APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
K. BERG, Judge, presiding.
MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
The plaintiff, Anthony Sipari, brought this action to recover for personal injuries he sustained when a golf cart, allegedly manufactured by defendant Club Car, Inc., and leased to plaintiff by defendant Villa Olivia Country Club, overturned and fell upon him. Plaintiff's suit is based on the doctrine of strict tort liability for the alleged defective design of the golf cart involved. During a jury trial in the circuit court of Cook County, the defendants' motions for directed verdicts in their favor were granted at the close of plaintiff's case. Plaintiff's post-trial motion was denied and he appeals.
To determine whether under the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504) the trial court properly directed verdicts for the defendants, this court must consider (1) whether the alleged exculpation clause in the rental trip ticket was a valid and enforceable bar to plaintiff's strict tort liability action against Villa Olivia Country Club, the lessor of the product; (2) whether "assumption of risk" was properly pleaded, and, under Pedrick, did the evidence here justify a directed verdict on this basis; (3) whether, under Pedrick, the evidence here justifies a directed verdict on the basis of "misuse"; and (4) whether the plaintiff proved, either directly or circumstantially, that defendant Club Car, Inc. manufactured the vehicle involved or sufficiently "held itself out" as manufacturer of that vehicle.
The facts are as follows: The plaintiff arrived on the premises of defendant Villa Olivia Country Club (hereinafter Villa Olivia or the country club) between 10 and 10:30 a.m. on September 4, 1970. On that date, Anthony Sipari was 57 years old. He had been a golfer for many years and had played the country club course several times each year for approximately 6 or 7 years prior to the accident. Plaintiff testified at trial that he had driven three-wheeled club cars with tiller-type steering at places other than Villa Olivia. Sipari was accompanied that morning by George Hanrahan, whom he was teaching to play golf. It was a "mucky and sticky" day. It had rained the night before and the grass was completely wet with a heavy dew. Sipari and Hanrahan entered the "pro shop" where a young woman was standing behind a counter. She asked them if they were going to play in a "twosome," and would they like to rent a cart. They replied affirmatively. According to Sipari, the young woman then presented a card, approximately 3 by 4 inches in size, and said, "Will you sign this for your deposit." Sipari testified that the rental fee for the car was $8, in addition to a $2 deposit. Plaintiff then signed the ticket and received a key to the golf cart.
The golf cart rented by plaintiff was a three-wheeled cart with tiller-bar steering. The tiller bar is a looped bar in front of the driver's seat which is connected to the shaft that is attached to the front wheel of the cart. The vehicle rented by plaintiff was a two-pedal model which bore the logo "Club Car, Augusta, Ga." The cart weighed approximately 800 pounds, with a load capacity of 700 pounds and a maximum speed of 12 miles per hour. All such three-wheeled club cars were 103 inches in length and 50 inches in width, with aluminum frames, and were battery operated. In his evidence deposition taken May 21, 1975, William Lindenmuth testified that he had been employed as manager of research and development for Club Car, Inc., for 2 years. Having joined the company in 1968, he did not participate in the formulation of design plans for the three-wheeled golf carts but began working as a designer for the company's experimental four-wheeled cart. According to Lindenmuth, the four-wheeled cart was first marketed in the fall of 1970 or early spring 1971. Club Car, Inc., ceased manufacturing and selling three-wheeled carts in 1971. The four-wheeled cart manufactured by Club Car, Inc. was known as the "Caroche" and had automotive-type steering. Lindenmuth testified that in his opinion the addition of a fourth wheel on a golf cart makes for greater stability.
After plaintiff rented the cart, he and his companion proceeded to play the course. Hanrahan drove the cart and plaintiff rode as his companion until they reached the 12th hole. Plaintiff "teed off" and his ball landed on the green of the 12th hole. Hanrahan "teed off"; however, his ball landed in the rough on the right side of the fairway. Hanrahan walked toward his ball, while plaintiff proceeded to drive the golf cart down the fairway toward the green. According to plaintiff, approximately 30 feet from the green the front of the cart went into a "concave form," the back of the cart elevated, forward motion stopped immediately, and he flew out. He was holding the tiller bar with both hands and the bar turned with him as he was thrown from the cart. He stated that the bar and the cart both went to the right, the direction in which he was thrown. Plaintiff landed on his back, and the cart rolled onto him. Apparently the vehicle was still moving, and plaintiff had to push the cart back to keep it from moving down on top of him. However, the cart was over his right ankle and part of his left foot. He stated that it was obvious his foot was broken, because when the cart was lifted his knee was facing straight up and his right foot remained flat, on an even level with the fairway. Plaintiff was then taken to St. Joseph's Hospital where he was placed in a cast that extended from his toe to his hip. He remained in the hospital approximately 3 1/2 weeks where he received therapy to restore movement in the right side of his body. Plaintiff testified that he suffered a great deal of pain, and when he returned to work approximately 3 months after the accident it was impossible for him to perform his job properly. At the time of the trial, plaintiff was no longer employed in his former capacity.
