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Habecker v. Clark Equipment Co.

argued: February 28, 1991.

CONNIE L. HABECKER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN R. HABECKER, DECEASED; JOHN MICHAEL HABECKER, MINOR, BY CONNIE L. HABECKER, HIS PARENT, NATURAL GUARDIAN AND NEXT FRIEND, APPELLANTS
v.
CLARK EQUIPMENT CO.; FORKLIFTS, INC., APPELLEES



On Appeal From the United States District Court For the Middle District of Pennsylvania; D.C. Civil Action No. 86-352.

Stapleton and Alito, Circuit Judges, and Cahn, District Judge*fn*

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge

Connie Habecker and John Michael Habecker, decedent's wife and minor child, claim that defendants are strictly liable for John Habecker's death under the doctrine of "crashworthiness" because a forklift without an operator restraint system is a defective product. Appealing for the second time from a jury verdict for defendants, the Habeckers raise two major claims.*fn1 First, they argue that the district court erred in admitting evidence of what was known in the industry when the forklift was manufactured about the desirability of operator restraint systems, evidence that they claim is irrelevant in a strict liability case. Second, they claim that the district court erroneously believed that it could not permit new legal theories and evidence on retrial. Because we conclude that evidence of what was known at the time of manufacture about the desirability of a safety feature is irrelevant in a crashworthiness case and that a substantial possibility exists that the inadmissible evidence influenced the jury, we will reverse the district court's judgment and remand for a new trial. On remand, the district court may exercise its discretion as to whether the Habeckers should be allowed to present new theories not barred by this court's mandate or its own prior orders that were not appealed.

I.

John Habecker was killed while attempting to back a forklift down a ramp. The forklift went off the side of the ramp; Habecker was thrown out and crushed beneath the forklift. The forklift, manufactured by Clark Equipment Company ("Clark") and leased by Forklifts, Inc., ("Forklifts") was not equipped with operator restraints, such as a seat belt or harness. The accident happened during the course of Habecker's employment as a civilian employee of the New Cumberland Army Depot.

Although this case originally included implied warranty and negligence claims, those claims were eliminated from the case before the first trial. Once the case was limited to strict liability, Forklifts appeared to be indemnified by Clark for any potential liability; therefore, in a stipulation signed by all the parties, Forklifts dismissed with prejudice its third-party claims against the Department of the Army and the United States.

After the first trial, the district court granted a directed verdict for the manufacturer of the ramp and a directed verdict for Clark and Forklifts on the issue of whether the forklift's throttle was defective. The question of whether Clark and Forklifts were strictly liable for the absence of operator restraints in the forklift went to the jury, which ruled for defendants. On appeal, this court concluded that the district court had violated Rule 702 of the Federal Rules of Evidence by refusing to permit one of the Habeckers' expert witnesses to testify and that this exclusion could well have affected plaintiffs' substantive rights. 893 F.2d 49, 53 (3d Cir. 1990). Therefore, this court upheld the directed verdicts, but remanded the case "for a new trial against defendants Clark and Forklifts on the operator restraints issue." Id. at 54.

Throughout the first trial, the Habeckers argued only that the forklift was defective at the time it was manufactured -- making the liability of Clark and Forklifts coterminous. Before the second trial, however, the Habeckers stated for the first time that they wished to pursue an additional theory of strict liability against Forklifts based on the hypothesis that Forklifts had placed the forklift in the stream of commerce in a defective condition when it leased the forklift to the Army in 1983 and 1984. The district court refused to allow that theory or any other theory that had not been asserted at the first trial, apparently concluding that our mandate deprived it of discretion to permit the assertion of new theories of liability. The district court also refused to allow any evidence or witnesses not listed for the first trial. The Habeckers then agreed to dismiss Forklifts, without prejudice to their right to argue on appeal that they were entitled to pursue liability arising from the leases. The trial was held from June 18, 1990 to June 25, 1990, and a jury verdict was returned in favor of defendant. Final judgment was entered in favor of defendants, and the Habeckers filed this timely appeal.

II.

In a motion in limine and throughout the trial, the Habeckers consistently objected to evidence concerning what the industry knew about the efficacy of operator restraint systems in 1977. In particular, they objected unsuccessfully to evidence offered by Clark tending to show that the industry had been unable to determine whether operator restraint systems reduced the risk of serious injury to the operator and that it was only later, after the development of more sophisticated computer modeling, that the industry decided it was desirable to equip forklifts with such systems. As of 1977, Clark's evidence suggested, a manufacturer simply could not have known whether operator restraint systems created more risks than they eliminated.

The Habeckers claim that this evidence was inadmissible and, combined with the defendant's closing argument, improperly focused the jury's attention on Clark's conduct, rather than on the forklift itself. Because Clark conceded that operator restraint systems were feasible at the time the forklift was manufactured, the Habeckers argue that the only question for the jury was whether -- seen in light of all the evidence available today -- a forklift without an operator restraint system is "defective." While they acknowledge that evidence of whether a restraint system results in a net reduction in the risk of serious injury is relevant to that issue, the Habeckers insist that evidence of whether one could have known of that net reduction in 1977, including evidence of computer modeling capability at that time, is irrelevant to that issue. For the reasons that follow, we agree.

A.

Section 402A of the Restatement (Second) of Torts, adopted in Pennsylvania, states in relevant part,

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused . . . .

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product . . . .

Pennsylvania law recognizes that a product may be "defective" not only because of an error in manufacturing, but also because of its design:

the jury may find a defect where the product left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature ...


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