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Ferman v. Estwing Manufacturing Co.

JULY 25, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. REGINALD HOLZER, Judge, presiding.


Plaintiff brought a personal injury action against Estwing Manufacturing Company, herein after defendant, and Nelson E. Wieters. A jury verdict was returned in favor of both defendant and Wieters. The trial court denied plaintiff's motion for a new trial with regard to Wieters but granted it with regard to defendant. Pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1973, ch. 110A, par. 306) we granted defendant leave to appeal. The sole issue raised is that the court below abused its discretion in granting plaintiff's motion for a new trial against defendant.

While on a camping expedition supervised by Wieters, plaintiff had occasion to use a geologists' rock pick manufactured by defendant. During the course of this use, the pick allegedly shattered, and plaintiff was struck in the left eye by a particle. He was hospitalized and his eye was removed. As a result of this incident plaintiff brought a two-count personal-injury action. Count I alleged that defendant was strictly liable in tort due to the defective design and manufacture of the pick; Count II alleged that Wieters was liable due to his negligent supervision and instruction of the campers during the expedition.

It was adduced at trial that Wieters, who holds a masters degree in community recreation, organized and supervised an advanced camping program for teenagers who had progressed beyond more conventional camping experiences. Wieters called his program "Man and his Land." It consisted of a motor tour of the western United States during which the campers would engage in such activities as water skiing, scuba diving, horseback treks into the Grand Canyon, mountain climbing, river trips on rubber rafts and fossil hunting.

Plaintiff joined the expedition in June 1965. He was 15 years old and remained with the group until August 16, 1965, when the expedition reached Deadwood, South Dakota. In preparation for fossil and gem hunting activities to be conducted during the next 2 days, Wieters instructed the campers on the use of the rock pick. He told them to use the face end of the pick to break open the rocks, turning their heads away to avoid flying chips, and then the pointed end to pick out the gem or fossil. The picks were distributed before dinner. That evening, shortly after dark, plaintiff was seen in a gravel pit striking rocks with his pick, "making sparks." He felt a pain in his left eye, informed the camp nurse and Wieters and was taken to a hospital.

The picks were first distributed to the campers in June at approximately the time plaintiff joined the group and had been used to drive tent stakes. The blunt ends were used for this purpose. When not in use the picks were supposed to be returned to one of the vehicles in the expedition.

Basically, the pick was a 14-ounce piece of forged steel consisting of a handle and a head. One end of the head was blunt, the other was pointed. The pick was manufactured by first cutting steel bars into lengths and then forging them. The face and tip of the pick were hardened and tempered by alternately placing them in ovens and then salt baths. Plaintiff introduced expert testimony to the effect that the chemical composition of the particle taken from his eye was identical to that of the material found in the tip of the pick, that upon testing it was found that the metal used in the pick was of a harder level than that considered optimal for use in rock picks, that the brittleness of the pick was the result of improper tempering during its manufacture, and that a tip which is too hard and brittle is apt to chip. In addition, plaintiff introduced evidence that in 1967, defendant first began to apply warning decals to the picks bearing the following legend:

"Caution: Rock picks may chip when struck against formations or other surfaces harder than the pick. If face mushrooms or point wears down, grind off. For utmost safety, always wear Estwing safety goggles."

As early as 1956, defendant distributed brochures which recommended the wearing of safety goggles when working with the rock pick.

Defendant introduced expert testimony to the effect that the particle removed from plaintiff's eye was not of the identical chemical composition as that of the material found in the tip of the pick, and that shear fractures or planes had developed in the tip of the pick plaintiff was using. The microstructure of the metal within those planes had changed. These planes or "fractures were developed as a result of glancing blows on the pick end." When a glancing blow is struck with the pick on an abrasive surface, sparks would be seen. The material in the pick had the capability of allowing only a limited amount of planing before it would chip.

Following a jury verdict in favor of both defendant and Wieters, plaintiff filed a post-trial motion claiming, inter alia, that the verdict was against the manifest weight of the evidence, that the jury had been improperly instructed, and that he was prejudiced by extensive trial error. Following argument on the motion, the court granted plaintiff a new trial as to defendant only. The court provided a detailed finding setting forth the basis of his order. It stated that during the course of the proceedings the court noted that "at least one juror, by facial, bodily and indeed verbal expressions, became bored with and resentful of the litigation in general and the lawyers in particular." This juror's antipathy was directed most especially toward counsel for plaintiff. The juror refused to look at the lawyers or the witnesses, kept her eyes closed much of the time and "was heard audibly to groan more than once during the presentation of evidence."

The court stated that it brought this matter to the attention of counsel and, by agreement, brought the juror into chambers to inquire as to her health. She denied "any ill-being and requested to remain on the jury." The court twice raised the possibility of proceeding with only 11 jurors and once raised the possibility of declaring a mistrial. Counsel requested that the case proceed. By stipulation of counsel the court twice "remind[ed] the jury in open court of their duty." "It was with serious misgivings that [the] Court instructed the jury and sent them to the Deliberation Room at the close of the case." In conclusion, the court found that plaintiff "failed to raise a justiciable issue of fact for the determination of the jury against defendant, Wieters * * *." However, it found that "a justiciable issue of fact was raised * * * against defendant, Estwing Manufacturing Company, Inc., and that the verdict of the jury with regard to said Estwing Manufacturing Company, Inc., evidences a clear misunderstanding of the law in a products liability case, and/or a clear prejudice against the plaintiff."


Defendant contends that the trial court abused its discretion in ordering a new trial. In response, plaintiff has argued that the court's finding of juror misconduct constituted sufficient grounds for granting a new trial and that, moreover, the court's order was inferentially grounded on a ...

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