                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-2146
JOHN MESMAN and JUDY MESMAN,
                                            Plaintiffs-Appellants,
                                v.


CRANE PRO SERVICES, a division
of KONECRANES, INC.,
                                              Defendant-Appellee.
                         ____________
           Appeal from the United States District Court for
        the Northern District of Indiana, Hammond Division.
         No. 2:99 CV 428 TS—Theresa L. Springmann, Judge.
                         ____________
      ARGUED JANUARY 7, 2005—DECIDED MAY 31, 2005
                         ____________




  Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
  POSNER, Circuit Judge. John Mesman, an employee at the
Indiana plant of Infra-Metals, a manufacturer of steel prod-
ucts, lost one leg and suffered a serious injury to the other
when a load of steel sheets that he was unloading from a
boxcar fell on him from the crane that was lifting the sheets
out of the boxcar. He and his wife (she complaining of loss
of consortium) brought suit in an Indiana state court under
Indiana’s products liability law against the firm that had
2                                                 No. 04-2146

rebuilt the crane, Konecranes, which removed the case to
federal district court. A jury awarded the plaintiffs a large
verdict, but the judge set it aside and entered judgment for
the defendant, further ruling that if this was wrong the
defendant was entitled to a new trial because the jury had
been confused by irrelevant evidence and had ignored criti-
cal instructions.
  The case, filed five years ago, is actually quite simple. It
has been badly handled by all concerned. There was no
basis for the entry of judgment for the defendant; but with
reluctance in light of the age of the case, we must sustain the
judge’s alternative ruling granting the defendant a new trial.
  Built into the plant was a very old crane, which Infra-
Metals wanted renovated, for unloading steel sheets from
the rail siding that ran into the plant. The crane consisted of
the following parts: a beam, called the “bridge,” fastened to
the plant’s ceiling directly above the rail siding; a hoist,
suspended from the beam, which the operator of the crane
could move sideways along the bridge, as well as up and
down to do the lifting; another beam, called the “spreader
beam,” connected to the hoist; chains connecting each end
of the spreader beam to “scoops” for gripping the load; and
attached to the bridge an operator’s cab.
  Konecranes engineers visited the plant and watched the
crane in operation. The most problematic feature, they
would have noticed, was that when a boxcar was being un-
loaded underneath the section of the bridge to which the cab
was attached, there was only a foot or two of clearance
between the rim of the boxcar and the cab overhead. And if
while being lifted by the hoist the spreader beam struck the
cab, the load might be jarred loose and fall, hitting anyone
standing beneath it.
No. 04-2146                                                  3

  The renovation undertaken by Konecranes did not involve
changing the physical structure that we have described. So far
as relates to this case, the most significant alteration was to
substitute for the controls in the operator’s cab a hand-held
remote-control device with which the operator would
operate the crane from ground level. To raise the load he
would press the up button on the device and to lower it he
would press the down button. With the cab no longer being
used for anything, it could have been removed to eliminate
the danger of its being struck by the spreader beam.
Konecranes did not remove the cab; instead it installed
alongside the up and down buttons on the remote-control
device an emergency-stop button, so that if the operator
sensed an impending collision between the load and the cab
he could bring the spreader beam to an immediate dead stop
by pressing that button. Alternatively, by pressing the down
button he could reverse the direction of the hoist; but
because the up and down control had a deceleration feature
to reduce wear and tear on the crane, the spreader beam
would continue to rise for three seconds after the down
button was pressed, traversing in that period about a foot,
until it stopped and began its reverse motion. Thus, press-
ing the down button would not arrest the upward motion of
the spreader beam and load as fast as pressing the
emergency-stop button would.
  Konecranes also built into the renovated crane a limit
switch that would automatically stop the spreader beam
from rising when it came too near the bridge. But the switch
was set to prevent the spreader beam from touching the
bridge where the cab was not attached. To prevent the
spreader beam from touching the cab, the limit would have
had to be set much lower—too low for convenient unload-
ing of boxcars that were underneath any other section of the
bridge. Thus, as set, the limit switch did nothing to prevent
a collision between the load and the cab.
4                                                 No. 04-2146

