Forklift Truck Design Case

Jury Instructions-IL > Product Liability > Forklift Truck Design Case

Keith Price v. Nacco Industries, Inc., Nacco Material Handling, Inc., 06 L 12915

$3 million verdict against maker of forklift truck which overturned and crushed driver’s leg.

While hoisting 1 ton bags of a residue into a rolling dumpster, a forklift truck overturned and the driver’s hood-latch seat became “unhinged” and dislodged the driver, causing his leg to be crushed and later amputated. The plaintiff won a $3.079 million verdict in 2011 against the manufacturer of the truck for faulty design and improper warnings in strict liability action. The defendant countered with contributory negligence in the operation of the truck and argued there was no causal link between the alleged malfunction and the injury. The jury answered 3 special interrogatories

IPI 1.01 – Modified by the court to be read at end of case, and updated by IPI Committee in 2009 to include old IPI 3.01 language)

Now that the evidence has concluded, I will further instruct you as to the law and your duties. The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a corporation or an individual, should receive your same fair consideration.

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them

You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

IPI 50.11 A Corporation Acts Through Its Employees

The Parties in this case are:

Plaintiff: Keith Price

Defendant: NACCO Material Handling Group, Inc. (“NACCO”)

The defendant is a corporation and can act only through its officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of the defendant-corporation.

IPI 2.01 – Evidence Deposition

The testimony of Dr. Kumar Moolayil was presented by the reading of his testimony. You should give his testimony the same consideration you would give it had the witness personally appeared in court.

IPI 3.02 Witness Who Has Been Interviewed by Attorney

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.03 Liability Insurance/Collateral Source

Whether a party is insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.

If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned you verdict, the court will make whatever adjustments are necessary in this regard.

IPI 3.08 – Opinion Testimony

You have heard a witness give opinions about matters requiring knowledge and skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case

IPI 12.04 Concurrent Negligence Other Than Defendant’s/ Modified under Dugan v. Sears,

Roebuck & Co., 113 Ill. App. 3d 740, 454 N.E.2d 64 (1983)

More than one person may be to blame for causing an injury. If you decide that NACCO’s lift truck was unreasonably dangerous and that the condition of the lift truck which the plaintiff contends is unreasonably dangerous was a proximate cause of injury to the plaintiff, it is not a defense that some third person or entity who is not a party to the suit may also have been to blame.

However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of a person or entity other than NACCO, and that such conduct by another person or entity was not reasonably anticipated by NACCO, then your verdict should be for NACCO.

IPI 15.01 Proximate Cause—Definition (updated Sept 2009)

When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. It need not be the only cause,

nor the last or nearest cause. It is sufficient if it combines with another cause resulting in

the injury.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which that party has the burden of proof is more probably true than not true.

IPI 400.01 Strict Product Liability—Issues Made by Pleadings—Personal Injury/Modified

The plaintiff claims that he was injured as a result of the use of the forklift truck made by the Defendant, NACCO, and that there existed in the forklift truck at the time it left the control of the defendant a condition which made the forklift truck unreasonably dangerous in one or more of the following respects:

Improper design of the hood latch and hinge mechanisms;

Failure to issue proper warnings; or

Improper manufacture and assembly of the hood latch and hinge mechanisms.

The defendant denies doing any of the things claimed by the plaintiff, denies negligence in doing any of the things claimed by the plaintiff, denies that any claimed act or omission on the part of the defendant was a proximate cause of the plaintiff’s claimed injuries, and denies

The extent of injuries claimed by the Plaintiff;

Any claimed condition of the product made the product unreasonably

dangerous;

Any claimed condition of the product was a proximate cause of plaintiff’s

injuries; and

Any claimed condition existed at the time the lift truck left the control of the

defendant

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The defendant, NACCO, further claims that the plaintiff assumed the risk of injury in

the following respect:

Improperly used the lift truck as a crane;

NACCO also claims that the foregoing was a proximate cause of the plaintiff’s own injuries.

The plaintiff denies that he assumed the risk of injury and also denies that any assumption of the risk on his part was a proximate cause of his injuries.

IPI B400.02.01 Strict Product Liability—Burden of Proof on the Issues—Personal Injury—Assumption of Risk

The plaintiff has the burden of proving each of the following propositions:

First, that the condition claimed by the plaintiff as stated to you earlier in these instructions existed in NACCO’s lift truck;

Second, that the condition made the lift truck unreasonably dangerous in case of a tip over accident;

Third, that the condition existed at the time the lift truck left the control of the defendant;

Fourth, that the plaintiff was injured; and

Fifth, that the condition of the lift truck was a proximate cause of injury to the plaintiff.

