Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:99 CV 428-Paul R. Cherry, Magistrate Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
This products-liability case is before us for the second time. 409 F.3d 846 (7th Cir. 2005). Federal jurisdiction is based on diversity of citizenship, and the tort issues are governed by Indiana's products-liability statute and its common law of torts. John Mesman, an employee of a manufacturer of steel products named Infra-Metals, was gravely injured when a load of steel sheets that he was unloading from a boxcar fell on him from the crane that was lifting the sheets out of the boxcar. He brought suit under the products-liability law against the firm that had rebuilt the crane, Konecranes. A jury awarded the plaintiffs (Mesman and his wife) $5.6 million, based on its judgment that Konecranes was one-third responsible for the accident and Infra-Metals-which Mesman could not join in the suit because it was his employer-two-thirds responsible. But the judge set the verdict aside and entered judgment for the defendant. She further ruled that if she was wrong in doing this the defendant was entitled to a new trial because the jury had been confused by irrelevant evidence and had ignored critical instructions. We reversed the judgment for the defendant but affirmed the order for a new trial. The case was retried and this time the jury returned a verdict for the defendant. The magistrate judge presiding at the retrial refused to set the verdict aside. Hence this second appeal, which is by the plaintiffs.
The crane that was the instrumentality of the accident consisted of the following parts: a beam fastened to the ceiling directly above a rail siding; a hoist, suspended from the beam, which the crane's operator could move sideways along the beam, as well as up and down to do the lifting; another beam, the "spreader beam," connected to the hoist; chains connecting each end of the spreader beam to "scoops" for gripping the load; and, attached to the beam on the ceiling, an operator's cab. When a boxcar was unloaded underneath the section of the ceiling beam to which the cab was attached, there was only a foot or two of clearance between the rim of the boxcar and the cab. If while being lifted by the hoist the spreader beam struck the cab, the load might be jarred loose and fall, hitting anyone beneath it.
Infra-Metals hired Konecranes to rebuild the crane, which was nearly 50 years old. Konecranes was to supple- ment the controls in the operator's cab with a hand-held remote-control device that would enable the crane to be operated from ground level. To raise the load the operator would press the up button on the remote and to lower it he would press the down button. Alongside those buttons was an emergency-stop button so that if the operator sensed an impending collision between the load and the cab he could bring the hoist and spreader beam to a dead stop. Alternatively, by pressing the down button he could reverse the direction of the hoist; but because the up and down control had a deceleration feature to reduce wear and tear on the crane, the hoist and therefore the spreader beam would continue to rise for as many as three seconds (if the crane was being operated at its top speed) after the down button was pressed. In that interval the hoist would traverse about a foot until it stopped and began its downward motion; so pressing the down button would not arrest the upward motion of the hoist as fast as pressing the emergency-stop button would.
Konecranes also built into the renovated crane a limit switch that would automatically stop the spreader beam when it came too near the beam in the ceiling. But the switch was set to prevent the spreader from touching that beam only when the cab, the floor of which was of course lower than the beam from which the cab hung, was not over the spreader. To prevent the spreader from touching the cab when it was underneath it, the limit would have had to be set much lower-too low for convenient unloading of boxcars that were underneath any other section of the beam. Thus, as set, the limit switch did nothing to prevent a collision between the load and the cab.
On the day of the accident, the employee of Infra-Metals who operated the crane was standing at ground level about 20 feet away from a boxcar that was underneath the cab. Mesman, standing in the boxcar, fastened a load of steel sheets to the scoops beneath the spreader beam. The operator pressed the up button on the remote. As the beam and load rose, he saw that the spreader beam was going to hit the cab. But instead of pressing the emergency-stop button, as he should have done to bring the rising load to a dead stop, he pressed the down button. Because of the deceleration feature, the spreader beam continued to rise for three seconds, hitting the cab and causing the load to fall on Mesman.
Had Konecranes, when it renovated the crane, removed the cab, eliminated the deceleration feature, or modified the limit switch so that the limit could be lowered when a load was being unloaded beneath the cab, the accident would have been avoided: with certainty in the case of either of the first two modifications but less certainly in the case of the third modification-making the limit switch adjustable-since the operator might neglect to adjust it. So a better safety device would have been an electronic eye or other electronic sensor that would have stopped the hoist automatically when the spreader beam was dangerously close to the underside of the cab. Such a device would have been proof against human error or inattention. But the parties have not discussed that possibility.
