APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT L. GAGEN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This cause of action was brought by the plaintiffs, Marie Buehler, Gerrell Forth, and the First National Bank of Belleville as guardian of the estates of Richard Buehler and Michael Buehler, minors, for burn injuries which were sustained following an automobile collision wherein all the plaintiffs, except Gerrell Forth, were passengers in a vehicle manufactured by defendant Ford Motor Company (hereafter Ford). The vehicle burst into flames upon being struck in the left rear by defendant, Debra Goodman Whalen (hereafter Whalen). Gerrell Forth was burned in effecting a rescue of the passengers of the impacted car. Plaintiffs alleged strict liability in tort for a defective design against Ford and negligence against Whalen.
From the judgment entered by the circuit court of St. Clair County on jury verdicts in favor of the plaintiffs, each defendant appeals.
The issues presented by Ford for review are: that the plaintiffs' case against Ford was pleaded and tried on an erroneous theory; that as a matter of law it owed the plaintiffs no duty to design an automobile that would not have burned them under the facts of this case; that the plaintiffs failed to sustain their burden of proof that any design defect proximately caused their injuries; that the jury verdicts against Ford were against the manifest weight of the evidence; and that certain prejudicial trial errors, which will later be enumerated, mandate a new trial.
The issues presented by Whalen are: that as a matter of law her negligence had not proximately caused the plaintiffs' burns; that the trial court erred in instructing the jury on the issues of proximate cause and damages; and that the trial court erred in failing to enter a judgment against Ford as a sanction for its failure to comply with a discovery order.
On January 3, 1971, at approximately 4:20 p.m., the Rudolph Buehler family was returning to their home in their automobile, a 1966 Ford Fairlane sedan. They stopped at a gas station in Carlyle, Illinois, and had the fuel tank filled to within two or three inches from the top of the gas tank's filler spout. After the gas cap was secured to the filler neck, they then proceeded homeward, by traveling south on Illinois Route 127 until they came to their driveway, which intersects the highway. Route 127 is a two-lane highway which runs in a north-south direction; at that time the posted speed limit was 65 miles per hour and the road surface was wet from a recent shower. The Buehler residence was east of the highway and the collision occurred as they were making a left turn from the highway onto their driveway.
As Rudolph Buehler, the driver, approached his driveway he put his left turn signal on about 300-400 yards in front of it. He reduced his speed to 10-15 miles per hour and ultimately to three to five miles per hour. A line of five cars formed behind the Buehler auto. The last car in the line was that of Whalen. She entered the north-bound lane and proceeded to pass all the cars in the line.
Buehler had made a 30° to 40° angle left turn and his auto was one-half to two-thirds onto the driveway upon being struck by the Whalen vehicle. Whalen testified that she was two car lengths behind Buehler when she became aware of his intention to turn. She estimated her speed as 65 miles per hour. She hit her brakes and started to pump them. She tried to miss the Buehler auto by swerving right, back into the south-bound lane. The left front of Whalen's auto struck the left rear of the Buehler car. Plaintiff Gerrell Forth, who was driving one of the cars in line behind the Buehlers, estimated that the impact speed of Whalen's car was 30 miles per hour. Upon impact, fire was immediately seen by occurrence witnesses inside the passenger compartment of the Buehler auto and coming out of the center of the back bumper. The trunk lid was closed and the windows were rolled up at this time. Mrs. Marie Buehler, one of the plaintiffs, who was riding in the front seat, smelled gasoline upon impact and saw flames engulf the back seat area where her niece and sons were riding.
After impact the Buehler auto spun into a ditch bordering the highway and it came to a rest approximately 35 feet south of the driveway; it was lying on its right side and pointing southward. The windows had not broken. Plaintiff Gerrell Forth was the first person to approach the Buehler auto. With the aid of others who arrived, he righted the auto back onto its wheels. He then helped the passengers out of the car. From the time of the impact to the time the last living person left the burning auto, only 45-60 seconds had elapsed. Gerrell Forth was burned while helping Michael Buehler out of the rear door and into the water in the ditch. Due to the intense fire he was unable to rescue the Buehler's niece in time. He testified that he only saw fire in the interior of the auto. Several of the firemen who arrived at the scene thought that the fire was of a gasoline origin. It was stipulated by the parties that all of plaintiffs' injuries were burns and there was testimony to the effect that these burns were of a gasoline origin.
