LEGAL CORNER

Court Awards Injured Mechanic $1.7 Million; Verdict Upheld on Appeal

By Gerard Panaro, Howe & Hutton, WSTDA Legal Counsel

Both sides having waived a jury trial, a judge awarded a mechanic almost $1.5 million in economic and noneconomic damages and awarded the insurance company an additional $221,000 for amounts it paid for the plaintiff’s medical bills, disability payments and vocational rehabilitation costs, for a total of slightly over $1.7 million. On appeal, the California Court of Appeal affirmed in an unpublished opinion (Butler v. Ingersoll Rand, 2007 WL 4217157).

This was a “defective design” case; the plaintiff did not sue on a “failure to warn” theory, although issues about what was and wasn’t in safety manuals and whether employees read or didn’t read the manuals and follow company policy did come into play. One lesson of the case is this: If a person’s failure to read a manual or follow a rule can not be proved to have contributed to the accident or injury, then a court will likely rule the failure irrelevant.

The plaintiff was a heavy machinery mechanic. One day while he was doing routine maintenance and repair work on a blasthole drill used in deep drilling, he lost his balance and fell, tearing his anterior cruciate ligament. The accident aggravated a degenerative condition in his spine. He had to have four surgeries. The drill platform he was standing on was only 17 inches wide, so his supervisor told him to use the drill’s dust cover. Ingersoll Rand made the machine in 1996. The plaintiff was working 3.5 feet off the ground. The plaintiff asked his supervisor to adjust the temperature on his welding unit so that he wouldn’t have to get down and walk 15-20 feet to his truck to do it himself.

Initially, the plaintiff sued the drill manufacturer, Ingersoll Rand, for negligence, strict products liability, failure to warn of a defective condition, breach of implied warranty of fitness for a particular purpose, breach of the implied warranty of merchantability and breach of express warranty. Shortly thereafter, the employer’s workers compensation insurer intervened in the action, seeking to recover amounts it had paid to the plaintiff or his medical providers as a result of his injuries. However, before the trial (which lasted at least a week; the opinion isn’t clear), the plaintiff dismissed all his claims other than the cause of action for product liability and the parties waived their right to a jury trial.

At the trial, the plaintiff presented evidence, which was not disputed, that because the drill platform was too narrow to safely perform the required maintenance work, the raised dust flap was frequently used by mechanics to provide a larger area on which to stand while doing such work. He also showed that when raised to a horizontal level, there were gaps between the dust flap and the drill platform, both of which created tripping hazards. Finally, he introduced evidence that subsequent Ingersoll Rand drill models (including the later version of the one he was working on) used guardrails around the platform.

The manufacturer’s defenses were unavailing at trial: it argued that the drill complied with applicable safety standards, that the dust cover was not intended to be used as a work platform, that based on his experience, the plaintiff knew or should have known of the danger, that the use of a guardrail on the existing 17-inch platform would have precluded the plaintiff from doing the maintenance work and that the plaintiff lied about what happened to him, particularly as it related to his neck injuries.
Nonetheless, the court found that IR had “defectively designed” the drill. The court also ruled that the benefits related to the design of the drill were “outweighed by the unreasonable risk of injury to workers.” The work platform was being used in a way the manufacturer “expected and intended it to be used.”

The manufacturer raised a number of issues on appeal. One was that the trial court denied it a fair trial by not letting it replace its human factors expert. Ingersoll Rand wanted to replace the expert because the original one mistakenly did not cover the scope of the plaintiff’s expert’s testimony. The court of appeals rejected the argument, finding that the situation “could have been avoided if Ingersoll Rand had exercised reasonable diligence in this case.”

On the merits of the issue, Ingersoll Rand raised four issues on appeal: 1) the “sophisticated user” doctrine, 2) IR was not liable for the plaintiff’s injuries because the claimed defect in the drill equipment was “open and obvious”, 3) the trial court improperly relied on a risk-benefit theory of design defect liability rather than a consumer expectation theory as a basis for finding it liable for those injuries, and 4) IR’s liability for the plaintiff’s injuries should have been reduced to reflect his and his employer’s comparative negligence.

