Yassin by Yassin v. Certified Grocers of Illinois, Inc., 84-0032

• Decision Date: 09 December 1986
• Docket Number: No. 84-0032,84-0032
• Citation: 150 Ill.App.3d 1052,502 N.E.2d 315
• Parties: , 104 Ill.Dec. 52 Esida YASSIN, a minor, by her mother and next friend, Sofia YASSIN, individually, Plaintiffs-Appellants. v. CERTIFIED GROCERS OF ILLINOIS, INC., an Illinois corporation; Mizyed-Yassin Corporation, an Illinois corporation; Hobart Corporation, a foreign corporation; and Underwriters Laboratories, Inc., a corporation, Defendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 315

502 N.E.2d 315

150 Ill.App.3d 1052, 104 Ill.Dec. 52

Esida YASSIN, a minor, by her mother and next friend, Sofia YASSIN, individually, Plaintiffs-Appellants. v. CERTIFIED GROCERS OF ILLINOIS, INC., an Illinois corporation; Mizyed-Yassin Corporation, an Illinois corporation; Hobart Corporation, a foreign corporation and Underwriters Laboratories, Inc., a corporation Defendants- Appellees.

No. 84-0032.

Appellate Court of Illinois First District, Second Division.

Dec. 9, 1986.

Milton M. Blumenthal & Associates, Chicago (Milton M. Blumenthal and Sidney Z. Karasik, of counsel), for plaintiffs-appellants.

Crooks & Gilligan, Ltd., Chicago (John W. Gilligan and Joseph R. Steiger, of counsel), for defendant-appellee, Mizyed-Yassin Corp.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kendall Griffith, Donald J. O'Meara and Joshua G. Vincent, of counsel) for defendant-appellee, Hobart Corp.

Lord, Bissell & Brook, Chicago (William J. White, Hugh C. Griffin and Diane I. Jennings, of counsel), for defendant-appellee Certified Grocers of Illinois.

Bell, Boyd & Lloyd, Chicago (Francis J. Higgins and John Versca, of counsel), for defendant-appellee Underwriters Laboratories, Inc.

Justice SCARIANO delivered the opinion of the court:

Plaintiff, ¹ a three-year-old child, was severely injured when she placed her left hand in an operating commercial meat tenderizer. She later filed the present suit against Mizyed-Yassin Corporation, which owned the grocery store where the accident took place; Certified Grocers, Inc. (Certified), a cooperative with which the grocery store was affiliated; Hobart Corporation, the company that manufactured the meat tenderizer; and Underwriters Laboratories (U.L.), an independent testing laboratory, which tested a model of the meat tenderizer that caused her injury. The case went to the jury on a negligence count against Underwriters Laboratories and a strict liability count against Hobart Corporation. The trial judge directed verdicts in favor of defendant Certified Grocers, on a negligence charge, and defendant U.L. on a strict liability count. The jury returned a special verdict to the effect that the meat tenderizer was not unreasonably dangerous and found Hobart and U.L. not guilty. However, the jury did return a verdict of negligence against Mizyed-Yassin Corporation, awarding plaintiff $300,000 in compensatory damages. Plaintiff now appeals, asserting that she was denied a fair trial. We affirm.

Defendant, Mizyed-Yassin Corporation was jointly owned by plaintiff's father, Khalil Manna Yassin, and her uncle, Abdelhamed Mizyed. The corporation purchased the Certified Food Center in Burbank, Illinois, and began operating it in September 1975. Defendant Hobart Corporation manufactures and distributes food preparation equipment, including the Steakmaster Model 401 meat tenderizer that caused the injury in this case. U.L. is a corporation whose announced purpose is to test products for public safety. Certified Grocers of Illinois advertises, packages and sells food products, and operates as a cooperative of grocery stores that included the store at which the accident underlying this lawsuit took place.

Plaintiff's mother testified that she went to her husband's store with plaintiff at 7:45 p.m. on April 8, 1976. When they entered, she took plaintiff by the hand and began shopping. She dropped plaintiff's hand to reach for some cookies and before she finished reading the ingredients, she heard a scream. Plaintiff's mother went to the source of the scream and saw plaintiff on the floor with her left hand in the meat tenderizer. Mizyed unplugged the machine and called the fire department, which took plaintiff to Christ Community Hospital, where she remained for ten days.

Adjacent to the meat counter at the rear of the store was a doorway with doors broken or propped open. Beyond the doorway was a 32-inch-high work table with the model 401 meat tenderizer on top, and next to it an 18-inch table and several wooden soda-pop bottle cases arranged in "stepping stone" fashion. Mizyed testified that on the night of the accident he was tenderizing meat there with the cover of the 401 raised so that he could work faster. He left the machine running unattended while he went back to the cooler to get more meat, then he heard screams.

