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Yassin v. Certified Grocers

OPINION FILED DECEMBER 9, 1986.

ESIDA YASSIN, A MINOR, BY HER MOTHER AND NEXT FRIEND, SOFIA YASSIN, ET AL., PLAINTIFFS-APPELLANTS,

v.

CERTIFIED GROCERS OF ILLINOIS, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Janczy, Judge, presiding.

JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:

Plaintiff, *fn1 a three-year-old child, was severely injured when she placed her left hand in an operating commercial meat tenderizer. She later filed the present suit against Mizyed-Yassin Corporation, which owned the grocery store where the accident took place; Certified Grocers, Inc. (Certified), a cooperative with which the grocery store was affiliated; Hobart Corporation, the company that manufactured the meat tenderizer; and Underwriters Laboratories (U.L.), an independent testing laboratory, which tested a model of the meat tenderizer that caused her injury. The case went to the jury on a negligence count against Underwriters Laboratories and a strict liability count against Hobart Corporation. The trial judge directed verdicts in favor of defendant Certified Grocers on a negligence charge and defendant U.L. on a strict liability count. The jury returned a special verdict to the effect that the meat tenderizer was not unreasonably dangerous and found Hobart and U.L. not guilty. However, the jury did return a verdict of negligence against Mizyed-Yassin Corporation, awarding plaintiff $300,000 in compensatory damages. Plaintiff now appeals, asserting that she was denied a fair trial. We affirm.

Defendant Mizyed-Yassin Corporation was jointly owned by plaintiff's father, Khalil Manna Yassin, and her uncle, Abdelhamed Mizyed. The corporation purchased the Certified Food Center in Burbank, Illinois, and began operating it in September 1975. Defendant Hobart Corporation manufactures and distributes food-preparation equipment, including the Steakmaster Model 401 meat tenderizer that caused the injury in this case. U.L. is a corporation whose announced purpose is to test products for public safety. Certified Grocers of Illinois advertises, packages, and sells food products, and operates as a cooperative of grocery stores that included the store at which the accident underlying this lawsuit took place.

Plaintiff's mother testified that she went to her husband's store with plaintiff at 7:45 p.m. on April 8, 1976. When they entered, she took plaintiff by the hand and began shopping. She dropped plaintiff's hand to reach for some cookies, and before she finished reading the ingredients, she heard a scream. Plaintiff's mother went to the source of the scream and saw plaintiff on the floor with her left hand in the meat tenderizer. Mizyed unplugged the machine and called the fire department, which took plaintiff to Christ Community Hospital, where she remained for 10 days.

Adjacent to the meat counter at the rear of the store was a doorway with doors broken or propped open. Beyond the doorway was a 32-inch-high work table with the model 401 meat tenderizer on top and next to it an 18-inch table and several wooden soda-pop bottle cases arranged in "stepping stone" fashion. Mizyed testified that on the night of the accident, he was tenderizing meat there with the cover of the 401 raised so that he could work faster. He left the machine running unattended while he went back to the cooler to get more meat, then he heard screams.

Plaintiff's orthopedic surgeon testified that plaintiff's tendons, bones, skin, and nerves were cut beyond repair and that he was forced to amputate her left hand just above the wrist. The surgeon testified that plaintiff suffered pain due to the "phantom limb" phenomenon and that the muscles in her forearm have decreased, leaving her left arm permanently smaller.

Dr. Blair, another treating surgeon, testified that loss of a left hand up to and including the wrist impairs the entire left extremity by 90% and impairs total body function 30 to 40%. He stated that with emotional impairment resulting from the accident, plaintiff suffers a 50% total impairment. When Dr. Blair saw plaintiff in September 1983, the month in which the trial began, she suffered repeated nightmares, wet her bed, and experienced difficulty in feeding herself and in making friends, all because of the loss of her hand. He stated that plaintiff's phantom limb syndrome was permanent.

Dr. Geist, a rehabilitation psychologist, testified that plaintiff violently strikes out with the injured limb, has vomiting episodes, and is not a happy child, often withdrawing into herself. However, plaintiff could describe the accident matter-of-factly, and Dr. Geist stated that plaintiff was attending school daily and had been able to shift function to her right hand. Plaintiff liked her brothers and sisters, played soccer, jumped rope, could eat with her one hand, was neat, polite, and cooperative, and spoke some English, Italian, Spanish, and Arabic. Nonetheless, according to Dr. Geist, the accident was a severe blow to plaintiff's self-image and she will require psychotherapy for an indefinite period as a result. Dr. Geist testified that although plaintiff expressed an interest in becoming a teacher, she had neither the psychological nor intellectual capacity for it. Afterwards, the doctor discovered that she had made an error in estimating plaintiff's I.Q., and she revised the calculation, finding it to be within the normal range. However, the psychologist stated that plaintiff's employability was "still not very good."

Dr. Arthur Dobbleaere, an associate professor of Industrial Relations at Loyola University, estimated the present value of plaintiff's total loss of future salary and benefits to be $746,041.

Plaintiff's safety expert, Ralph Newman, described the Hobart 401 tenderizer as having an easily removable cover and two rollers with 41 knife discs. Each knife disc has 12 protruding edges. In one second approximately 2,000 knife edges cross a one-eighth-inch plane. The 401 operates whether the cover is open or closed. A companion model manufactured by Hobart, the 401-S, has a cover interlock that stops the rollers when the cover is raised. However, by moving a magnet, this safety interlock is commonly defeated in practice, according to Newman, so that the companion model can also be generated with the cover raised. He indicated that operators generally raise the covers to increase production, but that a double interlock device would prevent this.

