Trevor Pitts and Rebekah Pitts, a married couple appellants, and haco electric company, Incorporated, a Nebraska corporation, appellee,
Genie Industries, Inc., a Washington corporation, appellee.
Summary Judgment: Appeal and Error. An
appellate court reviews the district court's grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all
reasonable inferences in that party's favor.
Trial: Expert Witnesses: Appeal and Error.
An appellate court reviews de novo whether the trial court
applied the correct legal standards for admitting an
expert's testimony. But a trial court's ruling in
receiving or excluding an expert's testimony which is
otherwise relevant will be reversed only when there has been
an abuse of discretion.
Judges: Words and Phrases.
A judicial abuse of discretion exists when a judge, within
the effective limits of authorized judicial power, elects to
act or refrain from acting, but the selected option results
in a decision which is untenable and unfairly deprives a
litigant of a substantial right or a just result in matters
submitted for disposition through a judicial system.
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
of law. In the summary judgment context, a fact is material
only if it would affect the outcome of the case.
Products Liability: Actions: Negligence. In
a products liability cause of action based on strict
liability in tort, the central question involves [302 Neb.
89] the quality of the manufactured product, that is, whether
the product was unreasonably dangerous.
Products Liability: Words and Phrases.
"Unreasonably dangerous" means that the product has
a propensity for causing physical harm beyond that which
could be contemplated by the ordinary user or consumer.
Products Liability: Proof. In a products
liability action based on defect, a plaintiff must prove by a
preponderance of the evidence that (1) the defendant placed
the product on the market for use and knew, or in the
exercise of reasonable care should have known, that the
product would be used without inspection for defects; (2) the
product was in a defective condition when it was placed on
the market and left the defendant's possession; (3) the
defect is the proximate or a proximately contributing cause
of the plaintiff's injury sustained while the product was
being used in a way and for the general purpose for which it
was designed and intended; (4) the defect, if existent,
rendered the product unreasonably dangerous and unsafe for
its intended use; and (5) the plaintiff's damages were a
direct and proximate result of the alleged defect.
Products Liability: Negligence: Proximate Cause:
Proof. To establish proximate cause in a products
liability action, the plaintiff must meet three basic
requirements: (1) Without the defect, the injury would not
have occurred, commonly known as the "but for" rule
or "cause in fact"; (2) the injury was a natural
and probable result of the defect; and (3) there was no
efficient intervening cause.
Testimony. Findings of fact as to technical matters
beyond the scope of ordinary experience are not warranted in
the absence of expert testimony supporting such findings.
Trial: Expert Witnesses.
With respect to the requirement of expert testimony, the test
is whether the particular issue can be determined from the
evidence presented and the common knowledge and usual
experience of the fact finders.
Summary Judgment. Conclusions based on
guess, speculation, conjecture, or a choice of possibilities
do not create material issues of fact for purposes of summary
Rules of Evidence: Expert
Witnesses. When a court is faced with a
decision regarding the admissibility of expert opinion
evidence, the trial judge must determine at the outset,
pursuant to the evidence rule governing expert witness
testimony, whether the expert is proposing to testify to (1)
scientific, technical, or other specialized knowledge that
(2) will assist the trier of fact to understand or determine
a fact in issue.
Courts: Expert Witnesses.
In evaluating expert opinion testimony under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579');">509 U.S. 579, [302
Neb. 90] 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d
862 (2001), where such testimony's factual basis, data,
principles, methods, or their application are called
sufficiently into question, the trial judge must determine
whether the testimony has a reliable basis in the knowledge
and experience of the relevant discipline.
Expert Witnesses: Words and
Phrases. Expert testimony based upon possibility or
speculation is insufficient to establish causation; it must
be stated as being at least probable, in other words, more
likely than not.
Negligence: Products Liability. The
malfunction theory is based on the same principle underlying
res ipsa loquitur, which permits a fact finder to infer
negligence from the circumstances of the incident, without
resort to direct evidence of the wrongful act.
Products Liability: Proof. Under the
malfunction theory, also sometimes called the indeterminate
defect theory or general defect theory, a plaintiff may prove
a product defect circumstantially, without proof of a
specific defect, when (1) the incident causing the harm was
of a kind that would ordinarily occur only as a result of a
product defect and (2) the incident was not, in the
particular case, solely the result of causes other than a
product defect existing at the time of sale or distribution.
__. The malfunction theory simply provides that it is not
necessary for the plaintiff to establish a specific defect so
long as there is evidence of some unspecified dangerous
condition or malfunction from which a defect can be
inferred-the malfunction itself is circumstantial evidence of
a defective condition.
Products Liability: Proximate Cause: Damages:
Proof. The malfunction theory does not alter the
basic elements of the plaintiff's burden of proof and is
not a means to prove proximate cause or damages.
Products Liability: Strict Liability: Proof.
