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Leischner v. Deere & Co.

OPINION FILED AUGUST 21, 1984.

RICHARD LEISCHNER ET AL., PLAINTIFFS-APPELLEES,

v.

DEERE & COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macon County; the Hon. Donald W. Morthland, Judge, presiding.

PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Product liability suit against a snowmobile manufacturer.

Jury verdict for the manufacturer.

Trial court granted new trial.

We reverse.

BACKGROUND

In February of 1978, Richard Leischner suffered a severe spinal injury in a snowmobile accident at the Cresthaven Country Club in Decatur. Leischner and his wife filed a product liability action against Deere & Company, the manufacturer of the snowmobile. They alleged that the seat and suspension system of the snowmobile were defectively designed in that the shock of bumps was transmitted to the rider instead of throughout the snowmobile. The Leischners alleged that the defective design caused Richard's injuries.

During trial, Deere called as a defense witness Thomas Lohr, a senior engineer in Deere's product engineering department in Horicon, Wisconsin. Lohr testified that he is familiar with Deere's record-keeping system for accident and injury claims and product complaints. He stated that those records contained details of snowmobile accidents involving Deere snowmobiles and of the resulting injuries. Lohr testified that he had reviewed all of the records and that — with the exception of Leischner's injury — there were no complaints of spinal injury caused by the seat and suspension system transmitting the shock of a bump to a rider.

At the close of the evidence, the jury returned a verdict in Deere's favor.

The Leischners filed a post-trial motion alleging in part that the trial court erred in allowing Lohr to testify concerning the absence of any reports of similar accidents in Deere's files. The trial court agreed and ruled that Deere had failed to lay a proper foundation for Lohr's testimony. The trial court also ruled that Lohr's testimony violated the best evidence rule because Deere failed to produce the records in question at the trial. The trial court vacated the jury's verdict and ordered a new trial.

Deere appeals.

We reverse and remand.

PROPER FOUNDATION

• 1 To lay a proper foundation for testimony concerning the absence of similar prior accidents, the offering party must show that the absence occurred during the use of equipment similar to the injury-producing equipment. (Darrough v. White Motor Co. (1979), 74 Ill. App.3d 560, 393 N.E.2d 122.) The offering party must also show that the absence occurred under conditions substantially similar to those surrounding the accident which gave rise to the suit. Smith v. Verson Allsteel Press ...


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