Martin Walsh was a veteran Chicago fire fighter who was injured when he was thrown from the unenclosed seating atop a fire truck as the truck responded to an emergency call. The truck was designed by Emergency One, Inc. (EO). The seating was equipped with seat belts which the parties agree the fire fighter did not use. Based on his injury, Walsh filed a complaint against EO alleging product liability (Count I) and negligence (Count II). EO responded to Count I by pleading assumption of risk and responded to Count II by pleading contributory negligence. Walsh appeals a jury verdict for EO. We affirm.

The Chicago Fire Department (the Department) purchased the truck in question (Engine 61) from EO in 1979. EO was the low bidder in response to the Department's contract specifications. The design of Engine 61 satisfied all existing National Fire Protection Association (NFPA) safety standards. The design included unenclosed seating which was located behind the cab of the truck, allowing the fire fighters to sit three abreast on a bench seat facing the rear of the truck. The seating area had a canopy over the top that extended down and connected to the sides of the bench. The seating area was also equipped with seat belts. However, the area in question was completely open on the side where the fire fighters get on and off. As of 1985, the Department had in place a requirement that fire fighters be fully dressed, seated and belted before the truck moved. Nevertheless, it was very uncommon for Chicago fire fighters to use their seat belts.

Walsh joined the Department in 1966. From that time he worked on fire trucks identical to Engine 61 and was familiar with the open seating area. Walsh never wore a seat belt while on the job. On September 4, 1989, Walsh was assigned to Engine 61 when it responded to an alarm. As the truck headed out of the fire house, it swerved to avoid construction in the roadway, causing Walsh to fall out of the open seating area and off the truck. One of the firemen sitting beside Walsh testified that he thought he saw Walsh, a large man encumbered by heavy equipment, lean forward before he fell, then turn or stand while reaching for his helmet. Walsh was not, of course, wearing his seat belt at the time.

Walsh sustained serious and permanent injuries. He sued EO, alleging that the area behind the cab was defectively designed because it was not enclosed. He contended that he would not have fallen from the truck had the bench seating area been equipped with some sort of enclosure. Walsh concedes, however, that he would not have been injured had he used his seat belt.

After conceding at trial that the chance of falling from a fire truck while wearing a seat belt was minimal, Walsh's expert nonetheless testified that Engine 61 was unreasonably dangerous because the bench seating was not enclosed. The expert testified that, at the time Engine 61 was manufactured, manufacturers knew that an unenclosed seating area presented dangers because fire fighters did not wear seat belts that were provided (apparently because they needed to adjust their bulky equipment as they rode to a fire). In the expert's opinion, fire truck manufacturers could not reasonably rely on fire department rules requiring the use of seat belts to protect fire fighters in exposed seating areas. Instead, the expert suggested that Dutch doors would help protect fire fighters by preventing their falling from the truck. Additionally, such doors could protect tools and equipment stored on the floor of the seating area.

EO's expert testified that the unenclosed canopy-type design employed in Engine 61 was popular when the truck was purchased, and contended that Engine 61 was not unreasonably dangerous. He maintained that, because the cab, floor and canopy formed a five-sided enclosure, fire fighters in the unenclosed area would be safe if they used their seat belts or if they simply remained seated. This expert opined that Dutch doors would protect seated fire fighters but would not contain fire fighters who stood up. The expert also testified that truck manufacturers could reasonably believe that, if truck specifications called for seat belts or if fire department directives required their use, belts would in fact be used.

Another witness for EO, who is familiar with national fire fighting safety standards and statistics, testified that the largest share of fire fighter casualties occurring away from the fire scene involves accidents on a rescue apparatus such as a fire truck. He said that the National Transportation and Safety Board recommends the use of belts whenever an apparatus is in motion. And he had conducted a survey suggesting that the vast majority of fire departments enforced seat belt requirements. He further testified that the Chicago Fire Department had become concerned about the use of seat belts as early as 1955, after three fire fighters died in accidents that seat belts might have prevented. EO's witness also felt that Walsh would not have fallen had he been wearing a seat belt and that Dutch doors would not completely protect fire fighters from falls from open seating areas.

In this appeal, Walsh argues that failure to wear a seat belt is not evidence of assumption of risk or of contributory negligence. Nor is reliance on the Department's manufacturing specifications a defense. Walsh also contends that EO should not have presented evidence that the fire house record of his accident had been destroyed. In addition, Walsh claims he was erroneously barred from showing post-manufacture industry standards, which require enclosed seating. He also urges error in the omission of part of a pattern instruction which stated that the jury could find more than one proximate cause of his injury.

