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Jay v. Moog Automotive



William "Doug" Jay brought an action against Moog Automotive, Inc. (Moog), and others in the district court for Douglas County in connection with injuries Jay received after having been struck by a strut coil spring assembly which escaped a strut spring compressor. The jury returned a verdict in favor of Moog, the manufacturer of the compressor, and the district court entered judgment in Moog's favor. Jay appeals the judgment of the district court, and Moog cross-appeals. We determine that there is merit to Jay's appeal and no merit to Moog's cross-appeal. We reverse, and remand for a new trial.


On November 15, 1993, Jay sustained permanent eye and neurological injuries as a result of being struck in the face by a strut coil spring assembly which escaped during compression from a model T40187C strut spring compressor machine manufactured by Moog. Jay was working as an automotive mechanic for Jensen Goodyear automotive repair shop in Omaha and, at the time of the accident, had over 11 years of automotive mechanic experience. He had previously used other strut spring compressors but had never used a Moog compressor prior to November 15.

Jay filed an action against Moog in the district court for Douglas County. Jay's second amended petition is the operative petition. In addition to Moog, Jay named Specialty Sales, Co., as a defendant. Specialty Sales is the company that sold the compressor to Jensen Goodyear and installed the compressor. Specialty Sales was dismissed as a party prior to trial. CNA Insurance Company, Jensen Goodyear's workers' compensation insurance carrier, was also made a party to the action pursuant to Neb. Rev. Stat. § 48-118 (Reissue 1993) for purposes of determining the nature and extent of any subrogation rights.

In his second amended petition, Jay asserted three "causes of action" against Moog: "negligence," "strict liability," and "breach of warranty." The substance of Jay's allegation, denominated "strict liability," was that the compressor was defectively designed.

In its answer, Moog alleged as affirmative defenses that Jay was "contributorily negligent," that Jay assumed the risk, and that the compressor was altered, which alteration was a superseding cause of Jay's injury. The substance of Moog's defense denominated "contributory negligence" was that Jay misused the compressor. At trial, Moog was given leave to amend its answer to specify that Jay misused the product as follows: (1) that Jay used the compressor without a retaining pin; (2) that Jay used the compressor on the upper strut mount, misplacing the upper arms; (3) that Jay applied a prying force on the strut assembly while the spring was compressed and the upper arms not fixed with a retaining pin; and (4) that Jay failed to follow directions and warnings not to use the compressor without a retaining pin.

Trial was held beginning April 2, 2001. At the close of Jay's evidence, Moog moved for a directed verdict on all three theories of recovery. Jay withdrew the breach of warranty claim, and the district court overruled Moog's motion for directed verdict on the remaining theories of recovery.

In its defense, Moog presented the expert testimony of Ted Sokol, Ph.D., a civil engineer. The district court overruled Jay's motion in limine to exclude Sokol's testimony, Jay's objections to Sokol's testimony, and his motion to strike filed after Sokol's testimony. Sokol testified regarding his reconstruction of the accident and concluded that the compressor was used improperly in the following respects: improper placement of the upper arms caused a misalignment of the holes for the strut; the

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