*1 939.05(2)b see section are conspiracy, supra, conceptually receipt,
no more distinct than
concealment, storage, Gipson, supra, see conceptually F.2d at and no more aids, abets, counsels,
distinct than com-
mands, induces, or procures, see U.S.C. 2(a).
§ reasons,
For the foregoing the district judgment
court’s is affirmed.
Lloyd SCHWARTZ, Plaintiff-Appellant,
The AMERICAN HONDA MOTOR COM-
PANY, Compa- INC. and Honda Motor
ny, Limited, Defendants-Appellees.
No. 81-2333. Appeals, Court of States
Seventh Circuit.
Argued Sept.
Decided June *2 Frazier,
Philip Whaley, M. & McMullin Pitzer, Louis, Mo., plaintiff-appel- St. for lant. Phoenix, Louis, Mo.,
G. Keith St. for de- fendants-appellees. Second, he misuse. on the issue of ESCHBACH, Judge, Circuit Before was misinstrueted claims SWYGERT, Judge, Circuit Senior dangerous. unreasonably the definition
DUMBAULD, Judge.* District Senior erred in Third, the court he claims ESCHBACH, Judge. Circuit incompetent, the introduction allowing Final- evidence. irrelevant and *3 Schwartz, in a prod- below Lloyd plaintiff chal- miscellaneous he makes several ly, action, from diversity appeals liability ucts give jury refusal lenges to the court’s his for a denial of motion the district court’s proposed. instructions he below, we af- For the reasons new trial. firm.
Ill
A. Misuse
purchased a new Honda
Lloyd Schwartz
plaintiff’s
Illinois law2 a
Under
Honda
is a
Express
in 1977. The
Express
can
relief in a strict
conduct
bar
vehicle with a
motorized two-wheeled
small
“mis
case if his actions constitute
liability
twenty-eight
speed
approximately
of
top
364,
Co.,
Ill.2d
Hyster
use.” Anderson
4, 1977,
December
hour. On
per
miles
369,
549, 552,
690, 693
24 Ill.Dec.
385 N.E.2d
cause-
riding
Express
the Honda
on the
ab
synonymous
not
(1979). Misuse is
Miami and Miami Beach when
way between
use. Under
Illinois
negligent
normal or
He has no recollection of
he lost control.
not
a use that is
misuse is
except
feeling
“going
a
the accident
manu
reasonably prudent
a
foreseeable to
through space.”
thing
The next
he recalls
Ill.2d
Engelke,
Kerns v.
facturer.
See
finding
and
his
regaining
consciousness
859,
154, 165, 28
500, 505, 390N.E.2d
Ill.Dec.
lodged
foot
between
inboard side
only
(1979). Foreseeability includes
spokes
muffler and the
of the rear wheel.
expect,
reasonable to
objectively
what
burned,
severely
causing
His foot was
him
occur,
conceivably
that could
everything
not
medical
great pain
requiring
and
extensive
ordinari
foreseeability
are
questions
and
treatments.
v. Win
to resolve. Winnett
ly for
1980,
In
a com-
August
Schwartz filed
12-13,
1,
nett,
310 N.E.2d
against
Motor
plaint
the American Honda
Nevertheless,
be some
(1974).
there must
Lim-
Company
Company,
and Honda Motor
before the issue is sub
evidence of misuse
ited,
defec-
alleging
Express
jury.
Illinois State Trust Co.
mitted to
Juris-
unreasonably dangerous.1
tive and
585, 591,
Mfg.
Ill.App.3d
v. Walker
diversity
on
of citizen-
diction was based
513, 517,392 N.E.2d
29 Ill.Dec.
The
convened a
trial on
ship.
court
Schwartz,
objection by
strong
Over
1,1981,
returned a
June
of six
instant case was instructed
jury in the
on June
verdict for the defendants
theory
of misuse. The defendants’
the issue
for a
The court denied
Motion
be misuse to become
was not that it would
20, 1981,
New Trial on
July
Schwartz
Express.
involved in an accident with
appeals.