The vehicle driven by the Buehlers was a 1966 Ford Fairlane. This vehicle was one of several Ford cars that, since 1960, had been equipped with a flange mounted fuel tank. The flange mounted tank is different from strap mounted tanks used on other cars in that the top of the flange mounted tank serves as the floor of the trunk whereas the strap mounted tank is placed beneath the floor of the trunk and is therefore separated from the trunk compartment. The flange mounted tank is also screwed into place and it is held rigidly to the car structure whereas the strap mounted tank is held by metal bands which allow it to be displaced to some extent under stress.
The tank's nonflexible gas filler spout runs through the luggage compartment to a license plate bracket above the bumper. The flange of the tank is about two and one-half inches from the bumper while the rear of the tank itself is four inches from the bumper.
The flange mounted tank was not used in American cars prior to 1960. In that year Ford began using that type of tank in some of its cars. General Motors and Chrysler stayed with the strap mounted tank. Since 1970 Ford changed back to strap mounted tanks for all its automobiles.
In the 1966 Ford Fairlane, the only shield separating the trunk compartment, where the fuel tank and filler spout are located, from the passenger compartment, is a fiberboard panel and the rear seat padding. It was undisputed that neither of these materials significantly limit the passage of fire.
After the collision, the gas cap to the Buehler auto was found near the scene of the impact. The ears to the cap, which secure it to the filler spout, were missing. Similar ears were found inside the Buehler's fuel tank. The filler spout was found to be no longer extending through the opening in the license bracket area, but was instead below the bumper or about flush with it.
Plaintiffs' expert witness, Paul O'Shea, testified on the basis of viewing the impacted auto and a crash test he conducted. O'Shea believed that a firewall isolating the passenger compartment from the trunk would have provided sufficient time to allow an escape from the burning vehicle. But the fiberboard panel in the 1966 Ford Fairlane did not seal the passenger compartment. He testified that 50 percent of all collisions are rear-end collisions, and that one-half percent of all collisions result in fire. O'Shea was of the opinion that the collision in question was a rear-end collision with an angle of impact of 30°-35° and at an impact speed of 35 miles per hour. The crash test demonstrated that on a rear-end impact the filler spout is displaced into the trunk and he concluded that the gas cap could have come off on impact.
Plaintiffs' expert witness, William Eddie, was of the opinion that the escape of gasoline was due to the force created by the sudden configuration change of the fuel tank and that the force of the gasoline broke the gas cap off.
Defendant Whalen's expert, Derwyn Severy, corroborated the testimony of the plaintiffs' experts. In his opinion the propinquity of the fuel tank to the rear of the car, the location of the filler spout in the trunk and the lack of a sufficient barrier between the passenger compartment and the fuel system exposed the passengers to fire and were defects. In his view, upon impact the filler spout moved into the trunk while stripping the gas cap off and fuel was atomized and spewn into the passenger compartment. This was ignited by sparks from the impact. In his opinion a firewall would have substantially reduced or prevented the plaintiffs' injuries. He testified that a firewall could have been added to the 1966 Ford Fairlane at a cost of $1 and one-half hour of labor time. Prior to the collision, Severy had recommended to the industry that such a firewall be added.
Ford's expert witness, Gilford Gorker, testified that 70 percent of all collisions are frontal and five or six percent are rear-end impacts. Side impacts constitute an even lower percentage of over-all collisions. In his opinion the Buehler collision was primarily a side impact and that the gas cap had remained on the filler spout. He believed that the fire in this collision came from outside of the vehicle and that no fuel had entered the trunk compartment. He estimated the impact speed was 45 miles per hour and he denied that it was possible to build a firewall at a cheap cost.
The testimony of Ford's experts, Ralph Barnett and John Kennedy, corroborated parts of Gorker's testimony although Barnett placed the impact speed around 30 miles per hour. On the basis of a test he conducted, Kennedy testified that fire could be transmitted from the exterior to the passenger compartment within 35 seconds.
• 1 Ford first contends that the plaintiffs' amended pleadings sought recovery from Ford on an erroneous theory of strict liability in tort for a negligent design. Citing Mieher v. Brown, 3 Ill. App.3d 802, 278 N.E.2d 869, rev'd on other grounds, 54 Ill.2d 539, 301 N.E.2d 307, Ford concludes that the amended complaint failed to state a cause of action for strict liability.
Though there is no cause of action of strict liability in tort for a negligent design; there is a cause of action of strict liability in tort for a defective design. (Wright v. Massey-Harris, Inc., 68 Ill. App.2d 70, 215 N.E.2d 465; Allen v. Kewanee Machinery & Conveyor Co., 23 Ill. App.3d 158, 318 N.E.2d 696; Nanda v. Ford Motor Co. (7th Cir. 1974), 509 F.2d 213.) The plaintiffs' amended complaint alleged that certain specified design defects made the Buehler automobile unreasonably dangerous, that these design ...