Kudelka v. American Hoist & Derrick Co., s. 75-1541

• Decision Date: 03 September 1976
• Docket Number: 75-1542,Nos. 75-1541,s. 75-1541
• Citation: 541 F.2d 651
• Parties: Fred KUDELKA, Sr., Plaintiff-Appellant, v. AMERICAN HOIST & DERRICK COMPANY, a corporation, Defendant and Third-Party Plaintiff-Appellee, v. UNITED STATES of America, Third-Party Defendant-Appellee. Fred KUDELKA, Sr., Plaintiff-Appellee, v. AMERICAN HOIST & DERRICK COMPANY, a corporation, Defendant and Third-Party Plaintiff-Appellant, v. UNITED STATES of America, Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 651

541 F.2d 651

Fred KUDELKA, Sr., Plaintiff-Appellant, v. AMERICAN HOIST & DERRICK COMPANY, a corporation, Defendant and Third-Party Plaintiff-Appellee, v. UNITED STATES of America, Third-Party Defendant-Appellee.

Fred KUDELKA, Sr., Plaintiff-Appellee, v. AMERICAN HOIST & DERRICK COMPANY, a corporation, Defendant and Third-Party Plaintiff-Appellant, v. UNITED STATES of America, Third-Party Defendant-Appellee.

Nos. 75-1541, 75-1542.

United States Court of Appeals Seventh Circuit.

Argued Feb. 13, 1976.

Decided Sept. 3, 1976.

H. Carl Runge, Jr., East St. Louis, Ill., for Kudelka.

Howard Boman, East St. Louis, Ill., for American Hoist & Derrick.

Donald B. Mackay, U. S. Atty., Springfield, Ill., Robert E. Kopp, Barbara L. Herwig, Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., for U. S.

Before PELL and BAUER, Circuit Judges, and PERRY, Senior District Judge. ^*

PELL, Circuit Judge.

This is an appeal in a personal injury suit by the plaintiff from a judgment entered on a directed verdict in favor of the defendant American Hoist & Derrick Company. American Hoist had filed a third-party complaint against the United States of America, and inasmuch as the judgment was being entered for American Hoist, judgment was also simultaneously entered in favor of the Government. The plaintiff urges on appeal that he had introduced sufficient evidence to present a jury question and that the district court erred in excluding certain evidence which, according to plaintiff, would have compelled a different result.

Jurisdiction is based on diversity of citizenship, and it is undisputed that Illinois law governs the case. This circuit looks to state law to determine the standard by which to judge a motion for a directed verdict. Illinois State Trust Co. v. Terminal Railroad Association, 440 F.2d 497, 500 (7th Cir. 1971), cert. denied, 404 U.S. 855, 92 S.Ct. 100, 30 L.Ed.2d 96. In Illinois State Trust, this court indicated the relevant standard was stated by the Illinois Supreme Court in Pedrick v. Peoria & Eastern Railroad,37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14 (1967):

(V)erdicts ought to be directed . . . only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

We therefore view the evidence in this light. Some of plaintiff's witnesses were seriously impeached on cross-examination, but issues of credibility should not be resolved on a motion for a directed verdict under this standard.

Plaintiff was part of a two-man team who operated a 20-ton mobile crane manufactured by American Hoist. The crane was designed, owned, and operated by the United States at the Army Depot in Granite City, Illinois. Plaintiff was employed at the Depot. The lifting portion of the crane was mounted on the rear of a truck in such a manner that it could swivel. At the time of the accident, plaintiff was in the truck cab and John Carlson, his co-team member, was in the rear operating the crane itself.

On the day of the accident, plaintiff and Carlson were instructed to load a D-6 Caterpillar tractor on to a flat bed trailer. Carlson testified that according to a plate affixed to that type of tractor, it weighed 24,000 pounds. Plaintiff backed the crane unit into the appropriate position for lifting the tractor with the crane facing the rear. Other persons attached the tractor to the crane, and Carlson started the lift. When the tractor was a few inches off the ground, the boom of the crane shuddered and collapsed. Carlson testified that as the boom started to fall, he swung the crane to the left a bit to keep the boom from falling down on the tractor. Plaintiff testified that just after he felt the lift begin, he was thrown violently from side-to-side and out of the truck cab on to the ground. He sustained serious back injuries.

