557 N.E.2d 580 (Ill.App. 1 Dist. 1990), 1-89-0423, Baltus v. Weaver Div. of Kidde & Co., Inc.

Docket Nº:1-89-0423.
Citation:557 N.E.2d 580, 199 Ill.App.3d 821, 145 Ill.Dec. 810
Party Name:Robert T. BALTUS, Plaintiff-Appellant, v. WEAVER DIVISION OF KIDDE & COMPANY, INC., Defendant-Appellee.
Case Date:June 07, 1990
Court:Court of Appeals of Illinois
 
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Page 580

557 N.E.2d 580 (Ill.App. 1 Dist. 1990)

199 Ill.App.3d 821, 145 Ill.Dec. 810

Robert T. BALTUS, Plaintiff-Appellant,

v.

WEAVER DIVISION OF KIDDE & COMPANY, INC., Defendant-Appellee.

No. 1-89-0423.

Court of Appeals of Illinois, First District, Fourth Division.

June 7, 1990.

Page 581

[199 Ill.App.3d 823] [145 Ill.Dec. 811] Leo M. Bleiman, P.C., Chicago (Laura Monahan-Jarvis, of counsel), for plaintiff-appellant.

Johnson, Cusack & Bell, Ltd., John W. Bell, Michael B. Gunzburg, Chicago (Thomas H. Fegan, of counsel), for defendant-appellee.

Justice LINN delivered the opinion of the court:

Plaintiff, Robert T. Baltus, appeals from the order granting summary judgment in favor of defendant, Weaver Division of Kidde & Company, Inc. ("Weaver"). Plaintiff had filed a two-count complaint alleging theories of strict products liability and negligent manufacture and design of a transmission jack. He was injured when a transmission slipped off the jack and fell on his right hand. The strict liability action was dismissed, leaving the negligence count. Plaintiff failed to disclose any expert witness, pursuant to Supreme Court Rule 220, and defendant moved for summary

Page 582

[145 Ill.Dec. 812] judgment on [199 Ill.App.3d 824] the basis that plaintiff was unable to prove his case as a matter of law.

On appeal, Baltus contends that he was improperly barred from giving his own expert testimony as to Weaver's allegedly negligent manufacture and design of the jack. According to Baltus, his years of working with transmission jacks as an auto mechanic qualified him to give an expert opinion; that he gave such opinion during his deposition; and that it was for the jury to decide whether Weaver breached its applicable standard of care by failing to reasonably anticipate that the jack in question would be dangerously modified and by failing to warn against use of the jack without certain safety features.

Weaver counters that Baltus failed to rebut its motion and expert's affidavit with competent evidence; that Baltus was incompetent to render expert opinions; and that the product was destroyed and cannot be tested or examined.

We affirm.

BACKGROUND

According to the record, Baltus was injured at his place of employment, Ed Murphy Buick, when a transmission fell onto his right hand and forearm. The accident occurred on January 21, 1983.

On January 17, 1984, Baltus filed a two-count complaint against Weaver. Count I alleges in pertinent part that Weaver had the duty "to exercise ordinary care in the design, manufacture, sale and installation of its transmission jack machines," including the one involved in the accident. The complaint states that in violation of this duty, the equipment was and became "in a defective and dangerous condition" and that Baltus's injury was proximately caused by Weaver's acts or omissions, as follows:

"(a) Carelessly and negligently failed to design its Model WA 140A transmission jack with appropriate safety guards and safety devices [;] (b) Carelessly and negligently failed to post warnings to the operators of the dangerous and defective condition of its machine [; and] (e) Were otherwise careless and negligent in the design, manufacture and installation of the transmission jack machine."

Count II of the complaint sounded in strict liability, alleging that the unreasonably dangerous defects existed at the time the transmission jack left the control of Weaver. This count was dismissed, amended, and dismissed with prejudice because it was untimely under section 13-213(b) of the product liability statute. Ill.Rev.Stat.1983, ch. 110, par. 13-213(b).

[199 Ill.App.3d 825] The parties undertook discovery, during which Baltus was ordered to disclose all expert witnesses and answer interrogatories relating to the qualifications and opinions of that expert. This Baltus failed to do. Instead, in response to Weaver's motion to bar experts for failure to disclose pursuant to Supreme Court Rule 220, he took the position that he was competent to testify in his own behalf, not just as an occurrence witness, but also as an expert, based on his 20 years of experience using transmission jacks. The trial court granted the motion to bar experts.

