Lloyd Schwartz v. The American Honda Motor Company, Inc. And Honda Motor Company, Limited

Lloyd Schwartz, plaintiff below in a products liability diversity action, appeals from the district court’s denial of his motion for a new trial. For the reasons below, we affirm.

I

Lloyd Schwartz purchased a new Honda Express in 1977. The Honda Express is a small motorized two-wheeled vehicle with a top speed of approximately twenty-eight miles per hour. On December 4, 1977, he was riding the Honda Express on the causeway between Miami and Miami Beach when he lost control. He has no recollection of the accident except a feeling of “going through space.” The next thing he recalls is regaining consciousness and finding his foot lodged between the inboard side of the muffler and the spokes of the rear wheel. His foot was severely burned, causing him great pain and requiring extensive medical treatments.

In August 1980, Schwartz filed a complaint against the American Honda Motor Company and Honda Motor Company, Limited, alleging that the Express was defective and unreasonably dangerous.1 Jurisdiction was based on diversity of citizenship. The court convened a jury trial on June 1,1981, and the jury of six returned a verdict for the defendants on June 4, 1981. The court denied Schwartz’s Motion for a New Trial on July 20, 1981, and Schwartz appeals.

II

The major issues Schwartz raises can be classified into four groups. First, he asserts that the court erred in instructing the jury on the issue of misuse. Second, he claims that the jury was misinstrueted on the definition of unreasonably dangerous. Third, he claims that the court erred in allowing the introduction of incompetent, irrelevant and prejudicial evidence. Finally, he makes several miscellaneous challenges to the court’s refusal to give jury instructions he proposed.

Ill

A. Misuse

Under Illinois law2 a plaintiff’s conduct can bar relief in a strict product liability case if his actions constitute “misuse.” Anderson v. Hyster Co., 74 Ill.2d 364, 369, 24 Ill.Dec. 549, 552Dec., 385 N.E.2d 690, 693 (1979). Misuse is not synonymous with abnormal or negligent use. Under Illinois law, misuse is a use that is not reasonably foreseeable to a reasonably prudent manufacturer. See Kerns v. Engelke, 76 Ill.2d 154, 165, 28 Ill.Dec. 500, 505Dec., 390 N.E.2d 859, 864 (1979). Foreseeability includes only what is objectively reasonable to expect, not everything that could conceivably occur, and questions of foreseeability are ordinarily for the jury to resolve. Winnett v. Winnett, 57 Ill.2d 7, 12-13, 310 N.E.2d 1, 5 (1974). Nevertheless, there must be some evidence of misuse before the issue is submitted to the jury. Illinois State Trust Co. v. Walker Mfg. Co., 73 Ill.App.3d 585, 591, 29 Ill.Dec. 513, 517Dec., 392 N.E.2d 70, 74 (1979).

Over strong objection by Schwartz, the jury in the instant case was instructed on the issue of misuse. The defendants’ theory was not that it would be misuse to become involved in an accident with the Express. See Buehler v. Whalen, 70 Ill.2d 51, 61, 15 Ill.Dec. 852, 856-57Dec., 374 N.E.2d 460, 464-65 (1977) (intended and actual use of cars includes possibility of collision). Rather, they assert that there was evidence that Schwartz either put his foot to the ground or put his foot near the muffler immediately before the accident, and that either of these actions would be misuse.

Schwartz has no recollection of what caused the accident. His only expert witness, Gerald Lee Dreifke, offered three possible ways that the accident and resulting foot injury could have occurred. First, the rider may have put his foot on the ground, which would cause his foot to be forced back and inward toward the rear wheel. Second, the rider may have taken his foot off the foot peg and moved it back toward the rear wheel. Third, the rider may have hit something in the road, and the rider and Express may have landed in the right position so that his foot became entangled in the rear wheel next to the muffler. Dr. Dreifke believed that the first two possibilities were far more likely than the third.

The defense produced witnesses that testified that it would be improper for a rider to put his foot to the ground or to put his foot back near the rear wheel and muffler when the Express was in motion. One defense witness, Robert Jameson, an official from American Honda, testified that he had seen riders of motorcycles with their feet in many unusual positions rather than on the foot pegs.

