Walsh v. Emergency One, Inc.

• Decision Date: 21 June 1994
• Docket Number: No. 93-1149,93-1149
• Citation: 26 F.3d 1417
• Parties: 40 Fed. R. Evid. Serv. 1296, Prod.Liab.Rep. (CCH) P 13,950 Martin WALSH, Plaintiff-Appellant, v. EMERGENCY ONE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1417

26 F.3d 1417

40 Fed. R. Evid. Serv. 1296, Prod.Liab.Rep. (CCH) P 13,950

Martin WALSH, Plaintiff-Appellant, v. EMERGENCY ONE, INC., Defendant-Appellee.

No. 93-1149.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1993.

Decided June 21, 1994.

Michael D. Monico, Barry A. Spevack (argued), Robert J. Pavich, Monico, Pavich & Spevack, Chicago, IL, for plaintiff-appellant.

John M. Coleman (argued), Justin J. Power, Johnathan P. Wynn, Coleman & O'Halloran, Chicago, IL, for defendant-appellee.

Before WOOD, CUDAHY, and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Martin Walsh was a veteran Chicago fire fighter who was injured when he was thrown from the unenclosed seating atop a fire truck as the truck responded to an emergency call. The truck was designed by Emergency One, Inc. (EO). The seating was equipped with seat belts which the parties agree the fire fighter did not use. Based on his injury, Walsh filed a complaint against EO alleging product liability (Count I) and negligence (Count II). EO responded to Count I by pleading assumption of risk and responded to Count II by pleading contributory negligence. Walsh appeals a jury verdict for EO. We affirm.

I.

The Chicago Fire Department (the Department) purchased the truck in question (Engine 61) from EO in 1979. EO was the low bidder in response to the Department's contract specifications. The design of Engine 61 satisfied all existing National Fire Protection Association (NFPA) safety standards. The design included unenclosed seating which was located behind the cab of the truck, allowing the fire fighters to sit three abreast on a bench seat facing the rear of the truck. The seating area had a canopy over the top that extended down and connected to the sides of the bench. The seating area was also equipped with seat belts. However, the area in question was completely open on the side where the fire fighters get on and off. As of 1985, the Department had in place a requirement that fire fighters be fully dressed, seated and belted before the truck moved. Nevertheless, it was very uncommon for Chicago fire fighters to use their seat belts.

Walsh joined the Department in 1966. From that time he worked on fire trucks identical to Engine 61 and was familiar with the open seating area. Walsh never wore a seat belt while on the job. On September 4, 1989, Walsh was assigned to Engine 61 when it responded to an alarm. As the truck headed out of the fire house, it swerved to avoid construction in the roadway, causing Walsh to fall out of the open seating area and off the truck. One of the firemen sitting beside Walsh testified that he thought he saw Walsh, a large man encumbered by heavy equipment, lean forward before he fell, then turn or stand while reaching for his helmet. Walsh was not, of course, wearing his seat belt at the time.

Walsh sustained serious and permanent injuries. He sued EO, alleging that the area behind the cab was defectively designed because it was not enclosed. He contended that he would not have fallen from the truck had the bench seating area been equipped with some sort of enclosure. Walsh concedes, however, that he would not have been injured had he used his seat belt.

After conceding at trial that the chance of falling from a fire truck while wearing a seat belt was minimal, Walsh's expert nonetheless testified that Engine 61 was unreasonably dangerous because the bench seating was not enclosed. The expert testified that, at the time Engine 61 was manufactured, manufacturers knew that an unenclosed seating area presented dangers because fire fighters did not wear seat belts that were provided (apparently because they needed to adjust their bulky equipment as they rode to a fire). In the expert's opinion, fire truck manufacturers could not reasonably rely on fire department rules requiring the use of seat belts to protect fire fighters in exposed seating areas. Instead, the expert suggested that Dutch doors would help protect fire fighters by preventing their falling from the truck. Additionally, such doors could protect tools and equipment stored on the floor of the seating area.

EO's expert testified that the unenclosed canopy-type design employed in Engine 61 was popular when the truck was purchased, and contended that Engine 61 was not unreasonably dangerous. He maintained that, because the cab, floor and canopy formed a five-sided enclosure, fire fighters in the unenclosed area would be safe if they used their seat belts or if they simply remained seated. This expert opined that Dutch doors would protect seated fire fighters but would not contain fire fighters who stood up. The expert also testified that truck manufacturers could reasonably believe that, if truck specifications called for seat belts or if fire department directives required their use, belts would in fact be used.

