Jack A. Oberst and Wayne G. Schroeder v. International Harvester Company, Inc. ( 1980 )

FAIRCHILD, Chief Judge.

This appeal challenges rulings of the district court on the admissibility of certain evidence. Plaintiffs-appellants Jack Ob-erst and Wayne Schroeder were injured in a single vehicle accident on April 16, 1975 involving a Transtar 4070A truck manufactured in 1973 by defendant International Harvester. Plaintiffs claimed that their injuries were caused by design defects in the cab of the truck, and the restraints in the sleeping compartment in the cab of the truck.

Schroeder was driving at the time of the accident. Oberst at that time occupied the sleeping compartment, but the force of the accident caused his ejection from the sleeping compartment into the seat area (and partially out a window). It was Oberst’s claim that the defective design of the restraints in the sleeping compartment was responsible for his ejection from that compartment and his consequent injuries. The jury rendered a verdict for defendant. The evidentiary rulings complained of are concerned only with the bunk restraints. Because these rulings had no effect upon Schroeder’s claims against International Harvester, the district court’s judgment against Schroeder is accordingly affirmed.

The bunk restraint on the truck consisted of two vertical straps, placed about 36 inches apart at the front of the sleeping compartment, which were permanently attached to the floor and roof of the cab of the truck. Upon objections made by the defendant, the district court barred introduction of evidence regarding the types of restraining devices commercially available when defendant manufactured the Transtar 4070A, the kind of bunk restraint tested in a film seen in 1971 by engineering employees of the defendant, and post-accident change by the defendant of the type of bunk restraint installed in defendant’s trucks.

Although plaintiffs were not permitted to show the types of restraints commercially available at the time of manufacture of the truck (referred to as availability) there was proof that other types of restraints, such as woven mesh, were feasible (referred to by the parties and the court as feasibility).

The bases for the exclusions of testimony and exhibits are not explicitly stated. The district court repeatedly indicated that commercial availability of alternative bunk restraints was identical to the feasibility of alternatives; because the court viewed feasibility as not being controverted, it considered the evidence of commercial availability to be of no probative value. The court appeared to treat the post-accident design changes as inadmissible under Federal Rule of Evidence 407.

The testimony of Robert E. McAfee as plaintiffs’ witness put into evidence much about feasibility of alternative designs for bunk restraints. McAfee, as chief engineer of the heavy-duty bodies for International Harvester, was responsible for deciding what bunk restraint to place in the Trans-tar 4070A. He testified that the purpose of the bunk restraint was to “keep the man in the bunk from being ejected during deacceleration . . . such as a panic-stop situation .. .. ” McAfee claimed that one alternative restraint, the mesh type, was more effective in preventing ejection of a person from the sleeping compartment in accidents like the one involved in this case, but that such restraints would prove unnecessarily confining in other accidents, such as those involving fire or the truck going into a body of water, where speed of departure from the cab of the truck was important. McAfee further testified that he considered various methods of restraint straps,¹ all of which he considered at that time to have been feasible to install. He indicated that the mesh restraint system would have required a redesign of the roof structure of the 4070A in order to be used in 1973 by International Harvester. McAfee also testified as to the feasibility of using active rather than passive restraints in the sleeping compartment but indicated that that alternative had been rejected because such systems would have been unacceptable to the drivers and thus would not have been used had they been installed. McAfee testified further that International Harvester purchased restraining belts and belt hardware from a seatbelt manufacturer. He said that commercial availability of a bunk restraint system would be a consideration in his determination of what kind of bunk restraint system to utilize.

The plaintiffs, defendant, and district court all agreed, out of the presence of the jury, that there was no dispute about the feasibility of alternative methods of bunk restraints. Plaintiffs claimed that this agreement concerned only what was theoretically able to be utilized as a restraint and that it had the right to show what restraints were actually manufactured and installed as of 1973. The plaintiffs sought a stipulation from the defendant that other identifiable types of restraints were commercially available in 1973, but the court said that such a stipulation would be prejudicial and have no probative value.