A review of the pertinent case law convinces us that this case presents a very close question. This court in Walker v. Trico Manufacturing Co., 487 F.2d 595 (7th Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), held that under Illinois law, it was improper to instruct the jury on misuse when the president of the defendant corporation had admitted that he had foreseen the possibility that the operator of a blow-mold machine could accidently activate a particular switch, even though the operator’s hand would not come near the switch during normal use. Id. at 597-99. On the other hand, we have held that if there is any doubt as to the foreseeability of a particular use, this is a question of fact for the jury. Kuziw v. Lake Engineering Co., 586 F.2d 33, 35-36 (7th Cir.1978). Moreover, most Illinois cases that have found that a particular use was not “misuse” have done so in the context of upholding a jury decision on the issue rather than holding as a matter of law that the issue should not have been submitted to the jury. See e.g., Kerns v. Engelke, 76 Ill.2d 154, 28 Ill.Dec. 500Dec., 390 N.E.2d 859 (1979); Anderson v. Hyster Co., 74 Ill.2d 364, 24 Ill.Dec. 549Dec., 385 N.E.2d 690 (1979); Derrick v. Yoder Co., 88 Ill.App.3d 864, 43 Ill.Dec. 897, 410 N.E.2d 1030 (1980); Nelson v. Hydraulic Press Manufacturing Co., 84 Ill.App.3d 41, 39 Ill.Dec. 422, 404 N.E.2d 1013 (1980).

Under Illinois law, misuse is not an affirmative defense; rather, absence of misuse is part of a plaintiff’s proof of an unreasonably dangerous condition or of proximate cause. Illinois State Trust Co. v. Walker Manufacturing Co., 73 Ill.App.3d 585, 589, 29 Ill.Dec. 513, 516Dec., 392 N.E.2d 70, 73 (1979). We believe that in this case, the evidence would support a finding of improper use, i.e., the rider put his foot to the ground or near the rear wheel. Because Schwartz presented no definitive proof that this improper use was reasonably foreseeable, we hold that the issue of misuse was properly submitted to the jury.3

B. Instruction Defining Unreasonably Dangerous

The trial court chose to give an instruction defining unreasonably dangerous taken from 3 Devitt & Blaekmar, Federal Jury Practice and Instructions § 82.03 (3rd. ed. 1977), proposed by the defendants,4 rather than a modification of Illinois Pattern Jury Instruction No. 400.06, proposed by Schwartz.5 Schwartz claims that this violated Local Rule 21 governing practice in the Southern District of Illinois, which provides that if the jury in a civil case should be instructed on an issue covered by an Illinois Pattern Jury Instruction, that instruction should be used unless it does not accurately state the law. Even assuming that Schwartz’s proposed instruction accurately states the law and should have been chosen under the local rule, giving the defendants’ proposed instruction instead would be prejudicial only if that instruction were faulty. We reject Schwartz’s contention that the Devitt & Blaekmar instruction is argumentative and prejudicially pro-defendant.

C. Challenges to the Admission of Evidence

Schwartz first challenges the admission of testimony by defense witnesses that they knew of no similar accident involving either other Honda Expresses or comparable models made by other manufacturers. Mr. Jameson testified that over 200,000 Expresses had been sold to consumers in the United States, and as a representative of Honda, he knew of no injuries or claims like the one at issue. Defense witness H. Bolter Kelsey, Jr. testified that if an Express were equipped with rear baskets, an option Honda sells, the rider would not sustain injuries such as those sustained by Schwartz. Defense witness Earl Widman testified that he was familiar with other small motorcycles that were substantially identical in design to the Honda Express, and that he knew of no one sustaining an injury similar to the one at issue while using those models.

Generally speaking, evidence of absence of prior accidents “is properly admitted only if the party-defendant shows, as foundation, that the absence of prior accidents took place with respect to machines substantially identical to the one at issue and used in settings and circumstances sufficiently similar to those surrounding the machine at the time of the accident to allow the jury to connect past experience with the accident sued upon. See McCormick, Evidence, § 200 (2d ed. 1972).” Walker v. Trico Manufacturing Co., 487 F.2d 595, 599 (7th Cir.1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). In this ease, Mr. Jameson could not testify that all of the Expresses were substantially identical to Schwartz’s Express, because he did not know how many of the other Expresses were equipped with rear baskets. He did however testify that he was fairly observant about Honda products and the majority of Expresses he had seen on the road were not so equipped. Mr. Widman testified in detail about the similarities and differences between the Express and the other models of small motorcycles before offering his conclusion that the exhaust and wheel designs of these models were substantially identical to that of the Express. While these foundations may not be ideal, “[t]he sufficiency of foundation evidence varies from case to case and must be determined by an exercise of the trial court’s discretion.” Id. In this case, we do not believe that the district court abused its discretion in concluding that a sufficient foundation was laid for the admission of this evidence. Had the defense witnesses been able to state that all the Expresses lacked rear baskets and that the other models were exactly identical in design, the evidence would have carried more weight. However, testimony by a Honda official that most of the Expresses he observed did not have rear baskets and testimony by an expert witness that the other models were substantially identical in design rendered the evidence of absence of similar accidents sufficiently probative to be admitted into evidence.66