If you find from your consideration of all the evidence that any one of these propositions has not been proved, then your verdict should be for the defendant. But if, on the other hand, you find from your consideration of all the evidence that each of these propositions has been proved, then you must consider the defendant’s claim that the plaintiff assumed the risk of injury.

As to that claim, the defendant has the burden of proving each of the following propositions:

First, that the plaintiff had actual knowledge of the condition which the plaintiff claims made the product unreasonably dangerous;

Second, that the plaintiff understood and appreciated the risk of injury from that condition and continued to use the product;

Third, that the known condition was a proximate cause of the plaintiff’s claimed injury.

However, the plaintiff’s inattentive or ignorant failure to discover or guard against the unreasonably dangerous condition of the product does not constitute assumption of the risk.

If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff and that the defendant has not proved all of the propositions required of the defendant, then your verdict should be for the plaintiff and the plaintiff’s damages will not be reduced.

If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff, and that the defendant has proved all of the propositions required of the defendant, and if you find that the plaintiff’s fault in assuming the risk was greater than 50% of the total proximate cause of the injury for which recovery is sought, then your verdict should be for the defendant.

If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff and that the defendant has proved all of the propositions required of the defendant, and if you find that the plaintiff’s fault in assuming the risk was 50% or less of the total proximate cause of the injury for which recovery is sought, then your verdict should be for the plaintiff and the plaintiff’s damages will then be reduced by the percentage of the plaintiff’s fault in assuming the risk.

IPI 400.06A/07d/10 Strict Product Liability

400.06A Strict product Liability – Risk Benefit Design Test

When I use the expression “unreasonably dangerous,” I mean that the risk of danger inherent in the design outweighs the benefits of the design when the product is put to a use that is reasonably foreseeable considering the nature and function of the product.

400.07D Strict Product Liability—Duty to Warn—General [reworded]

In this case there is a claim of a failure to issue adequate warnings. A manufacturer has a duty to adequately warn and instruct the user of its products about the dangers of its product of which it knew, or, in the exercise of ordinary care, should have known, at the time the product left the manufacturer’s control.

400.10 Strict Product Liability—Due Care Not a Defense—Personal Injury

If you decide that the plaintiff has proved all the propositions of his case, then it is not a defense that the condition of the product could not have been discovered by the defendant or that care was used in the manufacture of the product.

IPI 30.01 et seq Damage Instructions, Measure of Damages

If you decide for any plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from any exposure or use of the unreasonably dangerous product, taking into consideration the nature, extent, and duration of the injury and the aggravation of any pre-existing ailment or condition.

The disfigurement resulting from the injury.
The reasonable expense of necessary medical care, treatment and services received and the present cash value of the reasonable expenses of medical care, treatment and services reasonably certain to be received in the future.
The present cash value of earnings lost and reasonably certain to be lost in the future.
The present cash value of caretaking expense reasonably certain to be incurred in the future.
Pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
Loss of Normal Life experienced or reasonably certain to be experienced in the future.

IPI 30.04.02 Loss of a Normal Life—Definition

When I use the expression “loss of a normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspects of life.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

IPI 34.01/04 Damages Arising in the Future—Extent and Amount

If you find that the plaintiff is entitled to damages arising in the future because of injuries or because of future caretaking expenses or because of loss of earnings, you must determine the amount of these damages which will arise in the future.

If these damages are of a continuing nature, you may consider how long they will continue. If these damages are permanent in nature, then in computing these damages you may consider how long the plaintiff is likely to live.

According to a table of mortality in evidence, the life expectancy of a person aged 40 years is 33.3 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 40. It may be considered by you in connection with other evidence relating to the probable life expectancy of the plaintiff in this case, including evidence of his occupation, health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average.

With respect to a loss of future earnings, you may consider that some persons work all their lives and others do not; that a person’s earnings may remain the same or may increase or decrease in the future.

IPI 34.02 Damages Arising in the Future—Discount to Present Cash Value

In computing the damages arising in the future because of future caretaking expenses or because of the loss of future earnings, you must determine their present cash value. “Present cash value” means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the expenses and earnings at the time in the future when the expenses must be paid or the earnings would have been received.

Damages for pain and suffering, loss of a normal life, and disfigurement are not reduced to present cash value.

IPI 36.01 No Liability – No Damages, Absence of Liability – No Occasion to Consider Damages

If you decide for the defendant, NACCO, on the question of liability, you will have no occasion to consider the question of damages.

