evidence, the trial court directed a verdict against AVI on the counts of negligence and strict product liability. The trial court established that, as a matter, of law, AVI’s cart was defective and had been a proximate cause of Dunning’s injuries. The jury ultimately found that all of the parties were negligent, and it assessed fault as follows: Dunning = six percent, AVI = 37 percent, the plant operator = 47 percent, and Dunning’s employer = 10 percent. Various post-trial motions ensued, including AVI’s motion for judgment notwithstanding the verdict or a new trial as well as its motion to vacate the order of judgment and set aside the directed verdict on the product-liability claim. All of the post-trial motions were denied, after which AVI and the plant operator appealed.

The parties’ contentions. AVI contended that the trial court erred in granting a directed verdict favoring the injury victim and in denying the cart maker’s efforts at obtaining post-trial relief. According to AVI, the trial court’s instruction to the jury regarding the directed verdict before the cart maker had offered any evidence was error because it limited the manufacturer’s ability to present evidence and to argue its case. Further, the trial court never instructed the jury as to the reason behind the directed verdict on the strict-liability claim and, as such, the court’s rulings were clearly erroneous, contrary to logic and law, and should be reversed, the cart maker maintained.

Directed verdict. The trial court did not abuse its discretion in directing the verdicts of negligence and product liability against the cart manufacturer, the verdicts were not against the manifest weight of the evidence, and the court did not err in denying the manufacturer’s motion for a judgment notwithstanding the verdict. The directed verdict was based upon certain statements made by the manufacturer’s employees during trial and the court’s conclusion that those statements were judicial admissions.

In that regard, several witnesses had testified concerning the cart manufacturer’s involvement in the accident at issue—including : (1) testimony by the cart maker employee present at the plant when the accident occurred that he saw workers rigging the load onto the forklift improperly and knew it was unsafe, and yet had said nothing despite his superior knowledge; and (2) testimony by the cart maker’s president that his employee should have said something when he saw the load being improperly rigged onto the forklift, that the cart was intended to roll straight but had failed to do so, and that the cart possessed caster locks capable of locking the wheels for purposes of keeping them straight but that he had not informed either his onsite employee or any other workers about that feature. Based upon those admissions, it could not be said that the trial court abused its discretion in finding that the cart manufacturer’s testimony contained judicial admissions, that it was negligent in supervising the transportation of the water pump from the power plant, and that it was strictly liable for the defective cart, which had contributed to the accident victim’s injuries.

As for the cart maker’s assertion that the trial court erred in directing the verdict on the issue of proximate cause against the manufacturer at the close of the injury victim’s case, the evidence so overwhelmingly favored the injured individual that no contrary verdict could stand on the issue of the manufacturer’s negligence and product liability.

Jury instructions. The jury’s apportionment of 37-percent fault to the cart maker was reasonable based upon the record. Moreover, the manufacturer failed to establish that: (1) it had been prejudiced by the trial court’s tender of pattern jury instructions that allowed the jury to draw an adverse inference from the manufacturer’s failure to offer evidence; or (2) the jury had been misled. The jury instruction at issue was tendered after the testimony by the cart maker’s president concerning the caster-lock feature on the cart and his assertion that the cart could push 52,000 pounds across a flat concrete surface. The trial court indicated that because the cart was not equally available to all parties and was under the manufacturer’s sole control, the product should have been produced at trial because issues to be decided by the jury remained concerning the device. Therefore, because the cart was not produced at trial, the trial court did not abuse its discretion in tendering the pattern jury instruction.

Procedural deficiencies. As for the cart manufacturer’s assertion that the injury victim’s second amended complaint (which had added the strict product liability claim) warranted dismissal due to factual and legal deficiencies, a review of the record indicated that the amended complaint had been file-stamped by the court clerk and that it met the state’s pleading requirements because the injury victim alleged that he had been crushed into a steal beam by a forklift that was pushing a cart owned and maintained by the manufacturer. The injured individual also alleged that the manufacturer had furnished a defective, unsafely designed, and unsafely maintained cart, and that the cart maker had failed to warn him of impending peril. In his product liability count, the injury victim alleged that the cart was in a defective and unreasonably dangerous condition at the time it left the manufacturer’s possession and control. Accepting the factual allegations in the amended complaint as true and considering them in a light most favorable to the injured individual, sufficient facts were pleaded to demonstrate the cart manufacturer’s negligence and product liability.

Finally, as to the issue of whether the injury victim’s product liability claim violated the statutes of limitation and repose, the claim was filed six years after the manufacturer had leased its cart to the plant operator—a time frame that was well within the state’s 12-year statute of repose. The manufacturer’s argument that the cart had been manufactured more than 12 years from the time that the injury victim brought his action was of no avail, as the manufacturer failed to recognize that it was a lessor of the cart at issue at the time of the accident rather than a seller of the cart. Accordingly, the trial court’s rulings were affirmed.

The case is No. 08-L-2.

Attorneys: James L. Hodges (Hennessy & Roach, PC) for Dynegy Midwest Generation, Inc. Loretta M. Griffin (Law Offices of Loretta M. Griffin) for AVI International, Inc. Thomas Q. Keefe, Jr. (Keefe & Keefe, PC) for Gerald Dunning.

Companies: Dynegy Midwest Generation, Inc.; AVI International, Inc.

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