The malfunction theory is applicable in a strict liability
manufacturing defect claim.
Products Liability: Proof. The malfunction
theory is not available when specific defects are alleged.
from the District Court for Lancaster County: Darla J. Ideus,
C. Wegman, Mark R. Richardson, and Alyssa P. Martin, of
Rembolt Ludtke, L.L.P, and John W. Ballew, Jr., of Ballew
Hazen, PC, L.L.O., for appellants.
Michael L. Moran, of Engles, Ketcham, Olson & Keith, PC,
for appellee Haco Electric Company, Incorporated.
Neb. 91] Michael F. Coyle and Timothy J. Thalken, of Fraser
Stryker, PC, L.L.O., for appellee Genie Industries, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
electrician was injured when an aerial lift malfunctioned and
tipped over while the electrician was working approximately
30 feet in the air on the lift's raised platform. After
sustaining serious injuries, the electrician brought strict
liability claims, negligence claims, and an implied warranty
claim against Genie Industries, Inc. (Genie), the
manufacturer and designer of the lift. Genie moved for
summary judgment as to all of the electrician's claims
and sought to exclude the electrician's expert opinions
on the issues of unreasonably dangerous conditions, defect,
causation, and alternative design. Following a hearing, the
district court partially granted Genie's motion to
exclude expert testimony and granted Genie's motion for
summary judgment on all claims. The electrician appeals.
manufactured an aerial lift named Genie model
"TZ-34/20." In order to operate the lift, an
operator stands on a platform, or "bucket" or
"basket," and the platform is raised and lowered.
The platform is raised and lowered by an extension of the
lift referred to as a "boom." The lift sits atop of
four outriggers that can be retracted when the lift is being
transported. The outriggers are intended to extend, make
contact with the ground, and raise the lift off the ground in
a level manner.
user operates the lift by pressing buttons on one of two
control panels: (1) a ground control panel that operates the
outriggers, boom, and platform and (2) a platform control
[302 Neb. 92] panel located directly on the platform that
operates only the boom and the platform. There is also a key
switch located at the platform controls that selects which of
these two controls will operate. For example, when the key
switch is turned to the platform setting, the ground controls
will not operate. In theory, an operator standing on the
platform should not be able to move or control the outriggers
by pressing buttons on the platform control panel. This
mechanism was designed to avoid destabilization while an
operator is on the platform.
lift in question was sold by Genie to Nebraska Machinery
Company (Nebraska Machinery) in May 2011. Over the next few
years, a number of repairs were performed on the lift.
According to Nebraska Machinery's work orders, the lift
was first repaired in August 2011, 4 months after the sale,
when the "limit switch" failed, which caused the
lift to become incapable of lowering. In the 2 years prior to
the electrician's accident, there were approximately 30
total work orders for repairs on this particular lift,
several of which related to issues with the
"auto-leveling" system and the outriggers.
started manufacturing this type of lift in 2003 and has made
more than 4, 600 of them. Genie is not aware of any other
lift falling over in the same manner on any other occasion.
During the end of the manufacturing process, Genie tested the
lift's functions and determined that the tested movement
functions worked properly. Genie's senior product safety
manager testified that the lift's design was consistent
with all relevant national standards and that in his opinion,
the lift's design used the best technology reasonably
available at the time it was made.
2013, Nebraska Machinery leased the lift to a general
contractor for use at a jobsite in Seward, Nebraska. Trevor
Pitts is an electrician and was working for an electrical
subcontractor. On August 21, the lift tipped over while Pitts
was working on the platform approximately 30 feet in the air.
Pitts had used the lift without any problems for 10 days
before the [302 Neb. 93] accident. On the day of the
accident, other subcontractors had used the lift less than an
hour before the incident.
appeared to be electrical tape over a button on the platform
control panel, but Pitts did not know why the tape was on the
button or who put it there. According to Genie, the button
that was taped over was the button that levels the platform
when it is in the air. Genie argues that this indicates that
the leveling system was altered after the machine left
the accident, bystanders who came to the scene saw that the
left rear outrigger was "retracted." As a result of
that outrigger's being shorter than the others, the lift
was not level and tipped over, causing Pitts' injuries.
and his wife brought several claims against Genie (and two
other parties, now dismissed) in the Lancaster County
District Court. These claims included three strict liability
claims for manufacturing and design defects and a failure to
warn, three negligence claims, one breach of implied warranty
claim, and a loss of consortium claim.
John Boye's Testimony
Pittses' sole expert was an electrical engineer, Dr. John
Boye. Boye is a professor emeritus in the University of
Nebraska-Lincoln electrical and computer engineering
department who holds a Ph.D. in electrical engineering. Along
with another electrical engineer, Boye also formed a small
electrical engineering consulting firm as a licensed
electrical and computer engineer with the state. Boye had