Falkenbury v. Elder Cadillac, Inc.

• Decision Date: 13 August 1982
• Docket Number: No. 81-334,81-334
• Citation: 64 Ill.Dec. 628,109 Ill.App.3d 11,440 N.E.2d 180
• Parties: , 64 Ill.Dec. 628 Michael W. FALKENBURY, Plaintiff-Appellee, v. ELDER CADILLAC, INC. and General Motors Corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 180

440 N.E.2d 180

109 Ill.App.3d 11, 64 Ill.Dec. 628

Michael W. FALKENBURY, Plaintiff-Appellee, v. ELDER CADILLAC, INC. and General Motors Corporation,

Defendants-Appellants.

No. 81-334.

Appellate Court of Illinois,

Fifth District.

Aug. 13, 1982.

Otis M. Smith, Gen. Counsel, General Motors Corp., Detroit, Mich., and Pope & Driemeyer, Belleville (William A. Schmitt, Belleville, of counsel), for defendants-appellants.

Freeark, Harvey & Mendillo, Belleville (Ray Freeark and James Mendillo, Belleville, of counsel), for plaintiff-appellee.

KARNS, Presiding Justice:

Defendants, Elder Cadillac and General Motors Corporation, appeal from the judgment of the circuit court of St. Clair County, entered on a jury verdict, awarding plaintiff, Michael W. Falkenbury, $125,000 in this products liability action. Defendants appeal alleging, inter alia, that, as a matter of law, the product in question was not unreasonably dangerous.

On June 16, 1977, plaintiff, a dental technologist, purchased a new Cadillac Coupe de Ville from Elder Cadillac, located in Belleville, Illinois, which had optional equipment including spoked wire wheel covers. A wire wheel cover consists of a disc proper with an outer row of long spokes and an inner row of shorter spokes. The spokes, positioned in the front of the wheel cover, crisscross and fit into slots along the circumference of the disc proper. In the center of the disc there is a hole, several inches in diameter, over which a center crest piece bearing the Cadillac emblem is placed. On the back of the wheel cover there is a flat, round retainer disc plate which has a hole corresponding to the hole on the disc proper. There are five bolts on the wheel cover which secure the crest piece and the retainer disc.

In the three weeks following the purchase of the automobile, plaintiff noticed several minor problems, including a noise in the left rear wheel which he described as a "clicking" sound. On July 6, 1977, plaintiff brought the automobile to Elder to have warranty service performed and detailed a list of problems, including the noise in the left rear wheel.

Carl Newson, service manager at Elder, testifying as a section 60 witness, stated that, in response to the complaint concerning the left rear wheel, the exhaust system was aligned and a "general tightening" was performed. Newson further testified that there was no procedure for tightening the spokes on the wire wheel cover. On direct examination, Newson stated that plaintiff never complained to him concerning the wire wheel covers on his automobile.

Plaintiff testified that, when he picked up his car after having service performed, the mechanic indicated that the problems had been solved; however, the noise emanating from the left rear wheel persisted. Plaintiff further testified that he took the car in for repairs again and was informed that the service department would order a repair kit for the spoked wire wheel covers. Plaintiff telephoned Elder on several occasions, but was told the repair kit was not in stock. Newson did not recall any conversations with plaintiff concerning a wire wheel cover repair kit or the ordering of such.

On August 18, 1977, plaintiff, because of the persistent noise in the left rear wheel, endeavored to fix the wheel himself. After first removing the wheel cover from the car, plaintiff loosened the five bolts and removed the centerpiece which bears the Cadillac emblem. This created a hole that goes all the way through the wheel. Plaintiff looked inside the wheel, saw two spokes out of their holes, reached in and pushed them into their respective slots along the circumference of the disc proper. Plaintiff testified that at this point "my hand slipped or something slipped here and my hand went down into the side of that disc." This incident caused plaintiff to cut his hand, which is the complained of injury in the instant case. The cut was approximately 1 1/2 inches long and 1/4 inch deep, running from the base of the thumb toward the back of the hand.

Plaintiff filed this strict liability action for personal injuries suffered to his hand and wrist. In his second amended complaint, plaintiff alleged that the wire wheel cover was unreasonably dangerous in one or more of the following ways:

"(a) It contained in and around the access area sharp and protruding edges;

(b) Protruding edges around the access area were not dulled, blunted, guarded or otherwise protected;

(c) No warning accompanied said product to warn of hazard involved;

(d) No instructions were provided with respect to the care, maintenance or use of said product."