Weaver subsequently moved for summary judgment against Baltus. In the motion, Weaver pointed out that the transmission jack involved in the occurrence had been manufactured in 1971, nearly 12 years before plaintiff's injury. By affidavit, Weaver denied performing any alterations or modifications from the date of manufacture to the date of the occurrence. Weaver next cited Baltus's deposition admissions that conceded that the jack was approximately 11 years old when he first began working at Ed Murphy Buick; that at the time of the occurrence, the jack was in a condition of disrepair and that the maintenance of the jack was not "up to par"; that at the time of the occurrence, one of the four "ears" or "clips" that hold the transmission in place was missing; that the foot pedal for operating the hydraulic pump was bent and the handles for adjusting the angle of the top platform were missing; that on prior occasions, Baltus had had difficulties in lowering the jack because the seals were very old; and that the mechanism for adjusting the top platform had been broken years prior to the occurrence,

Page 583

[145 Ill.Dec. 813] thereby allowing the platform to unintentionally tip.

In support of its motion for summary judgment, Weaver attached the affidavit of Mitchell Kaplan, a registered professional engineer with a background in mechanical engineering, who examined the jack in question on July 2, 1985. He stated his opinion that the jack was in a reasonably safe condition at the time it left the control of Weaver and that there were no dangerous or defective conditions existing therein at such time. He further gave his opinion that the jack was designed and manufactured in a reasonably safe manner.

Additionally, Weaver's motion for summary judgment argued that by Baltus's admission, the jack was in a poor state of repair and maintenance and that the manufacturer cannot be held liable where the intervention of a third party's alteration of the product causes injury.

In response, Baltus attacked Mitchell's affidavit for addressing only the strict products liability concerns that he claimed were not in [199 Ill.App.3d 826] issue, such as the condition of the device when it left the manufacturer's control. Baltus argued that Mitchell's affidavit failed to address the manufacturer's failure to warn against removing safety devices or the manufacturer's anticipation that such removal or modifications would occur. Baltus also denied the relevance of the statement that he was unable to offer expert testimony as to the dangerous and defective condition of the machine at the time it left Weaver's control. Finally, Baltus cited his 20 years experience as a transmission mechanic, arguing that he was competent to testify concerning the "condition of the machine before and during his use of it, to establish the custom and usage of such devices, leaving for the jury the question of proximate cause." In conclusion, Baltus contended that the removal or alteration of the transmission jack clips and the removal of the safety strap were reasonably foreseeable, material alterations of the jack which raised a fact question for the jury.

In reply, Weaver analogized the standard of care requirement in the pending case to that of a medical malpractice action, in that the burden is on plaintiff to come forward with evidence tending to show that the engineers who designed the jack failed to exercise the degree of care and skill of a reasonably competent engineer under the same or similar circumstances.

After oral argument on the motion the trial court granted defendant's motion for summary judgment. From the judge's comments it is clear that he believed that Baltus would need expert testimony that the type of modifications allegedly made in the pending case were foreseeable and actionable. The judge stated that plaintiff would have to show that the product in question was "negligently manufactured at the time it was manufactured according to what was common in the industry or what was known in the industry, and [he would] need an expert to testify to that." The judge noted that Baltus would need someone to say that the jack was defective because the removal of the clips should have been anticipated by the manufacturer,

"and that would have to include testimony as to what other manufacturers were doing and what alternatives were available to the manufacturer, exactly how the modification was done and what should have been done to guard against that modification. * * * In a products liability case at the summary judgment stage the Plaintiff must produce sufficient evidence to establish the elements necessary to state forth a prima facie case of negligence [citation omitted]. In this case the Plaintiff's expert has been barred from testimony at trial. Moreover, the Plaintiff[199 Ill.App.3d 827] has not offered any results of the examination of the jack. Without an examination of the product to determine if the problem was a result of a manufacturing defect, the Plaintiff could not prove directly or inferentially a claim based in negligence or in strict liability [citation omitted]. Plaintiff is required to come forward with some evidence which would create a question of fact as to the condition of the product when it left Defendant's control [citation omitted]. Plaintiff has not offered such

Page 584

[145 Ill.Dec. 814] information, and therefore, the Defendant's motion should be granted." (Emphasis added.)

OPINION

On motion for summary judgment the dispositive question is whether the pleadings...

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