Vallejo v. Mercado

• Decision Date: 18 October 1991
• Docket Number: No. 2-91-0201,2-91-0201
• Citation: 580 N.E.2d 655,162 Ill.Dec. 692,220 Ill.App.3d 1
• Parties: , 162 Ill.Dec. 692 Juan VALLEJO, Plaintiff-Appellant, v. Jose Luis MERCADO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 655

580 N.E.2d 655

220 Ill.App.3d 1, 162 Ill.Dec. 692

Juan VALLEJO, Plaintiff-Appellant, v. Jose Luis MERCADO, Defendant-Appellee.

No. 2-91-0201.

Appellate Court of Illinois Second District.

Oct. 18, 1991.

John G. McAuley, Rigsby & McAuley, Chicago, for Juan vallejo.

Linda E. Spring, John W. Barbian, Wildman, Harrold, Allen & Dixon, Waukegan, for Jose Mercado.

Justice McLAREN delivered the opinion of the court:

Plaintiff, Juan Vallejo, appeals from an order entered by the circuit court of Lake County which barred plaintiff from using the testimony of his expert witness at trial and which granted the motion for summary judgment of defendant, Jose Luis Mercado. Plaintiff raises two issues on appeal: (1) whether the trial court erred in granting defendant's motion to bar the testimony of plaintiff's expert witness; and (2) whether the trial court erred in granting defendant's motion for summary judgment when there are genuine issues of material fact. We reverse and remand.

Plaintiff filed his complaint against defendant on November 3, 1989. Plaintiff alleged that defendant requested that plaintiff come to defendant's home for the purpose of assisting defendant in cutting down the trees on defendant's premises. He further alleged that, on or about September 29, 1989, defendant gave his Homelite C-51 convertible drive chain saw to plaintiff to use. He alleged that defendant had a duty not to endanger plaintiff's well-being while plaintiff was on defendant's property and that defendant breached this duty in that he:

"a. failed to instruct the Plaintiff in the proper manner of operating the chain saw when he knew or should have known the Plaintiff had not previously used a chain saw;

b. failed to advise the Plaintiff that the chain saw would 'jump' when cutting knotted pieces of wood;

c. failed to supervise the Plaintiff's use of the chain saw when he knew or should have known the Plaintiff had not previously used a chain saw;

d. failed to advise the Plaintiff that the chain saw did not have an automatic cut-off switch;

e. provided the Plaintiff with a defective chain saw."

The complaint alleged that, as a direct and proximate result of one of these acts or omissions of defendant, plaintiff was struck across his face by the chain saw when it "jumped" off a piece of wood he had been cutting, causing plaintiff to suffer temporary and permanent personal injuries. Plaintiff sought damages in excess of $15,000 plus costs of suit.

Defendant filed a jury demand on January 17, 1989. On January 23, 1990, he also filed an answer to the complaint and an affirmative defense, which alleged that plaintiff did not exercise reasonable care for his own safety while operating the chain saw in question.

An order was entered on March 13, 1990, which stated that trial was set for October 29, 1990, and that plaintiff was to disclose experts within 60 days and defendant was to disclose experts within 90 days. On October 15, 1990, plaintiff filed a motion for leave to file an amended complaint and a motion to continue the trial date. In his motion to continue, plaintiff alleged that defendant's deposition was taken on September 12, 1990. During the deposition, information first became available to plaintiff regarding a new theory of liability against defendant, that defendant "maintained and/or repaired the chainsaw [sic ] involved in the accident in a negligent manner." Plaintiff further alleged that he required additional time to conduct discovery as to the proper standards of maintenance and repair of chain saws.

An order was entered on October 19, 1990, which granted plaintiff leave to file an amended complaint and which set the cause for trial on February 4, 1991. An amended complaint was filed which stated that the accident occurred on or about September 19, 1989, and added an allegation that defendant breached his duty to plaintiff in that he "failed to properly maintain or repair the chain saw."

On December 5, 1990, defendant filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1005). Defendant alleged that no genuine issue of material fact existed "as to plaintiff's inability to demonstrate any negligence on defendant's part as a proximate cause of plaintiff's accident." Attached to the motion were the complete transcripts of the deposition of plaintiff, taken June 22, 1990, and the deposition of defendant, taken September 12, 1990.

