Appeal from the Circuit Court of Madison County; the Hon.
William E. Johnson, Judge, presiding.
PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The plaintiff, John Paul Kelley, Jr., brought suit in strict liability in tort against the defendant, American Motors Corporation, alleging that a 1972 Hornet automobile manufactured by the defendant was unreasonably dangerous as a result of certain deficiencies in its fuel system. The plaintiff suffered serious burns, principally to his face and head, following a collision that occurred on March 25, 1978. At trial, conducted during the latter part of March and the early part of April of 1982, a jury awarded the plaintiff $500,000. The trial court denied the defendant's post-trial motion, and the defendant has appealed, presenting several issues for review:
"1. Whether accident reconstruction offered by AMC is admissible.
2. Whether it is proper to permit plaintiff to question AMC's expert witness regarding a prior specific act which is unrelated to any issue in this case.
3. Whether the trial court should have quashed plaintiff's requests to produce documents and witnesses at trial.
4. Whether the jury was improperly instructed on the inferences permissible from a party's failure to call a witness under his control (I.P.I. No. 5.01).
5. Whether photographs of plaintiff taken during reconstructive surgery are admissible.
6. Whether evidence of AMC crash tests and proposed federal motor vehicle safety standards is admissible.
7. Whether the jury was improperly instructed on the issue of compliance with safety standards."
With respect to the first issue the defendant raises, that is, whether it was error for the trial court to exclude reconstruction testimony of the defendant's expert witness, Derwyn Severy, it is necessary to consider not only the defendant's offer of proof concerning reconstruction of the accident but also certain testimony of this witness and others, including the expert called by the plaintiff as well as the only eyewitness to the accident to testify.
Other eyewitnesses were unable to be reached, apparently, by either party, and the plaintiff has been unable since the collision to recall anything about it. Testifying for the plaintiff, the eyewitness, James Johnson, stated that just before the collision occurred on Sand Prairie Lane in Collinsville, a Ford Torino passed him. Shortly thereafter the Hornet, driven by the plaintiff, likewise passed the witness, who said that there "wasn't enough room" between the Torino and the car the witness was driving for the Hornet to re-enter the lane between them. As a consequence, the driver of the Hornet attempted, at a rate of about 45 miles per hour, to pass the Torino. The road was damp and somewhat slick. The witness testified that as the Hornet attempted to re-enter the lane ahead of the Torino, "[t]he Torino car sped up and hit the car in the back quarter panel by the bumper." According to the witness, the Hornet then struck a bridge abutment. The witness stated that he had seen sparks at the right rear quarter panel of the Hornet when the Torino struck it. He seemed later, however, to indicate that such sparks had not occurred until the Hornet had struck the abutment, though he seemed also to suggest that the two occurrences were virtually simultaneous. The Hornet then, he said, "spun around like it was coming back towards my car." Having flipped upside down, shortly thereafter the Hornet was on fire, with gasoline on the ground. The Hornet and the Torino came to rest about 15 feet apart. With the aid of a passerby the witness was able, with difficulty, to open the door of the Hornet and to remove the plaintiff, whose head was afire. The witness described the plaintiff as having "gasoline all over him." The witness stated further that the Torino had struck the Hornet "[o]ne time," that the two cars had not touched again, that "first the back side [of the Hornet] was burning," and that the fire, growing larger, moved to the front of the vehicle. He said that an explosion occurred after the plaintiff was removed from the car. A young woman who was a passenger in the Hornet at the time of the collision had been thrown from the Hornet and run over by the Torino. In the attempts of the witness and the bystander to free the young woman from beneath the Torino the witness noticed that the front bumper of the Torino was "warm," "kind of hot." He had not, he said, at any time seen any fire coming from the Torino. The witness stated that the fire department arrived approximately 45 minutes after the collision occurred, at which time the Hornet was "totally burned." Indicating that he had looked over the Hornet at the scene of the accident, the witness said further, "I had taken a look at the car and seen the what amazed me was the gas tank on it, it seemed like it just split open," the seams on the tank having "split." He testified that the gas tank was visible to him while the car was upside down, and described the location of the tank as "on the quarter panel and where the bumper is, where the Torino hit the car." He testified further that one of the two straps, apparently metal, around the tank had broken.