The court of appeals rejected all of these arguments. The “sophisticated user” doctrine is a theory of California law which creates an exception to the rule that “manufacturers are strictly liable for injuries caused by their failure to give warning of dangers that were known to the scientific community at the time they manufactured and distributed the product [.]” Under the “sophisticated user” exception to this rule of strict liability for failure to warn, “a manufacturer is not required to provide warnings to members of a profession or trade who, as a result of training or expertise, are deemed to be aware of the general risks of using the manufacturer's products.” (However, the court noted that the “sophisticated user” doctrine was under review by the California Supreme Court, so it may no longer apply.) Whether the rule is still good or not in California is irrelevant to this case, however, the court of appeals held, because the plaintiff “dismissed his failure to warn claim prior to trial and as a result Ingersoll Rand's argument that the sophisticated user doctrine applies does not provide a basis for reversal of the judgment given in his favor.”

The “open and obvious defect” defense states that where a “danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, so that the manufacturer has no duty to warn of the condition.” (But the manufacturer may still have a duty to remedy the dangerous condition, the court noted.) Availing itself of this defense, Ingersoll Rand argued that it could not be held liable for the plaintiff’s injuries because the lack of a guardrail and the existence of an angle iron on the dust flap were obvious. However, the court rejected this second defense because “although the obviousness of a danger may obviate a manufacturer's duty to warn, it does not, as a matter of law, absolve the manufacturer from a duty to remedy the defect that gives rise to the danger.”

There are two versions of the “consumer expectations” defense in California: 1) “[a] product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner”, or 2) a product may be found to be defective in design if the fact finder determines in hindsight that the product's design embodies “excessive preventable danger,” i.e., that the risk of danger inherent in the design outweighs the design's benefits. The court rejected this argument for the simple reason that the plaintiff never based any of his claims on a “consumer expectations” theory, nor was he required to.

Finally, Ingersoll Rand argued on appeal that the evidence showed that the plaintiff and his employer were comparatively at fault for his injuries because:

At the time of the accident, the plaintiff was not wearing a safety belt and line as required by state law;
His supervisor instructed the drill operator to raise the dust cover so that the plaintiff could stand on it even though the cover was not designed to be used as a work platform;
The plaintiff stood on the dust flap to perform the repair rather than using a manlift as instructed by the drill’s safety manual;
The plaintiff asked his supervisor to turn up the heat on the welder rather than turning it up himself and the supervisor did so even though he had not read the safety instructions for the welding unit as required by company policy; and
The plaintiff failed to use a three-point hold in accordance with the employer’s policies.

The court rejected this final argument on appeal for two reasons. The first was a “technical” reason: IR didn’t raise the defense at trial or present any evidence at trial to show that any such negligence was a cause of the plaintiff’s injuries. Therefore, it was not allowed to raise the issue on appeal.

The appellate court gave four substantive reasons why it did not find the argument persuasive, however: 1) although the plaintiff was not wearing a safety harness at the time he fell, there was evidence at trial that it was more dangerous to wear a harness when doing work that was at a height of less than six feet above the ground than to go without one (recall, the plaintiff was only 3.5 feet off the ground).

2) Although Ingersoll Rand argued that the dust cover was not intended to be used as a work area, the evidence at trial showed that nothing in the safety manual for the drill or on the equipment itself indicated that the dust cover could not be used for walking on or for work purposes. “The uncontroverted evidence also showed that the dust flap could support the weight of a person and was, for safety reasons, frequently used as a work surface in carrying out maintenance and repair work on the drill since the drill platform was only 17 inches wide and was not protected by a guard rail to keep the welder from falling off of the deck while working.”

3) As far as the drill’s safety manual instruction that no one should climb on the drill derrick and that the derrick should be lowered, or a manlift used to raise the repairman, if repairs were needed, this instruction related to repairs to the drill derrick itself rather than to the type of work the plaintiff was doing. Also, a manlift was too tall to have been used by the plaintiff to do the work. As for the employer’s policy that its employees use a three-point hand hold under certain circumstances, that policy applied only where the employee was mounting or dismounting the drill. But in this case, the plaintiff was standing on the platform, not getting on or off it.

4) Lastly, the fact that the plaintiff asked his supervisor to turn up the heat on his welding equipment and that the supervisor started to do so despite having never read the safety manual for the welding machine failed to prove that these acts or omissions caused the accident. The supervisor “had substantial welding experience”; turning up the heat on the welder was a simple task; and the plaintiff’s request complied with normal operating procedures and was more practical than for the plaintiff to disengage from his equipment, climb down off the drill and walk over to his truck to turn up the heat himself. “More importantly,” the appellate court concluded, “the fact that [the supervisor] had not read the safety manual for the welding machine is simply irrelevant, as it had no causal relationship with [the plaintiff’s] fall, and thus does not provide a basis for reducing Ingersoll Rand's liability for [the plaintiff’s] injuries.”
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