The 401-S is also equipped with an extension chute to be placed over the opening into which meat is fed. The specification sheets for the 401-S state that this chute keeps hands a safe distance from the tenderizing knives. The opening in the cover of the 401 is 1 5/8 inches wide, while most steaks are between 3/4 and 1 1/4 inches thick. Cuts of meat thicker than 1 1/2 inches are tenderized by raising the machine's cover and dangling the meat above the rollers until it is drawn into the blades. The opening on the extension chute of the 401-S is 1 1/4 inches. Newman testified that, in his opinion, the cover interlock switch in the 401-S did not impair its function because the machine is designed to take even thick cube steaks and that lengthening the extension chute of the 401-S by 6 inches would not compromise its usefulness.

Both the 401 and the 401-S were designed in 1956 and marketed in 1957. New York permitted only sale of the 401-S in that State because of the safety extension chute and the cover interlock switch. Hobart continued to manufacture the 401 until 1970. The successor model to the 401, the 403, was first manufactured in that year. The 403 has an extension chute and an interlock that cannot be mechanically defeated.

The particular machine involved in this case had been sold to the Hillman's Grocery store in Chicago in April 1961. Defendant Certified Grocers later purchased it, and the machine eventually found its way to the store that plaintiff's father and uncle subsequently purchased. The on-off toggle switch of the machine in question had been broken into the "on" position so that it could be stopped only by unplugging it. Mizyed testified that this tenderizer was not used by the store's union butchers but that he personally operated it two to four times per week.

Newman testified that he had retrofitted 200 to 300 food processing machines with safety devices. In the case of meat tenderizers, this generally involved installing a switch to prevent the machine from operating with the cover raised and occasionally adding an extension chute. Newman visited 2,500 stores per year and saw that tenderizing machines lacking such a safety system were customarily operated with the cover raised and roller exposed. Newman testified that the 401 is generally used at the end of a counter in the meat-processing area in open view of customers. Newman concluded that the Hobart model in question was unreasonably dangerous when it left the factory in 1961 because it did not have a safety switch to shut off the machine when the cover was raised, or an extension chute, and because it lacked a "kick-out" device to quickly dislodge a hand caught on a roller. He was also concerned that the toggle switch was easily broken off and the transparent cover discolored with age, inducing operators to raise it to see the meat.

Another witness for plaintiff, Daniel Goduto, had been an officer or representative of a butcher's union for almost 30 years. He testified that he was familiar with and had operated the 401 and 401-S and that he visited approximately 2,500 supermarkets per year. He noted that the 401 is generally operated with the cover raised or removed, while the 401-S is generally operated with the cover down. He witnessed three accidents in the 1950's involving the 401, or its predecessor, the 400, but had never witnessed any with the 401-S or the 400-S. Goduto testified that butchers frequently hit the on-off switches with meat trays, often breaking them. He admitted that butchers sometimes ignored instructions to operate the 401 only with the cover down, but he denied that they bypassed the interlock in the 401-S because they would be fired on the spot for doing so.

Dr. William Bliss, an engineering psychologist and "human factors" consultant (although not an engineer), also testified for plaintiff. Bliss never tenderized meat in the machine, but he tested it by running paper through and taking measurements. He concluded that it was efficient to operate the 401 with the cover raised and unattended for short periods of time and stated that it was reasonably forseeable to the manufacturer that the machine would be placed where the public had unobstructed access. He testified that in his opinion it was not necessary for the cutting blades to be exposed for the machine to perform efficiently. Bliss concluded that the 401 was unreasonably dangerous because it had no fixed guard to protect the moving blades and because, even with the cover down, the slot is too large and there is no extension chute to protect the hand. He acknowledged, however, that the presence or absence of an extension chute would have made no difference in this particular accident because the machine was operated with its cover raised.

Richard Swob, president of the commercial equipment division of Hobart, was called as a witness by plaintiff. He admitted that if the 401 became jammed, it was forseeable that the operator would fail to put the cover down after unjamming the machine. He stated that there was nothing in the 401 to keep human hands off of the knives while rotating but that the handles on top of the lift-out unit prevent accidental contact from the top. Swob also acknowledged that it was very difficult to sell a product without U.L. approval.

Robert Seelbach, vice-president and chief electrical engineer for U.L., testified that when the cover is raised on the 401 there is no effective guard over the exposed rollers. Seelbach indicated that U.L. will list products as approved only if it has a follow-up agreement with the manufacturer. He noted that there are no markings or warnings on the 401 and that U.L. never recommended that Hobart include instructions that the 401 be used solely by professionals. Seelbach testified that the blades of the 401 must be exposed to the extent that they are capable of receiving meat.

Glen Stockmeir, director of Hobart's product design policy, testified that U.L. had examined and approved the 401 in each of the 14 years that it was manufactured. He stated that Hobart had considered the safety of operators in its design but not the safety of the general public. According to Stockmeir, Hobart could not have reasonably foreseen that someone would operate the tenderizer unattended with the cover off in an area accessible to children. Stockmeir agreed that the efficiency of the 401-S could be increased by defeating the interlock and operating the machine without a cover and added that Hobart's model 403 cover interlock could not be defeated.

Robert Horvath, an electrical engineer and the executive staff engineer for U.L., testified that in his opinion, the 401 complied with the applicable provisions of the U.L. standard for motorized appliances, standard 73. He stated that he did not know of any tenderizer that had an opening that would admit meat but also exclude the hand of a three-year-old child. He stated that because the 401 is a commercial device, one would not expect it to be used in an area accessible to the general public, and that the guarding was adequate for its intended use. He indicated that the 401-S is not any safer than the 401 because the magnetic interlock is easily ...


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