Another witness for EO, who is familiar with national fire fighting safety standards and statistics, testified that the largest share of fire fighter casualties occurring away from the fire scene involves accidents on a rescue apparatus such as a fire truck. He said that the National Transportation and Safety Board recommends the use of belts whenever an apparatus is in motion. And he had conducted a survey suggesting that the vast majority of fire departments enforced seat belt requirements. He further testified that the Chicago Fire Department had become concerned about the use of seat belts as early as 1955, after three fire fighters died in accidents that seat belts might have prevented. EO's witness also felt that Walsh would not have fallen had he been wearing a seat belt and that Dutch doors would not completely protect fire fighters from falls from open seating areas.

In this appeal, Walsh argues that failure to wear a seat belt is not evidence of assumption of risk or of contributory negligence. Nor is reliance on the Department's manufacturing specifications a defense. Walsh also contends that EO should not have presented evidence that the fire house record of his accident had been destroyed. In addition, Walsh claims he was erroneously barred from showing post-manufacture industry standards, which require enclosed seating. He also urges error in the omission of part of a pattern instruction which stated that the jury could find more than one proximate cause of his injury.

EO contends, on the other hand, that the trial court did not err in allowing it to argue assumption of risk and contributory negligence, that it never argued that it relied on the Department's design specifications and that it never introduced evidence that the fire house record of the accident had been destroyed. EO also argues that the trial court did not err in excluding post-manufacture standards or in instructing the jury on the issue of proximate cause.

II.

A. Standards of Review

We review the trial court's decision to admit or exclude evidence for abuse of discretion. Geitz v. Lindsey, 893 F.2d 148, 150 (7th Cir.1990); see also Daniels v. Essex Group, Inc., 937 F.2d 1264, 1268-69 (7th Cir.1991). In addition, inadequate jury instructions are cause for reversal only if it appears that the jury's comprehension of the issues was so misguided that one of the parties was prejudiced. Littlefield v. McGuffey, 954 F.2d 1337, 1344 (7th Cir.1992).

B. Use of Seat Belt Evidence

Walsh's arguments regarding the use of seat belt evidence are his most subtle. Walsh does not fault the district court for allowing EO to present evidence that the unenclosed seating had seat belts. Indeed, Walsh concedes that EO could present this evidence to try to persuade the jury that, because the truck had seat belts in the unenclosed area, the truck was not unreasonably dangerous. Rather, Walsh faults the district court for allowing EO to present evidence of Walsh's failure to use a seat belt for the purpose of showing that he was contributorily negligent or that he assumed the risk. ¹ Contributory negligence, Walsh contends, has no place in the context of strict products liability and, in any event, Illinois statutes bar admission of evidence that a plaintiff failed to wear a seat belt to show the plaintiff's negligence. Assumption of risk, he contends, cannot be grounded on the failure to wear a seat belt because Walsh has alleged that EO made an unreasonably dangerous truck even considering the seat belts because EO knew that fire fighters do not wear them. ²

We agree with Walsh that the failure to wear a seat belt does not provide a contributory negligence defense to strict products liability. For many years, contributory negligence has not been a bar to strict products liability. Williams v. Brown Mfg. Co., 45 Ill.2d 418, 261 N.E.2d 305, 310 (1970). This principle remains intact even after Coney v. J.L.G. Indus., Inc., 97 Ill.2d 104, 73 Ill.Dec. 337, 454 N.E.2d 197 (1983), which applied comparative fault, a negligence concept, in a strict liability context. Id. 73 Ill.Dec. at 342, 454 N.E.2d at 202. ³

Product liability, however, was not Walsh's only theory; he also pleaded negligence. ⁴ Although the common law bar of contributory negligence no longer exists in Illinois, it has been replaced by "pure" comparative negligence, under which the plaintiff's damages are simply reduced in accordance with the percentage of fault attributable to him. Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 34-35, 421 N.E.2d 886, 897-98 (1981). Like contributory negligence, then, comparative negligence requires the court to assess the extent to which the plaintiff's actions have helped cause his injury. The plaintiff's negligence is no longer a bar to recovery, but evidence of it is relevant to the calculation of damages under the negligence count. Therefore, even in a situation where EO referred in argument to the defunct contributory negligence doctrine, the district court could still admit evidence of Walsh's negligent failure to wear a seat belt as relevant to...