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People v. Bernard





APPEAL from the Circuit Court of Madison County; the Hon. HORACE L. CALVO, Judge, presiding.


Appellant Burton C. Bernard, an attorney, was held in contempt of court and fined $100 during an in-chambers conference in the midst of a jury trial of a products liability personal injury action in the Circuit Court of Madison County. *fn1 The contempt finding was based on the supposed violation by Bernard, the attorney for the defendant in the personal injury case, of oral in limine orders entered prior to trial. On appeal, he contends that he did not violate the orders in question; that the orders lacked the requisite specificity and clarity for their violation to serve as the basis for contempt; and that his conduct was not wilful, contumacious, nor calculated to embarrass, hinder, or obstruct the trial court in its administration of justice.

We state only those facts necessary for our resolution of the questions raised on this appeal. *fn2 The plaintiff's complaint alleged that he was injured as a result of the unreasonably dangerous and defective design of a certain Caterpillar tractor manufactured by the defendant. The alleged design defect was the absence from the tractor at the time of its original manufacture and sale, some 17 years prior to the plaintiff's injuries, of any rollover protective structure or protective canopy.

The tractor, originally made to be used as a bulldozer in construction work, had been extensively modified by companies other than the defendant for use as a "Tack Cat," or mobile welding platform used in pipe-laying operations. At the time he was injured, the plaintiff was employed by a contractor involved in pipeline construction. The plaintiff's job was to operate the Tack Cat, which held, and served as a source of power for, welding equipment as welders moved along a pipeline. He was injured when a bolt holding a boom broke, the boom struck a ladder handing from another boom near the operator's seat, and the ladder struck the plaintiff in the back and right shoulder. The bolt, booms, and ladder had all been added to the machine by the plaintiff's employer.

The plaintiff claimed that the flexion injury sustained in the accident combined with a pre-existing condition of scoliosis and kyphosis of his spine to result in a condition called spastic paraplegia. He further contended that had the defendant designed the tractor with a proper protective structure he would not have suffered his injuries.

Prior to trial, counsel for the plaintiff made an oral motion in limine that defense counsel be prohibited from inquiring into certain matters, or otherwise bringing them to the attention of the jury, without first obtaining a determination from the court as to relevance and admissibility outside of the hearing of the jury. After a lengthy colloquy among counsel and the court, certain in limine orders restricting defense counsel were made. The orders were not reduced to writing. The two relevant here provided in essence, as we are able to understand them, that counsel obtain the permission of the court (1) before inquiring as to prior injuries or physical conditions of the plaintiff, other than the kyphosis/scoliosis and injuries to the same part of the body as those in issue, and (2) before arguing that the plaintiff's injury was caused by the modifications made to the machine by someone other than the defendant, or was the fault of someone other than the defendant. When Bernard claimed that the latter order would vitiate his client's principal defense that the actions of others were the sole proximate cause of the accident, and would prohibit him from stating in his opening statement what he expected the evidence to show, the court ruled that "you can talk about proximate cause. You can't say it's a fault of Green Engineering or a company that adapted the boom or whatever." The court subsequently attempted to clarify the order by stating:

"I think you can get in the evidence of what Green did * * * but I don't think there is anything that I can visualize that would permit you prior to your case at least, if ever, * * * in making an argument or statement in front of this jury that the sole proximate cause of the accident is Green Engineering Company * * *."

The court further ruled that the defense would be permitted to develop evidence to support the affirmative defense of assumption of risk on the part of the plaintiff.

During the plaintiff's opening statement, the jury was told that the plaintiff had injured his "back" in the accident in question; that despite the pre-existing condition, he had had "no significant problem" with his back prior to the accident; and that a contractor using the machine had "relatively no control" over what protective devices were on the machine. The plaintiff likewise spoke of his "back" injury on direct examination, and testified on cross-examination that he had told examining physicians that his back had never bothered him before this accident. The expert witnesses who testified for the plaintiff stated that they based their opinions in part on what the plaintiff had told them concerning the absence of any prior injury or disability.

Called as an adverse witness by the defendant, the plaintiff answered in the affirmative, without objection, the following question:

"Mr. Bradley, prior to the day of this accident October 26, 1973, and during the year or so before you had treated with a Doctor Casey, a chiropractor in St. Louis, Missouri for your back had you not?"

Defense counsel then asked the plaintiff a series of questions attempting to establish the defense of assumption of the risk. The plaintiff testified that he knew that the ladder was hanging on the rear boom; that he was aware of the danger of being hit by falling objects; that he knew that the tractor was equipped with no protective structure to protect against falling objects; that he knew that the bolt holding the front boom in place had broken on a previous occasion; and that he was aware that the boom could "snap out and fall on me." However, he testified, he was not aware of the danger of being hit by the ladder.

Defense counsel then asked:

"And you believe do you not, that your employer should have provided you with protective structure on that ...

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