Delnick v. Outboard Marine Corp., 2-89-0716

• Decision Date: 18 May 1990
• Docket Number: No. 2-89-0716,2-89-0716
• Citation: 144 Ill.Dec. 187,197 Ill.App.3d 770,555 N.E.2d 84
• Parties: , 144 Ill.Dec. 187, Prod.Liab.Rep. (CCH) P 12,502 Donald DELNICK, Plaintiff-Appellant, v. OUTBOARD MARINE CORPORATION, Defendant-Appellee, (Jean Delnick, Plaintiff).
• Court: United States Appellate Court of Illinois

Page 84

555 N.E.2d 84

197 Ill.App.3d 770, 144 Ill.Dec. 187,

Prod.Liab.Rep. (CCH) P 12,502

Donald DELNICK, Plaintiff-Appellant, v. OUTBOARD MARINE CORPORATION, Defendant-Appellee (Jean Delnick, Plaintiff).

No. 2-89-0716.

Appellate Court of Illinois Second District.

May 18, 1990.

James A. Romanyak (argued), James A. Romanyak & Associates, Gregory A. Stayart, Romanyak & Miller, Chicago, for Donald Delnick.

Donald J. O'Meara, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, T. Patrick Rice, Lindner, Speers & Reuland, P.C., Robert E. Pederson, Sr. Atty., Outboard Marine Corp., Waukegan, D. Kendall Griffith, Dawn L. Haghighi, Joshua G. Vincent (argued), Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Outboard Marine Corp.

Justice REINHARD delivered the opinion of the court:

Plaintiff, Donald Delnick, filed a four-count complaint in the circuit court of Du Page County seeking damages against defendant, Outboard Marine Company, for injuries arising out of his use of a Lawn-Boy self-propelled lawn mower manufactured by defendant. Count I presented a claim for negligent design and manufacture based on res ipsa loquitur. Count II alleged negligence in the design and manufacture of the mower and the failure to provide adequate warnings concerning use of the mower. Count III, based on strict liability, alleged defective design and manufacture and failure to warn. Count IV, brought by plaintiff's wife, sought damages for loss of consortium.

Defendant successfully moved for summary judgment on count I, and count IV was voluntarily dismissed. Following a jury trial, verdicts against plaintiff were returned on counts II and III.

The following issues are raised by plaintiff on appeal: (1) whether the trial court erred in failing to instruct the jury on the issue of res ipsa loquitur; (2) whether the jury's finding that the statute of repose applied to plaintiff's strict liability claim was against the manifest weight of the evidence; (3) whether section 13-213(b) of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 13-213(b)) is unconstitutional; (4) whether the trial court erred in instructing the jury on assumption of risk; (5) whether the trial court abused its discretion in excluding certain evidence; (6) whether the trial court erred in permitting defendant to impeach plaintiff; (7) whether defendant's counsel's closing argument was improper and prejudicial; (8) whether the trial court erred in failing to submit a general verdict form to the jury; and (9) whether the trial court erred in denying plaintiff's motion for judgment notwithstanding the verdict.

Plaintiff was the only witness to the occurrence giving rise to his injuries. According to plaintiff, he purchased his Lawn-Boy lawn mower, to the best of his recollection, in the summer of 1976. On cross-examination, plaintiff's deposition was introduced wherein he stated that he purchased the mower in either 1973 or 1974.

Plaintiff also admitted to having read the entire owner's manual. The manual, which was introduced into evidence, contained warnings to never leave the operator's position while the engine is running and to not walk in front of a self-propelled mower. It further stated that all nuts and bolts should be periodically checked and tightened before using the mower. The manual contained no specific warnings regarding potential malfunctions of the self-propelled mechanism of the mower.

Prior to the date of the accident, plaintiff took the mower in once to have the pull cord replaced and once for a checkup. About one month prior to the accident, he took the mower to a local hardware store for service. He testified that to his knowledge the mower had never been altered.

Plaintiff described how the self-propelled drive mechanism is engaged. According to plaintiff, a knob must be pulled sideways and a rod is pulled backward to engage the drive mechanism. To disengage the drive, the process is reversed.

On the left side of the handle of the mower is a device called a "clamp screw." Plaintiff, on a few occasions, had to tighten the clamp screw when it loosened or became dislodged. According to plaintiff, when the clamp screw was loose or dislodged the self-propelled mechanism did not work. Plaintiff admitted that it was important to keep the clamp screw tight but that he did not check it the day of the accident.

