Falkenbury v. Elder Cadillac, Inc.

440 N.E.2d 180, 109 Ill. App. 3d 11, 64 Ill. Dec. 628, 1982 Ill. App. LEXIS 2250

• Court: Appellate Court of Illinois
• Decided: August 13, 1982
• Docket: 81-334
• Status: Published

Opinions

PRESIDING JUSTICE EARNS

delivered the opinion of the court:

Defendants, Elder Cadillac and General Motors Corporation, appeal from the judgment of the circuit court of St. Clair County, entered on a jury verdict, awarding plaintiff, Michael W. Falkenbury, $125,000 in this products liability action. Defendants appeal, alleging, inter alia, that, as a matter of law, the product in question was not unreasonably dangerous.

On June 16, 1977, plaintiff, a dental technologist, purchased a new Cadillac Coupe de Ville from Elder Cadillac, located in Belleville, Illinois, which had optional equipment including spoked wire wheel covers. A wire wheel cover consists of a disc proper with an outer row of long spokes and an inner row of shorter spokes. The spokes, positioned in the front of the wheel cover, crisscross and fit into slots along the circumference of the disc proper. In the center of the disc there is a hole, several inches in diameter, over which a center crest piece bearing the Cadillac emblem is placed. On the back of the wheel cover there is a flat, round retainer disc plate which has a hole corresponding to the hole on the disc proper. There are five bolts on the wheel cover which secure the crest piece and the retainer disc.

In the three weeks following the purchase of the automobile, plaintiff noticed several minor problems, including a noise in the left rear wheel which he described as a “clicking” sound. On July 6, 1977, plaintiff brought the automobile to Elder to have warranty service performed and detailed a list of problems, including the noise in the left rear wheel.

Carl Newson, service manager at Elder, testifying as a section 60 witness, stated that, in response to the complaint concerning the left rear wheel, the exhaust system was aligned and a “general tightening” was performed. Newson further testified that there was no procedure for tightening the spokes on the wire wheel cover. On direct examination, Newson stated that plaintiff never complained to him concerning the wire wheel covers on his automobile.

Plaintiff testified that, when he picked up his car after having service performed, the mechanic indicated that the problems had been solved; however, the noise emanating from the left rear wheel persisted. Plaintiff further testified that he took the car in for repairs again and was informed that the service department would order a repair kit for the spoked wire wheel covers. Plaintiff telephoned Elder on several occasions, but was told the repair kit was not in stock. Newson did not recall any conversations with plaintiff concerning a wire wheel cover repair kit or the ordering of such.

On August 18, 1977, plaintiff, because of the persistent noise in the left rear wheel, endeavored to fix the wheel himself. After first removing the wheel cover from the car, plaintiff loosened the five bolts and removed the centerpiece which bears the Cadillac emblem. This created a hole that goes all the way through the wheel. Plaintiff looked inside the wheel, saw two spokes out of their holes, reached in and pushed them into their respective slots along the circumference of the disc proper. Plaintiff testified that at this point “my hand slipped or something slipped here and my hand went down into the side of that disc.” This incident caused plaintiff to cut his hand, which is the complained of injury in the instant case. The cut was approximately V-k inches long and XU inch deep, running from the base of the thumb toward the back of the hand.

Plaintiff filed this strict liability action for personal injuries suffered to his hand and wrist. In his second amended complaint, plaintiff alleged that the wire wheel cover was unreasonably dangerous in one or more of the following ways:

“(a) It contained in and around the access area sharp and protruding edges;

(b) Protruding edges around the access area were not dulled, blunted, guarded or otherwise protected;

(c) No warning accompanied said product to warn of hazard involved;

(d) No instructions were provided with respect to the care, maintenance or use of said product.”

Plaintiff further alleged that as a “direct and proximate result of the foregoing unreasonably dangerous and/or defective conditions,” he suffered personal injuries to his right hand, and the tendons and nerves therein, that he was unable to engage in his usual professional duties to the extent he could prior to the occurrence, and that this caused him economic damage.

