Pitts v. Genie Industries, Inc.

         1. 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.

         2. 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.

         3. 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.

         4. 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.

         5. 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.

         6. 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.

         7. 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.

         8. 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.

         9. Expert Witnesses: 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.

         10. 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.

         11. Summary Judgment. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment.

         12. 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.

         13. 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.

         14. 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.

         15. 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.

         16. 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.

         17. __: __. 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.

         18. 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.

         11. Products Liability: Strict Liability: Proof. The malfunction theory is applicable in a strict liability manufacturing defect claim.

         12. Products Liability: Proof. The malfunction theory is not available when specific defects are alleged.

          Appeal from the District Court for Lancaster County: Darla J. Ideus, Judge. Affirmed.

          Peter 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.

         [302 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.

          Freudenberg, J.

         NATURE OF CASE

         An 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.

         FACTS

         Aerial Lift

         Genie 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.

         The 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.

         The 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.

         Genie 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.

         Accident

         In June 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.

         There 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 Genie's possession.

         After 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.

         Pitts 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.

         Dr. John Boye's Testimony

         The 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 never ...