Plaintiff further alleged that as a "direct and proximate result of the foregoing unreasonably dangerous and/or defective conditions," he suffered personal injuries to his right hand, and the tendons and nerves therein, that he was unable to engage in his usual professional duties to the extent he could prior to the occurrence, and that this caused him economic damage.

Dr. Dale Rosenberg, a plastic surgeon and the treating physician, testified as to the nature of plaintiff's injury. Rosenberg testified that the cut caused tendon and nerve damage and to cause such injuries the cut would have to be down to the bone on the wrist. Rosenberg further testified that he was informed plaintiff had suffered the injury from being cut on a hubcap and was of the opinion that such a laceration could have been caused by a sharp metal edge. Plaintiff's wrist was placed in a plaster cast for approximately four weeks. Plaintiff testified that after the cast was removed he experienced numbness in his thumb and a loss of dexterity that persists to the present. Plaintiff further testified that a scar developed over the area of the cut and there was a "swelling or knot" which is sensitive to the touch.

Three expert witnesses testified as to the nature and characteristics of the wire wheel cover in question.

Derwyn Severy, president of Severy, Inc., a firm involved in the evaluation of products liability cases and research in the automotive industry, testified by evidence deposition. Severy testified that the wire wheel cover is a combination of defective design and defective manufacturing. Upon disassembling the wheel, Severy noticed that the inner spokes did not receive an interlock as intended by the designer and it was apparent that the manufacturing process did not adhere to design intent. Severy observed a further defect in the stamping, particularly of the discs, which caused a sharp surface to prevail which could cause serious laceration. Severy described the disc as having a "razor-like quality." On cross-examination, Severy stated that the wheel cover had to be disassembled, with five bolts removed, before the "lacerative edge" is exposed. Severy concluded that, in his opinion, the wheel with a disc having this "lacerative edge" is an unreasonably dangerous condition and that it is reasonably foreseeable that if the spokes on a wire wheel became loose the owner might attempt to adjust or fix them. Severy further concluded that the method used by plaintiff, reaching through the center of the wheel, while not being the "learned approach" was the most "direct approach" and, absent any instructions or published procedure, was the reasonably foreseeable method to be utilized.

H. Boulter Kelsey, an independent consultant and part-time engineering professor at Washington University in St. Louis, Missouri, testified at trial. Kelsey examined the wire wheel on two occasions and disassembled it the latter time. Kelsey testified that upon inspection he noticed that some of the outer spokes on the wheel were "loose and rattling" because they did not fit tightly into the outer diameter of the rim. Kelsey detected an "extremely sharp" edge and a raised burr on the edge of the hole caused by residual metal from the parent metal remaining as a result of the punching operation. Kelsey described the punching operation used to create the hole as follows:

"Well, the material is placed in a machine which has a die and above that die is a punch. The die contains a hole and the punch comes down through the hole and to produce that hole, the punch is lowered through the material and into the hole which provides a shearing action around the punch at the edge of the hole in the die."

Kelsey further testified that, in his opinion, the existence of this very sharp edge constitutes an unreasonably dangerous condition, it is reasonably foreseeable that an owner of an automobile who heard a rattling in the wire wheels would attempt to fix it and that the likelihood of the owner doing so would be enhanced by the failure of the service department to remedy the problem. Kelsey delineated four methods that could be used to avoid the sharp edge made by the stamping procedure utilized.

Robert J. Smith, an automotive engineer who has been employed by General Motors for 31 years, testified at trial. Smith examined the wire wheel cover in question and stated that it is not in the same condition as it was when it was installed, specifically detecting that two of the spokes were bent so that they were in contact with other spokes. Smith testified that, in his opinion, "there is no surface on the cover (wire wheel cover) that is unreasonably dangerous from the standpoint of normal customer usage of the part." Smith further testified that upon removal of the retainer disc during disassembly of the wire wheel cover, a typical sharp edge was evident which results when a steel part is stamped by a punch press and that any metal edge created in this manner will leave a slight burr. Smith noted that the only time the sharp edge would be exposed is if the five bolts were removed and the cover taken off. Smith stated that the metal edge in question is sufficiently sharp to cut human flesh, tendons and nerves.

At the close of all the evidence, defendant made a motion for directed verdict which was denied. On ...