EO contends, on the other hand, that the trial court did not err in allowing it to argue assumption of risk and contributory negligence, that it never argued that it relied on the Department's design specifications and that it never introduced evidence that the fire house record of the accident had been destroyed. EO also argues that the trial court did not err in excluding post-manufacture standards or in instructing the jury on the issue of proximate cause.

We review the trial court's decision to admit or exclude evidence for abuse of discretion. Geitz v. Lindsey, 893 F.2d 148, 150 (7th Cir.1990); see also Daniels v. Essex Group, Inc., 937 F.2d 1264, 1268-69 (7th Cir.1991). In addition, inadequate jury instructions are cause for reversal only if it appears that the jury's comprehension of the issues was so misguided that one of the parties was prejudiced. Littlefield v. McGuffey, 954 F.2d 1337, 1344 (7th Cir.1992).

Walsh's arguments regarding the use of seat belt evidence are his most subtle. Walsh does not fault the district court for allowing EO to present evidence that the unenclosed seating had seat belts. Indeed, Walsh concedes that EO could present this evidence to try to persuade the jury that, because the truck had seat belts in the unenclosed area, the truck was not unreasonably dangerous. Rather, Walsh faults the district court for allowing EO to present evidence of Walsh's failure to use a seat belt for the purpose of showing that he was contributorily negligent or that he assumed the risk.1 Contributory negligence, Walsh contends, has no place in the context of strict products liability and, in any event, Illinois statutes bar admission of evidence that a plaintiff failed to wear a seat belt to show the plaintiff's negligence. Assumption of risk, he contends, cannot be grounded on the failure to wear a seat belt because Walsh has alleged that EO made an unreasonably dangerous truck even considering the seat belts because EO knew that fire fighters do not wear them.2

We agree with Walsh that the failure to wear a seat belt does not provide a contributory negligence defense to strict products liability. For many years, contributory negligence has not been a bar to strict products liability. Williams v. Brown Mfg. Co., 45 Ill. 2d 418, 261 N.E.2d 305, 310 (1970). This principle remains intact even after Coney v. J.L.G. Indus., Inc., 97 Ill. 2d 104, 73 Ill. Dec. 337, 454 N.E.2d 197 (1983), which applied comparative fault, a negligence concept, in a strict liability context. Id. 73 Ill.Dec. at 342, 454 N.E.2d at 202.3

Product liability, however, was not Walsh's only theory; he also pleaded negligence.4 Although the common law bar of contributory negligence no longer exists in Illinois, it has been replaced by "pure" comparative negligence, under which the plaintiff's damages are simply reduced in accordance with the percentage of fault attributable to him. Alvis v. Ribar, 85 Ill. 2d 1, 52 Ill. Dec. 23, 34-35, 421 N.E.2d 886, 897-98 (1981). Like contributory negligence, then, comparative negligence requires the court to assess the extent to which the plaintiff's actions have helped cause his injury. The plaintiff's negligence is no longer a bar to recovery, but evidence of it is relevant to the calculation of damages under the negligence count. Therefore, even in a situation where EO referred in argument to the defunct contributory negligence doctrine, the district court could still admit evidence of Walsh's negligent failure to wear a seat belt as relevant to apportionment of fault with respect to the negligence count.5 Thus the district court did not err in allowing EO to present evidence of his failure to use a seat belt for the purpose of showing that he was contributorily negligent.

We also reject Walsh's claim that evidence of his failure to use a seat belt is inadmissible to prove assumption of risk. Illinois law recognizes the doctrines of express and implied assumption of the risk. Duffy v. Midlothian, 135 Ill.App.3d 429, 90 Ill. Dec. 237, 241, 481 N.E.2d 1037, 1041 (1985). In the context of product liability, Illinois courts have found that plaintiffs have assumed the risk where they have "voluntarily and unreasonably proceed[ed] to encounter a known danger." Varilek v. Mitchell, 200 Ill.App.3d 649, 146 Ill. Dec. 402, 411, 558 N.E.2d 365, 374 (1990). The test is subjective: the court must consider the state of mind of the particular plaintiff rather than that of a reasonably prudent person. Id. In order to "assume the risk" the plaintiff must have voluntarily and unreasonably used that aspect of the product that was alleged (and proven) to be unreasonably dangerous. Varilek, 146 Ill. Dec. at 411, 558 N.E.2d at 374; Cleveringa v. J.I. Case Co., 230 Ill.App.3d 831, 172 Ill. Dec. 523, 538, 595 N.E.2d 1193, 1208 (1992).