The Indiana Products Liability Act makes a design defect actionable only if there is negligence in the design. Ind. Code § 34-20-2-2. The risk of a heavy load falling on a worker if the spreader beam struck the cab was substantial because of the narrow clearance, and if the load did fall on someone it would be likely to kill or seriously injure him. Loads did fall, especially when cold weather made the steel sheets being unloaded slippery and therefore more likely to slide out of the scoops. The part of the plant where the sheets were unloaded from rail cars was open to the elements, and the accident to Mesman occurred on a very cold winter day. One or two loads had already fallen that day before the accident, though no one had been hurt.
But in a negligence case the risk of injury has to be weighed against the cost of averting it. In Judge Learned Hand's negligence formula, failure to take a precaution is negligent only if the cost of the precaution (what Judge Hand called the "burden" of avoiding the accident) is less than the probability of the accident that the precaution would have prevented multiplied by the loss that the accident if it occurred would cause. United States v. Carroll Towing Co., 159 F.2d 169
, 173 (2d Cir. 1947) (i.e., B < pl).="" in="" other="" words,="" the="" cheaper="" the="" precaution,="" the="" greater="" the="" risk="" of="" accident;="" likewise,="" the="" greater="" the="" harm="" caused="" by="" the="" accident,="" the="" likelier="" it="" is="" that="" the="" failure="" to="" take="" the="" precaution="" was="">
The risk could have been eliminated by removing the cab, which was no longer required for the operation of the crane. Konecranes recommended that to Infra-Metals but Infra-Metals declined because it wanted the option of being able to operate the crane from within the cab. Alternative precautions, besides making the limit switch adjustable, would have included eliminating the deceleration feature on the remote control, so that pressing the down button while the spreader beam was rising would have brought the hoist to an immediate stop. But this would not have been an ideal solution either, be- cause without the deceleration feature the crane would wear out sooner. The same drawback would have attended another precaution-reducing the period of deceleration from three seconds to one, which would have stopped the spreader beam within four inches after the down button was pressed rather than twelve. Still another possibility would have been an additional automatic limit switch, one operative only when the unloading was taking place directly under the cab. And another might have been the "idiot proof" safety device that the parties do not discuss.
The only really contestable issue in the case, we said in our first opinion, was whether any precaution was necessary besides the emergency-stop button, since, had the operator pressed it instead of the down button, the accident would not have occurred. Konecranes argued that by pressing the down button the operator had exposed Mesman to a danger that was "open and obvious" to the operator, and that a defendant should not be liable for accidents resulting from open and obvious dangers. But while it indeed used to be the law that manufacturers had no obligation to protect against "open and obvious" dangers, Indiana has replaced the "open and obvious" defense with a defense ("incurred risk") that requires that the user of the product (in this case the operator of the crane) have actually been "aware of the danger in the product." Ind. Code § 34-20-6-3. The fact that a risk is open and obvious remains relevant to liability. It is circumstantial evidence that the user knew of the danger and thus "incurred" the risk. But it also bears on the question whether the risk was great enough to warrant protective measures beyond what the user himself could be expected to take. Suppose a machine is designed with no shield over its moving parts. It is obvious to the operator that if he sticks his hand into the machine while it is operating, the hand will be mangled. In the old days that would have been a complete defense to a suit for products liability. But the Indiana statute recognizes that because of inadvertence or other human error, or because of debris or a slippery surface that might cause a worker to trip, or even because of a distracting noise or a sudden seizure, open and obvious hazards do on occasion result in accidents that are not the product of a known risk, obvious though the risk is. If such an accident can easily be avoided by the taking of a precaution by the manufacturer of the machine or by the operator's employer, it should be, and liability provides a prod to adopt the precaution.
Was there so great a likelihood that the operator of the rebuilt crane would fail to press the emergency-stop button when he saw the spreader beam about to hit the cab that Konecranes should have modified the control? The likelihood that the operator would push the wrong button in an emergency, or forget that pushing the down button wasn't as effective as pushing the emergency-stop button because of the deceleration feature, was surely not negligible, and so argued for an automatic protective device, of which probably the cheapest would have been to remove the cab. A jury that concluded that, all things considered, the failure to design the renovated crane in such a way as to protect Mesman against the kind of error that the ...