Whalen, 70 Ill.2d
Buehler v.
See
856-57,
464-65
Ill.Dec.
II
(1977) (intended and actual use of cars in
Rather,
collision).
they
major
possibility
issues
raises can be
cludes
Schwartz
First,
was evidence
he as-
assert
there
groups.
classified into four
ground
foot to the
put
instructing
serts that the court erred in
*
Dumbauld,
warranty.
plaint alleging
Senior Dis-
breach
The Honorable Edward
Pennsyl-
Judge
ruling.
appeal
for the Western District of
trict
vania, sitting by designation.
does not
applies.
parties agree
law
that Illinois
2. All
granted the defendants a
1. The district court
com-
directed verdict on a second count of the
put
muffler
possibility
opera
his foot near the
immediate-
had foreseen the
ly
accident,
before
that either of
tor of a blow-mold machine could accidently
switch,
actions
particular
these
would be misuse.
even though
activate
operator’s
hand would
come near
Schwartz has no recollection of what
during
the switch
normal use.
Id. at 597-
expert
caused
accident. His
wit-
hand,
99. On the other
have held that
we
if
ness,
Dreifke,
Gerald Lee
offered three pos-
there is
doubt as
the foreseeability
ways
sible
and resulting
accident
use,
a particular
question
this is
of fact
First,
foot
could have occurred.
Lake
jury.
Engineering
for
Kuziw v.
may
put
ground,
rider
have
his foot
(7th Cir.1978).
35-36
which would
foot
cause his
be forced
Moreover, most
cases that have
and inward
back
toward
rear wheel.
particular
that a
use
found
was not “mis
Second,
the rider
have taken his foot
have
uphold
use”
done so in the context of
peg
off the foot
and moved
back toward
ing a jury decision on the issue rather than
*4
Third,
the rear wheel.
the rider may have
holding as a matter of law that
the issue
road,
something
hit
in the
and the rider and
should not have been submitted to the jury.
Express may have
in the right posi-
landed
e.g.,
Engelke,
154,
See
Kerns v.
76 Ill.2d
28
tion so that his
entangled
foot became
in
500,
(1979);
Ill.Dec.
390
859
N.E.2d
Ander
the rear wheel next
the
to
muffler. Dr.
Co.,
364,
Hyster
son v.
24 Ill.Dec.
Dreifke believed that
the first
possi-
two
549,
(1979);
C. the Admission equipped were with rear baskets. He did of Evidence testify fairly however he was that observ majority ant about Honda first challenges Schwartz the admission he the road Expresses of had seen on were by testimony of defense witnesses that they equipped. not so Mr. Widman testified in knew of no similar involving accident detail about the similarities and differences Expresses other Honda or comparable mod- Express between the and the other models other els made manufacturers. Mr. of small before his 200,000 motorcycles offering Jameson testified that over Ex- conclusion that the exhaust and wheel de been in presses had sold to consumers the States, signs substantially of these models were and a representative of Honda, Express. identical to that the injuries he knew of no or claims While like ideal, the one at issue. H. these foundations not be Defense witness Bolter “[t]he Kelsey, Jr. testified evidence Express sufficiency that if an were foundation varies baskets, equipped with rear option an Hon- from case to case and must be determined sells, injuries da the rider would not sustain an exercise of the trial court’s discre- appeal argues at cause Schwartz no time on foreseeable as to its class of users character- the misuse product that instruction misstated Illinois or istics. A is not defective unrea- not reach we do the issue addressed sonably dangerous merely possi- because dissent. injured using ble to be it. while proposed 4. That instruction reads: proposed That reads: A is in a defective condition unrea- expression “unreasonably IWhen use the sonably dangerous has to the user when it instructions, dangerous” in these mean un- propensity beyond causing physical for harm considering safe the nature and function of contemplated that which would be motorcycle. ordinary purchases it, user who consumer ordinary knowledge with the common to the case, we face question tion.” Id. In we do believe dice. is whether al- court its discretion lowing exchange during district abused Schwartz’s concluding in that a sufficient foundation would require cross-examination reversal. was laid for the admission of this evidence. exchange quite Because this was brief