  On the day of the accident, the crane operator, Van Til,
was standing about 20 feet away from a boxcar that was
underneath the abandoned cab. Mesman, standing in the
boxcar, fastened a load of steel sheets to the scoops beneath
the spreader beam and Van Til pressed the up button and
the beam and load rose. As they rose he saw that the
spreader beam was going to hit the cab, but instead of press-
ing the emergency-stop button, as he should have done to
bring the rising load to a dead stop, he pressed the down
button. Because of the deceleration feature—of which he
was aware—and the narrow clearance between the cab and
the rim of the boxcar, the beam continued to rise for three
seconds, hitting the cab and causing the load to fall on
Mesman.
  Van Til’s mistake was the principal cause of the accident,
as the jury recognized in assigning two-thirds of the respon-
sibility for the accident to Infra-Metals, the employer of Van
Til (as of Mesman) and only one-third to Konecranes. The
design of the renovated crane also contributed to the
accident, however; for had Konecranes removed the cab,
eliminated the deceleration feature, or modified the limit
switch so that the limit could be lowered when a load was
being unloaded beneath the cab, the accident would have
been avoided: with certainty in the case of either of the first
two modifications, less certainly in the case of the third, an
adjustable limit switch, since Van Til might have forgotten
to adjust it.
  Under Indiana’s products liability law, a design defect can
be made the basis of a tort suit only if the defect was a result
of negligence in the design, Ind. Code § 34-20-2-2; Birch v.
Midwest Garage Door Systems, 790 N.E.2d 504, 518 (Ind. App.
2003); Chesnut v. Roof, 665 N.E.2d 7, 10 (Ind. App. 1996); First
National Bank & Trust Corp. v. American Eurocopter Corp., 378
F.3d 682, 691 n. 7 (7th Cir. 2004) (Indiana law), that is, only
No. 04-2146                                                    5

if the product could have been redesigned at a reasonable
cost to avoid the risk of injury. Miller v. Todd, 551 N.E.2d
1139, 1141 (Ind. 1990); Stamper v. Hyundai Motor Co., 699
N.E.2d 678, 689 (Ind. App. 1998); Weir v. Crown Equipment
Corp., 217 F.3d 453, 460-61 (7th Cir. 2000) (Indiana law);
McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 657 (7th Cir.
1998) (same); Navarro v. Fuji Heavy Industries, Ltd., 117 F.3d
1027, 1031 (7th Cir. 1997). Expressly requiring proof of
negligence in a design-defect case, as Indiana law does,
though unusual really isn’t much of a legal innovation, since
“defect” always implied something that should not have
been allowed into the product—something, in other words,
that could have been removed at a reasonable cost in light
of the risk that it created. Id.; Barker v. Lull Engineering Co.,
573 P.2d 443, 455-57 (Cal. 1978); William Powers, Jr., “A
Modest Proposal to Abandon Strict Products Liability,” 1991
U. Ill. L. Rev. 639, 652, 654-59.
   The risk of a heavy load falling on a worker if the
spreader beam struck the disused cab was substantial
because of the narrow clearance under the section of the
bridge to which the crane was attached; and if the load did
fall on someone it would be likely to kill or seriously injure
him. Loads did fall, especially in very cold weather; the cold
made the steel sheets slippery and therefore more likely to
slide out of the scoops fastened to the chains of the spreader
beam. The part of the plant where the sheets were unloaded
from rail cars was open to the elements, and the accident to
Mesman occurred on a very cold winter day. The renovated
crane had been in operation for only ten days when the
accident occurred, and so the fact that no one else had been
injured was not compelling evidence that the risk of such an
injury was slight—indeed, one or two loads had already
fallen that very day, though no one had been hurt. A
reasonable jury could find that the risk of serious injury was
not slight.
6                                                  No. 04-2146

