APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE P. HICKEY, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The plaintiff, Patrick J. Millette, injured in an automobile accident, sued the driver of the other vehicle, the manufacturer and the dealer of the car. The driver counterclaimed against the other defendants for the loss of the vehicle. The jury returned a verdict for the plaintiff and against all defendants and for the driver and against the manufacturer and dealer. All the defendants have appealed.
The occurrence giving rise to this litigation took place on December 6, 1972, in the southbound lanes of the Calumet Expressway. At the point of occurrence the Calumet Expressway consists of three southbound lanes with a guardrail separating the southbound lanes from the median strip and the northbound lanes.
The plaintiff was driving a Ryder trailer truck in the center lane. Defendant, Thomas Radosta, was driving a 1972 Plymouth Cricket manufactured by Chrysler Corporation (Chrysler) and sold by Des Plaines Chrysler-Plymouth Sales, Inc. (Des Plaines), in the center lane behind the plaintiff. Radosta decided to pass plaintiff's truck by leaving the center lane and proceeding in the left lane closest to the median strip. After leaving the center lane and beginning to travel in the left lane Radosta lost control of the automobile. The vehicle bounced off of the guardrail at least twice, collided with plaintiff's truck and knocked the tractor and trailer sideways on the expressway.
In count I of his complaint, the plaintiff alleged that Radosta was guilty of certain acts of negligence which proximately caused the accident including, inter alia, failure to keep under proper control a vehicle which he knew or should have known contained a defect in the steering system which could cause loss of control of the vehicle.
In count II plaintiff alleged that Chrysler, the manufacturer, designed and distributed an automobile which was in an unreasonably dangerous condition when it left Chrysler's control.
Count III alleged that the dealer, Des Plaines Chrysler, had distributed and sold an unreasonably dangerous product.
In count IV plaintiff charged Des Plaines with neglience in failing to replace the defective component or warn Radosta not to drive the car.
Count V alleged that Chrysler was guilty of willful and wanton conduct in that it possessed actual knowledge that the rack rod and/or rack gear housing were defective yet did nothing to remedy the situation.
Radosta counterclaimed against Des Plaines and Chrysler alleging in count I that Chrysler and Des Plaines had distributed an unreasonably dangerous automobile to Radosta and in count II that Chrysler and Des Plaines were guilty of negligence in that they failed to warn Radosta that the steering system could fail prior to replacement of the recall parts; failed to advise Radosta not to drive his vehicle; failed to remove the defective components and replace them; failed to provide Radosta with a replacement vehicle.
The plaintiff called Thomas Radosta as a witness under section 60 of the Illinois Civil Practice Act.
He purchased a 1972 Plymouth Cricket in May 1972 from Des Plaines Chrysler-Plymouth. The vehicle, which did not have power steering, had 11,000 miles on it at the time of the accident.
The accident occurred on a clear, cold day as Radosta traveled south on the Calumet Expressway. There was no snow or ice on the traveled portion of the pavement, but there was an inch of snow and ice on the shoulder. The ice and snow did not extend more than a foot west of the east guardrail. From the time he began driving on the expressway on the day of the accident until the accident occurred he did not encounter deep chuck holes or fixed objects. A few months before he had hit a hole (or hill) which knocked the muffler off. However, until the accident occurred Radosta had not experienced any difficulty with the steering but had always found it responsive. Likewise, in negotiating a curve shortly before the accident and in changing lanes just prior to the accident, Radosta did not experience any difficulty with the vehicle. Plaintiff's truck, with which Radosta ultimately collided, was about 500 feet ahead of his vehicle in the center lane. Radosta was traveling 55 to 60 miles per hour, and the truck was traveling 50 miles per hour. There were no vehicles in the left lane either ahead of or behind Radosta so he made a slight movement to the left with the steering wheel in order to move into the left (east) lane to pass the truck. Just as he attempted this movement, the car "took off to the left" at a 90-degree angle and almost made a left hand turn. Radosta did not hear anything unusual and had not made any motion to accomplish such a turn. The car was simply steering itself.
