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Bouillon v. Harry Gill Co.

SEPTEMBER 28, 1973.

MARK BOUILLON, PLAINTIFF-APPELLANT,

v.

THE HARRY GILL COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. WILLIAM P. FLEMING, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 5, 1973.

Plaintiff was injured while practicing "pole vaulting" on the athletic fields of and under the supervision of defendant Litchfield Public School District No. 12, with pole vaulting "standards" manufactured and sold by defendant manufacturer The Harry Gill Company. Plaintiff brought this action to recover damages for personal injuries. The action against the Manufacturer was based on strict liability for the allegedly defective design of the pole vaulting standards; while the action against the School District was based on its alleged negligence and wilful and wanton misconduct. The jury returned a verdict for both defendants upon which judgment was entered.

The accident which gave rise to this lawsuit occurred on April 20, 1961. Plaintiff Mark Bouillon was a 12-year old seventh grade student at Litchfield Junior High School "trying out" for the school track team. He was a beginning pole vaulter, having attempted only 40 or 50 vaults in the previous one and one-half weeks. He was in a group of beginning vaulters who were taking turns attempting to vault a six-foot-high crossbar. The crossbar was placed on two standards which were between 10 and 15 feet apart. Each standard had a round, cast iron base weighing 17 pounds, and upright vertical components weighing 23 1/2 pounds. Most witnesses testified that the basis of the standards were placed on concrete blocks flush with or slightly lower than the ground level, but the coach testified that they were not placed on concrete blocks. Several witnesses testified that the blocks were not large enough to hold the entire base of the standards. There was also conflicting testimony as to whether these blocks were cracked, rough or uneven so as to cause the standards to be wobbly. Some witnesses testified that the standards were wobbly but that they did not notice any wobbliness the day of the accident. Other witnesses thought the uneven blocks caused the unstable standards to fall sometimes, but not necessarily this time. There was also testimony that a defect in one of the standards could cause it to be unstable. There were conflicts in testimony as to whether wooden pegs had been taped to the standards to hold the crossbar at a lower level for beginning vaulters, and what effect this would have on the stability of the standards. There were also conflicts in testimony as to whether tape had been placed on the pegs which support the crossbar, and if so, whether this affected the safety of the vaulters in various situations.

Witnesses who saw the accident varied in their accounts of what happened. Plaintiff made a proper approach to the bar. Several witnesses testified that his vault carried him to the right side of the center of the crossbar. Testimony conflicted as to whether plaintiff cleared or hit the crossbar, whether he released the pole backwards or "rode the pole through" the crossbar, and whether the pole hit either standard or whether the pole hit the standard on the right-hand side. The right-hand side standard fell into the landing pit. Testimony conflicted as to whether the standard fell because of the crossbar being hit, because the pole hit the standard, because the standard was wobbly, or because of a combination of these factors. Plaintiff landed on his stomach in the pit, and the standard landed on him in such a way that a steel peg (used to support the crossbar) pierced the back of his head, resulting in serious injury.

Experts for plaintiff and defendants gave conflicting testimony concerning the safe weight for the base of the standards and whether some material other than steel would make safer pins. In general, the witnesses for the plaintiff claimed that the base of the standard should have been heavier and that some material such as rubber or plastic should have been used for the pins instead of steel. Defendant's experts in general testified that the weight of the base of the standard was appropriate and safe and that the use of steel pins was reasonable and appropriate in accordance with the use to be made of the standards. Plaintiff contends that the verdict in favor of The Harry Gill Company was against the manifest weight of the evidence.

• 1-4 The doctrine of strict liability, at least as applied to products other than food and drugs, was introduced by the case of Suvada v. White Motor Co., 51 Ill. App.2d 318, aff'd, 32 Ill.2d 612, 210 N.E.2d 182. A distinguishing feature of this doctrine, apart from its effect on the requirement of privity, is that it does not depend on proof of negligence. This does not mean, however, that a manufacturer is an insurer in all cases, since there must be proof that the injury or damage resulted from a condition of the product, and that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer's control. Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill.2d 339, 247 N.E.2d 401, held that products are defective which are dangerous because they fail to perform in a manner reasonably to be expected in light of their nature and intended function. That case also held that the question as to whether a defect exists and therefore whether a product is "unreasonably dangerous" is a factual question which is best left to the jury. Only where it is clearly evident that the jury verdict was palpably incorrect should the reviewing court disturb the verdict. (Corder v. Smothers, 86 Ill. App.2d 237.) Credibility of the witnesses and the weight and inferences to be drawn from the evidence are questions for the jury and not for the reviewing court to decide. (Palmer v. Poynter, 24 Ill. App.2d 68.) Generally, it is for the jury to determine conflict in the testimony of the experts. (O'Keefe v. Lithocolor Press, Inc., 49 Ill. App.2d 123.) In order for a verdict to be against the "manifest weight of evidence", it must appear that conclusions opposite to that reached by the jury must be clearly evident or that the verdict is palpably erroneous and wholly unwarranted by the manifest weight of the evidence. Allen v. Yancy, 57 Ill. App.2d 50.

In our opinion, the verdict was not against the manifest weight of the evidence.

• 5 Plaintiff also contends that the court erred in admitting expert testimony without sufficient facts being in evidence upon which to base an opinion. Defendant manufacturer's expert witness Don Laz, a mechanical engineer and expert pole vaulter, was asked questions about taping a peg onto a standard to hold a crossbar, including:

"Realizing this is an athletic event with a stick taped on the pole, will you tell us its effect in your judgment and in your opinion, its effect on bringing the standard down on somebody if you hit this crossbar under those circumstances?"

Over objection of counsel, he gave the following answer:

"Well, I think I know what to answer and this is in the event, to an upright or to a standard a stick is taped, I have the following opinion: No. 1, that the dislodging of this pin would be virtually impossible. I think that depending on the size of it, of course, it would probably be broken, that while it would be firmly fastened to the upright I feel that it could be jostled or moved somewhat. I feel that it's possible that some of the sticky side of the tape could be in contact with the cross-bar and because of that and perhaps the irregularity of such a pin that the ability to topple a standard would be increased."

Plaintiff cites the case of Marshall v. First American National Bank of Nashville, 91 Ill. App.2d 47, for the proposition that the opinion of an expert witness should constitute a definite and reasonably certain opinion of the witness and not mere conjecture, probability or speculation. This is a correct statement of law. However, we cannot agree with plaintiff's contention that this witness's testimony was speculation. In the Marshall case, there was no factual basis for the opinion of the experts. Here there were facts in evidence upon which he could base an opinion in regard to the effect of taping a stick to the standards. The plaintiff himself had introduced evidence that because the boys could not jump as high as the lowest steel peg for holding the crossbar on the standard, wooden pegs were taped to the bottom portions of the standards to hold the crossbar in a lower position. In fact, after giving his initial testimony, plaintiff's witness, Hammond, was recalled during the plaintiff's case and permitted to give an opinion, over objections by counsel for the manufacturer, with respect to the effect on the stability of the standards of a piece of wood taped to the standards. Thereafter, on cross-examination on the subject, the witness volunteered an opinion with respect to the performance, effect and stability of a wood piece taped on the standard. We find no error in the admission of this testimony.

Plaintiff also contends that the court erred in refusing plaintiff's tendered instruction No. ...


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