Plaintiff's orthopedic surgeon testified that plaintiff's tendons, bones, skin and nerves were cut beyond repair and that he was forced to amputate her left hand just above the wrist. The surgeon testified that plaintiff suffered pain due to the "phantom limb" phenomenon, and that the muscles in her forearm have decreased, leaving her left arm permanently smaller.

Dr. Blair, another treating surgeon, testified that loss of a left hand up to and including the wrist impairs the entire left extremity by 90%, and impairs total body function 30 to 40%. He stated that with emotional impairment resulting from the accident, plaintiff suffers a 50% total impairment. When Dr. Blair saw plaintiff in September 1983, the month in which the trial began, she suffered repeated nightmares, wet her bed, and experienced difficulty in feeding herself and in making friends, all because of the loss of her hand. He stated that plaintiff's phantom limb syndrome was permanent.

Dr. Geist, a rehabilitation psychologist, testified that plaintiff violently strikes out with the injured limb, has vomiting episodes, and is not a happy child, often withdrawing into herself. However, plaintiff could describe the accident matter-of-factly and Dr. Geist stated that plaintiff was attending school daily and had been able to shift function to her right hand. Plaintiff liked her brothers and sisters, played soccer, jumped rope, could eat with her one hand, was neat, polite and cooperative, and spoke some English, Italian, Spanish and Arabic. Nonetheless, according to Dr. Geist, the accident was a severe blow to plaintiff's self-image and she will require psychotherapy for an indefinite period as a result. Dr. Geist, testified that although plaintiff expressed an interest in becoming a teacher, she had neither the psychological nor intellectual capacity for it. Afterwards, the doctor discovered that she had made an error in estimating plaintiff's I.Q. and she revised the calculation, finding it to be within the normal range. However, the psychologist stated that plaintiff's employability was "still not very good."

Dr. Arthur Dobbleaere, an associate professor of Industrial Relations at Loyola University, estimated the present value of plaintiff's total loss of future salary and benefits to be $746,041.

Plaintiff's safety expert, Ralph Newman, described the Hobart 401 tenderizer as having an easily removable cover and two rollers with 41 knife discs. Each knife disc has twelve protruding edges. In one second approximately 2,000 knife edges cross a 1/8"'" plane. The 401 operates whether the cover is open or closed. A companion model manufactured by Hobart, the 401-S, has a cover interlock that stops the rollers when the cover is raised. However, by moving a magnet, this safety interlock is commonly defeated in practice, according to Newman, so that the companion model can also be operated with the cover raised. He indicated that operators generally raise the covers to increase production, but that a double interlock device would prevent this.

The 401-S is also equipped with an extension chute to be placed over the opening into which meat is fed. The specification sheets for the 401-S state that this chute keeps hands a safe distance from the tenderizing knives. The opening in the cover of the 401 is 1 5/8 inches wide, while most steaks are between 3/4 and 1 1/4 inches thick. Cuts of meat thicker than 1 1/2 inches are tenderized by raising the machine's cover and dangling the meat above the rollers until it is drawn into the blades. The opening on the extension chute of the 401-S is 1 1/4 inches. Newman testified that, in his opinion, the cover interlock switch in the 401-S did not impair its function, because the machine is designed to take even thick cube steaks, and that lengthening the extension chute of the 401-S by six inches would not compromise its usefulness.

Both the 401 and the 401-S were designed in 1956 and marketed in 1957. New York permitted only sale of the 401-S in that state because of the safety extension chute and the cover interlock switch. Hobart continued to manufacture the 401 until 1970. The successor model to the 401, the 403, was first manufactured in that year. The 403 has an extension chute and an interlock that cannot be mechanically defeated.

The particular machine involved in this case had been sold to the Hillman's Grocery store in Chicago, Illinois in April 1961. Defendant Certified Grocers later purchased it and the machine eventually found its way to the store that plaintiff's father and uncle subsequently purchased. The on-off toggle switch of the machine in question had been broken into the "on" position so that it could be stopped only by unplugging it. Mizyed testified that this tenderizer was not used by the store's union butchers but that he personally operated it 2-4 times per week.

Newman testified that he had retrofitted 200 to 300 food processing machines with safety devices. In the case of meat tenderizers this generally involved installing a switch to prevent the machine from operating with the cover raised, and occassionally adding an extension chute. Newman visited 2500 stores per year and saw that tenderizing machines lacking such a safety system were customarily operated with the cover raised and roller exposed. Newman testified that the 401 is generally used at the end of a counter in the meat processing area in open view of customers. Newman concluded that the Hobart model in question was unreasonably dangerous when it left the factory in 1961 because it did not have a safety switch to shut off the machine when the...