75 F.3d 1162 (7th Cir. 1996), 95-1470, Bank of Illinois v. Allied Signal Safety Restraint Systems

Docket Nº:95-1470, 95-1532.
Citation:75 F.3d 1162
Party Name:BANK OF ILLINOIS, also known as Bankillinois, and Tammy Shepard, as Co-Guardians of the Estate of Shad Shafer, a disabled person, Plaintiffs-Appellants, v. ALLIED SIGNAL SAFETY RESTRAINT SYSTEMS, a corporation, Defendant-Appellee.
Case Date:February 02, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1162

75 F.3d 1162 (7th Cir. 1996)

BANK OF ILLINOIS, also known as Bankillinois, and Tammy

Shepard, as Co-Guardians of the Estate of Shad

Shafer, a disabled person, Plaintiffs-Appellants,

v.

ALLIED SIGNAL SAFETY RESTRAINT SYSTEMS, a corporation,

Defendant-Appellee.

Nos. 95-1470, 95-1532.

United States Court of Appeals, Seventh Circuit

February 2, 1996

Argued Sept. 22, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied April 16, 1996.

Page 1163

Appeal from the United States District Court for the Central District of Illinois, No. 91 C 2517--Harold A. Baker, Judge.

Joseph Phebus, Nancy J. Glidden (argued), Thomas F. Koester, Phebus, Winkelmann, Wong, Bramfeld & Zopf, Urbana, IL, for Plaintiffs-Appellants.

Mark S. Schuver, William A. Schmitt, Thomas F. Hennessy, III (argued), Thompson & Mitchell, Belleville, IL, for Defendant-Appellee.

Before BAUER, CUDAHY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Tammy Shepard, on behalf of her disabled son Shad, filed suit against Allied Signal to recover damages for injuries he sustained when the Jeep in which he was riding overturned and threw him from the vehicle. Allied Signal, the manufacturer of the seat belts in the Jeep, filed a motion for summary judgment on the basis of statements made by Shad's parents that he had not been wearing his seat belt at the time of the accident. Allied Signal contended that the parents' later statements to the contrary could not be considered. Relying upon our decision in Adelman-Tremblay v. Jewel Companies, 859 F.2d 517 (7th Cir.1988), the district court entered summary judgment for Allied Signal. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I

BACKGROUND

A. Facts

On the afternoon of December 31, 1990, Don Shepard was visiting his fiancee, Tammy Shafer, at her home in Champaign, Illinois. 1 Mr. Shepard and Ms. Shafer, who had been dating for several months, each had children from prior marriages. Ms. Shafer's eleven year-old son Shad was present for Mr. Shepard's visit. At approximately 12:30 p.m., Mr. Shepard prepared to leave for nearby Tolono to pick up one of his children. It was decided that Shad would accompany Mr. Shepard on the trip.

Mr. Shepard and Shad left the house and got into Mr. Shepard's Jeep CJ-7 which was parked in the garage. Ms. Shafer was also

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present in the garage when Mr. Shepard and Shad entered the Jeep. The Jeep then exited the garage and began the short trip to Tolono. At some point during the trip, Mr. Shepard lost control of the vehicle. The Jeep slid out of control, left the roadway, and proceeded to roll over, throwing Mr. Shepard and Shad from the vehicle. The Jeep ultimately came to rest on its side, pinning Shad underneath. Mr. Shepard and Shad were both hospitalized for their injuries. After undergoing treatment and surgery, Mr. Shepard was released on January 7, 1991. The accident rendered Shad, who had suffered a basilar skull fracture and injuries to his brain from a cardiorespiratory arrest, unable to communicate.

In the hours and days following the accident, Mr. Shepard made statements to various third parties that he and Shad had not been wearing their seat belts. According to the deposition testimony of Officer Dale Miholic, who had spoken to Mr. Shepard at the scene of the accident, Mr. Shepard told him that Shad had not been wearing his seat belt at the time of the accident. 2 Officer Robert Weston, who had investigated the accident and had spoken to Mr. Shepard at the hospital, 3 and Detective Zane Ziegler, a police officer who had sold Mr. Shepard the Jeep, 4 gave similar deposition testimony. At the hospital, Mr. Shepard also told Cheryl Shepard, his former wife, that Shad had not been wearing his seat belt. 5

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Ms. Shafer also made statements to third parties that Shad had not been wearing a seat belt. According to the deposition of Sandra Kline, Shad's home care nurse, "[Ms. Shafer] just told me that Shad was riding in an open Jeep, that he was not wearing a seat belt, that her fiance was driving the Jeep." R. 77, Deposition of Sandra Kline, Ex. N at 8-9. On November 19, 1991, Mrs. Shepard, as Guardian of the Estate of Shad Shafer, and Mr. Shepard filed their original complaint. The original complaint, which named only Chrysler Corporation and Bestop as defendants, did not allege that the seat belts in the Jeep were defective. 6

Six days after the complaint was filed, Mr. Shepard testified at a child custody hearing concerning his children from the prior marriage. Mr. Shepard, who was represented by counsel, testified under oath that neither he nor Shad had been wearing a seat belt at the time of the accident. When questioned further about the accident, he stated: "Inadvertently that day we were talking and just did not put on our seat belts." R. 77, Custody Hearing Transcript, Ex. K at 175.