  In a negligence or “defect” case, the risk of injury has to be
weighed against the cost of averting it. In Learned Hand’s
influential negligence formula, United States v. Carroll Towing
Co., 159 F.2d 169, 173 (2d Cir. 1947), failure to take a pre-
caution is negligent only if the cost of the precaution (what
he called the “burden” of avoiding the accident) is less than
the probability of the accident that the precaution would
have prevented multiplied by the loss that the accident if it
occurred would cause; hence the formula: B < PL. E.g.,
Bammerlin v. Navistar Int’l Transportation Corp., 30 F.3d 898,
902 (7th Cir. 1994) (Indiana law); Brotherhood Shipping Co. v.
St. Paul Fire & Marine Ins. Co., 985 F.2d 323, 327 (7th Cir.
1993); Eimann v. Soldier of Fortune Magazine, Inc., 880 F.2d
830, 835 (5th Cir. 1989); W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 32, p. 173 n. 46 (5th ed. 1984). The
cheaper the precaution, the greater the risk of accident, and
the greater the harm caused by the accident, the likelier it is
that the failure to take the precaution was negligent.
  In this case the risk, which we said was substantial, of an
injury that would be likely to be serious could have been
eliminated at little cost simply by removing the cab. The cab
no longer had any function. It was just a dangerous eyesore.
An alternative precaution, also cheap but, as we noted
earlier, less fail-safe, would have been an adjustable limit
switch, which Van Til could have set to prevent the spreader
beam from hitting the cab when it was underneath it.
Another alternative would have been to eliminate the decel-
eration feature, so that pressing the down button while the
spreader beam was rising would have brought the beam to
an immediate stop. This would not have been an ideal
solution, however, because without the feature the crane
would wear out sooner. The same drawback would attend
another alternative safety precaution— reducing the period
of deceleration from three seconds to one, which would
No. 04-2146                                                  7

have stopped the spreader beam within four inches after the
down button was pressed rather than twelve. Still another
possibility would have been an additional automatic limit
switch, one operative only when the unloading was taking
place under the disused cab.
  The only really contestable issue in the case was whether
any of these precautions was necessary given the emer-
gency-stop button. Had Van Til pressed it instead of the
down button the accident would not have occurred. By
pressing the down button, Konecranes argues, Van Til ex-
posed Mesman to a danger that was “open and obvious”
to Van Til, Miller v. Todd, supra, 551 N.E.2d at 1141, 1143;
Welch v. Scripto-Tokai Corp., 651 N.E.2d 810, 815-16 (Ind. App.
1995); Schooley v. Ingersoll Rand, Inc., 631 N.E.2d 932, 938-39
(Ind. App. 1994), though not to Mesman; but as Van Til was
the operator of the allegedly defective machine, it was the
appearance of danger to him that is legally relevant to the
apportionment of liability between Infra-Metals, Van Til’s
employer, and Konecranes, the appellant. The open and
obvious danger would have been the danger that the rising
spreader beam would not stop in time to avoid hitting the
cab and dislodging the beam’s load unless the emergency-
stop button was pushed instead of the down button.
Konecranes argues that it had no legal obligation to protect
against such a danger.
  It used to be the law that manufacturers had indeed no
obligation to protect against “open and obvious” dangers in
a negligence or “defect” case. Hubbard Mfg. Co. v. Greeson, 515
N.E.2d 1071, 1073 (Ind. 1987); Bemis Co. v. Rubush, 427
N.E.2d 1058, 1061 (Ind. 1981); Estrada v. Schmutz Mfg. Co.,
734 F.2d 1218, 1219-20 (7th Cir. 1984) (Indiana law). But
when the Indiana legislature decided to codify the state’s
products liability law, it omitted the “open and obvious”
defense, replacing it with a defense (usually referred to as
8                                                 No. 04-2146