On May 28, 1986, sometime after 6:30 p.m., plaintiff began cutting his grass with his lawn mower. While cutting the southern perimeter of his rear lawn in an easterly direction, plaintiff observed some irises leaning over into the projected path of his mower. At that point, plaintiff disengaged the self-propelled mechanism by pulling the handle forward until the "little white knob" clicked into place. Plaintiff then went to where the irises were, bent down on his left knee, put his left foot behind him, and began to move the irises away from the path of the mower. The lawn mower was not moving, but the engine was running when plaintiff left the operator's position. According to plaintiff, the yard is level and flat at the point where he left the mower.

Plaintiff estimated the distance between where he knelt down and the front of the mower to be four or five feet. As plaintiff moved the irises, he felt a hot, wet sensation in his left foot. He went from a kneeling position to a sitting position, saw the lawn mower, and kicked it with his right foot. Plaintiff then observed that his left foot had been lacerated by the mower. Plaintiff did not see the lawn mower move after he disengaged the drive mechanism. Medical testimony establishes that plaintiff lost four of his toes on his left foot as a direct result of the accident.

On cross-examination, plaintiff was asked if he was approximately three feet from the birdbath at the point he stopped the mower, to which he replied that he did not recall ever saying how far he was from the birdbath. Defense counsel then read from defendant's deposition wherein he was asked "Within how many feet of the birdbath?" to which plaintiff answered "three." Plaintiff responded that if it is in the deposition, it must be his answer.

Plaintiff also answered "yes" when asked if he was three or four feet from the mower when he knelt down. Plaintiff also admitted that he did not know if the side or the front of the mower came into contact with his left foot.

Plaintiff further admitted on cross-examination that he raised and lowered the height of the wheels some years before without adjusting the clutch control rods as required by the manual.

Mr. Joseph K. Adelman, a mechanical engineer and consultant, testified for plaintiff. He inspected plaintiff's mower on two occasions, reviewed the owner's manual, and obtained the American National Standards Institute (ANSI) specifications applicable to plaintiff's mower.

According to Adelman, during his first inspection, the mower's drive mechanism would engage on its own if the clamp screw was not tight. Adelman opined that the mower was unreasonably dangerous due to the design of the clutch rod mechanism which relies on the owner to keep the clamp screw tightened. He also criticized the owner's manual as not bringing "out up front the need, the importance, the significance of tightening that clamp screw."

Adelman inspected the mower a second time because he discovered from defendant's expert's deposition that the mower should have a torque lug spring which it did not have during his first inspection. Adelman then requested and received a spring for a 1972 model Lawn-Boy from plaintiff's attorney and installed it on plaintiff's mower. Plaintiff's mower, although made in 1972, is considered a 1973 model. Adelman tested the clutch rod mechanism 10,000 times, and the spring held up. Adelman further opined that the spring could break during 10 years of normal usage and that the spring he received was shorter than the one described in Lawn-Boy's mechanical drawings which would cause it to come out of its notch on the mower during its usage.

Adelman described the spring's function as insuring that the drive mechanism will return to neutral even if the clamp screw is loose. The owner's manual is silent as to the spring, nor does the mower contain any warnings regarding the spring. Adelman opined that there should have been a warning as to the need to have the spring in place and its significance to the operation of the drive mechanism.

On cross-examination, he admitted that the drive mechanism will not engage even without the spring if the lock-out clip and clutch rod are in the proper neutral position and the clamp screw is tight. Likewise, even if the mower is not properly disengaged or the clamp screw is loose but the spring is properly in place, the drive mechanism will not engage. Adelman could not say with a reasonable degree of engineering certainty that the spring design caused the accident.

Mr. James Efflandt, employed by defendant as a project engineer, testified that he inspected plaintiff's mower and discovered that the torque lug spring was missing. He further testified that plaintiff's mower was manufactured on October 11, 1972.

Efflandt disagreed with Adelman's opinion that the torque lug spring later installed on plaintiff's mower by Adelman was loose to the point it could fall out. Efflandt checked the spring in court and stated it was tight. Efflandt further stated, in disagreement with Adelman's opinion, that the spring as designed is not subject to breakage. According to Efflandt, he tested the mower without a spring installed and discovered that, when the lockout mechanism was not in neutral, the mower would not self-propel but that the motor would sort of shudder. Additionally, defendant has no record of failure of the spring during any of its quality control testing procedures.

Efflandt also stated that the mower complies with the relevant 1972 ANSI safety standards and that the United States Testing Lab...