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Becker v. Aquaslide `n' Dive Corp.





APPEAL from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding.


Rehearing denied February 25, 1976.

In plaintiffs' action framed in products liability, the jury returned a verdict in favor of defendants. Plaintiffs appeal the judgment entered upon the verdicts.

Issues raised upon appeal include error in evidentiary rulings, the giving of certain of defendants' instructions and the refusing of certain of the plaintiffs' instructions.

The plaintiff, Laurie Becker, suffered injuries which resulted in his becoming a quadriplegic. His wife, Patricia, seeks damages for loss of consortium. Since the initial issues concern liability we will speak of the former as plaintiff.

Defendant manufactured and sold a certain "Aquaslide," a form of slide to be installed for use with a swimming pool. One Hallbeck purchased and installed such a slide at his residence. Plaintiff, one of a number of guests of Hallbeck, descended the slide headfirst "in a racing dive," with his arms extended above his head so that his ears were against his biceps. Following his second descent, which plaintiff described as being made in the same manner, he was discovered floating face down a foot or so beneath the surface of the pool and unable to help himself. Others present observed plaintiff's position, raised his head and he was ultimately placed upon the side of the pool. Medical tests made at the pool disclosed the essential quadriplegia. At this time, or shortly thereafter, a lump or bruise was discovered at the vertex of the head.

No one of the 16 guests in or around the pool saw plaintiff in this descent of the slide. The parties disagree as to how the injury at the top of the head occurred and such became an issue for the jury.

Without detailed mechanical description, one using the slide in a headfirst position descended some 6 feet to exit from a lip of the slide which was between 20 and 21 inches above the surface of water in the pool, 3 feet in depth. It is plaintiff's theory that he entered the water and moved as in a somersault so as to strike the top of his head. The complaint charged, and plaintiff argues, that the slide as designed was unreasonably dangerous in that there was no attached warning that descending headfirst could result in serious injury, that the prescribed or recommended 3-foot water depth was inadequate for a headfirst descent and that there was no placard or notice affixed to the slide instructing as to its proper use.

The record discloses that plaintiff had been an amateur athlete of noticeable talent and that he had generally maintained his activity. He had had substantial experience in swimming including some 2 years of former employment as a life guard. He had not, however, engaged in frequent swimming during the last year.

Defendants argue that one descending the slide into 3 feet of water with arms held stretched above his head as described by plaintiffs could not strike his head as described upon the bottom of the pool. Defendants also presented evidence of the presence in the pool of one or more "floating chairs," together with an analysis by a physicist as to the amount of force with which one using the slide in the manner described might strike a "chair" with his head. Thereafter, a physician specializing in spinal injuries testified to an opinion that such force might cause the injuries in evidence.

Plaintiff urges reversible error in the admission into evidence of the two "floating chairs." The trial court ruled that there was some evidence that a chair was floating in the pool on the evening in question and that such evidence was admissible, even though the fact was disputed, so that there was a factual question for the jury.

Plaintiff urges that the testimony of Hallbeck, Posorske, Dilavou, Walter Baker and Mrs. Sodeman show that no "chairs" were in the pool. Hallbeck testified that his "chairs" were at the pool on that night but has no independent recollection that they were in the water. When assisting in the rescue of the plaintiff he did not see a "chair" in the vicinity. Posorske preceded the plaintiff down the slide and testified that "[t]he first time I ever recall seeing chairs was when I walked into the court room this afternoon." Dilavou testified that he never saw a "chair" in the pool. Mrs. Sodeman testified that she was on the ladder of the slide as plaintiff leaned across the top to descend headfirst. She climbed to the top and descended in a sitting position. To a question stated as to whether she saw anything "immediately below" or in the "immediate area" of the slide, she responded that she did not.

Defendant urges that there is evidence that chairs were in the pool. Plaintiff's witness, Baker, did not observe plaintiff on the slide. During cross-examination concerning his efforts to tip Mrs. Dilavou into the water, he agreed that she was apparently floating in one of the chairs. Louis Brant testified that he recalled seeing people floating in a "chair" in the pool, but he did not recall that he saw any chair in the area of the slide. Defendants emphasize the cross-examination of plaintiff. He testified to watching Hallbeck and Posorske descend the slide headfirst and Mrs. Sodeman descending in a sitting position. As to the latter he had testified that she was attempting to land in a plastic raft near the foot of the slide.

• 1 The record does not undertake to state any sequence or the time span of the activities of the several witnesses. This record discloses a contradiction in the testimony as to the presence of one or more "chairs" in the pool, and plaintiff's own testimony on cross-examination indicates that an object was at some time within a short distance from the lip of the slide. It is the function of the jury to weigh the contradictory evidence, to judge the credibility of the several witnesses and to draw the ultimate conclusion as to the facts. (Firestone v. R.H. Lincoln, Inc., 23 Ill. App.3d 320, 319 N.E.2d 60; Wisniewski v. City of Chicago, 20 Ill. App.3d 650, 315 N.E.2d 43, Oliver v. Peoples Gas Light & Coke Co., 5 Ill. App.3d 1093, 284 N.E.2d 432.) Based upon the record we agree with the trial court that there was some evidence that one or more of the "chairs" were in the pool prior to and at the time of the injury.

• 2 Plaintiff urges that the trial court erred in admitting into evidence the testimony of Dr. Harvey Stapleton, a research physicist, and Dr. Robert Jackson, a physician specializing in injuries to the spine. The former made both a theoretical analysis and experimental measurements of the speed with which a person descended the Aquaslide and calculated the force with which a person of plaintiff's height and weight would strike a "chair" in the water. There was no challenge of the qualification of Dr. Stapleton. His testimony was properly admitted at the discretion of the trial court as to a subject matter concerning which only persons of skill and experience are capable of forming a correct judgment. (Merchant's National Bank v. Elgin, Joliet & Eastern Ry. Co., 49 Ill.2d 118, 273 N.E.2d 809.) Upon a hypothetical question, Dr. Jackson testified to an opinion that the force generated by descending the slide so that a person struck his head upon a floating chair could "cause the injury sustained by the plaintiff". The testimony was admissible under the rule stated in Clifford-Jacobs Forging Co. v. Industrial Com., 19 Ill.2d 236, 242, 166 N.E.2d 582, 586; Wirth v. Industrial Com., 57 Ill.2d 475, 312 N.E.2d 593.

Plaintiff's essential argument directed to the testimony of Dr. Stapleton and Dr. Jackson is that there was no evidence of the presence of the "chairs" in the pool so that there was no foundation for the stating of the hypothetical question. He relies upon the rule stated in Marshall v. First American National Bank, 91 Ill. App.2d 47, 233 N.E.2d 430. That opinion is distinguishable for we have heretofore stated that the trial court did not err in determining that there was some evidence of the presence of a "chair" in the pool. ...

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