and Had the defense witnesses been able to was well because advised no the Expresses state that all lacked rear governed shielding federal standards heat baskets and that the other models were mufflers, for we conclude that error in exactly design, identical evidence allowing general compli- about question However, would have more weight. carried with standards ance federal was harmless testimony by a Honda official that most of in this case. Expresses observed did not have rear was Schwartz also contends that it error expert baskets testimony by and witness court to for the district allow the defend- substantially other models were Express’s part ants to introduce in- design identical in rendered the evidence of evidence, to permit manual into struction sufficiently absence of similar accidents testify Widman to on the issue whether probative to be admitted into evidence.6 dangerous, Express unreasonably Schwartz next asserts that the district and to allow the defendants to cross-exam- court admitting erred in evidence that feeling ine Schwartz about his of satisfac- Express with all complied safety federal Express with the tion before the accident. standards when there were no federal stan- case, including In the of this circumstances governing portions dards the relevant maneuvers, prior evidentiary we cross-examination, Express. On de- find no merit in these contentions. fense counsel allowed to ask Schwartz Jury D. Instructions Express whether stating had a sticker the challenges In addition to he makes to all Express complied applica- instructions safety ble federal Answers to standards. unreasonably dangerous, definition interrogatories introduced by contends that the district court testimony witness Jameson later by defense four in- rejecting proposed erred in of his regula- established there are no federal *6 refraining giving structions and in from tions heat covering shielding mufflers. another instruction that the court had earli- both federal and Illinois Under agreed give. er to case with federal compliance applicable relevant, standards is not conclu The court’s instruction though trial whole, sive, products in a Dor be as a Pickens- liability case. See must considered Co., 650, v. sey Moving Storage May Honda Motor 655 F.2d 656 Kane & Co. v. Aero (5th 490, Cir.1981), (7th modified on 468 492 rehearing, 670 flower Transit F.2d denied, ___ U.S. ___, Cir.1972), F.2d 21 (1982), “complaints cert. of an omission in 177, (1982); against 74 S.Ct. L.Ed.2d 145 How the instruction must be evaluated 133, 138 (4th charge,” ard McCrory Corp., 601 F.2d framework of the entire Cail Cir.1979); Chicago Rucker v. Norfolk & Western louette v. Baltimore & Ohio Termi 439-40, 434, Railroad, 243, Railway, 77 Ill.2d 33 Ill.Dec. nal Cir. 145, 147-48, Moreover, 534, (1979). 1983) (citations omitted). N.E.2d 536-37 “[n]o however, agree, We with as error the or the party may assign giving Schwartz compliance having give with federal standards failure to an instruction unless ob nothing alleged retires to con may jects do with defect be thereto before verdict, stating the mat completely distinctly irrelevant or inadmissible its sider objects and of any probative outweighed grounds because value is ter to which he objection.” possibility preju- of confusion and Fed.R.Civ.P. course, compared “substantially 6. Of witness transform inad- identical.” That a cannot as supported by evi- missible evidence into evidence sim- conclusion must be sufficient admissible describing dence, ply by this the items or situations to be as it is in case. the man- jections, dissent discusses this Proposed 21 and instructions to the presented was objection. The dis misuse were refused without ner in which instruc agreed give proposed jury- trict court 12, of the instruc transcript but the