In December of 1991, defendant Bestop served interrogatories on the plaintiffs. Mrs. Shepard responded to the interrogatories on Shad's behalf. Interrogatory No. 57, together with Mrs. Shepard's response, reads:

57. If at the time of the occurrence referred to in the complaint the vehicle occupied by you was equipped with seat belts or shoulder harnesses, state:

(a) Whether the seat belt or shoulder harness was being worn by you and if so, what was worn;

(b) If either the shoulder harness or seat belt was not worn by you, why each was not worn;

(c) The position in the car where you were seated;

(d) Your height and weight at the time.

Answer:

A. No.

B. Inadvertence.

C. Passenger in front.

D. 4'10"', 65 pounds.

R. 77, Answers to Interrogatories, Ex. A at 27.

On March 18, 1993, the district court granted the plaintiffs' motion for leave to file an amended complaint. The amended complaint, which added Allied Signal as a defendant, alleged for the first time that Shad had been wearing a seat belt at the time of the accident.

In a subsequent deposition, Mr. Shepard testified that he and Mrs. Shepard had decided to amend the complaint after acquiring additional information about seat belts and their propensity to release during impact. He identified the source of this additional information as a segment from a television program entitled "Street Stories." The segment, which had been shown to them by their attorney, illustrates how certain types of seat belts can open unexpectedly in certain types of impacts. His earlier statements that Shad had not been wearing a seat belt, Mr. Shepard explained, were mere conclusions drawn from the fact that Shad had been thrown from the Jeep. Now that he had a more complete understanding of the relevant facts--that certain types of seat belts were subject to inertial release--he could explain how Shad, who customarily wore his seat belt, had ended up outside the Jeep. Mr. Shepard further stated that, although he had not actually seen Shad buckle his seat belt, he had seen Shad reaching down between the seats for the belt prior to exiting the garage and had heard a metal "clang." Mr. Shepard testified that, based on these observations, he believed that Shad was wearing his seat belt on the day of the accident.

The parties also took the deposition of Mrs. Shepard after the amended complaint was filed. Like her husband, Mrs. Shepard testified that she had changed her position concerning Shad's use of the seat belt.

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When asked what had changed her mind, she indicated that the "Street Stories" segment had provided her with additional information on how seat belts could release unexpectedly. Mrs. Shepard further testified that, on the day of the accident, she had seen Shad turn around in the passenger seat and bend over as if reaching for the seat belt and she had heard a "clanking noise" before the Jeep exited the garage. Mrs. Shafer also stated that Shad always wore his seat belt when traveling in a car. She admitted, however, that she had not actually seen Shad wearing his seat belt or holding any part of the seat belt in his hand on the day of the accident.

B. Proceedings in the District Court

Allied Signal filed a motion for summary judgment on the ground that Mr. and Mrs. Shepard, the only eyewitnesses to the occurrence, had previously admitted to numerous witnesses and in court that Shad was not wearing his seat belt at the time of the accident. The plaintiffs, who had responded to the summary judgment motion by filing copies of the Shepards' depositions taken after the amended complaint, argued that Shad, in whose name Allied Signal was sued, had not admitted anything and could not be bound by their statements. Even if the prior statements could be considered admissions, they argued, the statements are "ordinary" and not "judicial" admissions and are thus subject to rebuttal by other evidence. Neither Mr. Shepard nor Mrs. Shepard had actual knowledge of whether Shad was wearing his seat belt; they merely had been speculating when they spoke. They argued that their prior statements, which had been made without personal knowledge, amount only to lay witness reconstruction testimony and, as such, lack the required foundation for use as substantive evidence.

The district court rejected the plaintiffs' argument that the prior statements lacked evidentiary foundation and could be used only for impeachment purposes. Such an argument, the court noted, is a "red herring" for purposes of the summary judgment motion. Even if the Shepards' prior statements do not bind Shad as admissions, the district court continued, Mr. and Mrs. Shepard are still the only possible witnesses to the occurrence and each had made clear statements that Shad was not wearing his seat belt. Citing Adelman-Tremblay v. Jewel Companies, 859 F.2d 517 (7th Cir.1988), the court applied the "well-settled rule" that "a party may not establish a genuine issue of fact solely by pointing to witness' recantations of prior...

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