IPI B45.03/B400.03—Modified: Instruction on Use of Verdict Forms—Apportionment of Responsibility— Strict Product Liability—Personal Injury—Assumption of Risk—Reduction of Damages

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations. Each verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the verdict form and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The Plaintiff in this case is Keith Price.

The Defendant in this case is NACCO.

If you find for the plaintiff and against the defendant, and if you further find that the plaintiff did not assume the risk, then you should use Verdict Form A

If you find the plaintiff and against the defendant, and if you further find that that plaintiff’s injuries were proximately caused by a combination of an unreasonably dangerous condition of the defendant’s product and the plaintiff’s fault in assuming the risk, and that that plaintiff’s fault in assuming the risk was 50% or less of the total proximate cause of the injury for which recovery is sought, then you should use Verdict Form B, and then determine the amount of damages to be awarded by you as follows:

First, determine the total amount of damages to which the plaintiff would be entitled under the court’s instructions if the plaintiff had not assumed the risk;

Second, determine what portion or percentage is attributable solely to the plaintiff’s fault in assuming the risk, considering the extent to which the plaintiff’s assumption of risk and the unreasonably dangerous condition of the product which proximately contributed to the plaintiff’s injury;

Third, reduce the total amount of the plaintiff’s damages by the proportion or percentage of plaintiff’s assumption of the risk.

The resulting amount, after making such reduction, will be the amount of your verdict.

If you find for Defendant, and against a particular Plaintiff, or if you find that Plaintiff’s fault, if any, in assuming the risk was more than 50% of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form C.

A “Special Interrogatories” are supplied with these instructions. After you have reached a verdict, fill in and sign the Special Interrogatories and return it to the court along with the forms of verdict. The Special Interrogatories must be signed by each of you.

VERDICT FORM A

We, the jury, find for the Plaintiff and against the Defendant. We assess the damages in the sum of

$________________________________________, itemized as follows:

The disfigurement resulting from the injury. $_________________
The reasonable expense of necessary medical care, treatment and services

received and the present cash value of the reasonable expenses of medical

care, treatment and services reasonably certain to be received in the future. $________________

The present cash value of earnings lost and reasonably certain to be lost

in the future. $_________________

The present cash value of caretaking expense reasonably certain to be

incurred in the future. $_________________

Pain and suffering experienced and reasonably certain to be experienced

in the future as a result of the injuries. $_________________

Loss of Normal Life experienced or reasonably certain to be experienced

in the future. $_________________

[Signature Lines]

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(Foreperson)

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B45.01.B Verdict Form B- COMPARATIVE

VERDICT FORM B

We the jury, find for the Plaintiff and against the Defendant. We assess the damages in the sum of

$________________________________________, itemized as follows:

The disfigurement resulting from the injury. $_________________
The reasonable expense of necessary medical care, treatment and services

received and the present cash value of the reasonable expenses of medical

care, treatment and services reasonably certain to be received in the future. $________________

The present cash value of earnings lost and reasonably certain to be lost

in the future. $_________________

The present cash value of caretaking expense reasonably certain to be

incurred in the future. $_________________

Pain and suffering experienced and reasonably certain to be experienced

in the future as a result of the injuries. $_________________

Loss of Normal Life experienced or reasonably certain to be experienced

in the future. $_________________

We further find the following:

The total amount of damages suffered by Plaintiff

as a proximate result of the occurrence is $____________________

The percentage of the plaintiff’s fault in assuming the risk

which, in combination with the dangerous condition of the

product, proximately contributed to the plaintiff’s injury is ____________(%)percent

After reducing the total amount of the plaintiff’s damages by

the proportion or percentage of plaintiff’s assumption of risk,

we assess the Plaintiff’s recoverable damages in the sum of $____________________.

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[Signature Lines]

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(Foreperson)

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*IPI4501.C

VERDICT FORM C

We, the jury, find for the Defendant and against the Plaintiff.

[Signature Lines]

NON IPI – SPECIAL INTERROGATORIES

SPECIAL INTERROGATORY #1

Was the sole proximate cause of the plaintiff’s injuries the conduct of persons or entities other than NACCO?

YES __________ NO ____________

[Signature Lines]

SPECIAL INTERROGATORY #2

Were the defendant’s hood latch and hinge mechanisms, in their design, manufacture, or warnings, unreasonably dangerous at the time the forklift left the control of the defendant?

YES __________ NO ____________

[Signature Lines]

SPECIAL INTERROGATORY #3

Was the condition of the hood latch and hinge mechanisms, in their design, manufacture, or warnings, a proximate cause of the plaintiff’s claimed injuries.

YES __________ NO ____________

[Signature Lines]