Damron v. Micor Distributing, Ltd.

• Decision Date: 08 December 1995
• Docket Number: No. I-94-2998,I-94-2998
• Citation: 276 Ill.App.3d 901,658 N.E.2d 1318
• Parties: , 213 Ill.Dec. 297 Dennis DAMRON, Plaintiff-Appellant, v. MICOR DISTRIBUTING, LTD., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1318

658 N.E.2d 1318

276 Ill.App.3d 901, 213 Ill.Dec. 297

Dennis DAMRON, Plaintiff-Appellant, v. MICOR DISTRIBUTING, LTD., Defendant-Appellee.

No. I-94-2998.

Appellate Court of Illinois First District, Fifth Division.

Dec. 8, 1995.

[276 Ill.App.3d 902] [213 Ill.Dec. 298] Robert B. Patterson, Ltd., Chicago (Robert B. Patterson and John F. Hedrich, of counsel), for Appellant.

Paulsen & Kane, Chicago (Michael P. Kane and Jack L. Haan, of counsel), for Appellee.

Presiding Justice COUSINS delivered the opinion of the court:

On January 17, 1990, Dennis Damron filed a complaint against Micor Distributing, Ltd. (Micor), for an injury caused by an allegedly defective pipe wrench that was distributed by Micor. A jury rendered a verdict in favor of Micor on April 15, 1994. On appeal, Damron contends that the jury verdict was against the manifest weight of the evidence because it was based on the speculative testimony of Micor's expert witness.

BACKGROUND

On January 17, 1990, plaintiff filed a complaint against Micor Distributing, Ltd., for an injury caused by an allegedly defective pipe wrench that was distributed by Micor. The complaint alleged that the wrench was unreasonably dangerous when it left Micor's control and the unreasonably dangerous condition of the wrench was the proximate cause of plaintiff's injury.

At trial, plaintiff testified that A & R Transport (A & R) hired him as a wash boy in 1985. This duty consisted of cleaning the inside and outside of bulk semitrailers and trucks. Two weeks after hiring plaintiff, A & R requested that plaintiff bring his tools to work and perform the duties of a mechanic. Plaintiff had no formal training as a mechanic; however, his mechanical experience ranged from building a car out of parts from three cars, maintaining and rebuilding tractor engines, and maintaining a bulldozer and laser trencher. As a mechanic for A & R, plaintiff provided general service on trailers and later advanced to service work on trucks.

On November 17, 1988, plaintiff attempted to fix a flat tire on a truck. Plaintiff removed the 10 outer lug nuts that secured the outside tire of the dual tire set on which he was working. The outer lug nuts were removed with an air impact wrench while the tractor was jacked off the ground. Several of the inner lug nuts holding the inner tire broke when the outer lug nuts were removed. This prevented the broken inner lug nuts from being removed with the impact wrench. Plaintiff was able to remove all the inner lug nuts except for one or two of the broken ones. Consequently, to remove the remaining broken inner lug nuts, plaintiff went to the parts room and obtained an 18 inch aluminum-handled pipe wrench. The pipe wrench appeared to be new because it had paint all the way around.

When plaintiff returned to the truck, he put the wrench on the nut and pulled it to make sure the nut was tight. When plaintiff pulled, the movable jaw of the wrench broke, and plaintiff fell on his buttocks. Plaintiff immediately felt pain in his back, buttocks and leg. His crew leader, Gerald Curl, came over to him and asked whether he was okay. Plaintiff then took a 20 minute break and returned to work.

Plaintiff received medical attention the next day that ultimately led to surgery in December 1988 to remove disk material from his back. Plaintiff returned to work on April 18, 1989. However, because he could not perform duties that involved a lot of heavy lifting and bending, plaintiff was only able to answer the phone and perform computer work.

Gerald Curl testified for the plaintiff. Curl has been a mechanic at A & R for approximately 12 years and is crew leader. Curl testified that occasionally the inner lug nuts of a tire would break off when a tire was being changed. He stated the usual method for removing these inner lugs would be to pull them off with a pipe wrench or to use a welder to weld the outer lug nut back onto the inner lug nut. However, he stated that using a pipe wrench was the preferred method because it was faster than welding.

Curl stated that on November 17, 1988, he was working next to plaintiff on the bay. He heard the sound of a wrench fall, and he walked around the rear of the trailer to see what happened. He noticed plaintiff sitting on the ground with air tools and the broken pipe wrench. Plaintiff sat on the ground for a few minutes and resumed working after taking a break. However, Curl stated that after plaintiff's shift was over, plaintiff did not return to work until six months later on light duty in the parts department. On cross-examination, Curl stated he did not actually see the wrench break or how much force plaintiff applied to the wrench. Curl also admitted that it was possible that the wrench slipped and broke when it hit the ground.

