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Estate of Whittington v. Emdeko Housewares





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


Rehearing denied June 22, 1981.

Plaintiffs filed an action based on strict liability in tort against the manufacturer of heat detectors. Judgment was entered on the jury verdict in favor of defendants. Plaintiffs appeal.

On appeal, plaintiffs argue that (1) the trial court improperly excluded evidence of the cost of alternative design; (2) their witness was improperly impeached; (3) defendants' wilful noncompliance with discovery requests entitles them to a new trial; (4) the conduct of an adverse witness denied plaintiffs a fair trial; (5) defendants prejudicially injected concepts of contributory negligence; (6) defendants' expert witness improperly testified to the safety of instructions; (7) defense counsel's closing argument was improper and prejudicial; (8) a juror erroneously was permitted to take notes; and (9) the jury verdict was not supported by the evidence.

We affirm.

On April 1, 1974, four persons perished in a fire. An action was brought by the personal representatives of the deceased estates against, inter alia, the manufacturer of heat detectors which had been installed in the home where the fire occurred. The complaint charged that defendants improperly designed and manufactured the detectors and that the detectors were unreasonably dangerous when put to their foreseeable use. It further alleged that the detectors were unreasonably dangerous without adequate warning and that no warning was given.

At trial, Mrs. Walker, an owner of the home in which the fire occurred, testified that she purchased eight detectors in 1970. Her husband or another member of the family installed four on the second floor of the home and four on the first floor. Her husband maintained the alarms.

During the fire, Mrs. Walker attempted to go upstairs where the deceased were sleeping but was prevented by heat and smoke. She then sought assistance from her neighbor who placed a ladder at the window of a bedroom. He broke a window but flames burst out and he was unable to rescue anyone.

She further testified that she believed the alarms were in working order at the time of the fire. An alarm placed in the kitchen had sounded about two months before the fire. On the night of the fire, none of the alarms sounded.

On cross-examination, Mrs. Walker was impeached with her deposition testimony that she could not remember whether the alarms had sounded during the fire. She testified that she had seen flames at the stairway but was impeached with her deposition stating she could not recall whether she had seen flames. She could not recall whether the batteries had ever been replaced and was impeached by an answer to an interrogatory which stated that the batteries had never been changed.

Plaintiffs' expert witness Robert Bambenek testified that he performed three types of tests on two alarms removed from the Walker residence after the fire and on another alarm which was produced by defendants during discovery as an exemplar of the alarm. Mr. Bambenek's opinion, based upon his inspection and testing of the alarms and his engineering and scientific background, was that the alarms were defectively designed.

Bambenek testified that the alarm was defective because it detected heat only and contained no warning that it did not provide any protection from asphyxiation from carbon monoxide, a gas present in all fires. A second defect was the absence of a low-power warning signal. This is required by the National Fire Protection Association Standard of 1967. He further testified that the battery case was too fragile and that the battery holder was too pliable and could be bent so as to prevent the batteries from making contact with the horn. In Bambenek's opinion, stranded wire, rather than solid wire used in the alarms should have been used to connect the battery clip to the horn. Solid wire would weaken and break more easily with repeated battery replacement. Because the thermostat protruded through the cover of the alarm, Bambenek believed it should have been covered or protected in some way to prevent damage in the event the alarm were dropped. He was also of the opinion that the alarms were improperly tested before they left the factory.

On cross-examination, Bambenek testified that the Underwriter's Laboratory standard which he followed in performing one of his tests had not been promulgated until 1971. He did not know in which year the low-power warning devices became available for home appliances. He further testified he had not tested the batteries from plaintiffs' exhibits Nos. 4 and 5 and did not know if they were charged. If the batteries had not been changed from October 1970 to April 1, 1974, the alarm would not work since the average life span of the batteries was two years. He further testified that the National Fire Protection Association Standard of 1967 did not permit battery operated alarms.

Defendants called Captain William Hoppe, a fire fighter present at the fire. Hoppe was dismissed after plaintiffs stipulated that the ...

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