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Schulz v. Rockwell Manufacturing Co.





Appeal from the Circuit Court of Winnebago County; the Hon. Robert C. Gill, Judge, presiding. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 2, 1982.

Plaintiff, David Schulz, brought an action for product liability in the circuit court of Winnebago County, asking damages for an injury which he claimed was caused by the unreasonably dangerous condition of a powerized miter box manufactured by defendant, Rockwell Manufacturing. The jury rendered a verdict in favor of the plaintiff in the amount of $400,000. Rockwell appeals, claiming that the trial court erred in denying Rockwell's motion for a directed verdict; in giving instruction 11(a) proferred by plaintiff; and in failing to grant Rockwell's motion for a new trial on grounds of juror prejudice. The facts relevant to our disposition are as follows.

Plaintiff brought a claim under a product liability theory seeking damages for an injury he sustained while operating a powerized miter box manufactured by the defendant. At the time he sustained his injury, Schulz was using the powerized miter box to cut lengths of wood to be used in window frames. In order to do this, Schulz placed the wood on the table and with his right hand brought the miter box's rotating blade down through the piece of wood. The blade is activated by use of a trigger located on a pistol-grip handle. Schulz had cut about 200 pieces, when he caught his right hand on the blade, severing his thumb and two fingers. Plaintiff claimed at trial that the saw portion of the miter box was defective in design and unreasonably dangerous because it did not have a wrap-around blade guard and was equipped with a manual brake instead of an automatic brake.

After the close of evidence, the judge held a jury instruction conference. Over defendant's objections, the judge agreed to give plaintiff's instruction 11(a) to the jury.

The jurors were instructed and deliberated for approximately two hours. On November 5, 1980, the jury returned a verdict in favor of plaintiff in the amount of $400,000. On December 3, 1980, the attorney for defendant learned that the husband of one of the jurors, Ellen Bowers, had, in 1979, applied for employment at MGD Goss Printing, a division of Rockwell. He later filed a lawsuit against Rockwell under the Illinois Fair Employment Practices Act. On December 5, 1980, it was learned that another juror, Ed Benning, had been fired by Goss Printing in 1970. Defendant filed supplemental post-trial motions based upon these facts seeking an evidentiary hearing and/or a new trial due to the alleged prejudice of these jurors.

In support of these motions, defendant presented affidavits concerning the employment record of the two men and the affidavit of one member of the jury. Janet Liskey, the employee relations representative for Rockwell, stated that Benning's termination report indicated that Rockwell was dissatisfied with his "effectiveness, attitude, and lack of respect for the work force and his fellow superiors." In a separate affidavit, Ms. Liskey stated that Steve Bowers was turned down for employment at Rockwell due to a back condition, that Mr. Bowers subsequently filed a charge against Rockwell with the IFEPC and that the charge was eventually resolved in favor of Rockwell. Ms. Liskey also testified by affidavit that Steve Bowers had listed the name of his wife as Ellen Bowers.

Marie A. Mayfield, one of the jurors, testified by affidavit that the attorney for Rockwell had asked each of the jurors in her group of four (which included Mr. Benning), if they had ever worked for Rockwell or if they had any contact or connection with Rockwell. She testified that all of the jurors in her group of four answered no to that question. She also testified that during deliberations Mr. Benning had offered the opinion that the plaintiff was entitled to an award of $2,000,000, and that plaintiff's injury would make it difficult for him to find other employment.

The court denied plaintiff's post-trial motions and also denied a motion by the plaintiff seeking pre-judgment interest. The defendant appeals, and plaintiff cross-appeals.

During trial the defendant moved the court to grant a directed verdict on grounds that no evidence had been introduced tending to show that it was reasonably foreseeable that the plaintiff would forego the use of a safety feature built into the machine in question. The testimony adduced at trial indicates that the miter box was equipped with a manual coasting brake. The use of this brake would have, in all likelihood, prevented the injury complained of here. Plaintiff testified that at the time of the accident he was not using the coasting brake.

Expert testimony indicated that the design of the coasting brake was such that it had to be operated by applying pressure with the thumb. The firmer the pressure, the more quickly the blade would stop. The expert testified that a fair degree of pressure was needed to stop the blade and that this would cause the operator's hand to become fatigued over the course of a work day. He further testified that it was predictable that the operator would not, under these circumstances, use the safety device. We find that this testimony was sufficient to allow the matter to go to the jury as the trial judge did in this case.

A directed verdict should be entered only where it appears that "all of the evidence, when viewed in an aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510.

In essence, the defendant's motion for directed verdict invoked the doctrine of misuse. It is defendant's contention that the plaintiff's failure to utilize the thumb brake was the proximate cause of his injury and that the miter box provided, at most, a condition which allowed but did not cause that injury.

• 1 Illinois law is clear that the conduct of an operator of machinery is a defense to a product liability action only where it is shown that such conduct amounts to a misuse which was not reasonably foreseeable by the manufacturer. (Anderson v. Hyster Co. (1979), 74 Ill.2d 364; Derrick v. Yoder Co. (1980), 88 Ill. App.3d 864, 410 N.E.2d 1030.) In the absence of such proof, the causal connection between a defective machine and the injury remains unbroken. (Lewis v. Stran Steel Corp. (1974), 57 Ill.2d 94.) Even a showing that plaintiff used the machine incorrectly or carelessly does not bar recovery where that use is reasonably foreseeable by the manufacturer. Lancaster v. Jeffrey Galion, Inc. (1979), 77 Ill. App.3d 819, 396 N.E.2d 648.

• 2, 3 Foreseeability is normally a question for the finder of fact. (DeArmond v. Hoover Ball & Bearing (1980), 86 Ill. App.3d 1066, 408 N.E.2d 771.) While a manufacturer is not expected to foresee every possibility which might conceivably occur, he is held to a duty to foresee those uses which are objectively reasonable to expect. (Winnett v. Winnett (1974), 57 Ill.2d 7; Barr v. Rivinius, Inc. (1978), 58 Ill. App.3d 121, 373 N.E.2d 1063.) In Anderson v. Hyster Co., the supreme court addressed a situation similar to the one at bar. In that case a defendant argued that plaintiff's injury had resulted solely from the failure of a forklift operator to activate a foot brake. The court held that the expert testimony adduced at trial was sufficient to support a jury verdict for the plaintiff. That testimony included opinions to the effect that although the forklift was capable of being operated safely, various human factors made it likely that the operators would become confused.

• 4 The case of Sanchez v. Black Brothers Co. (1981), 98 Ill. App.3d 264, 423 N.E.2d 1309, relied upon by defendant, held only that evidence should be admitted on the issue of possible misuse and did not set a standard for directed verdict in such a case or involve an assessment of the sufficiency of the evidence presented on this point. Nor does Flores v. U.S. Industries, Inc. (1980), 81 Ill. App.3d 944, 401 N.E.2d 979, mandate reversal in this case. In upholding the trial court's order granting a directed verdict to defendant, the appellate court in that case commented on what it considered to be insufficient expert testimony. In this case, however, the record contains sufficient testimony on the point of foreseeability to create a question of fact for the jury. The trial court correctly denied defendant's motion for a directed verdict.

Defendant also appeals on the ground that plaintiff's instruction 11(a) should not have been given to the jury. Defendant contends that this instruction is overly broad and vague in its description of the alleged unreasonably dangerous aspects of the product. The instruction reads, in its entirety:

"The plaintiff claims that he was injured while using the electric miter box and there existed in the electric miter box at the time it left control of the defendant a condition which made the electric miter box ...

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