Ervin v. Sears, Roebuck & Co.

• Decision Date: 17 February 1976
• Docket Number: No. 73--256,73--256
• Parties: John S. ERVIN, Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 220

343 N.E.2d 220

36 Ill.App.3d 64

John S. ERVIN, Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY et al., Defendants-Appellants.

No. 73--256.

Appellate Court of Illinois, Fifth District.

Feb. 17, 1976.

Roberts, Gundlach & Lee, Belleville, for defendants-appellants; Carl W. Lee, Terry N. Brown, Belleville, of counsel.

Richard Shaikewitz, Wiseman, Shaikewitz, McGivern & Wahl, Alton, for plaintiff-appellee.

KARNS, Presiding Justice:

We granted leave to appeal pursuant to Ill.Rev.Stat.1973, ch. 110A, par. 306, from an order of the Circuit Court of Madison County granting plaintiff-appellee's motion for a new trial. The lawsuit arose from an accident in 1962 wherein plaintiff was injured when thermal underwear sold by defendant-appellant caught fire. Plaintiff was instructed by his employer to descend about five hundred feet in a narrow shaft to cut a hole in steel couplings on the side of the shaft. Plaintiff was dressed in the thermal underwear and coveralls and was also wearing a heavy two-piece slicker, apparently open at the neck. While working in the shaft with a cutting torch using an oxygen rich acetylene mixture, a spark of molten metal apparently entered the neck and lodged in the crotch area of the underwear beneath the slicker and coveralls. The material flamed, described by a witness as over thirty feet in the air, and plaintiff was severely burned before he could be removed from the shaft.

The complaint filed in early 1963, charged negligence on the part of defendant in selling without appropriate warnings, highly flammable underwear and, in a separate count, alleged an express and implied warranty of the fitness and merchantability of the underwear by defendant. In 1969, plaintiff amended the complaint to add a count charging strict products liability in tort. The case was tried before a jury in 1970. Plaintiff tendered instructions on the negligence and implied warranty counts which instructed the jury that plaintiff must have been 'exercising ordinary care for his own safety' at all times. The court refused tendered instructions on express warranty. Plaintiff also tendered an issues instruction on strict liability which omitted any reference to a duty on the part of plaintiff to exercise due care for his own safety. It was followed closely, however, by Illinois Pattern Instruction 10.03, which again stressed plaintiff's duty to use 'ordinary care' for his safety and I.P.I. 10.02 defining 'ordinary care.' Plaintiff also tendered an issues instruction, I.P.I. 20.01 (modified), similar to the previous instruction on strict liability which included plaintiff's duty of ordinary care for his own safety as an issue in the case. Defendant tendered a modified version of I.P.I. 10.03 which added that plaintiff must have been 'free from contributory negligence' and I.P.I. 11.01 defining contributory negligence. All of these instructions were given and the jury returned a general verdict for the defendant. A special interrogatory tendered by the defendant which asked the jury if plaintiff was free from contributory negligence was refused. Plaintiff filed a motion for new trial on February 4, 1970, raising several points of alleged error. Additional points of error were filed on February 20, 1970, which raised for the first time plaintiff's contention that the jury was improperly instructed because of the supposed confusion in the state of the law as to defenses to strict liability in tort at the time the case was tried.

In July, 1972, the court issued an order granting plaintiff a new trial. In an accompanying opinion, the court stated its belief that, regardless of the counts alleging negligence and implied warranty, the case was actually tried on strict liability in tort. Further, the court noted apparent confusion which had occurred at the instruction conference about the necessity of plaintiff pleading and proving freedom from contributory negligence as to the strict liability count. After reviewing the case law development in strict liability cases occurring since the commencement and trial of the lawsuit, the court concluded that the instructions tendered on plaintiff's duty of care were erroneous and that justice required a new trial. Upon motion of defendant, the court agreed to review its ruling. In a second opinion, the court rejected defendant's argument that its case was founded solely upon a defense to the strict liability count and that, therefore, the jury's verdict was conclusive regardless of the erroneous instructions. And, although the court recognized the rule that a party may not assign error in instructions tendered by it, it reaffirmed the previous opinion and order.

Because of the unique nature of this case and its relation in time to the developments in the law of strict liability in tort, a brief review of the underlying cases appears necessary. Strict liability in tort for all products was first recognized in Illinois in Suvada v. White Motor Company, 32 Ill.2d 612, 210 N.E.2d 182 (1965), as the logical extension of the long-standing application of the rule to food products. The instant case was filed in 1963, two years prior to Suvada. That case and the further refinement of the doctrine in People ex rel. General Motors Corporation v. Bua, 37 Ill.2d 180, 266 N.E.2d 6 (1967), apparently prompted plaintiff to amend the complaint to allege strict liability. In 1968, this court decided Williams v. Brown Manufacturing Company, 93 Ill.App.2d 334, 236 N.E.2d 125 (1968). Relying on Bua, we held that the contributory negligence of a plaintiff was properly an issue in a strict liability action and, if pleaded and proved as an affirmative defense by defendant, constituted a bar to recovery. The Supreme Court subsequently granted leave to appeal. Subsequent to Williams, but prior to plaintiff's amendment of his complaint, this court decided Adams v. Ford Motor Company, 103 Ill.App.2d 356, 243 N.E.2d 843 (1968), wherein we held that an allegation in plaintiff's complaint under strict liability in tort that he was free from contributory negligence was surplusage, and again clearly stated that...