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Main v. Ballymore Co.

OPINION FILED APRIL 29, 1983.

MARILYN MAIN, PLAINTIFF-APPELLANT,

v.

BALLYMORE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Knox County; the Hon. Scott I. Klukos, Judge, presiding.

PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 14, 1983.

Plaintiff Marilyn Main filed a complaint for damages stemming from personal injuries allegedly occasioned by the strict liability in tort of defendant Ballymore Company. After a jury trial, the circuit court of Knox County entered judgment in defendant's favor.

Plaintiff received her injuries on March 9, 1977, when she fell from a ladder at her place of employment. The ladder was manufactured by defendant and was termed a "multiple ladder stand." It is constructed of tubular metal and has four nearly vertical legs with rubber tips on the bottom. Four wheels with spring mechanisms allow the ladder to roll when there is little or no weight on it.

Plaintiff's expert, Dr. Harold Weinstock, testified that he tested the ladder at the scene of the fall. Using barbell-type weights, he found that when 116.2 pounds was placed on the middle of the top step, on which plaintiff had been standing when the ladder moved, one leg made no contact with the floor and another made "just bare contact." When the weight was moved left of center, neither of the right legs made contact with the floor and another leg made "point like contact." When 120 pounds was placed on the top step, the various legs were supporting 86.5, 18.5, 12.4 and 2.6 pounds. Weinstock testified that a user of the ladder who moves exerts a horizontal force which is resisted by the frictional force between the ladder and the floor, and when the horizontal force exceeds the frictional force, the ladder will move or slide. Based on the foregoing, he concluded the ladder was unstable, the instability was the result of using springs which were "too stiff," and the ladder was unreasonably dangerous for a person under 200 pounds.

Defendant's expert, Professor Thomas Dolan, testified that he also tested the ladder at the scene of the fall. He found the floor had a very low coefficient of friction, .22 or about three times less than a concrete pavement, and that the surface under the ladder would affect the ability of the rubber-tipped legs to grip. In response to a hypothetical question, Dolan testified that the ladder would not move, that it would be physically impossible for it to roll or slide when the user is standing at the center of the top step and not moving, that the ladder had a great deal of stability, and that one could rock it considerable distances without it toppling over.

After listening to the experts and other testimony, the jury retired at 11:52 a.m. of the fourth day of trial. At 12:05 p.m., it requested the ladder. Over various objections by both parties, the court allowed the ladder in the jury room. At 1:50 p.m., the jury requested a pad with a surface similar to the floor at the scene of the fall and an object or objects weighing approximately 120 pounds. This request was denied.

The sole issue presented for our review is whether the trial court abused its discretion in allowing the ladder to be taken to the jury room. It is well established that the court has considerable discretion as to the exhibits which may be there taken. Lamphere v. Old Second National Bank (1976), 39 Ill. App.3d 610, 350 N.E.2d 272, appeal denied (1976), 63 Ill.2d 557; Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App.3d 155, 349 N.E.2d 578; Kaspar v. Clinton-Jackson Corp. (1969), 118 Ill. App.2d 364, 254 N.E.2d 826, appeal denied (1970), 43 Ill.2d 397.

There is little question as to the reason the jury requested the ladder. As noted by the trial court:

"This ladder had been drug [sic] through this courthouse for four days and it is apparent to me that the jury wants this ladder to walk on it. They want to use it. * * *

* * * This is what they want it for. They want to test the ladder." (Emphasis added.)

The difficulty with this situation has been addressed:

"The major problem stemming from relatively free jury access to tangible exhibits other than writings is that of controlling jury use of them for purposes of experimentation. The general limitations upon the introduction of evidence of experiments obviously become largely meaningless if the jury is allowed to conduct experiments of its own devising in the jury room." (McCormick, Evidence sec. 217, at 541 (2d ed. 1972).)

Because of the fundamental rule that the jury may not receive evidence out of court, it has been held that insofar as tests or experiments carried out by the jury during deliberations have the effect of introducing new evidence out of the presence of the court and parties, such are improper; and, if the new evidence in question has a substantial effect on the verdict, prejudicial. (See Annot., 95 A.L.R.2d 351 (1964).) This is reflected in the Illinois rule, in criminal causes, that it is improper to conduct experiments or private ...


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