This court, applying Illinois law regarding proof in a products liability action, indicated that the plaintiffs must prove, inter alia, that “(1) the product as designed is incapable of preventing the injury complained of; (2) there existed an alternative design which would have prevented the injury; and (3) in terms of cost, practicality and technological possibility, the alternative design was feasible.” Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir.1974). Feasibility includes “the elements of economy, effectiveness and practicality,” and may be shown “by the opinions of experts or by the existence ... on other products or in the design thereof . ... ” Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 319, 281 N.E.2d 749, 753 (1972). Whether commercial availability is viewed as an element of feasibility or as a separate issue, it is clear that proof of commercial availability of an alternative design is evidence of a material fact involved in a products liability action.

Because the evidence of design alternatives available in 1973 was relevant and there existed no valid policy reason for excluding it,² the evidence should have been admitted. The jury, however, was permitted to hear testimony that defendant’s employees were familiar with alternative designs in 1973, found some of the alternatives to have advantages over the restraint actually installed, and chose to use the vertical bunk restraints after weighing the advantages and disadvantages of the different systems of restraints. This evidence creates such a strong implication that the design alternatives were commercially available, that the evidence offered may have been cumulative³ and, in any event, that its exclusion was not reversible error.⁴

It is a long-established rule that proof of repairs subsequent to an accident is not admissible to prove negligence in a tort action. Such evidence may, however, be introduced, for other purposes. Federal Rule of Evidence 407 provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Appellants contend that Rule 407 is inapplicable to actions asserting strict liability. They contend that the first sentence of the Rule applies only to actions involving negligence or culpable conduct, which obviously do not include strict liability actions, and that the second sentence of the Rule merely creates an exception to the first sentence. On their theory, evidence of subsequent repair would be admissible for any purpose in a strict liability action. The weight of authority in Illinois rejects this theory.⁵ The exclusion of the post-accident change in bunk restraint design is not reversible error.

Rule 407 allows evidence of the post-accident change in design to show feasibility of an alternative design only if feasibility was controverted. Here it was not. We see no way in which the exclusion affected the substantial right of Oberst.

The evidentiary exclusions, if error, constitute harmless error as to Oberst’s claims. These rulings did not affect the claims of Schroeder. Accordingly, the Clerk of this Court is directed to enter judgment affirming the judgment of the district court.

1 . Q. What types of bunk restraint arrangements did you look at?

A. It was single-strap types, double-straps, lap-belt types, mesh, harnesses .... Great number of different types and feasibility of using different types was explored.

2 . The evidence of which restraints were employed in 1973 by specific manufacturers may have been properly excluded because the prejudice to defendant would have outweighed the probative value of that evidence. Federal Rule of Evidence 403. What was of probative value was that in 1973 International Harvester could have purchased alternative bunk restraints.

3 . Federal Rule of Evidence 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

4 . Fed.R.Civ.P. 61 provides in part:

No error in either the admission or the exclusion of evidence ... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

5 . Numerous cases interpreting Illinois law have indicated that proof of post-accident repair or design change is admissible in a strict liability action to show feasibility of an alternative design. Lolie v. Ohio Brass Co., 502 F.2d 741, 745 (7th Cir.1974); Mahoney v. Roper-Wright Manufacturing Co., 490 F.2d 229, 232 (7th Cir. 1973); Smith v. Verson Allsteel Press Co., 74 Ill.App.3d 818, 828, 30 Ill.Dec. 562, 570, 393 N.E.2d 598, 606 (1979); Cunningham v. Yazoo Manufacturing Co., 39 Ill.App.3d 498, 500, 350 N.E.2d 514, 516 (1976); Gaenzele v. B. E. Wallace Products Corp., 39 Ill.App.3d 93, 99, 350 N.E.2d 571, 576 (1976); Biehler v. White Metal Rolling & Stamping Corp., 30 Ill.App.3d 435, 445, 333 N.E.2d 716, 724 (1975); Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 319, 281 N.E.2d 749, 753 (1972). One Illinois case held that the traditional exclusion of post-accident repairs was inapplicable in strict liability actions. Burke v. Illinois Power Co., 57 Ill.App.3d 498, 514, 15 Ill.Dec. 670, 685, 373 N.E.2d 1354, 1369 (1978). However, Burke relied for authority on Sutkowski and Mahoney, which do not support this holding.