“incurred risk”) that requires proof that the user of the
product was actually “aware of the danger in the product.”
Ind. Code § 34-20-6-3; see FMC Corp. v. Brown, 551 N.E.2d
444, 446 (Ind. 1990); Koske v. Townsend Engineering Co., 551
N.E.2d 437, 442-43 and n. 3 (Ind. 1990); Traylor v. Husqvarna
Motor, 988 F.2d 729, 731-32 (7th Cir. 1993) (Indiana law). The
defendant has not pleaded or argued the defense. But the
fact that a risk is open and obvious remains relevant to
liability. It is circumstantial evidence that the user of the
product knew of the danger (and thus “incurred” the risk),
Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1150-51
(Ind. App. 1990), and it also bears on the question whether
the risk was great enough to warrant protective measures
beyond what the user himself would take. Id.; Miller v. Todd,
supra, 551 N.E.2d at 1143; Welch v. Scripto-Tokai Corp., supra,
651 N.E.2d at 825; Lovell v. Marion Power Shovel Co., 909 F.2d
1088, 1090-91 (7th Cir. 1990) (Indiana law). It just is not
conclusive evidence.
   Konecranes argues that the “open and obvious” defense
was abolished only with respect to defects in manufacture,
as distinct from defects in the design of the manufactured
product. There is no basis in the statutory text or logic for
such a distinction. Ind. Code §§ 34-20-1-1, 34-20-6-3. What
is true is that the initial codification of Indiana products
liability law was limited to products liability claims based
on a theory of strict liability, leaving design-defect claims,
which as we said are essentially negligence claims, to be gov-
erned by common law, including the common law defense
of open and obvious danger. Koske v. Townsend Engineering
Co., supra, 551 N.E.2d at 443-44; Welch v. Scripto-Tokai Corp.,
supra, 651 N.E.2d at 815-16. But that distinction was wiped
out by a subsequent amendment. Compare Ind. Code § 34-
20-1-1, with id. § 33-1-1.5-1 (1990).
No. 04-2146                                                   9

   And rightly so. Suppose a machine is designed without a
shield over its moving parts. It is obvious to the operator
that if he sticks his hand into the machine while the machine
is operating, the hand will be mangled. In the old days that
would have been a complete defense. But the new law
recognizes that because of inadvertence or other human
error, or because of debris or a slippery surface that might
cause a worker to trip, or even because of a distracting noise
or a sudden seizure, open and obvious hazards do on
occasion result in accidents. E.g., Swix v. Daisy Mfg. Co., 373
F.3d 678, 680-83 (6th Cir. 2004); Mosher v. Speedstar Division
of AMCA Int’l, Inc., 979 F.2d 823, 824-26 (11th Cir. 1992);
Lockley v. Deere & Co., 933 F.2d 1378, 1381-84 (8th Cir. 1991);
Holm v. Sponco Mfg., Inc., 324 N.W.2d 207, 208-12 (Minn.
1982); Micallef v. Miehle Co., 348 N.E.2d 571, 575-76 (N.Y.
1976). If those accidents can be avoided by a design modifi-
cation at very little cost, then even if the risk is slight, the
modification may be cost-justified; B may be less than PL.
The analogy to the doctrine of last clear chance, which
imposes a duty of care on a potential injurer even when the
potential victim has carelessly or even recklessly exposed
himself to danger, is apparent.
  We are mindful that the Indiana Appellate Court ruled in
Cole v. Lantis Corp., 714 N.E.2d 194, 199 (Ind. App. 1999),
that “to be unreasonably dangerous, a defective condition
must be hidden or concealed,” so that “whether a danger is
open and obvious and whether the danger is hidden are two
sides of the same coin”; “evidence of the open and obvious
nature of the danger serves . . . to negate a necessary
element of the plaintiff's prima facie case that the defect was
hidden.” See also Baker v. Heye-America, 799 N.E.2d 1135,
1140 (Ind. App. 2003). But we do not believe that the
Indiana Supreme Court would follow these decisions of the
state’s intermediate appellate court when the products
10                                               No. 04-2146

