APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
C. CHERRY, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 17, 1978.
Plaintiff, Eugene Christopherson, brought this strict liability action in the circuit court of Cook County, Illinois, against defendant, Hyster Company (Hyster), to recover damages for severe injuries he sustained while operating a Hyster Model S40-B forklift truck. The case was tried under the substantive law of Wisconsin, where the injury occurred, and a judgment was entered on a special jury verdict for plaintiff in the sum of $1,575,000 from which Hyster appeals. We affirm. A summary of the background of the instant litigation is helpful.
Plaintiff worked as a forklift operator for Chilton Metal Products, Inc. (Chilton), located in Chilton, Wisconsin. On February 25, 1970, he was injured at the Chilton plant when the top two of four vertically stacked wire containers which he was transporting fell from the forks of the lift truck and struck him on the neck, resulting in permanent paralysis of his limbs. The forklift involved in the accident was defendant's model S40-B, manufactured and sold by defendant in 1965 without an overhead safety guard. Chilton purchased this forklift from the Milwaukee Engine & Equipment Corp. (Milwaukee Engine), an independent Hyster dealer who had in turn purchased it from Hyster.
The law of Wisconsin, which controls this case, provides that Wisconsin's comparative negligence law applies in strict products liability actions. Therefore, a manufacturer's liability for producing an unreasonably dangerous and defective product is termed "negligence per se," and is in turn compared with the negligence of plaintiff and others in order to determine if a recovery may be had in a particular case. See Dippel v. Sciano (1967), 37 Wis.2d 443, 155 N.W.2d 55; Greiten v. LaDow (1975), 70 Wis.2d 589, 599, 235 N.W.2d 677, 683; *fn1 Howes v. Deere & Co. (1976), 71 Wis.2d 268, 238 N.W.2d 76; Connar v. West Shore Equipment of Milwaukee, Inc. (1975), 68 Wis.2d 42, 227 N.W.2d 660; Schuh v. Fox River Tractor Co. (1974), 63 Wis.2d 728, 218 N.W.2d 279.
On October 28, 1974, at the first trial of this case, a jury returned a special verdict finding plaintiff and Hyster each 50% negligent, and separately assessing plaintiff's damages at $640,000. Under Wisconsin law, in effect at the time of this occurrence, a plaintiff whose negligence equaled that of defendant recovered nothing (Lupie v. Hartzheim (1972), 54 Wis.2d 415, 195 N.W.2d 461), and the trial court accordingly entered judgment for defendant. The trial court, however, granted plaintiff's motion for a new trial, and Hyster's petition for leave to appeal the new trial order pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1975, ch. 110A, par. 306) was denied. The testimony adduced at the second trial in this case, pertinent to the issues in the instant appeal, follows.
Arthur Huebner, vice-president of product engineering for Hyster, was called by plaintiff as an adverse witness. He had worked for Hyster in various engineering capacities dealing with the design of industrial trucks continuously since 1948, and particularly from 1961-69 served as the engineering manager for Hyster's industrial truck division.
The lift truck involved in this case was Hyster's model S40-B, which was produced from 1959 until about 1966. Huebner stated that the immediate predecessor to the S40-B was the YC-4000, and a third model was the S40-C. All three models were designed to lift, transport and stack loads of up to 4000 pounds. Indeed, Huebner stated that the primary purpose of the S40-B was to stack materials. It was designed to be used in warehouses, close quarters, boxcars, and other low-clearance areas. The upright on this particular model was 69.5 inches tall, with a vertical lift up to 103 inches. When the top of the upright is 69.5 inches from the ground it would be approximately even with the shoulders of the average driver. Thus, in order to enter some low-clearance areas with the S40-B a driver must lower his head to the side.
Huebner stated that when a lift truck possesses no overhead guard, there is always some danger that stacked materials may fall on the operator. However, the degree of danger depends on the condition of the stacked materials. If the stacks are stable they are not likely to fall.
