Mesman v. Crane Pro Services, a Div. Of Konecranes

• Decision Date: 26 July 2005
• Docket Number: No. 04-2146.,04-2146.
• Citation: 409 F.3d 846
• Parties: John MESMAN and Judy Mesman, Plaintiffs-Appellants, v. CRANE PRO SERVICES, a DIVISION OF KONECRANES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

409 F.3d 846

John MESMAN and Judy Mesman, Plaintiffs-Appellants, v. CRANE PRO SERVICES, a DIVISION OF KONECRANES, INC., Defendant-Appellee.

No. 04-2146.

United States Court of Appeals, Seventh Circuit.

Argued January 7, 2005.

Decided May 31, 2005.

Rehearing and Petition for Rehearing En Banc Denied July 26, 2005.

Kenneth J. Allen (argued), Michael T. Terwilliger, Allen & Associates, Valparaiso, IN, for Plaintiffs-Appellants.

Byron D. Knight (argued), Elizabeth A. Knight, Knight, Hoppe, Kurnik & Knight, Des Plaines, IL, for Defendant-Appellee.

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

John Mesman, an employee at the Indiana plant of Infra-Metals, a manufacturer of steel products, lost one leg and suffered a serious injury to the other 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 and his wife (she complaining of loss of consortium) brought suit in an Indiana state court under Indiana's products liability law against the firm that had rebuilt the crane, Konecranes, which removed the case to federal district court. A jury awarded the plaintiffs a large verdict, but the judge set it aside and entered judgment for the defendant, further ruling that if this was wrong the defendant was entitled to a new trial because the jury had been confused by irrelevant evidence and had ignored critical instructions.

The case, filed five years ago, is actually quite simple. It has been badly handled by all concerned. There was no basis for the entry of judgment for the defendant; but with reluctance in light of the age of the case, we must sustain the judge's alternative ruling granting the defendant a new trial.

Built into the plant was a very old crane, which Infra-Metals wanted renovated, for unloading steel sheets from the rail siding that ran into the plant. The crane consisted of the following parts: a beam, called the "bridge," fastened to the plant's ceiling directly above the rail siding; a hoist, suspended from the beam, which the operator of the crane could move sideways along the bridge, as well as up and down to do the lifting; another beam, called the "spreader beam," connected to the hoist; chains connecting each end of the spreader beam to "scoops" for gripping the load; and attached to the bridge an operator's cab.

Konecranes engineers visited the plant and watched the crane in operation. The most problematic feature, they would have noticed, was that when a boxcar was being unloaded underneath the section of the bridge to which the cab was attached, there was only a foot or two of clearance between the rim of the boxcar and the cab overhead. And if while being lifted by the hoist the spreader beam struck the cab, the load might be jarred loose and fall, hitting anyone standing beneath it.

The renovation undertaken by Konecranes did not involve changing the physical structure that we have described. So far as relates to this case, the most significant alteration was to substitute for the controls in the operator's cab a hand-held remote-control device with which the operator would operate the crane from ground level. To raise the load he would press the up button on the device and to lower it he would press the down button. With the cab no longer being used for anything, it could have been removed to eliminate the danger of its being struck by the spreader beam. Konecranes did not remove the cab; instead it installed alongside the up and down buttons on the remote-control device an emergency-stop button, so that if the operator sensed an impending collision between the load and the cab he could bring the spreader beam to an immediate dead stop by pressing that button. Alternatively, by pressing the down button he could reverse the direction of the hoist; but because the up and down control had a deceleration feature to reduce wear and tear on the crane, the spreader beam would continue to rise for three seconds after the down button was pressed, traversing in that period about a foot, until it stopped and began its reverse motion. Thus, pressing the down button would not arrest the upward motion of the spreader beam and load as fast as pressing the emergency-stop button would.

Konecranes also built into the renovated crane a limit switch that would automatically stop the spreader beam from rising when it came too near the bridge. But the switch was set to prevent the spreader beam from touching the bridge where the cab was not attached. To prevent the spreader beam from touching the cab, the limit would have had to be set much lower—too low for convenient unloading of boxcars that were underneath any other section of the bridge. Thus, as set, the limit switch did nothing to prevent a collision between the load and the cab.

