Baier v. Bostitch

611 N.E.2d 1103, 243 Ill. App. 3d 195, 183 Ill. Dec. 455, 1993 Ill. App. LEXIS 147
CourtAppellate Court of Illinois
DecidedFebruary 11, 1993
Docket1-92-1267
StatusPublished
Cited by23 cases

This text of 611 N.E.2d 1103 (Baier v. Bostitch) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baier v. Bostitch, 611 N.E.2d 1103, 243 Ill. App. 3d 195, 183 Ill. Dec. 455, 1993 Ill. App. LEXIS 147 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Lawrence Baier, filed a product liability action to recover damages for an injury to his knee allegedly caused by a defectively designed pneumatic nailer manufactured by the defendant Bostitch, a division of Textron, Inc. (Bostitch). The jury returned a verdict in favor of the plaintiff and against Bostitch in the amount of $314,200, which was reduced by 40% attributable to the plaintiff’s fault. The trial court entered a judgment for $188,500 plus costs for a total of $190,165.82.

On appeal, the defendant contends that the trial court erred in denying its motion for judgment notwithstanding the verdict. Alternatively, the defendant contends that the jury verdict was against the manifest weight of the evidence. The defendant further contends that the verdict was excessive, that the court erred in admitting evidence of other accidents and that the court erred in denying the defendant’s motion for summary judgment on the issue of punitive damages. Finally, the defendant contends that the jury was improperly instructed and that the court abused its discretion in awarding witness and mileage fees.

The tool which is the subject of this lawsuit is the N16 pneumatic nailer, a power tool which uses air pressure to drive nails out of a magazine into the object to be nailed. According to the testimony presented at trial, the nailer was available with either a contact trip mechanism (N16CT) or a sequential trip mechanism (N16). The. difference between these two models is significant to the issues raised on appeal. In order to fire a contact trip nailer, the operator must depress the contact trip on the nose of the tool and press the trigger. When those two functions are performed, the tool will fire a nail. With a contact trip nailer, it does not matter in which order the two functions are performed. With a sequential trip nailer, the operator must first depress the nose, then pull the trigger. The plaintiff was using a contact trip nailer (N16CT) at the time he was injured.

The plaintiff testified that on November 15, 1983, he was 23 years old and had been working for Park Construction Company 1 for approximately six months. He was also pursuing a degree in finance at that time. The plaintiff testified that his employer, Peter D’Angelo, instructed him on the proper use of power tools. For each power tool, he was shown the tool’s safety devices and was taught how to operate the tool and how to turn it on and off. The plaintiff recalled that D’Angelo told him that if any problems occurred with the pneumatic nailer, he was to unplug it from its power source before attempting corrective measures. D’Angelo instructed the plaintiff to take his finger off the trigger whenever he was not in the act of nailing.

At approximately 10:30 a.m. on the day of the accident, the plaintiff was using the nailer to place nails in plywood at 8- to 10-inch intervals. He had been using the nailer for that purpose since 8 o’clock that morning. As the plaintiff was moving along with the nailer, the air hose attached to the nailer became stuck and would not slide along. The plaintiff testified that when he “tried to stand up and free it *** [t]he gun brushed my right pant leg and shot a nail into my knee.” No one other than the plaintiff witnessed the accident. The plaintiff did not know whether he had depressed the finger trigger at the time of the accident and was not certain whether the nose trigger was depressed when it brushed against his knee. The plaintiff testified that he had no reason to believe that there was either a drop or surge in air pressure at the time of the accident. He thought that it was necessary to hit the nailer “flat on the surface” in order to fire a nail.

The plaintiff was taken by ambulance to the hospital emergency room where a 2 1 /2-inch nail was removed from his right knee. The plaintiff testified that this was a very painful procedure. Because the nail had been coated with adhesive, arthroscopic surgery was performed to clean out the adhesive and to debride the cartilage inside the knee. Following surgery, the knee was swollen and the plaintiff suffered scars around his kneecap. The jury was allowed to view the scarring.

In April 1984, a second arthroscopic surgery was performed to debride cartilage in the plaintiff’s knee. He was required to walk on crutches for about four weeks following each surgery.

The plaintiff testified that he feels pain under his kneecap and that kneeling or doing household chores causes this pain. The plaintiff stated that he has good days and bad days, but that the knee causes pain every day.

The deposition testimony of Dr. Michael Gitelis, the plaintiff’s treating physician, was read to the jury. According to Dr. Gitelis, the injury to the knee was permanent and would cause pain in the future. The plaintiff suffers disability in the sense that his activities are limited because of the pain caused by the injury. Gitelis testified that the plaintiff was injured in the intercondylar notch, which is the groove on which the kneecap slides. Gitelis stated that the plaintiff was experiencing grinding in the patellar femoral groove and that the cartilage in the knee was damaged. Testing detected weakness in the injured knee.

Gitelis further stated that the plaintiff was able to walk normally and suffered no nerve or vascular damage. The plaintiff was released from Gitelis’ care in March of 1985 and did not return until May of 1991, when he was evaluated for purposes of the trial.

The plaintiff presented hospital and doctor bills totaling $10,400 and calculated his lost earnings to be $31,200.

Gary Hutter, an engineer, testified as an expert witness for the plaintiff. According to Hutter, the design of the contact trip pneumatic nailer rendered it unreasonably dangerous when used in its intended manner. According to Hutter, the design of the trigger mechanism allowed the tool to actuate with very minimal amounts of force being exerted on the nose, thereby creating a “hairlike” trigger. Hutter stated that it became a habit with workers to keep the trigger depressed while moving the nailer along. While the nailer is depressed, a nail could be discharged accidentally simply by bumping the nose of the tool. Hutter explained that the sequential trip nailer presented a safer design because it was necessary for the operator to first depress the nose, then pull the trigger. Hutter testified that with the sequential trip nailer “you don’t get in the habit, first of all, of walking around with the trigger pulled, and if you did for some reason walk around with the trigger pulled and you accidentally bumped into that *** [the tool would] not discharge a nail.”

Hutter further testified that the contact trip nailer did not comply with the safety standards promulgated by the Industrial Stapling and Nailing Technical Association (ISANTA), of which the defendant was a member. Section 3.3.3 of the ISANTA guidelines states that the contact trip shall prevent the tool from discharging under its own weight. Hutter testified that the nailer in question would discharge under its own weight over the expected range of operating pressures.

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Cite This Page — Counsel Stack

Bluebook (online)
611 N.E.2d 1103, 243 Ill. App. 3d 195, 183 Ill. Dec. 455, 1993 Ill. App. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baier-v-bostitch-illappct-1993.