Bad Jury Instruction Revives Hertz Wrongful Death Case Posted on September 24, 2015 by Larry Bodine The Court of Appeal for California’s Fourth Appellate District revived a wrongful death claim against Hertz Equipment Rental Corp., due to an improper jury instruction resulting in a reversible error. The court of appeals recognized three major issues by the trial court that were serious enough to affect the result of what was otherwise a very close trial, according to Martin Buchanan, an attorney for plaintiff. The deceased, Marty Golston, was killed in 2008 when water he was transporting for his employer shifted inside a 2,000-gallon tank that Hertz had installed on a truck chassis, causing the truck to roll and to pin Golston inside the caved-in cab. He was paralyzed below the shoulders and suffered from a head wound when he was transported to a hospital for surgery. He died shortly thereafter as a result of his complications. Risk-benefit test Also see: Louisiana Appellate Court Affirms Drunken Hit and Run Verdict – On appeal, the issue presented was whether the judge had adequately instructed the jury. Golston’s family alleged the water truck was defectively designed and should have never been rented for use on the highway. During trial, the jury was told to apply only the risk-benefit test for personal injuries, which means the jury was asked to determine whether the benefit of a particular design outweighed any inherent dangers regarding the design. This test is also commonly referred to as the “utility versus risk test” in tort law. Golston’s family argued that the jury should have been allowed to choose between the risk-benefit test and the ordinary consumer expectation test to determine whether a product failed to perform as safely as an average person would expect. The appellate court agreed with Golston’s family on several important factors: The fact that Hertz did not warn its customers not to transport water on highways could have led the jury to conclude the water truck shouldn’t have rolled over while turning at speeds below 30 mph. The jury was not allowed to consider certain testimony and video clips of water truck testing. Golston should not have been considered a sophisticated user by the trial court simply because he had taken some basic driving courses in a passenger van. Cannot say the error was harmless Golston did not have specialized training for the operation of water trucks despite his involvement in the field for a couple of years. He frequently split his time either transporting water or doing manual labor, but the jury found 10-2 that an ordinary person should have recognized the truck’s potential rollover risk, according to the trial court’s opinion. “Had the jury been allowed to consider his testimony and the video clips of his testing, it is reasonably probably plaintiffs would have obtained a more favorable result. The close verdict indicates the jury likely factored in the sophisticated user instruction in their deliberation. Therefore, we cannot say the error was harmless.” The court found plain error in the improper jury instructions, the order to disregard expert testimony and the Hertz motion to strike expert testimony. The California appellate court also found the trial court erred in granting Hertz’s motion to strike expert testimony, which included a video clip of a partially full water truck rolling over during a low-speed turn.