On the day of the accident, the crane operator, Van Til, was standing about 20 feet away from a boxcar that was underneath the abandoned cab. Mesman, standing in the boxcar, fastened a load of steel sheets to the scoops beneath the spreader beam and Van Til pressed the up button and the beam and load rose. As they rose he saw that the spreader beam was going to hit the cab, but instead of pressing the emergency-stop button, as he should have done to bring the rising load to a dead stop, he pressed the down button. Because of the deceleration feature—of which he was aware—and the narrow clearance between the cab and the rim of the boxcar, the beam continued to rise for three seconds and hit the cab, and the collision caused the load to fall on Mesman.

Van Til's mistake was the principal cause of the accident, as the jury recognized in assigning two-thirds of the responsibility for the accident to Infra-Metals, the employer of Van Til (as of Mesman) and only one-third to Kone-cranes. The design of the renovated crane also contributed to the accident, however; for had Konecranes removed the cab, eliminated the deceleration feature, or modified the limit switch so that the limit could be lowered when a load was being unloaded beneath the cab, the accident would have been avoided: with certainty in the case of either of the first two modifications, less certainly in the case of the third, an adjustable limit switch, since Van Til might have forgotten to adjust it.

Under Indiana's products liability law, a design defect can be made the basis of a tort suit only if the defect was a result of negligence in the design, Ind.Code § 34-20-2-2; Birch v. Midwest Garage Door Systems, 790 N.E.2d 504, 518 (Ind.App.2003); Chesnut v. Roof, 665 N.E.2d 7, 10 (Ind.App.1996); First National Bank & Trust Corp. v. American Eurocopter Corp., 378 F.3d 682, 691 n. 7 (7th Cir.2004) (Indiana law), that is, only if the product could have been redesigned at a reasonable cost to avoid the risk of injury. Miller v. Todd, 551 N.E.2d 1139, 1141 (Ind.1990); Stamper v. Hyundai Motor Co., 699 N.E.2d 678, 689 (Ind.App.1998); Weir v. Crown Equipment Corp., 217 F.3d 453, 460-61 (7th Cir.2000) (Indiana law); McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 657 (7th Cir.1998) (same); Navarro v. Fuji Heavy Industries, Ltd., 117 F.3d 1027, 1031 (7th Cir.1997). Expressly requiring proof of negligence in a design-defect case, as Indiana law does, though unusual really isn't much of a legal innovation, since "defect" always implied something that should not have been allowed into the product—something, in other words, that could have been removed at a reasonable cost in light of the risk that it created. Id.; Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, 455-57 (1978); William Powers, Jr., "A Modest Proposal to Abandon Strict Products Liability," 1991 U. Ill. L.Rev. 639, 652, 654-59.

The risk of a heavy load falling on a worker if the spreader beam struck the disused cab was substantial because of the narrow clearance under the section of the bridge to which the cab was attached; and if the load did fall on someone it would be likely to kill or seriously injure him. Loads did fall, especially in very cold weather; the cold made the steel sheets slippery and therefore more likely to slide out of the scoops fastened to the chains of the spreader beam. The part of the plant where the sheets were unloaded from rail cars was open to the elements, and the accident to Mesman occurred on a very cold winter day. The renovated crane had been in operation for only ten days when the accident occurred, and so the fact that no one else had been injured was not compelling evidence that the risk of such an injury was slight—indeed, one or two loads had already fallen that very day, though no one had been hurt. A reasonable jury could find that the risk of serious injury was not slight.

In a negligence or "defect" case, the risk of injury has to be weighed against the cost of averting it. In Learned Hand's influential negligence formula, United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947), failure to take a precaution is negligent only if the cost of the precaution (what he called the "burden" of avoiding the accident) is less than the probability of the accident that the precaution would have prevented multiplied by the loss that the accident if it occurred would cause; hence the formula: B E.g., Bammerlin v. Navistar Int'l Transportation Corp., 30 F.3d 898, 902 (7th Cir.1994) (Indiana law); Brotherhood Shipping Co. v. St. Paul Fire & Marine Ins. Co., 985 F.2d 323, 327 (7th Cir.1993); Eimann v. Soldier of Fortune Magazine, Inc., 880 F.2d 830, 835 (5th Cir.1989); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32, p. 173 n. 46 (5th ed.1984). The cheaper the precaution, the greater the risk of accident, and the greater the harm caused by the accident, the likelier it is that the failure to take the precaution was negligent.

In this case the risk, which we said was substantial, of an injury that would be likely to be serious could have been...