tion courts, courts have Like other actually given indicates that was tions between a coherent line to draw struggled object not to its did omitted. Schwartz One area liability. negligence products jury retired. Because omission before the is defin struggle has occurred in which this to the omission objection made no which plaintiffs’ conduct ing types of we three and because of these instructions greater a It is clear that recovery. bar resulting prejudice find no substantial contribu simple than degree culpability of therefrom, now as assign cannot plain a required to bar tory negligence is give these instructions. error the failure to liability case. tiff’s in a recovery 6, defining proxi- Proposed instruction Mfg. v. Brown Williams cause, over objection.7 was refused mate (Ill.Sup.Ct.1970). adequately instructed Because recovery-barring behavior is type One of issue,8 no we find merit “misuse,” a different and it has called preju- that he contention Schwartz’s would layman that which a meaning than proposed diced refusal of fact, In the definition to it. ascribe misuse 10 instructed Proposed the common materially is different from a defense that is not jury that “it term. ordinary understanding or could not have product condition Dictionary Third International Webster’s or that been discovered the defendant use in- “to “misuse” follows: defines care was used in the manufacture use for carelessly” “to a correctly or court agree We district product.” improper purpose.” wrong or geared that this instruction is more toward Herbig operated believed that may have arising in the manufacture a claim defect or even incorrectly, improperly the roller product arising of a rather than defect oper- unless manner of carelessly, but design. its find no error in the from We foreseeable ation was not declining give court’s this instruction. defendants, alleged recovery. a bar to
IV Inc., Galion, 77 Ill. Jeffrey Lancaster v. above, the For the reasons district court’s 33 IIl.Dec. App.3d motion for trial denial a new Dist.1979). 2d (Ill.App.Ct. N.E.2d is Affirmed. abnormal, but “If the use of SWYGERT, Judge, Circuit dis- Senior anticipated, it be nonetheless one *7 senting. a distinction may There is be foreseeable. foreseea intended between the use I Although greater find merit than does use use, particular a majority ob- ble and ... where evidentiary in Schwartz’s causing actually Proposed bringing the in- about or instruction 6 reads: injury damage; or dam- and or expression “proximate I When use the reasonably cause”, which, age a a direct result or was either cause in natural mean injury probable consequence probable sequence, produced or omission. the act or complained cause, only recognizes not be the of. It need mean law This does not that the injury It nor the last nearest cause. is sufficient proximate or only of an or cause one acting other at if it concurs with some cause consisting only damage, factor or one it, time, the same which in combination with person. thing, On conduct of one or the injury. causes the things contrary, many or the factors or may operate persons two or more conduct of given: following were instructions time, independently or at same injury proximately damage An is caused or damage; together, and in cause or to act, an act to whenever or a failure case, may proximate cause. each be a such a appears in the case that from the evidence part played a the act or substantial omission
385 misuse of the reasonably motorcycle. known to the suit of his A should be prudent labelled such use cannot be or seller is ex- manufacturer manufacturer entitled to Engelke, Kerns v. use unforeseeable.” of his If pect motorcycle. normal 500, 505, 154, 165, 28 Ill.Dec. 390 N.E.2d plaintiff’s injury occurred because of his omitted). (Ill.Sup.Ct.1979) (citations 864 motorcycle, in a manner for use v. Lake Engineering also Kuziw See motorcycle which is not adapted Illinois, (7th Cir.1978) (“In F.2d reasonably not foreseeable to the defend- liability predicated injuries product ant, the plaintiff then cannot recover. unreasonably which are by products caused plain- You determine whether the must when dangerous used in a man foreseeable time using motorcycle tiff at the ner; the manner of use intended of the in a manner for which accident irrelevant.”). manufacturer adapted which was motorcycle arise in a Misuse can in two contexts foreseeable to the reasonably defendant. liability plaintiff’s case: was the was also that a Unless the informed reasonably was the use foreseeable and reasonably “misuse” be foreseeable proximate misuse the sole cause plaintiff’s may not proxi that a “misuse” be the sole injury. v. Black Bros. Sanchez injury, mate see Buehler v. cause of 505, 504, Ill.App.3d Ill.Dec. 51, 58-61, Whalen, 70 Ill.2d 15 Ill.Dec. Dist. (Ill.App.Ct. N.E.2d 1st 856-57, (Ill.Sup.Ct. 