In his opening brief, Walsh complains that the district court failed to satisfy this last requirement. He argues that the "aspect" of the truck that renders it unreasonably dangerous is that it contains seat belts that EO knew firemen would not use, rather than being enclosed. Whether Walsh in fact used his seat belt, he insists, is irrelevant to this inquiry.

Walsh's argument reads the "rule" of Cleveringa and Varilek too literally. The rule requires us only to ask whether the risk assumed was the same risk as allegedly caused the injuries.6 Thus, the fact that Walsh did not wear the provided seat belt was properly part of EO's argument that he assumed the risk--he was injured while riding in the unenclosed area which contained the seat belts the very non-use of which was integral to the truck's alleged defect.7

C. Reliance on the City's Design Specifications

EO had intended to argue at trial that its reliance on the City's specifications was an affirmative defense, but the court ruled before trial that it would not allow this defense.8 Walsh contends that, despite this ruling, the court nonetheless permitted EO to make this argument at trial.

We think that in fact EO was not permitted to argue, as a defense, reliance on the City's design specifications. Walsh pieces together a variety of references in the transcript to the City's purchase of Engine 61. He cites references where, in open court, witnesses indicated that the City had requested that the fire truck have a particular design, R. 19, that EO did not offer a design with more expensive enclosed seating because the City wanted to select the lowest bidder, R. 509, and that the City employee who ordered the truck was highly qualified and would not intentionally order an unsafe vehicle, R. 89-90, 105, 510, 559-61. However, the court allowed this testimony only to show how Engine 61 came to be used by the fire department and to indicate that EO was not negligent "because the truck was built in accordance with standards of the day." R. 475.

While some of the references gleaned by Walsh could, no doubt, be used to support a showing that EO relied as a defense on the City's design specifications, the references are more relevant to the purposes for which the testimony was allowed. Further, we think that these purposes (i.e., to show the origin of the truck and adherence to prevailing design standards) are distinct from showing that EO could rely on the City's design specifications as a defense. There was no abuse of discretion here.

Walsh next argues that the court erroneously allowed the introduction of evidence suggesting that Walsh was involved in the destruction of a fire house journal that may have recorded some of the details of Walsh's accident. He insists that the evidence was more prejudicial than probative and therefore should have been excluded under Fed.R.Evid. 403. EO responds by arguing that the evidence introduced never in fact established that the journal was missing, and the jury was in any event never asked to draw an unfavorable inference. EO also contends that Walsh did not adequately object to the evidence that did come in.

The court apparently admitted evidence from which the inference Walsh describes could have been drawn,9 though it excluded other such evidence.10 In our view, the court did not allow EO to focus the jury's attention on the allegedly missing journal. And the evidence that was admitted (regarding the close relationship among fire fighters) could reasonably be understood as simply providing the jury with permissible background information. Indeed, while the testimony complained of by Walsh might possibly support his theory, it also could plausibly support the thesis for which EO purported to offer it: that, as a result of the "close knit" nature of the fire department, Walsh generally knew his superior officers. We therefore do not think that the district court--in allowing the fragments of evidence from which an unfavorable inference could plausibly be drawn--abused the wide discretion it has to weigh the probative and prejudicial aspects of this evidence under Rule 403. See Littlefield, 954 F.2d at 1342.

Walsh contends there was error in refusing to let him introduce recent industry standards (which were not in effect when Engine 61 was manufactured) calling for enclosed seating. In response to EO's motion in limine, the court ruled that Walsh could not present evidence of certain NFPA standards (referred to as the "1901 standards") which were adopted more than ten years after Engine 61 was made and sold. The court excluded this evidence because it felt that it was irrelevant, highly prejudicial and likely to confuse the jury. The court noted, however, that Walsh could offer direct evidence of the alleged dangerous condition known to exist in the fire service industry when the truck was manufactured. Further, the court ruled that, if EO's witnesses suggested that more recent safety standards had not eliminated hazards, Walsh could introduce evidence of such standards.