On cross-examination the witness stated that he could see "a foot or so in front of the bumper" on the passenger side of the Hornet as it attempted to re-enter the lane in front of the Torino. He said that the impact was "right on the quarter panel" of the Hornet and that the fire "seemed to start at the back of the car." However, the witness admitted that in a deposition dated February 12, 1979, he had stated that the fire had started in the front of the Hornet. In the same statement the witness had said that he "didn't pay any attention to the gas tank" and that he had "no knowledge about its condition." On redirect examination the witness stated, "I believe that when the Ford hit the Hornet car that it busted the gas tank." He said that he had seen the tank in the "busted condition." Of the course of the fire he stated, "Well, the way I remember there was just gas everywhere and I believe that the gas just traveled up the car to the front." The plaintiff's testimony indicated that the Torino and the Hornet had departed from the home of the young woman riding with the plaintiff and were at the time of the collision on the way to a common destination.
The plaintiff called as an expert Dr. Robert Brenner, an engineer from Rockville, Maryland. He testified that the fuel tank in the 1972 Hornet is strapped under the floor of the trunk of the automobile, with the filler pipe to the tank extending through the luggage compartment to the center of the rear of the vehicle. As part of the hypothetical question asked of this witness, he was asked to assume that the eyewitness had stated that the left front of the Torino had struck the passenger side of the Hornet near the back and that, as a result of the collision, the Hornet had gone out of control and had struck a concrete bridge abutment. He was also asked to assume, among other things, that the flames had begun at the rear of the vehicle and had moved forward. The witness expressed the opinion that the plaintiff's injuries were "the result of an unreasonably dangerous design in the Hornet."
He was of the further opinion that the discoloration of the paint at the front of the Torino, as shown in a photograph of the vehicle, was
"precisely what is caused by gasoline. Gasoline that has been ignited.
The accident, the crash took place at night, the headlights were on. The impact starts off on the right rear quarter panel, left side of the vehicle. The things happen to where the right side of the Torino takes the heavy bump after the initial impact, which produces the defamation [sic] of the bumper."
He explained that the damage to the right front of the Torino, which was greater than that sustained by the left front of the car, had been caused by the movement of the Torino and the Hornet during the collision. The witness continued:
"Again, the question pertains to an explanation of the discoloration and again, interpreting the discoloration on the right front corner of the vehicle along with the discoloration in patches on top of the hood, is completely consistent. This is precisely what happens when gasoline strikes metal.
Now, the gasoline is now exposed to a headlight. The headlight, however, is broken. That means that there are electrical wires that are exposed. So now we have the fuel, and we have the source of ignition, which is the broken wires in the headlight, to ignite the gasoline to produce the * * * discoloration which is typical of gasoline burning on paint. The But, again, typically if the gasoline isn't all over the vehicle then the fire goes out * * *."
The witness added, "[T]here is simply no doubt in my mind that we have fire in the right front corner of the Torino, there's simply, in my opinion, no other way that this kind of discoloration, which is the signature of the gasoline burning on metal, so that it could be explained." The source of the gasoline, according to the witness, was the gas tank of the Hornet. Explaining a photograph of the Hornet as viewed from the back, the witness testified concerning the vehicle:
"Here we see the center mounted rear filler pipe area of the vehicle. We see the major burn patterns. Again, the same type of discoloration * * *."
"[W]e have the discoloration which, again, I firmly believe that this is gasoline burning on paint.
We see same, again, type of discoloration which is fire produced.
However, the testimony from the hypothetical states that there really isn't any kind of massive fire on the Hornet until after it has rolled over and the young man is trapped inside. So this fire had ...