The primary reason why Hyster did not include an overhead guard on such trucks in 1975 was due to the low-clearance problem. The S40-B with a standard overhead guard could not enter the vans of transport trucks in order to remove pallets of materials. However, back in 1964 and 1965 there were some retractable overhead guards for these trucks. In fact, in 1965 the technology was available to build retractable or low profile guards. Hyster attempted to develop a workable retractable guard at that time, but the disadvantages of such designs presented greater problems than having no guard at all. However, in 1966, an overhead guard was made standard on the S40-B unless the customer specifically requested its exclusion. This policy was motivated by the incidence of accidents which had occurred. In 1970, Hyster extended this policy by refusing to omit an overhead guard unless the customer stated in writing that the truck was to be used only in low-clearance areas.
Huebner also stated that in designing a truck with a 103-inch lifting capacity, one would expect the customer to eventually use the full lift capacity of the truck. Thus, Huebner would expect this machine to be used to stack stable loads of 4000 pounds or less to a height of 103 inches. However, in Huebner's opinion the load lifted by plaintiff in the instant case was not a stable one. The four baskets totaled a height of 12 feet with the center of gravity 6 feet high, above the upright. Thus, the column was too high, with only a small base of support, to allow it to be a stable load while being moved.
Returning to the subject of retractable guards, Huebner explained his earlier statement that in 1965 the designs for such guards raised great disadvantages. Generally, they interfered with the truck's maneuverability in close quarters by adding on folding members which extended the length of the truck; or if a telescoping design was used it involved adding materials to the body of the truck which would raise its center of gravity and make the entire truck less stable. In addition, the added parts necessary for retractable guards would tend to obscure the operator's field of vision. To his knowledge, in 1965 there was no standard retractable guard made by any manufacturer in the industry.
Huebner recognized that in 1964 Allis-Chalmers applied for a patent on the design of a retractable guard for these trucks. The patent was apparently issued in 1966; however, to his knowledge the design was never produced by anyone. Hyster finally developed and marketed a retractable overhead guard for these trucks in 1970.
The testimony of Donald Shaffner, as given at the first trial in this case, was then read into the record. Shaffner is the sales manager for the industrial truck division of Hyster. He had been employed by Hyster in advertising and sales continuously since 1948. In 1965 he was the field sales manager in Oakbrook, Illinois.
Shaffner stated that he and the other Hyster people knew that these machines were being used in factories to move and stack materials. Under certain conditions, when a load was lifted above an operator's head, with no overhead guard present, these trucks would be dangerous. The danger, however, depends on the load being carried; if the load was a large solid box, extending in part above the vertical uprights, it would not be dangerous, but if it were a multitude of parts that could become separated it could become dangerous. With respect to the instant case, a load of four wiretainer baskets would be obviously dangerous because it could come apart with any sudden movement. Shaffner had never seen an S40-B truck take one load of four such containers in one stack.
Larry Faust was called as a witness by plaintiff and testified that he had been employed by Chilton from February of 1968 to July of 1976. From 1968 through February 25, 1970, he worked as a forklift operator along with plaintiff.
When obtaining materials from the stock room, Faust stated that the lift operators did not have to move the wiretainer baskets four at a time. They did so, however, to keep things going faster. When a four-basket-high load was moved, it was only a matter of a few feet; just far enough to allow access to the parts the operator wanted to bring to the press room.
Faust identified plaintiff's exhibits portraying the interlocking mechanism used by Chilton in stacking the wiretainer baskets together. Pegs on the bottom of one basket would fit into container slots in the top of a second basket, and so on. When joined together these form a stable apparatus, so that if someone physically grabbed it they could not just shake it loose.
Faust also stated that in the press room only two baskets at a time could be stacked and carried, possibly because of the danger that more than two would fall over. Such a danger would be present whether the four-basket-high stack was being moved in the press room or the stock room. However, until the instant accident Faust was not really aware of the danger that the top baskets themselves could fall from a four-basket load. His concern was more for parts falling out of the baskets in such a load and injuring someone.
While working as a lift operator prior to the accident, Faust complained about the lack of an overhead guard. However, his complaint was prompted by a fear that parts might fall on him; it never occurred to him that the basket itself could fall. The baskets were not tied together, but were held together by stakes in one basket which fit into holes in the basket underneath.
