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Brinkman & Co. v. Nat'l Sponge Cushion





APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.


Plaintiffs L.D. Brinkman and Company-Midwest (Brinkman) and Klefstad Companies, Inc. (Klefstad) brought this product liability action against National Sponge Cushion Company (National Sponge) and its corporate successor, General Felt Industries, Inc. (General Felt). The trial court ordered separate trials, in the first of which judgment was entered on a jury verdict in favor of National Sponge and against plaintiffs. Subsequently, an order of summary judgment was entered in favor of General Felt on the basis that its liability, if any, was purely derivative.

On appeal, the issues presented are (1) whether the trial court improperly denied plaintiffs' motion for judgment n.o.v. against National Sponge; and (2) whether, in the event entry of judgment n.o.v. here for plaintiffs is not warranted, we should order a new trial against both defendants on one or more of the following grounds — (a) that the verdict was against the manifest weight of the evidence, (b) that the trial court erroneously denied the motion of Brinkman for a directed verdict on the question of assumption of risk, and (c) that incomplete impeachment and certain conduct of defense counsel deprived him of a fair trial.

This case arose from a fire which occurred in the main warehouse operated by Walter E. Selck and Company, Inc. (Selck), now known as Brinkman, a distributor of flooring products. Selck leased the warehouse from 7125 Gunnison Building Corporation, to which Klefstad is assignee, and among the products stored in it was sponge rubber carpet cushion manufactured by National Sponge. In the section of the building where the fire began, there were six storage racks. At the base of each such rack was a bin, and five of the bins contained rolls of National Sponge carpet cushion with other rolls stored elsewhere in the warehouse. Each roll measured approximately 18 to 20 inches in diameter and 54 inches wide and was wrapped first in paper and then in burlap, exactly as it had been shipped from National Sponge. Approximately 600 square feet of the carpet cushion was stored in this section of the building. Each of the storage racks had shelves approximately eight feet above the ground, upon which were stored rolls of Nafi padding (made of hair and burlap) and which were manufactured by another company. In terms of firefighting equipment, the warehouse had a sprinkler system, fire hose and alarm system, as well as at least 30 fire extinguishers located throughout the building.

It appears that a steel upright on one of the storage racks described above became bent, and Selck hired Peterson Welding Company to cut out the damaged part and replace it with a straight piece. On January 24, 1968, Allan Sims, a Peterson welder, arrived to perform the job. Before starting his work, he told Richard Cummings, a Selck employee, that some of the rolls would have to be removed from the area so the welding could begin. Bernard Johnson (Selck plant superintendent), who was also present, ordered Tom Kelly (another Selck employee) to remove the rolls from the bin at the bottom of the damaged rack as well as some other materials nearby. Then, when Sims said the area still was not suitable, a tarpaulin was spread around the area where the welding was to be done as well as over the rolls in the bin. Cummings then secured a fire extinguisher, which he held in his hands with the pin removed as Sims proceeded with the repair. In doing so, he climbed into the empty bin and, facing outward into an empty center aisle, began cutting into the upright. While he was working in the bin, Cummings saw a spark fly over Sims' shoulder and land on a roll of National Sponge carpet cushion which was not covered by the tarpaulin. In describing the events which followed, Cummings testified that the burlap wrapping on the roll "started like a bunch of sparklers on the Fourth of July"; that sparks were "jumping all over" onto other uncovered rolls; that he started spraying with the fire extinguisher but the flames spread; and that eventually the sponge rubber began to burn also. While, on cross-examination, he stated that he never actually saw the sponge rubber burning, he also stated that the entire bottom rack of sponge rubber was burning. Johnson testified that the flames he first saw were three to four inches above the surface of the padding and that the rubber was burning and not the burlap wrapping. Sims in turn testified that he did not see what was burning other than the burlap.

At any rate, from the testimony of all three, it appears that the fire spread at a very quick pace, with Cummings testifying that he had never seen a fire burn that rapidly, and Sims stating that while he had seen burlap burn before, this was the fastest fire he had ever observed. At some point, Cummings yelled, "Fire," and jumped up on some of the rolls and sprayed an extinguisher at the base of the flames. Sims had also attempted to fight the fire with an extinguisher, and Johnson — alerted by Cummings' verbal warning — telephoned the company operator and instructed her to call the fire department. According to Cummings, the warehouse sprinkler system activated in a couple of seconds, but the flames continued to spread, creating a great deal of black smoke and fumes. More Selck employees arrived to combat the fire by using every available extinguisher and a garden hose.

These efforts had no effect, however, and when the Norwood Fire Department arrived, the Selck men evacuated the building at Johnson's order. The firemen hooked up two engines and immediately called for assistance, and soon the Rosemont Fire Department arrived. After three hours, approximately one-half million gallons of water were applied to the blaze, and while the flames were temporarily extinguished on occasions, the rolls would soon reignite. Later, the firemen immersed the rolls in the loading dock which had been flooded with water but, upon removing them from the water, they again burst into flames. The fire was generally so persistent that it was necessary for the firemen to remain on the scene for three days. It caused extensive damage to the steel roof and supports, storage racks, as well as the goods stored in the warehouse, and it was necessary for Selck to interrupt its business operations while the building was being restored.