Essentially, the depositions established that plaintiff and defendant were acquainted because plaintiff had rented an apartment from defendant for about three months prior to the accident. Approximately two weeks prior to the accident defendant asked plaintiff to do some work for him cutting a tree. Plaintiff told defendant he would ask Martin Rodriguez about it because Martin knew more about it and plaintiff needed help to do it. On September 19, 1989, plaintiff and Rodriguez decided to do the job together and split the money. They arrived at defendant's house at approximately 4:30 in the afternoon, and defendant agreed to pay them $100. Defendant wanted them to cut some branches on a big tree behind a house that he owned and to cut some branches on an apple tree at his residence.

Defendant gave his chain saw, a ladder, and some rope to plaintiff and Rodriguez. Defendant testified that he gave plaintiff and Rodriguez instructions regarding how to start the chain saw and told them two or three times to be careful. Defendant stated that plaintiff then told him that Rodriguez already knew how to use the saw. Plaintiff testified that defendant had problems starting the chain saw and had to take it apart, clean the filters, and put in freshly mixed gas in order to start it. Defendant stated that the saw started fine.

Rodriguez went up into the tree, pulled the chain saw up with the rope and cut some branches from the tree. Rodriguez did not have any problems with the saw. Rodriguez then came down from the tree, and plaintiff started cutting the branches on the ground. Plaintiff did not know how to start the saw, so defendant showed him. Plaintiff stated that he had never operated a chain saw before. He did not know that chain saws jumped. He had, however, used different types of saws during his employment as a laborer, including a "partner" saw, which plaintiff described as similar to a chain saw. The partner saw used a blade rather than a chain. Plaintiff did not tell anyone that he had never operated a chain saw.

Plaintiff cut up one branch into four or five sections and had no problems with the saw. Defendant and Rodriguez carried the sections to the street. Plaintiff began cutting a second branch, which was lying on the ground, when the chain saw jumped up and hit him in the face, knocking him unconscious. It hit him between the eyebrows and down his nose. Defendant and Rodriguez were by the street and did not see the accident.

Defendant testified that he purchased the chain saw for $50 at Seven Mile Fair, Wisconsin, about two years prior to the accident. He did not receive any instructions with the saw. Defendant had used the saw at least 10 times before the accident and had never had any problems with it. Defendant stated that the chain did not turn, even though the engine was running, unless the trigger in the handle was pressed. Defendant stated that the chain stopped in less than a second after the trigger was released. Plaintiff stated, however, that the chain stopped slowly and took about five seconds to stop completely.

Defendant stated that he replaced the chain on the saw about one month before the accident. He bought the new chain at Ace Hardware. The new chain did not come with instructions regarding how to install it. A friend of his told him to set the tension on the chain by allowing about one-half inch of play in the chain. That is what he did. Defendant used the saw about two times after he replaced the chain and did not have any problems with it.

Based on these depositions, defendant argued in his motion that he was entitled to summary judgment in his favor because he was under no duty to warn plaintiff of open or obvious hazards, because there was no evidence that defendant knew or should have known that plaintiff had not previously used a chain saw, because it was uncontroverted that the chain saw was in good working order, and because plaintiff was unable to identify the reason for his injury.

An order was entered on December 5, 1990, which stated that plaintiff had until December 19, 1990, to respond to defendant's motion. On December 28, 1990, plaintiff filed a motion to continue the trial date. Plaintiff requested additional time to respond to defendant's motion for summary judgment and also asked that the trial date be continued. In his motion, plaintiff stated that he had retained the services of an expert witness in order to respond properly to the motion for summary judgment. Plaintiff also stated that his expert witness had requested documents from the manufacturer of the chain saw, but had not obtained the documents due to the product's age. The affidavit of John G. McAauley, one of plaintiff's attorneys, was attached to the motion and stated, in pertinent part:

"2. In order to properly respond to the Defendant's Motion for Summary Judgment, an engineering expert retained on the Plaintiff's behalf has requested a copy of the owner's manual for the chain saw which is the subject of this lawsuit.

3. The plaintiff's attorneys have attempted to obtain the owner's manual from the manufacturer of the chain saw, but efforts to date have been delayed because production of the chain saw has been discontinued.

4. The plaintiff's expert is presently attempting to obtain an owner's manual."

The trial court denied plaintiff's motion and ordered plaintiff to respond to defendant's motion for summary judgment by January 9, 1991. A hearing was set for January 16,...