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Mareci v. General Motors

OPINION FILED NOVEMBER 5, 1980.

JUDITH ANN MARECI, PLAINTIFF-APPELLANT,

v.

GENERAL MOTORS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID CERDA, Judge, presiding. MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

On March 27, 1968, the plaintiff, Judith Ann Mareci, suffered personal injuries when the automobile which she was driving accelerated, went off the road and crashed into a brick building. The plaintiff brought this action against General Motors and one of its divisions, Rochester Products, alleging that they were strictly liable in tort because a defect in the design of the accelerator cable and/or the carburetor in her automobile caused the accident. The plaintiff further alleged that as a result of manufacturing defects, said products were not reasonably safe.

William Schvetz and J. Boin, individually and d/b/a/ Carmen-Lincoln Citgo Service (Citgo), the installers of the carburetor, also were named as defendants in the strict liability count. Count II alleged that these latter defendants were negligent in the servicing of the vehicle. Citgo filed a counterclaim against General Motors and Rochester Products and a third-party complaint against Car Care, Inc., from whom it purchased the carburetor.

At the close of the plaintiff's case the trial court entered a directed verdict in favor of all of the defendants. The plaintiff appeals. *fn1

On March 27, 1968, at approximately 5:30 p.m. the plaintiff was traveling west on Kennedy expressway in her 1965 Oldsmobile convertible. She exited at River Road (north) and was driving between 25 and 30 miles per hour. She testified that her car began to "hesitate," and she pressed the accelerator pedal to the floor. When the car began to accelerate, she removed her foot from the pedal. The car, however, continued to accelerate. Although the plaintiff lifted the accelerator pedal off the floor, the car did not slow down. At one point it was traveling 100 miles per hour. With her right hand the plaintiff reached down to the floor and discovered that the bar underneath the accelerator pedal was stuck to the floor. The plaintiff stated that she applied her brakes in an effort to slow down the car, but the car began to sway. She observed other vehicles ahead of her on the road and drove off the road into a vacant lot. The car went through a billboard, hit a parked car broadside and ultimately crashed into a brick building. The plaintiff's chest and head hit the steering wheel and she lost consciousness.

The plaintiff further testified that she purchased her car new in 1965. In 1967 the car began to hesitate upon acceleration. She took the car to Citgo, where Schvetz informed her that she should replace the carburetor. She instructed him to install a new carburetor and presumed that he did. Two weeks later she returned the car to Citgo for servicing with the same complaint. In February of 1968 she again returned to Citgo because of a recurrence of the hesitation problem. The plaintiff observed Schvetz make adjustments to the carburetor.

The plaintiff's attorney advised the court that Dr. Norman Dobin, the plaintiff's doctor, was hospitalized the evening before he was to testify. The attorney stated that the witness would be hospitalized for at least one week and made a motion for a continuance, which was denied. The trial court also denied the plaintiff's subsequent motion for mistrial.

The plaintiff called William Schvetz as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). He testified that in August of 1967 he installed in the plaintiff's automobile a Rochester carburetor which was purchased from Car Care, Inc. To the best of his knowledge it was a new carburetor; however, it would require an expert to determine the difference between a new and a rebuilt carburetor by appearance. After he installed the carburetor, Schvetz drove the automobile and ascertained that it operated properly. Schvetz denied receiving any complaints from the plaintiff or making adjustments on the carburetor subsequent to its installation.

The plaintiff called Davis Flesher, an employee of the Oldsmobile division of General Motors, as an adverse witness under section 60 (Ill. Rev. Stat. 1977, ch. 110, par. 60). Flesher was asked to examine the carburetor purportedly removed from the plaintiff's automobile. He identified it as a Rochester rebuilt carburetor containing parts manufactured by Rochester, as well as a numbr of replacement parts. Flesher testified that the accelerator pump rod and the throttle stop arm were Rochester parts and, except for a bend in the throttle stop arm, were in accordance with Rochester's original design.

Marvin Salzenstein, a consulting engineer, testified that on May 3, 1968, he went to 5521 River Road in Rosemont to inspect the plaintiff's automobile. As part of this inspection, Salzenstein examined the carburetor. The defendants objected to his testimony on the basis that no proper foundation was presented to establish that the carburetor was in the same condition on May 3 as it was on March 27, the date of the accident. The court sustained the objection.

In an offer of proof Salzenstein testified that he believed the carburetor was in the same condition on May 3 as it was on March 27. He based this opinion on the fact that the pattern of grease and dirt deposits on the carburetor was comparable to other parts of the automobile, on the fact that there was no evidence of tool marks on the carburetor and on the fact that all of the connections to the carburetor were intact.

Salzenstein further testified during the offer of proof that with one exception the accelerator pump rod of the carburetor was in accord with Rochester's specifications. He explained that in the plaintiff's carburetor, there was 6/1000 of an inch clearance between the throttle lever and the pump rod. The specifications, however, required 100/1000 of an inch clearance. Salzenstein concluded that the inadequate clearance caused the throttle lever and the pump rod to interfere with each other and that this condition existed at the time the carburetor was manufactured. He stated that neither the accident nor "the way the push [sic] rod had been handled" would have caused the inadequate clearance.

In response to a hypothetical question which set forth the plaintiff's version of the occurrence, Salzenstein stated he had an opinion concerning the cause of the accident. He concluded that when the plaintiff stepped on the pedal for acceleration, the throttle lever stuck in an open position because of the interference of the pump rod and the throttle lever. As a result, the automobile became uncontrollable. Salzenstein concluded that this pump rod's design and manufacture were defective and unreasonably dangerous.

At the close of the plaintiff's case the trial court directed verdicts in favor of all the defendants.

The plaintiff appeals contending that the trial court erred (1) in sustaining the defendants' objections to the testimony of the plaintiff's expert witness; (2) in denying the plaintiff's motion for a continuance when the plaintiff's medical witness was unable to ...


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