Brinkman and Klefstad brought suit against National Sponge and its corporate successor, General Felt. After several counts were dismissed, either on motion or by agreement, plaintiffs' sixth amended complaint alleged that the sponge rubber padding, excluding the burlap and paper wrapping, was in a defective condition and unreasonably dangerous in that it was easily ignited, burned at a rapid rate, was inextinguishable by conventional methods once it began to burn, and bore no warning concerning these characteristics. The complaint also alleged that, as a proximate result of the unreasonably dangerous condition of the padding, it ignited and burned in such a manner as to cause property damage, interruption of business and lost profits to Brinkman in the amount of $880,431.20, as well as property damage to Klefstad in the amount of $86,580.65. Defendant National Sponge raised the affirmative defense of assumption of risk against both plaintiffs, alleging that plaintiffs had knowledge that the padding was flammable but nevertheless allowed welding in the vicinity of the padding without removing the padding or otherwise preventing its ignition. Such conduct, they asserted, was the proximate cause of the damages occasioned to plaintiffs.

At the close of the evidence, plaintiffs moved for a directed verdict on the question of assumption of risk, and the trial court granted the motion as to Klefstad only. The jury then returned a verdict in favor of National Sponge, and judgment was entered thereon. Plaintiffs' alternative motion for judgment n.o.v. or for a new trial was denied, and the trial court then entered summary judgment in favor of General Felt on the basis that its liability was solely derivative to that of National Sponge.


We first examine plaintiffs' contention that the verdict was against the manifest weight of the evidence and that the trial court should have granted their motion for a new trial. A new trial is warranted if the verdict is contrary to the manifest weight of the evidence (Mizowek v. DeFranco (1976), 64 Ill.2d 303, 356 N.E.2d 32; Carman v. Dippold (1978), 63 Ill. App.3d 419, 379 N.E.2d 1365), and a verdict is properly viewed as such where an opposite conclusion is clearly evident or if the verdict appears palpably erroneous (Bouillon v. Harry Gill Co. (1973), 15 Ill. App.3d 45, 301 N.E.2d 627). Further, the fact that we or the trial judge may reach a conclusion different from that of the jury is of no significance. Rhodes v. Oliva (1973), 13 Ill. App.3d 849, 301 N.E.2d 126.

Plaintiffs alleged in their complaint that defendants' sponge rubber padding was defective and unreasonably dangerous in that it was easily ignited; that it burned at a rapid rate; that it was inextinguishable by conventional methods once it began to burn; and that it contained no warnings as to its extreme flammability. It is unclear as to whether the fire started in the padding (the product alleged to be unreasonably dangerous) or in the wrapping (not a subject of this suit). Johnson testified that the padding began to burn immediately and it did not appear to him that the wrapping was burning. Cummings, however, testified that the wrapping burned "like a bunch of sparklers on the Fourth of July" and that these sparks "jumped all over" onto other rolls; but, he admitted on cross-examination that he did not actually observe the padding burn. Further, Sims stated that it first seemed "like a burlap was burning" and, when asked whether anything within the rolls was burning, he responded, "I just seen a fire." There was, however, uncontradicted testimony that the fire, once it commenced, burned at a very rapid pace. Cummings stated that the fire spread the full length of the warehouse aisles in one or two minutes and that he had never seen a fire spread so quickly. Sims likewise testified that it was the fastest developing fire he had ever seen. Equally, the evidence seems to be uncontradicted that the padding, once ignited, was virtually inextinguishable by conventional means. Cummings stated that he immediately sprayed the base of the flames with the fire extinguisher when the fire began and that the sprinkler system soon activated, but that neither action had much effect. Johnson testified that about eight Selck employees attempted to battle the fire, using all available fire extinguishers as well as a garden hose. Walter Schoenfield, Chief of the Norwood Fire Department, testified that he was at the scene of the fire; that it was necessary for firemen to stay at the scene for three days to extinguish the fire; that after spraying the rolls with water they would reignite spontaneously; that the rolls were immersed in a flooded loading dock but that upon removal therefrom they reignited; and that in his 31 years on the fire department, he had never seen anything harder to extinguish than the fire in the rolls.

Dr. Malcolm Reider, an expert witness for plaintiff, testified that he is a chemist — owning two research and testing firms; that he conducted various tests on samples of sponge rubber padding manufactured by defendant at the time of the fire; that his tests showed the padding would ignite spontaneously upon being exposed to heat without actually coming in contact with the flame; that the product was "exceedingly flammable" and once ignited "did not show any tendency toward self-extinguishment"; that based on his research in the area of consumer products, the purchaser of such padding would be unaware of these characteristics; that several fire retardants were available to defendant in 1967 which could have been added to decrease the extreme flammability of the padding; that in his opinion the padding should have contained a warning, advising that it was extremely combustible and could not be extinguished by ordinary methods — such as water or carbon dioxide extinguishers; and that, in his opinion, the product was "exceptionally dangerous and hazardous."

Defendant offered no expert testimony to contradict Dr. Reider's opinions, but did introduce an evidence deposition of Mark Robbins in which he testified that he worked as a chemist for National Sponge at the time of the fire. While admitting he was not a flammability expert, Robbins said that he had conducted tests on defendant's product as well as those of competitors and found no differences among them; that it was common knowledge in the sponge rubber industry that padding burns; and that, in his opinion, "the material for which it was designed to be used was not dangerous or hazardous." He stated also that in 1970, after a fire at a nursing home, the Federal Government required sponge rubber ...

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