Radosta attempted to move the steering wheel but it would move only a half inch. The front of the Radosta vehicle hit the median strip guardrail, bounced off and veered toward the rear tire of plaintiff's trailer truck. He tried to apply his brakes and get control of the wheel, but the wheel could be moved only one-half turn to the left. The car did not respond right away but continued to approach the rear of the truck.
Then the car made another abrupt left-hand turn of approximately 75 degrees. This was not a result of his turning the wheel since he was turning it back to the right when it occurred. However he was able to turn it only a quarter of a turn. After that the wheel was substantially frozen in place.
The vehicle hit the guardrail a second time, bounced off and the right passenger side struck the front of plaintiff's truck. The Radosta vehicle was pushed by the impact and skidded southbound. The car came to rest partly on the shoulder and partly on the far right (west) lane and was facing west. The engine died, but Radosta had not turned off the ignition and had not changed gears. After the car came to rest on the right shoulder Radosta did not touch the key of the car again and did not make any attempt to turn the steering wheel. He just left the key in the steering column.
Radosta could not remember if the wheels on the car struck the ice and snow on the shoulder at any time during the occurrence. He denied that his wheels went up on ice and snow as he approached the truck. Radosta observed the vehicle on December 7 and December 8 but made no attempt to move the steering wheel. After December 8 he did not see the car again and at the time of trial did not know where the car was.
Over objection of Chrysler and Des Plaines the trial court admitted into evidence a Chrysler recall letter received by Radosta in August. The recall letter stated:
Our records indicate that you have purchased a 1971 or 1972 Cricket which has the vehicle identification number appearing on the enclosed form. This letter is sent to you pursuant to the requirements of the National Traffic and Motor Vehicle Safety Act. We have determined that it is possible to damage the `rack and pinion' steering system on your car if the car is subjected to particular road and driving conditions. Severe or repeated impacts of an unusual nature, such as hitting a large chuckhole or washout at medium speed with the brakes applied, may cause a bend in the steering gear rack. Impacting high curbings in a severe manner may also cause a similar bend condition. Such repeated bending could increase steering effort, and that effort would be higher for left turns than for right turns. If left unattended, it could eventually result in a loss of steering control.
Since the possibility of damage has been established, however remote, Chrysler Corporation wishes to modify your vehicle so that such a problem cannot occur. Modified steering assemblies are being fabricated and will be supplied to dealers as rapidly as possible. While the condition may not be of immediate concern, it may occur, and we urge you to heed this notice.
Until parts are available, we ask that you pay particular attention to any increased effort you may encounter in your steering. If you feel that there is any problem, contact your selling dealer immediately and arrange for an inspection of your vehicle. He will make any adjustment or correction that may be necessary at no charge to you.
When the modified steering assemblies arrive at the dealerships, you will be contacted and an appointment will be arranged to replace the steering assembly on your car, again at no charge to you. It is expected that all parts will be at dealerships by September 30, 1972; if your dealer has not contacted you by this date, please contact him and make an appointment.
We regret the necessity for this corrective action and any inconvenience it may cause; however, we are taking this action in the interest of your safety and continued satisfaction with your vehicle.
We will appreciate your cooperation."
Radosta went to Des Plaines several days after receiving the letter and again about a month later in October but each time he was told they did not have the part in stock. He went back the Monday before the accident, was told the part was still not in stock but that they had checked the car, everything was all right, and Radosta should not worry about it. He was not told to cease driving it, and Radosta continued to use it because he thought there was no major problem.
Radosta could not recall being at Des Plaines on November 27, 1972, did not remember if he met with a Mr. John Lee, and could not recall whether he had talked to Mr. Lee about the steering on his vehicle.
