Cottrell putting Jablonski ruling to test; But plaintiff says overturned $43 million verdict doesn't apply

Steve Korris Dec. 1, 2011, 12:00pm



Georgia trailer maker Cottrell Inc., constantly defending Madison County injury suits from Teamster union drivers of its car hauling rigs, aims to test the strength of an Illinois Supreme Court decision that overturned a $43 million judgment in a car crash.

In October, Cottrell asked Circuit Judge David Hylla for summary judgment against driver Michael Mandeville, in light of the Supreme Court ruling in Jablonski v. Ford.

According to Cottrell counsel Theresa Lynch, the Court held that a design defect claim must focus on the reasonableness of a defendant's conduct.

She quoted from the Jablonski decision that, "Plaintiffs must show more than the technical possibility of an alternative design."

For Mandeville, Michael Blotevogel of Alton claims the decision doesn't apply.

"There is nothing in Jablonski that changes any standards applicable to this case," Blotevogel wrote on Nov. 18.

Mandeville and wife Diane sued Cottrell and local business Cassens Corporation in 2007, blaming them for his fall from a rig at a dealership in Iowa.

The Mandevilles claimed Cottrell should have installed hand rails.

They alleged that, "Defendant has been sued many times by persons who have fallen from the top of Cottrell rigs."

They seek punitive damages, claiming Cottrell placed profit above safety.

Brian Wendler of Edwardsville and Charles Armbruster of Alton filed the suit.

Cottrell moved for summary judgment, and Hylla denied it last December.

This fall, the Supreme Court reversed a $43 million judgment that Madison County Circuit Judge Andy Matoesian awarded to widow Dora Jablonski.

Her husband John died and she suffered permanent injuries when another car rammed their Lincoln Town Car from behind.

A wrench in their trunk punctured the gasoline tank and the car exploded.

Appellate judges in Mount Vernon affirmed Matoesian, but the Supreme Court absolved Ford of any duty to warn owners that contents of trunks could puncture fuel tanks.

Justice Mary Jane Theis wrote that "despite the clear gravity of the injury, the risk was extremely remote."

The decision prompted Cottrell to ask Hylla for reconsideration.

Lynch wrote that when Cottrell manufactured the rig, its conduct was reasonable.

She wrote that Cottrell owed Mandeville no duty to provide a rig equipped with safety devices that his union did not approve or require.

She wrote that hand rails would inject additional dangers, a factor the Supreme Court considered in Jablonski.

"This is not a situation, like in most product liability cases, where the manufacturer alone determined the equipment required to safely perform the task at issue," she wrote.

"Cottrell provided what was specified, what was approved, and what was expected," she wrote.

She wrote that Mandeville had 33 years experience and that his union contract never approved, much less required, hand rails where Mandeville claims he fell.

She wrote that Cottrell had no duty to warn him because he was aware of open and obvious dangers.

Blotevogel answered that Cottrell's motion was an attempt to shift its duty to Mandeville's employer, Cassens Transport.

He wrote that Cottrell could have eliminated the unsafe character of its product without impairing its usefulness.

He wrote that in 2009, Cottrell offered customers fall protection systems that reduced the risk of drivers falling from the top.

"Where a user knows of a risk but believes he will be able to avoid it through his conduct, the risk is not open and obvious," Blotevogel wrote.

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