Dr. Dale Rosenberg, a plastic surgeon and the treating physician, testified as to the nature of plaintiff’s injury. Rosenberg testified that the cut caused tendon and nerve damage and to cause such injuries the cut would have to be down to the bone on the wrist. Rosenberg further testified that he was informed plaintiff had suffered the injury from being cut on a hubcap and was of the opinion that such a laceration could have been caused by a sharp metal edge. Plaintiff’s wrist was placed in a plaster cast for approximately four weeks. Plaintiff testified that after the cast was removed he experienced numbness in his thumb and a loss of dexterity that persists to the present. Plaintiff further testified that a scar developed over the area of the cut and there was a “swelling or knot” which is sensitive to the touch.

Three expert witnesses testified as to the nature and characteristics of the wire wheel cover in question.

Derwyn Severy, president of Severy, Inc., a firm involved in the evaluation of products liability cases and research in the automotive industry, testified by evidence deposition. Severy testified that the wire wheel cover is a combination of defective design and defective manufacturing. Upon disassembling the wheel, Severy noticed that the inner spokes did not receive an interlock as intended by the designer and it was apparent that the manufacturing process did not adhere to design intent. Severy observed a further defect in the stamping, particularly of the discs, which caused a sharp surface to prevail which could cause serious laceration. Severy described the disc as having a “razor-like quality.” On cross-examination, Severy stated that the wheel cover had to be disassembled, with five bolts removed, before the “lacerative edge” is exposed. Severy concluded that, in his opinion, the wheel with a disc having this “lacerative edge” is an unreasonably dangerous condition and that it is reasonably foreseeable that if the spokes on a wire wheel became loose the owner might attempt to adjust or fix them. Severy further concluded that the method used by plaintiff, reaching through the center of the wheel, while not being the “learned approach” was the most “direct approach” and, absent any instructions or published procedure, was the reasonably foreseeable method to be utilized.

H. Boulter Kelsey, an independent consultant and part-time engineering professor at Washington University in St. Louis, Missouri, testified at trial. Kelsey examined the wire wheel on two occasions and disassembled it the latter time. Kelsey testified that upon inspection he noticed that some of the outer spokes on the wheel were “loose and rattling” because they did not fit tightly into the outer diameter of the rim. Kelsey detected an “extremely sharp” edge and a raised burr on the edge of the hole caused by residual metal from the parent metal remaining as a result of the punching operation. Kelsey described the punching operation used to create the hole as follows:

“Well, the material is placed in a machine which has a die and above that die is a punch. The die contains a hole and the punch domes down through the hole and to produce that hole, the punch is lowered through the material and into the hole which provides a shearing action around the punch at the edge of the hole in the die.”

Kelsey further testified that, in his opinion, the existence of this very sharp edge constitutes an unreasonably dangerous condition, it is reasonably foreseeable that an owner of an automobile who heard a rattling in the wire wheels would attempt to fix it and that the likelihood of the owner doing so would be enhanced by the failure of the service department to remedy the problem. Kelsey delineated four methods that could be used to avoid the sharp edge made by the stamping procedure utilized.

Robert J. Smith, an automotive engineer who has been employed by General Motors for 31 years, testified at trial. Smith examined the wire wheel cover in question and stated that it is not in the same condition as it was when it was installed, specifically detecting that two of the spokes were bent so that they were in contact with other spokes. Smith testified that, in his opinion, “there is no surface on the cover [wire wheel cover] that is unreasonably dangerous from the standpoint of normal customer usage of the part.” Smith further testified that upon removal of the retainer disc during disassembly of the wire wheel cover, a typical sharp edge was evident which results when a steel part is stamped by a punch press and that any metal edge created in this manner will leave a slight burr. Smith noted that the only time the sharp edge would be exposed is if the five bolts were removed and the cover taken off. Smith stated that the metal edge in question is sufficiently sharp to cut human flesh, tendons and nerves.