464-65 1981). Because of this and be ambiguity 1978), would have understood this undue special cause a results in mean that con instruction to plaintiff’s conduct, to a the Illi attention duct, in the layman’s viewed sense as con Supreme Jury nois Court Committee on In was a to tributory negligence, complete bar (“Committee”) structions recommends his recovery. on misuse given. no instruction be I.P.I.2d attempted to cure the error 400.08, at (Supp.1977); Civil 29-30 I.P.I.2d offering two instructions:1 Sanchez, supra, Civil vi-vii See A or seller two- manufacturer of a 267-70, 503-05, at Ill.App.3d 53 Ill.Dec. at vehicle, wheeled motor such as the Honda (discussion at 1312-14 N.E.2d Com Express, reasonably anticipate can deciding mittee’s reasons for that misuse during at some time the useful life of should not be given). be it will involved in an accident offered all the relevant Illinois or collision. pattern jury the dis- instructions and called It is a defense claim plaintiff’s trict court’s attention to the Committee’s initial accident or overturn excluding reasons for an instruction on mis- was not vehicle caused or contributed use. He also called the district court’s at- design the claimed defect of the tention to Civil Rule 21 of the States Honda two-wheeled vehi- Express motor District Court for the District of Southern cle. provides pattern Illinois which that Illinois
jury instructions are to be used whenever While these instructions are not well-draft they available unless misstate law. Illinois fully ed jury, and do not inform the Although the district court did not find disadvantage, can plaintiff’s that a misuse the instructions misstated foreseeable, they be are indis adopted district court instruc- defendant’s law. putably correct statements of Illinois explicitly tions which instructed Buehler, supra. Liberty See See also Mutu *8 misuse. al Williams Ins. Co. v. Machine & Tool given The instruction was: (Ill.Sup. Ill.2d plain- Ct.1975) (“An instruction was given The defendant contends that the proximate plaintiff employees tiff’s occurred as a re- or its negligence argue pre- Only concerning 1. Defendants that Schwartz failed instructions. Reading very reading transcript serve these instructions. the tran- would technical however, script, permit it failed is clear that made the conclusion that Schwartz had repeated objections objections. preserve to the court’s decisions his defense, and that instruc- would not be here-
tion, our earlier statements light in
in, was further in- jury was correct. The Skywitch
structed that the ‘fact that misused is no defense so
may have been was foreseeable.’ While
long as the misuse drafted and did poorly
this instruction is on the adequately instruct misuse, we find no
defense of occurred.”).
error trial
The instructions in Schwartz’s of the uncommon
did not inform special meaning jury, of misuse.
therefore, have believed the case was would in contravention simple negligence,
one in efforts to Supreme
of the Illinois Court’s products liabili-
distinguish negligence from
ty, distinguish types plaintiffs’ and to such, recovery.
conduct which bar As instructions misstated Illinois law and is entitled to a
liability
new trial.2 GRIMES, Jr.,
Dr. E. John
Plaintiff-Appellant, UNIVERSITY, et
EASTERN ILLINOIS al., Defendants-Appellees.
No. 81-2466. Appeals, Court of States Circuit.
Seventh
Argued April June
Decided Cir.1983). majority argues 2. The that Schwartz “at no TAs is where, here, argues important appeal especially time on that the misuse instruc true law,” and, therefore, jury’s appel- tion misstated Illinois verdict in error of law taints Second, objection con- does “not reach the issue addressed lant’s trial. Maj. op., supra, curing cerning dissent.” at 382 n. 3. Al instructions he offered rais- though agree question I misuse instruction that Schwartz’s counsel has not es the whether the argued position light, The misuse instruction its best believe misstated Illinois law. and, First, given negligence-oriented, there- the issue should be addressed. it is not was more fore, unusual for this court decide more defendant-oriented than Illinois law to consider and inartfully gist permits. issues raised or not of Schwartz’s admit- at all This is See, Cook, e.g., County parties. tedly plea. Liberles v. inartful