Faust also stated that when a four-basket load is moved and the top baskets touch other stationary baskets, it is possible that the top two baskets will fall back on the operator. However, an S40-B cannot lift just the top basket of a stack of four. At a minimum an operator must remove the top two baskets. When he does so, the top basket is still 12 feet high, and above the uprights. In order to remove just the top two baskets the operator would first place the fork between the second and third baskets, "jiggle" them some because of the weight of the baskets, and then lift the top two off.
Plaintiff testified in his own behalf that he first began driving a forklift truck for Chilton on May 1, 1969. On three occasions prior to the instant occurrence, materials had fallen out of the scrap bucket or wire baskets of his forklift. On one of these occasions plaintiff was injured.
On the night of the accident plaintiff went to get some "900" housings from the stock room. There were two stacks of four baskets in front of the housings. He moved these stacks, removed the housings, and began returning the first two stacks to their proper places when the accident happened.
Plaintiff, prior to the accident, had never heard of any baskets falling back. Plaintiff did not believe the baskets could fall on him. As he was moving the second stack of baskets back into place, plaintiff was watching on each side to make sure he did not hit anything. There was 3 to 6 inches clearance on each side of the stack, when all of a sudden plaintiff looked up and the baskets were already falling over on him.
At the time of the accident the forks were about one-half inch off the ground and tilted back 1 or 2 degrees. Plaintiff was only concerned that parts inside the baskets, not the baskets themselves, would fall over. From his previous experiences of having materials or parts fall on him, plaintiff was aware that a condition of danger existed when anything was above the upright and there was no overhead guard on the truck. Plaintiff did recall testifying earlier that the company rule permitted carrying only two baskets at a time in the press room and that with four baskets there is a greater danger they might fall and hurt someone.
Edward Landry, a consulting safety engineer, testified as an expert witness for plaintiff. He had worked for many years with various employers, with emphasis on industrial safety. Landry stated that in his opinion when the S40-B is used without an overhead guard to lift and stack materials above the operator's head, it is in a dangerous and defective condition because it exposes the operator to materials falling from either the stack being worked on, or other stacks in the area. Whenever you have materials elevated above an operator's head, there is a danger that something will fall on top of the operator. The higher the load, the higher the center of gravity, thus making the instability of the load greater.
Landry recognized that one of the purposes of the S40-B was for use in low-clearance areas, and that equipping this machine with an overhead guard would interfere with that particular function. However, in his opinion, eliminating the guard for use of such machines in low-clearance areas where the operator had to duck his head also comprised a dangerous and defective condition.
Frank B. Diehn was the first witness called by defendant. He is vice president of Milwaukee Engine and had worked there since 1959. Milwaukee is an independent dealer franchised to provide Hyster equipment to customers in Wisconsin. In 1965, Diehn sold Chilton the lift truck involved in the instant occurrence. The people at Chilton told him the truck would be used on a shipping and receiving dock, and in the propane plant. Neither of these locations has a high stacking area. Chilton rejected Diehn's suggestion that an overhead guard be purchased for this machine.
Diehn stated that he had seen the high-stacking area of the Chilton plant. He had seen forklift trucks operate in this area, and without an overhead guard the operator of a truck is dangerously exposed if a stack falls.
The truck involved in this case was going to be used in over-the-road trailers. It definitely should not be used in stacking. Diehn admitted stating in his deposition that this truck could, however, be used any place in the plant.
The upright on this truck was the lowest upright made at that time. There is nothing to prevent an operator from lifting a load above the uprights on a truck without an overhead guard, other than the operator's own knowledge of safety and common sense.
In Diehn's opinion the load involved in the instant occurrence was very unstable. This would be true regardless of what lift truck was used because of the 12-foot-high stack with a 3-feet-square base. The center of gravity is way over the top of the lift truck. The fact that the wiretainers had a type of interlocking legs in the corners stiffens the load to a certain degree. However, in placing such a 36 x 36 x 42 inch load in a basket ...