When a product design has a history of incidents where safety may have been compromised, these incidents can be used to establish the nature and amount of the risk of harm associated with that design. Courts may allow plaintiffs to introduce evidence of prior accidents that are substantially similar to the accident at issue in a given case.

To successfully maintain a product liability action premised on a defective design theory, a plaintiff must establish that the product was defective and that the defect caused injuries. Typically, a product is defectively designed if, at the time it left the manufacturer's control, the foreseeable risks associated with its design or formulation exceeded the benefits associated with that design.

Foreseeable risks of a product may be determined by considering the nature and magnitude of the risks of harm in light of the intended and reasonable uses, modifications, or alterations of the product. Benefits are typically determined by considering the intended or actual utility of the product, including any performance or safety advantages associated with that design.

In one case, an operator was killed while using a stand-up, rear-entry forklift truck. Immediately prior to the accident, the operator was traveling with forks trailing. Upon entering a building, the operator encountered a second forklift traveling in the opposite direction. The driver of the second forklift turned his vehicle suddenly to avoid a crash.

The specific manner in which the first operator met his death was disputed. The plaintiff claimed the operator of the first lift applied his brakes and his vehicle came to a sudden stop, whereupon he was projected out of the operator's compartment and died when he struck his head on the floor. The defendant testified that the fatal injuries were sustained when the operator's head was caught momentarily between the two vehicles when they collided.

The plaintiff claimed that the forklift was not properly designed, equipped, or manufactured with adequate safety features because of its rearentry design and lack of a protective operator system. After a lengthy trial, the jury determined that the forklift was not defectively designed.

On appeal, the plaintiff claimed that the trial court incorrectly excluded evidence of other accidents where operators were injured using the same rearentry design. The appeals court noted that a party wishing to introduce evidence of prior incidents has the burden of showing the similarity between prior incidents and the alleged defective condition. In this case, several reports were available pertaining to injuries sustained by operators of rear-entry, standup forklift trucks. However, the court of appeals held that those reports were properly excluded as hearsay because they were made by other companies, and not by the defendant.

Even subtle distinctions between accidents may cause a court to exclude evidence of a prior accident. In another case, a worker was using a recutter machine that experienced a build-up of glue and paper on the recutter's rotating shaft. The worker, who was wearing loose fitting rubber gloves, placed a piece of sandpaper around the rotating shaft to clean off the buildup. The rotating shaft caught the little finger of the loose fitting glove and twisted the worker's hand into the rotating shaft, pulling off the worker's right thumb.

At trial, the plaintiff attempted to introduce evidence of another employee who was injured on the same recutter machine at the same place of business. However, the court did not allow it on the grounds that it was not substantially similar. In the first accident, the operator was loading an adhesive product onto the shaft, whereas in the second accident the worker was cleaning the shaft with sandpaper.

Designers and manufacturers carry a heavy responsibility to produce products that are reasonably safe and that provide functional utility to the end user. Such knowledge should reinforce the reader's resolve to design and manufacture with safety in mind, consider reasonable alternative designs, and test all products under real world circumstances, knowing that any injury arising out of the product's use may be used as evidence in a subsequent accident.

Pete C. Elliott is vice-chairperson of the Trial Department at Benesch, Friedlander, Coplan & Aronoff LLP in Cleveland, and is the team leader of its Fluid Power Defense Group. Contact Elliott at pelliott@bfca.com