The crane was equipped with outriggers which, according to Carlson, were used to stabilize the unit; but it is undisputed that they were not being used at the time of the accident. Affixed to the crane was a plate which indicated that at the angle at which the boom of the crane was being operated at the time of the accident, the crane capacity without the outriggers was 17,700 pounds and with the outriggers was 31,000 pounds. Carlson testified that the outriggers have nothing to do with the lifting capacity of the boom.

At the time of the accident the boom contained an insert extending it ten feet. It was the insert which collapsed. Inserts were made by several manufacturers, and one of American Hoist's defenses was that it had not produced the particular insert which failed. An inspector testified that the insert had a plate on it which identified it as from American Hoist. At a deposition he testified that he did not know who manufactured the insert, but he explained this conflict, at least partially, by indicating that he meant that he did not know whether or to whom American Hoist might have subcontracted the production of the insert. Another inspector testified that the extension had not been removed and had been on the crane for some time because the paint on the bolts holding it was not cracked and it had not been painted over.

The complaint against American Hoist was framed in five counts. The basic facts alleged were consistent, but the counts were drafted so as to state causes of action under different theories of the law. Count I was based on negligence, Count II on express warranty, Count III on implied warranty, Count IV on strict liability, and Count V on res ipsa loquitur. Count V was stricken by plaintiff prior to trial.

Each of the original counts of the complaint alleged improper design, engineering, and manufacture. According to the defendant, the design and engineering claims were struck from the complaint at a conference prior to trial. Unfortunately, no one caused the record to show what took place at this conference. Plaintiff's counsel, who, unlike American Hoist's counsel, was not trial counsel, argues that we should not consider counsel's representations in this regard because they are foreign to the record. Normally plaintiff's position would have merit, but the record contains substantial support showing that somehow, prior to trial, the propriety of the design and the propriety of the engineering were eliminated as issues. ¹ Plaintiff's case, therefore must stand or fall on his evidence regarding the propriety of the manufacture of the crane.

At the close of plaintiff's evidence, American Hoist moved for a directed verdict in its favor, which was granted. Regarding Count II, on express warranty, the court indicated that it had been withdrawn on the morning of trial but that in any event there was no evidence of any express warranty. Plaintiff does not contend in this appeal that this was error. The trial judge discussed each of the remaining counts individually, but his basic reason in each instance was that plaintiff's evidence showed that he was attempting to lift a load greater than the limits the plate indicated should be lifted without using the outriggers. During the trial the trial judge stated:

This is a case concerning possible negligent manufacture, a case concerning the alleged introduction into commerce of a dangerous instrumentality, a case involving breach of warranty.

As I stated before, no such case can stand as a matter of law if the product was not being used in the way it was intended to be used by the manufacturer.

Earlier during the trial, the following colloquy occurred:

Plaintiff's counsel: As far as the outriggers are concerned, your Honor, they would in no way affect the lifting capacity of the boom and the boom insert. Their function is to stabilize the unit, itself. They have nothing to do with the lifting capacity of the unit.

The Court: Well, I am not going to permit the jury to pass on that kind of a question because I don't think that is true. Outriggers will give lateral stability and the strength of a boom you don't have to be an engineer to know that if you've got it cocked a little bit that it is not as strong as if you are operating it straight.

The Illinois Supreme Court apparently first recognized strict liability as an independent theory of tort recovery in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). In Liberty Mutual Insurance Co. v. Williams Machine & Tool Co., 62 Ill.2d 77, 338 N.E.2d 857, 861 (1975), a case in which a manufacturer sought indemnity against the maker of a component part which failed, the court summarized the doctrine as it has evolved. It held that the plaintiff must prove that the product contained a defective condition which existed at the time it left the defendant's control and that the defect rendered the product unreasonably dangerous and proximately caused the injury to the plaintiff. Proof of a plaintiff's negligence will not serve to bar a strict liability claim, but proof of misuse or proof that plaintiff assumed the risk of the defect will bar recovery. The court has held that misuse of a product is using it for a purpose neither intended nor foreseeable. It is at least implicit in the Illinois cases that for misuse to bar recovery, it must have contributed to the accident which occurred.

We hold that it was error for the district judge to direct a verdict in favor of the defendant on the basis that the evidence showed that plaintiff was attempting to lift a load greater than the load limits shown on the plate for the crane without outriggers. The only evidence before the court concerning the outriggers was that they had nothing to do with the strength of the boom. The trial judge may have been correct in his conclusion that the boom was weakened if it was "cocked a little bit" and that the outriggers would have prevented this; but there was no evidence presented at trial on which he could have based this conclusion,...