Product Liability Case Study: Missing Safety Feature in a Crane Cab
Construction injuries can run the gambit from a simple trip and fall to the loss of life. When the case involves negligence on the part of an equipment manufacturer, however, it can become a product liability case, depending on the circumstances.
Take the case of a crane operator, whom our law firm represented several years ago. Product liability attorney Alan Sackrin remembers the case well.
“In this particular case, the guy was in the cab of a crane and it was a small area,” Alan says. “There were these two rotating winch drums in an open space below the floor of the cab. The lowest point of one of these drums was very close to the highest point of the other, and they were very close to each other.”
As he was reaching for something, the crane operator got his foot caught on one of the drums and, as it quickly rotated, his foot was pulled between them. The result was a horrible injury to his leg.
“It fractured the leg, tore ligaments apart, and basically pulled his leg off,” Alan recalls. “It was right below the knee, and it had to be amputated. Luckily, he didn’t die.”
Sadly, serious construction injuries like this aren’t all that uncommon, Alan says. What made this case particularly claim-worthy was that there was no safety guard on this particular model of the crane to protect the operator from the winch drums.
“Normally, an attorney won’t take a product liability case unless there is some sort of serious injury,” Alan says. “It doesn’t have to catastrophic, but it does have to be significant, because usually in product liability cases, you’re going to have to get experts, and it’s going to be litigated heavily. The first thing you have to look at is the injury.”
If the operator had just sprained his ankle and got his foot out of there, for example, it’s unlikely an attorney would have taken the case. The severity of the injury and the circumstances of the case are often what determines whether the case is worthy of pursuit.
The Defense Claim
Going into it, Alan says the client knew he was going to be up against it, and, as in most product liability cases, the manufacturer is going to put as much blame on the user as possible.
“That’s the standard defense,” Alan says. “The manufacturer will try to argue that the user either mishandled the product or misused it—that they didn’t handle it in the way it should have been handled, or they used it in a way that was not foreseeable.”
In this case, the crane manufacturer argued that the crane was still not defective even though it didn’t have a safety guard.
“They said he knew there was no safety guard there, so it was his fault,” Alan says. “They said he was experienced using these things before and that, as a manufacturer, you can’t guard against every single possible dangerous condition. Those were their arguments.”
Going into it, Alan says, the client knew he would be the focus of the defense and that he was going to be blamed.
“You already knew that they were going to say he did something wrong or careless, but our question was whether it could have been designed out of the product?” Alan says. “That’s the key. Could it have reasonably been designed out of the product without affecting the utility of the product and without substantially affecting the price of the product?”
In other words, why wasn’t there a safety guard or mechanism in that area of the crane cab that could have prevented the operator’s foot from getting caught between those two drums?
The Turning Point
“Lo and behold, it turned out that on later models and on other models manufactured by other companies, a safety guard was there,” Alan says. “Now normally, you cannot bring into evidence the fact that there was some type of protective device in subsequent models, because there are evidence rules prohibiting the introduction of subsequent repairs.”
Although he couldn’t bring this important change into evidence, Alan says, he was still able to explore it through discovery.
“They also had a prior incident that we discovered, and they had to let us know about those details,” he said. “After that, they were looking to settle. Not at 100 percent value of the case, because who knows what a jury would do? Even though it was clear that the manufacturer should have put a safety feature on there, a jury could still have assigned blame to our client.”
The Settlement Details
In the end, the manufacturer settled for an undisclosed amount in the seven-figure range.
“He was permanently disabled and thus prevented from ever doing that type of work again,” Alan says. “I think he wound up getting a prosthetic device and was able to work in some capacity, but not in the construction industry. His ability to do that kind of work was substantially impaired.”
While he was able to keep a majority of the settlement, the client did have other out-of-pocket expenses for which he was responsible, Alan says.
“Since he was injured on the job, he was given workers’ compensation benefits, so we had to pay some of those benefits back to the workers’ compensation carrier,” he said.
The Risks of Going to Court
Although the client wasn’t afraid to go to court, Alan says there are risks associated with taking a case before a judge or jury.
“We settled the case because at that point in time it was a business decision,” Alan says. “It was a value judgment to the client. We said you will be left with approximately X amount after paying fees and costs and repaying the workers’ compensation fund. The money to you is tax-free. Is this something you want to risk in order to go to court? Or is this enough where you’re willing to take it, rather than risk either getting less or getting more?”
For some clients, Alan says, court is out of the question. Other clients want their day in court even if they get a good offer.
“Most clients will listen to what you say, so you go over the pros and the cons and you let them make the decision,” he says. “In this case, our client was given enough that he did not want to risk going to court months later and possibly having to go through appeal and have the case drag on. So, he took the sure thing. Most clients end up settling.”
Settling makes a lot of sense in Florida, Alan says. Unlike jury verdicts, settlements don’t identify which portions of the payout are for lost wages, medical bills, or pain and suffering. Therefore, attorney fees come out of the claimant’s lump-sum settlement.
“Under Florida law, attorney’s fees are only recoverable if there’s a contractual agreement between the parties that says if there’s a lawsuit, the winner gets attorney’s fees,” Alan says. “That, or if the claimant sues on a statutory cause of action and the statute says you can collect attorney’s fees.”
In normal personal injury cases, however, attorney’s fees are not recoverable.
“In certain cases, if a settlement offer is made and you don’t accept it and go to court, even if you win, you can still be responsible for the attorney’s fees,” he says. “If you don’t get at least three-quarters of the amount offered, then you’re responsible for the attorney’s fees. Likewise, if you offer to settle with a defendant for a certain amount during a lawsuit, and the defendant doesn’t accept it, you can go to court and get 125 percent of what you had demanded if you win—plus attorney’s fees. That’s called ‘a proposal for settlement’ or ‘offer for judgment.’ That’s under certain statutes, though. Generally speaking, in personal injury cases in Florida, attorney’s fees are not awarded.”
What to Consider Before You Sue
While you don’t necessarily have to suffer a catastrophic injury for a personal injury attorney to take your product liability case, a certain threshold has to be met.
“Whether to take it depends on the severity of the injury, the type of accident, and the expected expense in litigating it,” Alan says. “You can have a very cheap product liability case. The simplest of ones are where you buy something from a store, it’s in a package, and something happens because something about it is defective. For example, you buy a six-pack, a bottle falls through the bottom of the carton, and it breaks your foot. That would be a pretty easy case to litigate and would not be that expensive.”
What to Do Now
If you believe you’re the victim of a defective or dangerous product, don’t wait to call an attorney.
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