At the close of all the evidence, defendants made a motion for directed verdict which was denied. On January 9, 1981, the jury returned a verdict in favor of plaintiff and against defendants in the sum of $125,000. On February 6, 1981, defendants filed a post-trial motion for judgment in accordance with the motion for directed verdict, judgment notwithstanding the verdict or in the alternative, a motion for new trial. The motions were denied, judgment was entered on the verdict, and defendants took this appeal.

Defendants assert that the trial court erred in denying the motions for directed verdict and for judgment notwithstanding the verdict in that, as a matter of law, the product was not unreasonably dangerous when used in a reasonably foreseeable manner and for the purpose for which it was intended. Plaintiff argues that whether a product is unreasonably dangerous and used in a reasonably foreseeable manner are questions of fact for the jury and that, under the evidence introduced in the instant case, defendants are not entitled to a judgment under the Pedrick standard. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Thus, the issue before us on appeal is whether the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendants that no contrary verdict based on this evidence could stand under the theory advanced by plaintiff.

We note at the outset that plaintiff has proceeded under the theory of strict liability in tort and in order to recover under that theory, plaintiff must prove that the injury “resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188.) The Illinois Supreme Court in Suvada cited, with approval, section -402A of the Restatement (Second) of Torts involving the strict liability of the seller of products for physical harm caused to the user or consumer.

The rule enunciated in section 402A “applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer” and the product “must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Restatement (Second) of Torts, section 402A, comment i, at 352 (1965).) There is no concise definition as to what constitutes an unreasonably dangerous condition. (Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354.) The court in Burke went on to note that “[s]ince the classification of a product as unreasonably dangerous is dependent on a variety of circumstances, it naturally falls upon a jury in most instances to make the determination as a matter of fact.” (57 Ill. App. 3d 498, 511, 373 N.E.2d 1354, 1367.) We further recognize that in order for a strict liability case to go to the jury, the evidence must give rise to a “reasonable inference” that the condition was an unreasonably dangerous one. Rockett v. Chevrolet Motor Division, General Motors Corp. (1975), 31 Ill. App. 3d 217, 334 N.E.2d 764.

In the instant case it is undisputed that the disc on which plaintiff incurred his injury was sharp enough to cause the injury in question. Of course, there are many sharp edges on the various parts of an automobile that could not reasonably be classified as unreasonably dangerous considering their location and the unlikelihood that someone not a mechanic would come in contact with them. Whether a product can be classified as unreasonably dangerous depends in large part on its intended or foreseeable use. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1.) Whether plaintiff cut his hand on the wire wheel cover in question or the extent of his injuries are not at issue before this court, these facts are uncontroverted; rather, in our view, the real inquiry involves whether plaintiff was acting in a reasonably foreseeable manner in attempting to repair the wheel cover himself and whether the method he utilized was reasonably foreseeable.

Strict liability in tort will only be imposed when a product is unreasonably dangerous when used in a reasonably foreseeable manner. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401; Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1; Illinois Pattern Jury Instructions, Civil, No. 400.06 and comment (2d ed. 1971).) The liability of a manufacturer extends only to situations in which a product is being used for its intended purpose or in a manner for which it is reasonably foreseeable that it may be used. In Winnett, the Illinois Supreme Court went on to note:

“A foreseeability test, however, is not intended to bring within the scope of the defendant’s liability every injury that might possibly occur. *** Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur.” 57 Ill. 2d 7,12-13, 310 N.E.2d 1, 4-5.

In the instant case the expert "witnesses had different opinions as to whether plaintiff’s injury occurred in a reasonably foreseeable manner. Severy and Kelsey testified that if spokes on a wire wheel become loose, the owner might attempt to fix them himself, and Kelsey further testified that the likelihood of the owner doing so would be enhanced by the failure of the service department to remedy the problem. Severy concluded that the method used by plaintiff was not the “learned approach” but was the direct and foreseeable method to be utilized. On the other hand, Smith, noting that the sharp metal edge would only be exposed if the five bolts were removed and the cover taken off, testified that the wheel cover was not unreasonably dangerous for “normal customer usage.”

