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Lolie v. Ohio Brass Co.

decided: August 13, 1974.

CAROL LOLIE, ADMINISTRATRIX OF THE ESTATE OF ALLAN LOLIE, DECEASED, PLAINTIFF-APPELLANT,
v.
THE OHIO BRASS COMPANY, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Southern District of Illinois, Southern Division. No. S CV 72 107. OMER Poos, Judge.

Swygert, Chief Judge, Stevens, Circuit Judge, and Perry,*fn* Senior District Judge.

Author: Per Curiam

Plaintiff's husband, a coal miner, was fatally injured when a "power cable" fell from the roof of a mine. Defendant is a manufacturer of metal clips which were intended to hold the cable in place; they were dislodged, however, when the cable, having been struck by a heavy steel rail at a point some 439 feet from where decedent was standing, began to quiver violently. Since the clips did not prevent the cable from falling, plaintiff claimed that their design was defective and unreasonably dangerous, and defendant was strictly liable in tort. Cf. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). Accepting defendant's argument that the accident was entirely the result of the mine operator's negligence when unloading the steel rail, the jury returned a verdict for defendant. We affirm.

I.

Subsequent to the accident a state mine inspector directed the mine operator to give the power cable added support by tying it with a sturdy polypropene rope every 60 feet; the operator, of course, complied with the directive. Plaintiff sought to introduce evidence of this post-occurrence change, but the district court excluded it. Her principal contention on appeal is that the exclusion constituted reversible error.

It is generally held that evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct. See Rule 407 of the Proposed Rules of Federal Evidence. The primary ground for exclusion "rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety." Id., Advisory Committee Note.*fn1 This basis clearly has no applicability when the evidence is offered against a party, such as this defendant, which did not make the changes. Wallner v. Kitchens of Sara Lee, Inc., 419 F.2d 1028, 1032 (7th Cir. 1969); Sutkowski v. Universal Marion Corp., 5 Ill. App. 3d 313, 318-19, 281 N.E.2d 749, 752-53 (1972).

In this case, plaintiff sought to impose strict liability on defendant for the defective design of its product. In such a case the plaintiff must establish that the "product in question has [not] lived up to the required standard of safety." Wright v. Massey-Harris, Inc., 68 Ill. App. 2d 70, 79, 215 N.E.2d 465, 470 (1966). See also W. Prosser, Law of Torts 644 (4th ed. 1971). This, of course, requires proof that, inter alia : 1) the product as designed is incapable of preventing the injury complained of; 2) there existed an alternative design which would have prevented the injury; and 3) in terms of cost, practicality and technological possibility, the alternative design was feasible. Evidence of post-occurrence change which tended to satisfy plaintiff's burden on any of these issues would, therefore, be relevant.*fn2 Hoppe v. Midwest Conveyor Co., 485 F.2d 1196, 1202 (8th Cir. 1973); Sutkowski, supra, 5 Ill. App. 3d at 318-20, 281 N.E.2d at 752-53; Brown v. Quick Mix Co., 75 Wash. 2d 833, 454 P.2d 205, 209-10 (1969); see Wallner, supra, 419 F.2d at 1032.

Since the proffered evidence was relevant and there existed no valid policy reason for excluding it, the evidence was admissible. However, after having considered the court's action in light of the entire record, and taking into account the scope of the trial judge's discretion in ruling on evidentiary questions, particularly when the proffer is arguably cumulative, we are persuaded that the exclusion was not reversible error.*fn3

More specifically, evidence of the accident itself established that the design of defendant's clips could not prevent the power cable from falling under the circumstances which occurred in the mine. Plaintiff's expert, Dr. Hornsey, also testified to this fact. Tr. 298-300. Dr. Hornsey further stated that, in his opinion,

either the clip should have been designed so that it was capable of withstanding the energy loads of the cable falling under its own weight, or as an alternative at some periodic interval some additional holding device could have been used such as polyethylene rope.

Tr. 298.*fn4 Thus, on the issues of whether the design was inadequate and whether there existed an alternative design which would have prevented the accident, the evidence of post-occurrence change was cumulative.*fn5

No other evidence was admitted on the issue of feasibility. Plaintiff, however, has not argued that there was any dispute at trial over the feasibility of tying sturdy rope at periodic intervals. And it is highly improbable that a jury could reasonably believe that such an alteration was too costly, impractical or technologically impossible. It has been suggested that, under these circumstances, evidence of post-occurrence changes should not even be admitted on the issue of feasibility. See McCormick's Handbook of the Law of Evidence 668-69 (2d ed. 1972); Rule 407 of the Proposed Rules of Federal Evidence. At the very least, exclusion of such evidence did not affect the "substantial rights" of plaintiff.

Our decision here is, of course, consistent with Wallner, supra, and Mahoney v. Roper-Wright Mfg. Co., 490 F.2d 229 (7th Cir. 1973). In Wallner we held simply that admission of the post-accident change evidence was proper. In Mahoney exclusion of such evidence was reversible error because the ...


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