Raymond Schei testified that on the date of the accident he was employed by Villa Olivia as superintendent of the golf course. His duties included maintenance of the course and the purchase and maintenance of the golf carts. He stated that the carts owned by Villa Olivia at that time were all three-wheeled carts. Following the accident, Schei tested the cart involved. He was unable to find any defect in the brakes or steering. He stated that the area where he found the cart had no undulations or holes; it was a regular terrain with no ruts. Schei drove the cart after checking it.
Plaintiff's evidence at trial consisted of testimony by employees and officials of the defendants, indicating that the design of the three-wheeled club car could be defective; testimony concerning a prior accident at Villa Olivia; and expert testimony based upon a hypothetical question utilizing identical design features of the subject vehicle which indicated that all such vehicles were dangerous.
Evidence was elicited pertaining to the identity of the manufacturer of the vehicle involved. William Lindenmuth indicated in his testimony that the three-wheeled cart had been manufactured by Club Car, Inc. Phillip Corrado, president of Villa Olivia, testified that in September 1970, Villa Olivia owned 66 three-wheeled golf carts. All of these carts carried a "Club Car" insignia. He stated that the carts arrived from the Stevens factory in Georgia but was unable to testify to the full and correct name of their manufacturer. The carts had been purcased by Villa Olivia through Nickey Chevrolet or Nickey Rent-A-Car. Daniel Corrado, manager of Villa Olivia, testified that the cart rented to plaintiff on the morning of the accident had been manufactured by Stevens Appliance Truck Company. William P. Stevens, Jr., employed by defendant Stevens Appliance Truck Company, served as president of Club Car, Inc. from April 1969 to December 1973. In his evidence deposition, Stevens testified that defendant Stevens Appliance Truck Company had manufactured golf carts referred to as "Club Cars." He stated that all three-wheeled golf carts sold to Nickey Rent-A-Car prior to and including 1968 were manufactured by Stevens Appliance Truck Company. Robert Balfour, sales manager for the car division of Stevens, testified that he had been employed in this capacity since June 23, 1966. Balfour stated in his deposition that until April 1, 1969, Stevens Appliance Truck Company designated their golf carts with the insignia "Club Car, Augusta, Georgia" affixed to the exterior of each cart. Balfour also stated that Club Car, Inc., first came into existence on April 1, 1969, as a corporation separate from Stevens Appliance Truck Company.
The record reveals that Villa Olivia Country Club is an Illinois corporation, doing business at Bartlett, Illinois. Stevens Appliance Truck Company was chartered by the State of Georgia on January 4, 1960. Club Car, Inc., was incorporated in the State of Georgia on May 27, 1968. The incorporators of both Georgia corporations were members of the W.P. Stevens family of Augusta, Georgia. The officers, directors, and shareholders consisted primarily of family members. The locations of the physical plants of both corporations were identical and both used the same post office mail box. Apparently, subsequent to April 1, 1969, Club Car, Inc., leased its facilities from Stevens Appliance Truck Company which continued to own the buildings and land.
Plaintiff filed his amended complaint on September 1, 1972. Count I was directed against Villa Olivia, and count II was directed against the alleged manufacturer of the defectively designed golf cart, Club Car, Inc. Both counts sounded in strict liability. On May 16, 1975, Villa Olivia filed a counterclaim against defendant Club Car, Inc.; on July 1, 1975, Villa Olivia filed its third-party complaint against third-party defendant Stevens Appliance Truck Company.
At trial, the posture of Club Car, Inc., was essentially that it could not be held liable for plaintiff's injuries because plaintiff failed to prove that it manufactured the subject vehicle. Plaintiff contended that certain testimony of William Lindenmuth that of his own knowledge his employer did manufacture the golf cart was a judicial admission binding upon Club Car, Inc. However, the trial court struck this testimony in its entirety. Plaintiff then argued in the alternative that the evidence established that Club Car, Inc., had sufficiently held itself out as manufacturer for liability to attach. Plaintiff contended that sufficient facts were presented to raise a jury question on this issue. The trial court disagreed, however, and granted the motion for a directed verdict of defendant Club Car, Inc., and third-party defendant Stevens Appliance Truck Company.
Defendant Villa Olivia contended at trial, as it argues on appeal, that the exculpation clause embodied in the language of the rental ticket precludes its liability in the instant case. The country club asserted three affirmative defenses: (1) Assumption of risk, (2) misuse, and (3) the exculpation clause. The trial court granted Villa ...