Neal

Montgomery Elevator Company appeals from the order granting Steven Neal’s motion for a new trial on his cause of action for strict liability arising out of the amputation of his hand during maintenance work on an elevator manufactured by Montgomery. The trial court granted the motion because the special verdict form had not been revised to comport with the burden of proof instruction set forth in Bernal v. Richard Wolf Medical Instruments Corp. (1990) 221 Cal.App.3d 1326 [ 272 Cal.Rptr. 41 ]. Montgomery claims such a revision is not necessary under Bernal and, furthermore, Neal waived any defect by failing to object at trial and failing to raise the issue in his new trial motion. We find the special verdict form was correct and reverse.

In 1988, Neal was cleaning an elevator drive sheave at California State University at Fullerton in connection with his employment with Tillipman Elevator Company. Although he had been trained to take an elevator out of service before cleaning it, Neal did not do so on this occasion, deciding instead to listen for start-up noises as a safety precaution. The elevator started to run without audible warning, however, and Neal’s hand became…