By Susan Engstrom
A truck driver who was injured after falling from the upper deck of a car hauler rig during the course of his work could pursue strict product liability and negligence claims against the rig’s manufacturer, a federal district court in Illinois ruled. Contrary to the manufacturer’s assertions, the record contained elements of the required risk-utility analysis, and genuine issues of material fact existed as to whether any of the decisions the driver had made prior to his fall provided a superseding factor that broke any causation resulting from the rig’s design. The court also rejected the manufacturer’s motion to bar the driver’s expert from testifying about the alleged unreasonable danger posed by the design of the rig (Schuring v. Cottrell, Inc., March 27, 2017, Kendall, V.).
On the day of the accident, the driver was attempting to unload two vehicles that sat on the upper deck of a trucking rig manufactured by Cottrell, Inc. He had climbed to the upper deck while it was still elevated, and tried to walk from the "No. 6" position (toward the front of the truck) to the "No. 8" position (toward the back). In doing so, he gripped the bar adjacent to position "No. 10" (toward the middle) and attempted to step with his right foot onto a narrow steel beam that served as the outer rail of position No. 8. His right foot slipped on a substance thought to be hydraulic fluid and became wedged between the deck’s outer rail and its "flipper," a metal hinge used to bridge positions No. 8, 10, and 6 so that vehicles can drive on the upper deck. With his foot stuck, he fell backwards and hung upside down. After his cries for help went unanswered, he managed to unhook his foot, but then fell to the ground and landed on his left buttock.
Safety mechanisms. Prior to the driver’s accident, two fatal incidents had prompted Cottrell to retrofit the head ramp with a strap system in 2009 as an additional safety measure. This retrofitting included the addition of two cables strung by posts in position No. 6 in order to protect drivers from falling off the upper deck. No such guardrails flanked positions No. 10 or 8, where the driver in this case slipped. In addition, although there was a catwalk attached in the middle of the outer rail of position No. 8, there was no catwalk where the driver’s foot had slipped off the rail.
The driver and his spouse filed suit against Cottrell, alleging that design flaws in the rig—including inadequate catwalks and grab-bars—led to the driver’s fall. The driver sought damages for strict liability, negligence, implied warranty, and willful and wanton conduct, and his wife sought to remedy her loss of consortium. Cottrell moved to bar the plaintiffs’ expert and also moved for summary judgment.
Expert testimony. The court refused to exclude the driver’s expert, finding that the breadth and depth of his mechanical design expertise sufficiently prepared him to analyze the feasibility and utility of the various safety mechanisms at issue in the design of the rig. The court also found the expert’s proffered opinions sufficiently reliable for admission. In addition, his testimony and cross-examination would allow a factfinder to weigh the extent to which the rig’s design could or could not have been different, and how that might have changed the outcome of the driver’s accident. These findings factored into causation and, therefore, into all of the claims against Cottrell. Moreover, the driver’s strict product liability claim relied in part on expert opinion in order to establish that the design was unreasonably dangerous. Thus, the court concluded that that the expert offered relevant opinions, and that his testimony qualified him to serve as an expert witness under Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
Product defect. Cottrell asserted that it was entitled to summary judgment even with the expert’s testimony because the driver did not conduct a risk-utility test to establish a defect in the rig, as required to show strict liability in Illinois. Although the expert’s report did not explicitly account for consumer expectations, product instructions and warnings, or the range of similar available products, the expert certified that in preparing his report, he reviewed materials—including all witness depositions—that contained facts relating to other risk-utility factors. For example, with respect to the magnitude and probability of foreseeable risks, other witness depositions attested to earlier deaths caused by falls from other double-decker trucking rigs, including one manufactured by Cottrell.
In addition, although the driver’s expert stated that he did not consider the cost of his alternative design or the installation and maintenance costs, other parts of the record reported price points that the expert would have considered within his reported document review. This included an estimate that Cottrell had spent about $300-$400 in materials plus labor costs to install the material safety devices it added to the head ramp in 2009, which could help estimate the cost of similar cables and grab-bars. The expert was not required to consider all of these factors explicitly in his report in order for them to have factored into his analysis. Nor does a risk-utility analysis need to consider every possible factor.
Finally, experts are not required to shoulder the overall risk-utility analysis. That responsibility remains with the plaintiff, who must establish sufficient risk-utility evidence in the record. Because the record spoke to elements of the risk-utility analysis even where the expert did not speak to them directly, summary judgment could not be granted on that basis.
Causation. With respect to causation, the parties disputed whether the driver "chose" to fall by: (1) not lowering the upper deck before unloading; (2) failing to see the fluid on which he slipped; and (3) dislodging his foot in order to free himself. In the court’s view, a factfinder would be best suited to determine whether the driver had made a genuine choice that provided a superseding factor that broke any causation resulting from the rig’s design. Because each of the disputed facts spoke to the foreseeability of the incident, they all were material.
Other questions of foreseeability remained as well, such as whether the driver knew or should have known about the dangers that drivers encounter while unloading cars from double-decker rigs, especially in light of the fatalities that prompted Cottrell’s retrofitting some, but not all, of the upper deck’s positions.
These outstanding findings of fact were needed to decide whether the driver’s fall constituted a natural and continuous consequence of Cottrell’s rig design. Concluding that a jury must make these determinations, the court denied Cottrell’s motion for summary judgment.
The case is No. 13 C 7142.
Attorneys: Cole Harrison Munvez (Brustin & Lundblad, Ltd.) for Gregory Schuring and Mary Schuring. Daniel J. Carpenter (Carpenter Moser, LLC) for Cottrell, Inc. Troy A. Bozarth (Hepler Broom LLC) for Cassens Corp.
Companies: Cottrell, Inc.; Cassens Corp.
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