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Pitts v. Basile

JANUARY 13, 1965.




Appeal from the Circuit Court of Cook County; the Hon. ALEXANDER J. NAPOLI, Judge, presiding. Reversed and remanded with directions.


Rehearing denied January 27, 1965.

A verdict and judgment for $50,000 were entered in this negligence action against all defendants after a jury trial. The motion of Ambrose Maiers, d/b/a Pacific Toy House (hereinafter referred to as defendant), for judgment notwithstanding the verdict was allowed and plaintiff filed this appeal. Defendants Basile and Inzerillo, joint owners of the IGA Store, did not file post-trial motions and are not involved in the instant appeal.

On September 14, 1954, Lonnie Phillips, eight years old, went to the IGA Store at Newland and Grand Avenues in Chicago to obtain some darts. *fn1 He testified:

When I went into the store to get the dart, the dart was too high for me to reach. There was a man standing next to me. He walked up to me and said, "Can I help you?" I said, "I'd like that package up there." So, he took them down and asked if I had any money. I said, yes, and gave him twenty cents. He handed me the darts. . . .

There were no instructions as to the use of the dart contained in the package or anywhere connected with the package or on the dart.

The following day at about 5:00 p.m. the eight-year-old was throwing the darts toward the garage behind his home. Phillips acknowledged that one dart "rolled off my hand and struck Dale Pitts in the eye. He was about 5 to 10 feet off of my right hand at that time." Dale Pitts, aged six, said that just prior to the incident somebody had exclaimed, "Look out"; that he turned around and that the next thing he knew he was hit in the left eye by a dart. The damage to plaintiff's eye was described in his testimony and that of his physician, Dr. James Walsh. Dale Pitts claimed that he could perceive occasional light and darkness with his left eye; that he sometimes felt "a little pain in my left eye" after reading one to two hours.

Dr. Walsh stated that a cataract formed over the eye; that the eye had turned or crossed about 30 degrees; that the eye was out of focus; and that plaintiff was unable to use the central vision of his injured eye. The doctor opined that "this condition is permanent and directly related to the initial injury to the eye as a result of the dart penetration."

Defendant supplied the IGA Store with the packaged darts. He referred to his enterprise as that of "rack distributors . . . primarily a service operation whereby we take specific items and display them in a store for sale to the public." In 1954 the darts were "packaged in cellophane bags with a header attached to them so that they could be hung on hooks for display." Defendant further testified that the package, labeled "KIDDY TOY-PAK," was "something for a child, as a toy" and that such a rack display might prompt "impulse sales." On cross-examination he stated that prior to September 15, 1954, he did not instruct his salesmen "to warn or instruct the dealers or retailers not to sell this dart or darts to children."

Salvatore Inzerillo testified that his store stocked dart packages labelled "KIDDY TOY-PAK" in addition to 60 other items *fn2 supplied by defendant. He denied selling darts to Lonnie Phillips and Dale Pitts. His partner Basile "had nothing to do with the sale of darts." The cashier at the store on or about September 15, 1954, could not remember selling darts to Lonnie Phillips, or for that matter, selling any packaged darts whatsoever.

Plaintiff's appeal postulates the theory that the evidence, taken in the light most favorable to the plaintiff, demonstrated that defendant was guilty of actionable negligence towards the plaintiff and that the judgment notwithstanding the verdict should not have been granted. He argues:

1. That the supplier of toys, specifically designed and oriented to children, owed a duty (a) to exercise reasonable care in supplying toys which could be safely used by children for their designated purpose, or (b) to supply adequate warning as to the danger attending their indicated use.

2. That there was sufficient evidence to support a finding that defendant violated such duty.

3. That the issues on review of a judgment notwithstanding the verdict are whether there is a cause of action stated and whether there is any evidence tending to support the jury's verdict for the ...

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