liability statute no longer distinguishes between actions
based on strict liability and actions based on negligence.
  The specific question in the present case is whether there
was a sufficient likelihood that the operator of the rebuilt
crane would fail to press the emergency-stop button when
he saw the spreader beam about to hit the cab that
Konecranes should have modified the control. This is the
question that the jury should have been instructed to focus
on. The answer would depend on the likelihood of the kind
of mistake that Van Til made and the cost and efficacy of
additional precautions, such as removing the cab. It is easy
enough to push the wrong button in an emergency or to
forget that pushing the down button isn’t as effective as
pushing the emergency-stop button because of the decel-
eration feature. This argues for an automatic protective
device, of which the cheapest would have been simply to
remove the cab, made empty and useless by the removal
from it of the crane controls. A jury that concluded that, all
things considered, the failure to design the renovated crane
in such a way as to protect Mesman against the kind of error
that Van Til made was negligent could not be thought
unreasonable. FMC Corp. v. Brown, supra, 551 N.E.2d at 445-
46; Baker v. Heye-America, supra, 799 N.E.2d at 1141-45. The
entry of judgment for Konecranes was therefore error.
  But we do not think the judge can be said to have abused
her discretion when she ruled in the alternative that
Konecranes was entitled to a new trial. The plaintiffs failed
to put before the jury a clear picture of the cause of the
accident and how it might have been prevented. Their prin-
cipal expert witness, an engineer, did not visit the plant. He
was turned away when he tried to visit, but that is no
excuse, since the plaintiffs could easily have obtained an
order directing Konecranes to allow the visit. Fed. R. Civ. P.
34(a)(2), 45(a); Albany Bank & Trust Co. v. Exxon Mobil Corp.,
No. 04-2146                                                  11

310 F.3d 969, 972-74 (7th Cir. 2002). The evidence regarding
the clearance between the boxcar and the cab was hazy,
even though the meagerness of the clearance was the key
fact in the case; so a visit would have been helpful. A
“human factors” analyst wasted the jury’s time trying to
show that the remote-control device should have been made
to operate by means of a joystick rather than pushbuttons,
though the joystick wouldn’t have altered the deceleration
feature or made it more likely for Van Til to press the
emergency-stop button rather than move the joystick from
the up to the down position. Van Til gave implausible
testimony that though aware of the deceleration feature he
thought that pushing the down button would cause the
hoist to reverse immediately, even though it could not go
into reverse without stopping and it would take three
seconds for it to stop.
   Konecranes contributed to the jury’s confusion by pre-
senting evidence that the renovated crane, including its
three-second deceleration feature, complied with industry
safety standards. Such evidence ordinarily would be rele-
vant though not conclusive. Indianapolis Athletic Club, Inc. v.
Alco Standard Corp., 709 N.E.2d 1070, 1075 (Ind. App. 1999);
Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 967-68
(7th Cir. 1983) (Indiana law); Fietzer v. Ford Motor Co., 622
F.2d 281 (7th Cir. 1980); Wilson v. Bradlees of New England,
Inc., 96 F.3d 552, 557 (1st Cir. 1996); The T.J. Hooper, 60 F.2d
737, 740 (2d Cir. 1932) (L. Hand, J.). But it was irrelevant in
this case because the danger arose from site-specific condi-
tions that the industry standards don’t address. The plain-
tiffs responded by criticizing the standards, but this simply
distracted the jury from those conditions—specifically the
narrow clearance between boxcar and spreading beam in
the vicinity of the abandoned but not removed cab—on
which resolution of the issue of negligence should have
depended.
12                                               No. 04-2146

  In the new trial that we are constrained to order, the judge
must take firm control and focus the lawyers, the witnesses,
and the jury on the facts identified in this opinion as being
critical to the issue of the defendant’s negligence.
                      AFFIRMED IN PART, REVERSED IN PART,
                         AND REMANDED WITH DIRECTIONS.


A true Copy:
        Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—5-31-05