Holloman, who had been driving southbound directly behind the plaintiff, testified that Radosta passed him in the left lane closest to the shoulder at an estimated speed of at least 65 miles an hour, proceeding without any problem in a straight, orderly fashion. After passing Holloman Radosta's car went left toward the median. This did not appear to be a sudden movement, and at no time did he see the car make a 90-degree turn. It came back onto the highway. Holloman thought Radosta then had it under control because he went a few feet in a straight line. However the car then went to the left and hit the guard rail again. It came back out again, went back in and hit the guardrail for the third time. This time it came out and "clobbered" the plaintiff's truck.
Holloman testified that each time the car skidded, the wheels were cut in the direction of the skid, like the man knew what he was doing. However he could not see Radosta's hands.
Holloman also stated that the shoulder of the expressway was covered with one inch of ice and snow which extended all the way from the guardrail to the lane designation line indicating the eastern side of the lane. The ice did not cross the lane designation mark. When the car skidded off, it went onto the ice; however, when it came back on the highway, it was on dry pavement.
The plaintiff Millette testified that on the day of the accident he was driving his truck southbound on the Calumet Expressway at 50 miles per hour. While traveling in the center lane he glanced off to the left and saw the Radosta vehicle on the left shoulder heading straight out toward his truck. He saw Radosta tightly holding the steering wheel as if he was trying to steer, but did not see the wheel move. Within a split second the Radosta vehicle shot diagonally across the expressway and collided with plaintiff's truck. Plaintiff did not observe the Radosta vehicle strike any other object prior to striking his truck.
Yankovich, an Illinois State Trooper who investigated the accident, testified, over Chrysler and Des Plaines' objection, that Radosta told him that it felt like his steering mechanism locked while he was operating the vehicle. Because of this statement Yankovich decided to test the steering of the vehicle. He tried several times to move the steering wheel to the right and the left but could not do so.
Dr. Carl Uzgiris, a registered professional engineer in Illinois, then testified for Radosta. He had designed racing vehicles, racing equipment, and mobile vehicles. He was familiar with what constitutes a defect in metal casting. He first inspected the automobile on February 16, 1973, and some of his testing was done at a later date. He did not know what had occurred to the vehicle from the day of the accident until his initial inspection.
Uzgiris dismounted the steering mechanism and removed its component parts. He saw no signs that the mechanism had been tempered with or replaced. After the steering components were removed they were measured and examined visually and microscopically. Professor Higgins, the department chairman of metallurgy at IIT, assisted in evaluating the steering components. He examined the rack bar from a metallurgical point of view and prepared a report for Uzgiris. Various conclusions were made in Professor Higgins' report and the entire report was appended to Uzgiris' report as a basis for Uzgiris' metallurgical observations. Uzgiris drew similar conclusions. He denied that he was not qualified to formulate the conclusions or do the work done by Professor Higgins. He did discuss the findings with Professor Higgins and did rely upon them. Uzgiris concluded that all of the unusual damage that he noted could be related to the accident with the exception of the steering gear rack and pinion.
Uzgiris' findings concerning the steering components were:
1. The rack bar was bent in two places. It was bent downward .007 of an inch and bent forward .028 of an inch. Superimposed on the downward bend was a backward bend of .057. The two bends would be considered abnormal and would lead to mismating of the gear teeth and result in abnormal function of the gear teeth. Sometimes more effort would be required to move the teeth, and in the extreme the effort to move the teeth would be large.
2. At the apex of the bend on the rack rod the surface material was not smooth and heat discoloration was visible. The apex contained a band of pits and grooves which is equivalent to the situation which exists if one welds two pieces of rod together and then smooths it up by grinding. The pitted appearance of the rod would be characterized as a defect.
3. In the tooth portion of the rod there were longitudinal abrasions along the bottom tooth ends as if one attempted to file the teeth. Additionally, there was an irregularity of the left tooth corner on the left portion of the rack which is the area of the rack that mates with the pinion upon a left turn. The left corner of the tooth bottom would be considered a mechanical defect which reduced the lips on the teeth. The file marks appear to ...