We have some reservations concerning the probative value of some of the “expert” testimony adduced in the instant case as it merely stated the obvious about ordinary human behavior. We cannot say that the admission of such evidence was prejudicial to defendants.

In Illinois, an expert is permitted to express his opinion on ultimate issues in a case on the theory that because the trier of fact is not required to accept the opinion of the expert, the admission of such evidence does not usurp the province of the jury. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809; Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74.) “The conflicting testimony of expert witnesses normally raises an issue uniquely determinable by the trier of fact, who is in a better position to review the pertinent exhibits and assess the credibility of the witnesses.” (St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill. App. 3d 165, 179, 298 N.E.2d 289, 299. See also Anderson v. Hyster Co. (1977), 56 Ill. App. 3d 41, 371 N.E.2d 279.) Further, questions of foreseeability are ordinarily for the jury to resolve. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401.) Whenever there is doubt as to the foreseeability of a particular use, whether the maker should have anticipated such use is an issue of fact. Kuziw v. Lake Engineering Co. (7th Cir. 1978), 586 F.2d 33, citing 2 J. Dooley, Modern Tort Law sec. 32.79 (1977).

In light of the foregoing and after careful review of the record, we find that there was sufficient evidence to submit the case to the jury and, therefore, the trial court did not err in denying defendants’ motions for directed verdict and for judgment notwithstanding the verdict. As stated, questions of foreseeability, as well as whether a product is unreasonably dangerous, are ordinarily for the jury to decide. Further, in the instant case we have the conflicting testimony of expert witnesses which raises issues of fact. As to the issue of foreseeability, we have the prior attempts of plaintiff to have the problem remedied by Elder’s service department and the existence of the spoke repair kit, which could be purchased by any Cadillac owner, as proof that such problems were foreseen. We cannot say, as a matter of law, that the sharp edge on the disc is not an unreasonably dangerous condition when used in a reasonably foreseeable manner.

Defendants cite Tibbets v. Ford Motor Co. (1976), 4 Mass. App. 738, 358 N.E.2d 460, as a factually similar case which supports their position. In Tibbetts, the plaintiff injured his fingers while attempting to remove a wheel cover from his automobile. In partially denying defendant’s motion for directed verdict, the trial court allowed four counts in this negligence action to go to the jury. The jury imposed liability against defendant for “negligent failure to inspect and test the wheel cover.” On appeal, the appellate court reversed the trial court, holding that defendant’s motion for directed verdict should have been allowed. While we recognize that Tibbetts, like the instant case, involved an injury incurred as a result of contact with a wheel cover, we note initially that Tibbetts was a negligence action and, in the instant case, plaintiff proceeded under the theory of strict liability in tort. Further, the court in Tibbetts expressly stated that that case did not involve a wheel cover slot "with hidden sharp edges that could seriously injure someone merely inserting his hand. For the reasons stated, we find Tibbetts distinguishable from the instant case.

Defendants also assert that the trial court erred in denying their alternative motion for new trial in that the cumulative effect of certain trial errors deprived defendants of a fair trial. Without detailing defendants’ specific contentions, we note that we agree "with plaintiff that, considering the length of the trial and the nature of the litigation, the trial was remarkably free of error and well tried on both sides. We have reviewed the alleged errors and find none to be prejudicial as to deprive defendants of a fair trial.

One matter deserves mention. Defendants complain of testimony concerning other alleged defects in the construction of the wheel covers and the admissibility of a spoke repair kit and a service bulletin that made reference to the repair kit. This evidence was admissible, not as proof of additional defects, but simply to show that the spokes did in fact rattle, that being the reason the plaintiff undertook to repair the wheel cover. The availability of the spoke repair kit was relevant to the question of defendants’ knowledge that it was reasonably foreseeable that the spokes might become loosened and that the repair of the wheel cover might be undertaken by an owner.

For the foregoing reasons, the judgment of the circuit court of St. Clair County, entered on the jury verdict, is affirmed.

Affirmed.

HARRISON, J., concurs.