Schwartz next asserts that the district court erred in admitting evidence that the Express complied with all federal safety standards when there were no federal standards governing the relevant portions of the Express. On cross-examination, defense counsel was allowed to ask Schwartz whether his Express had a sticker stating that the Express complied with all applicable federal safety standards. Answers to interrogatories introduced by Schwartz and testimony by defense witness Jameson later established that there are no federal regulations covering heat shielding on mufflers.

Under both federal and Illinois case law, compliance with applicable federal standards is relevant, though not conclusive, in a products liability case. See Dorsey v. Honda Motor Co., 655 F.2d 650, 656 (5th Cir.1981), modified on rehearing, 670 F.2d 21 (1982), cert. denied, ___ U.S. ___, 103 S.Ct. 177, 74 L.Ed.2d 145 (1982); Howard v. McCrory Corp., 601 F.2d 133, 138 (4th Cir.1979); Rucker v. Norfolk & Western Railway, 77 Ill.2d 434, 439-40, 33 Ill.Dec. 145, 147-48Dec., 396 N.E.2d 534, 536-37 (1979). We agree, however, with Schwartz that compliance with federal standards having nothing to do with an alleged defect may be either completely irrelevant or inadmissible because any probative value is outweighed by the possibility of confusion and prejudice. The question we face is whether allowing the exchange during Schwartz’s cross-examination would require reversal. Because this exchange was quite brief and because the jury was well advised that no federal standards governed heat shielding for mufflers, we conclude that any error in allowing the question about general compliance with federal standards was harmless in this case.

Schwartz also contends that it was error for the district court to allow the defendants to introduce part of the Express’s instruction manual into evidence, to permit Widman to testify on the issue of whether the Express was unreasonably dangerous, and to allow the defendants to cross-examine Schwartz about his feeling of satisfaction with the Express before the accident. In the circumstances of this case, including Schwartz’s prior evidentiary maneuvers, we find no merit in these contentions.

D. Jury Instructions

In addition to the challenges he makes to the jury instructions on misuse and the definition of unreasonably dangerous, Schwartz contends that the district court erred in rejecting four of his proposed instructions and in refraining from giving another instruction that the court had earlier agreed to give.

The trial court’s jury instruction must be considered as a whole, Pickens-Kane Moving & Storage Co. v. Aero Mayflower Transit Co., 468 F.2d 490, 492 (7th Cir.1972), and “complaints of an omission in the instruction must be evaluated against the framework of the entire charge,” Caillouette v. Baltimore & Ohio Chicago Terminal Railroad, 705 F.2d 243, 248 (7th Cir. 1983) (citations omitted). Moreover, “[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Fed.R.Civ.P. 51.

Proposed instructions 21 and 25 were refused without objection. The district court agreed to give proposed instruction 12, but the transcript of the instructions given indicates that it was actually omitted. Schwartz did not object to its omission before the jury retired. Because Schwartz made no objection to the omission of these three instructions and because we find no substantial prejudice resulting therefrom, Schwartz cannot now assign as error the failure to give these instructions.

Proposed instruction 6, defining proximate cause, was refused over objection.7 Because the jury was adequately instructed on this issue,8 we find no merit in Schwartz’s contention that he was prejudiced by the refusal of proposed instruction 6.

Proposed instruction 10 instructed the jury that “it is not a defense that the condition of the product could not have been discovered by the defendant or that care was used in the manufacture of the product.” We agree with the district court that this instruction is more geared toward a claim of defect arising in the manufacture of a product rather than a defect arising from its design. We find no error in the court’s declining to give this instruction.

IV

For the reasons above, the district court’s denial of Schwartz’s motion for a new trial is Affirmed.