Seventh Circuit Affirms Judgment in Second Trial for Crane Rebuilder

Mesman v. Pro Crane Services, Inc., 2008 WL 36168 (7th Cir. 2008), decided January 2, was before the Seventh Circuit for a second time after the court had previously affirmed the district court's order for a new trial, 409 F.3d 846 (7th Cir.2005). In a sometimes caustic opinion Judge Posner utilized the Hand formula in explaining the court's decision to affirm the judgment for the defendant in the second trial. The plaintiff in the case was seriously injured while working for his employer, Infra-Metals, "when a load of steel sheets that he was unloading from a boxcar fell on him from the crane that was lifting the sheets out of the boxcar."   He sued Konecranes, the company that had rebuilt the fifty-year-old crane.  The redesign of the crane created the potential for loads falling from the crane if it hit the cab of the crane, which Infra-Metals wanted left in its original location attached to a ceiling beam in case it wanted the crane operated from the cab rather than from the remote control device it installed which permitted an operator to operate the crane from the ground.  The remote was equipped with an emergency stop button that would have avoided the accident, had the operator pressed it.  Instead, the operator pressed the down button, reversing the direction of the crane, but not in time to prevent the load from hitting the can and falling on the plaintiff.  The defendant prevailed on the retrial and the plaintiff appealed.  The court held that the Indiana Products Liability Act, Ind. Code § 34-20-2-2, which makes a design defect actionable only if there is negligence in the design, applied to Konecranes.  While the court thought that it was error for the magistrate judge in the case to permit Konecranes to argue that it was not responsible under the Act for the cab's location because it had not manufactured the crane but only repaired it, because the Act does apply to rebuildling.  Excerpts from the opinion follow:

But the error in allowing the jury to speculate on how far Konecranes' decision to rebuild was subject to the products liability act was inconsequential, because the plaintiffs were permitted to claim common law negligence, as they had not previously bothered to do. There is no difference, except possibly with respect to the “open and obvious” defense, that is material to this case between common law negligence and negligence under the products liability statute; and we shall see that the “open and obvious” defense turned out not to play a significant role in the second trial.

Mesman complains about the magistrate judge's refusal to instruct the jury on the Learned Hand negligence formula. This could not be an error, because the judge gave the standard Indiana pattern instruction on negligence, a correct statement of Indiana law that a federal court in a diversity suit is bound by. In any event, the instruction the plaintiffs wanted the judge to give was not the Hand formula, but a garbled version of it: “If you find that in renovating the crane the defendant failed to take effective precautions less expensive than the damages which could reasonably be expected to result from the crane's foreseeable use or misuse, then you may find the defendant negligent. Even if you determine that the particular failure which occurred was not likely to occur, you may still find the defendant liable if the costs of preventing the harm were lower than the costs of a reasonably foreseeable injury.” The Hand formula requires, as we have seen, discounting (multiplying) the harm if an accident should occur by the probability that it would occur unless a precaution were taken, and then comparing the product of that multiplication to the cost of the precaution. Thus, if the harm from the accident would be very great and the cost of preventing it very low, the defendant might be negligent even if the probability of the accident was also low. That may be this case. Suppose the probability ( P in Hand's formula) were .001, the loss if the accident occurred ( L ) $1 million, and the cost of avoiding the accident ( B, for burden of precaution) $500. Then because $500 is less than $1 million x .001 (=$1,000), the injurer would be adjudged negligent. (The numbers in the example are merely illustrative, of course.) But this was not what the proposed instruction would have directed the jury to consider.

The failure to give the garbled instruction cannot have been a plain error since it was not an error at all; and it would have had to be a plain error to get the plaintiffs a new trial, since their lawyer failed to object to the judge's refusal to give the instruction. (That he failed to object is conceded, though there is no record of the instructions conference because the magistrate judge unwisely conducted it off the record. . .) . . . In the absence of extraordinary circumstances, a lawyer should not be heard to request a third jury trial on the basis of an instruction (or a failure to instruct) to which he failed to object.

MKS