Plaintiff also introduced the testimony of Ed Oppenlander, the shop foreman at A & R. Oppenlander testified that mechanics supplied their own routine hand tools and A & R supplied specialty and larger tools such as the 18 inch pipe wrench. He also stated that it is normal to use a pipe wrench to take off a broken lug nut. He testified that the wrench was purchased on or about September 29, 1988, and was accessible to any of the 12 mechanics at the shop. He did not know when the wrench was used or the various ways in which the mechanics used the wrench. Oppenlander stated that after the wrench broke, he put it in his office for a couple of days and then turned it over to the safety department. He also stated that cheater bars were used on occasion at A & R; however, he was not aware of any mechanic using a cheater bar on that wrench. He explained that a cheater bar is a piece of a pipe or an extension to the handle of the wrench used to get increased leverage or power at the end of the wrench.

Charles Van Breemen gave expert testimony for the plaintiff. Van Breeman has a bachelor's degree in mechanical engineering and has been a mechanic for 30 years. His experience includes work on aircraft, motorcycles, automobiles, trucks and tractors. He also received two weeks' training in fatigue failure and fracture analysis. Van Breemen testified that he examined the wrench under a microscope and noticed signs of crack growth or fatigue failure. Van Breemen explained that fatigue failure is a failure in a part that occurs over time from loading, releasing the load and reloading. He characterized the crack in the wrench as "low-cycle" fatigue failure because "it did not have the scars of being around for a long time." Van Breemen examined the wrench and concluded that a cheater bar had not been applied to the wrench since there were no circular marks at the end of the wrench.

Van Breemen also noticed marks or lines in the fixed jaw of the wrench. He characterized these lines as "beach marks." These marks show the progressive growth of the crack. According to Van Breemen, the crack first grew 6/1000 of an inch deep and increased to 26/1000 of an inch, then to 46/1000, 61/1000 and finally to 91/1000. Van Breemen stated these marks do not exist when there is a single overload failure.

Van Breemen sent the wrench to Trace Laboratories for Rockwell hardness testing. A Rockwell hardness test is a method of determining the hardness of a metal. Van Breemen explained that the harder the steel, the stronger it is and the higher the load that it can carry. However, the stronger the material, the more brittle it is. Therefore, the designer of a wrench must strike a balance between strength and toughness or nonbrittleness. Van Breemen stated that the ideal hardness of a wrench would be between 38 and 42 Rockwell.

Trace Laboratories performed 12 hardness tests. There were four hardness readings on each side of the break and four away from the break. The average of the readings on one side of the break was 50, while the average of the readings on the other side of the break was 40. Trace Laboratories' interpretation of these readings was there was no great difference between the hardness at the fracture site and away from the fracture site. However, Van Breemen stated that, in his opinion, the hardness reading of 50 is very brittle and unsuitable for this type of wrench. Van Breemen believed that this variation in hardness was a result of faulty heat treatment during manufacturing, which made part of the wrench brittle. The manufacturing process introduced a crack in the wrench which grew to the point that it could not withstand the load which plaintiff applied to it. Furthermore, Van Breemen stated that the load which plaintiff applied to the wrench was well below the load that the wrench, if it had been properly manufactured, could have tolerated.

Mitchell Kaplan testified as the defendant's expert witness. Kaplan has a bachelor's degree in metallurgy and a master of science degree in material science. He also has had extensive experience in fracture analysis. Kaplan agreed with Trace Laboratories' analysis that there was no great difference in the hardness at the area of the break and away from the break. He stated that this variation had nothing to do with the heat-treating process. Instead, it was the different properties of steel that made some parts harder than others.

Kaplan stated that the marks he viewed under a microscope were not beach marks but crack arrest lines. Kaplan explained that while beach marks are indicative of fatigue, crack arrest lines are indicative of a crack's change in velocity due to an overload. Kaplan stated that according to the Metals Handbook, the wrench was probably 4140 steel. The book also discussed the hardness of this steel and listed the hardness in the 46 to 48 category. Kaplan opined that the hardness of the steel in the wrench as reported by Trace Laboratories was appropriate for a movable jaw in a pipe wrench. Kaplan disputed Van Breemen's interpretation of the depths of the cracks, stating that the 6/1000-inch crack would have no effect on the wrench's jaw....