Walsh argues that the court's error in excluding evidence of the 1901 standards was compounded when the court allowed EO to impeach the credibility of one of Walsh's expert witnesses. The expert had been a member of the NFPA committee that developed the 1901 standards, where he argued for enclosure of fire truck seating. Walsh contends that EO was allowed to "ravage" this expert by pointing out that the City's fire chief (also a member of the NFPA committee) had rejected the expert's enclosure recommendation. EO also brought out that the expert was no longer a member of the prestigious committee and that the witness's recommendation regarding another safety standard was also ignored. Br.Aplt. at 20. Walsh complains that it was error for the court to allow this impeachment while barring him, based on the court's exclusion of the subsequently enacted standards, from eliciting the fact that the witness's enclosure recommendation was ultimately incorporated into the 1901 standards. Walsh relies on Murphy v. Messerschmidt, 68 Ill. 2d 79, 11 Ill. Dec. 553, 368 N.E.2d 1299 (1977), where the court held that subsequently enacted regulations were inadmissible to show industry standards. However, the Murphy court also indicated that subsequently enacted standards might be used to show that these standards corrected existing hazards in the industry. 11 Ill. Dec. at 556, 368 N.E.2d at 1302 (distinguishing Davis v. Marathon Oil Co., 64 Ill. 2d 380, 1 Ill. Dec. 93, 356 N.E.2d 93 (1976)).

Walsh accurately notes what might be referred to as the "hazard correction exception" to the general exclusion of subsequently enacted standards. He overlooks, however, the requirement, implicit in Murphy, that the party seeking to make use of this exception provide a sufficient foundation to show that the subsequent standard was, in fact, intended to eliminate existing hazards.11 Walsh's response to EO's motion in limine to exclude the recent standards merely stated that the hazard correction exception applied. R.O.A.Doc. 157 at 5-6. Like the plaintiff in Murphy, he did not provide a copy of the subsequently enacted standards nor did he provide evidence that these standards were intended to correct the alleged hazards that resulted in Walsh's injury. We decline, as did the Murphy court, simply to infer that the subsequent standards corrected existing hazards.

It was therefore within the broad discretion of the trial court to have found that evidence of the 1901 standards was inadmissible. The court did allow evidence of dangerous conditions existing in the fire service industry when the truck was manufactured, as well as evidence that hazards existed despite compliance with current safety standards. Thus, the district court did not abuse its discretion in excluding evidence of the 1901 standards.

Finally, Walsh argues that the district court erred when it gave the so-called "short form" of the Illinois Pattern Jury Instruction 15.01 rather than giving the Instruction's "long form." The short form provides:

When I use the expression "proximate cause," I mean a cause which, in natural and probable consequence, produced the injury complained of.

R.O.A.Doc. 171 at 21; R. 661-63. The long form includes the language of the short form, to which is appended the following:

It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.

Illinois Pattern Instruction 15.01. Walsh contends that the court's use of the short form left the jury with the impression that there could be only one proximate cause of his injury. Hence, the jury might not have understood that it could find EO liable even if it also found that Walsh bore some responsibility for his injury.

We review jury instructions to determine whether they provide a clear and adequate picture of the applicable law when viewed in their entirety, and any failure of one instruction to guide the jury properly on the issue of multiple proximate causes may be cured by the guidance on this issue contained in other instructions. Littlefield, 954 F.2d at 1342; National Sur. Corp. v. Fast Motor Serv., Inc., 213 Ill.App.3d 500, 157 Ill. Dec. 619, 625, 572 N.E.2d 1083, 1089 (1991); Friedman v. Park Dist. of Highland Park, 151 Ill.App.3d 374, 104 Ill. Dec. 329, 340, 502 N.E.2d 826, 837 (1986); Friedman v. Park Dist. of Highland Park, 151 Ill.App.3d 374, 104 Ill. Dec. 329, 340, 502 N.E.2d 826, 837 (1986). While use of the long form of Instruction 15.01 seems preferable (considering Illinois' adoption of comparative negligence) the suggested use of the short form remains discretionary in cases where there is only one plaintiff and one defendant. Ostry v. Chateau Ltd. Partnership, 241 Ill.App.3d 436, 181 Ill. Dec. 877, 880, 608 N.E.2d 1351, 1354 (1993); Lewis v. Cotton Belt Route-St. Louis S.W. Ry. Co., 217 Ill.App.3d 94, 159 Ill. Dec. 995, 1012, 576 N.E.2d 918, 935 (1991).

Here, in addition to the short form of Pattern Instruction 15.01, the jury was given versions of Pattern Instruction 400.03.01, modified for assumption of risk and contributory negligence. In these other instructions, the jury was told what to do if it decided that Walsh's conduct and EO's conduct or product worked together to cause Walsh's injuries.12 Walsh's argument that the jury would rely on the purportedly deficient short form to determine negligence and then rely on 400.03.01 only to determine damages is without merit. The instructions, taken together, adequately apprised the jury of the law as applied to the problem of proximate cause.13 The jury was not misguided by the instructions in such a way that Walsh was prejudiced.III.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.