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Lister v. Bill Kelley Athletic





Appeal from the Circuit Court of Du Page County; the Hon. Bruce R. Fawell, Judge, presiding.


This action was brought by plaintiff, Adrian Lister, a/k/a Adrian Lister Tillman, to recover damages for permanent injuries he sustained during a high school football game. Plaintiff sued the manufacturer and the retail seller of the football helmet. Following a jury trial, a verdict was rendered in favor of the defendants, and the court entered judgment on the verdict. Plaintiff appeals, raising as his only issue whether defendants' liability for failure to warn was established as a matter of law.

On November 5, 1977, plaintiff, a 17-year-old senior football player at Wheaton Central High School, was injured tackling an opponent during a high school football game. At the time of the injury, plaintiff was wearing a football helmet known as the 100 MH. Plaintiff's injury was a fracture of the cervical spine which resulted in permanent quadriplegia.

Plaintiff then filed a cause of action against Bill Kelley Athletic, Inc. (Kelley), the manufacturer of the helmet, and Hayden Sports Center, Inc. (Hayden), the retail seller of the helmet. Plaintiff's complaint sought recovery on the theories of strict liability, negligence and breach of warranty, alleging that the helmet was "designed, manufactured and sold with insufficient space and padding in the crown and suspension, * * * without properly utilizing the available space in the crown area for padding and suspension, * * * [and] without an adequate or proper warning that harm could result from the use of the helmet."

The record reflects that during the trial 18 witnesses were called to testify, including plaintiff, high school football coaches, the team physician, the treating physicians, the president of Kelley, the president of Hayden, and engineering experts. This opinion will refer to only those facts pertinent to plaintiff's sole argument on appeal — that defendants' liability for failure to warn was established as a matter of law.

Plaintiff was injured while tackling an opposing player in a football game. On the play in which he was injured, plaintiff testified he slipped and never regained his balance prior to the tackle. A spectator at the game testified that at the point of impact, plaintiff's head was approximately at waist or thigh level of the ball carrier, and his head was in front of the ball carrier. The head football coach, who testified for the defense, stated that he emphasized to his players the importance of keeping their heads up, not ducked, when tackling. Techniques such as spearing, ramming and butting were outlawed by a 1976 Illinois High School Association rule, which provided that no player could make initial contact with his helmet, whether blocking or tackling. This rule had been repeatedly explained to the players. The coach testified on cross-examination that, in viewing the film of the game in question, he saw no attempt by plaintiff to spear, ram or butt. Instead, it appeared plaintiff was slipping and off balance when he made the tackle.

Portions of plaintiff's deposition testimony were read to the jury. Plaintiff had stated that he was told specifically by his coaches that the top of the helmet could not be used for a tackle, but only the shoulder should be used. He was told that he could injure himself as well as his opponent if the top of the helmet was used. Plaintiff had stated that he did not lose his balance before making the tackle, and it was his intention to tackle with his shoulder. First his head, then his shoulder came into contact with the ball carrier.

The 100 MH helmet worn by plaintiff was manufactured by Kelley in 1976 and was then sold to Hayden, who in turn sold it to the school district. The helmet did not have permanently applied to it any warning that it would not protect against all injuries or that quadriplegia could result while wearing the helmet.

Kelley purchased the equipment to manufacture the 100 MH from Mac Gregor Brunswick in 1975, who had previously manufactured the 100 MH. Kelley bought the molds and duplicated the Mac Gregor design and suspension for the 100 MH. In Kelley's 1975-76 catalog, the 100 MH was described as "100 MH high impact Polycarb helmet" and advertised "the hat is back," referring to the fact that the 100 MH formerly produced by Mac Gregor was back in production, after having been discontinued. The 100 MH had been tested and approved by the National Operating Committee on Safety of Athletic Equipment, a manufacturer-supported organization.

Dr. Igor Paul, a mechanical engineer with an interest in biomechanics and a doctorate degree in mechanical engineering, testified as plaintiff's expert. He investigated plaintiff's injury from a biomechanical standpoint and described in detail the design of the 100 MH helmet, concluding that its suspension was defective. Dr. Paul described what the X rays of the injury disclosed, and opined that the impact occurred at the top of the helmet, slightly to the right of center. He described the injury as a compression-flexion fracture of C-6 with some involvement of C-5 leading to impingement of the spinal cord and quadriplegia. Dr. Paul testified that in his opinion 1,000-1,200 pounds of peak force was necessary to produce that kind of damage, and the lowest level of force that would cause a fracture in plaintiff's spine is about 800-1,000 pounds. Dr. Paul stated that if the amount of force is reduced below 800-1,000 pounds, there would not be a fracture.

The design of a football helmet affects the force that is transmitted to the spine from a blow to the top of the head. The helmet is designed to distribute the blow and to cushion the blow and impact. It provides a cushion between the blow and the head and neck. Dr. Paul used the example of dropping an egg on a piece of wood versus putting some cushioning between the egg and the wood. The cushioning provides room for the egg to decelerate. A helmet is the same thing; the suspension acts as a cushion. The 100 MH has a space between the head and the shell of 1 1/2 inches or 1 3/8 inches. When a blow is experienced at the top of the head, the cushioning material compresses and absorbs energy. The basic premise is to use all the space effectively.

Dr. Paul stated that the 100 MH should have been designed so that the suspension would deform at a lower load and would use the entire 1 1/2 inches available, rather than "bottoming out" at three-quarters of an inch as it does. If the distance for deceleration is doubled and the cushioning is doubled, you will reduce the peak force by about half. By effectively designing the suspension, even in this shell size, to utilize more of the space, the helmet would absorb more of the energy and lower the impact force. That would reduce the compressive load on the neck. In this helmet, it should use up all 1 1/2 inches. This helmet was not designed in that manner.

Dr. Paul testified that there are helmets on the market which incorporate those principles to improve performance and prevent neck fractures and spinal cord injuries. Dr. Paul himself has experimented with the 100 MH to determine the effect of applying those principles. Further, a Mac Gregor-Brunswick test report of 1974 shows the same result. In Dr. Paul's opinion, by either adding more cushioning or slitting the suspension to use up all of the 1 1/2 inches available, the force in the blow to plaintiff would have reduced the force below the 800-pound level and there would have been no compression fracture.

Dr. Paul further testified that there are engineering principles in the design of products which relate to warnings. One of the basic principles of design is to try to design out hazards of products so they will not cause injury, but if the hazard cannot be designed out then the user should be warned by a specific warning as to the potential hazard. The helmet worn by plaintiff had no warning. Dr. Paul stated that for such a warning to be effective, it should be displayed right on the helmet and should use accepted and standard words. It should use the word "danger" or "warning" in an appropriate color code. It should indicate what the specific hazard is, namely the hazard of quadriplegia or death, and the limitations of ...

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