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04/02/87 Ruby Varady, v. Guardian Company

April 2, 1987

RUBY VARADY, PLAINTIFF-APPELLANT

v.

GUARDIAN COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

506 N.E.2d 708, 153 Ill. App. 3d 1062, 106 Ill. Dec. 908 1987.IL.428

Appeal from the Circuit Court of St. Clair County; the Hon. Roger Scrivner, Judge, presiding.

APPELLATE Judges:

Justice Kasserman delivered the opinion of the court. Jones and Welch, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Plaintiff, Ruby Varady, filed a products liability action against defendant, Guardian Company (Guardian), and Cassell Sales, Inc. (Cassell), on August 15, 1980, in the circuit court of St. Clair County. Plaintiff's complaint sought money damages for injuries which allegedly resulted from the collapse of a defective aluminum crutch manufactured by Guardian and sold by Cassell. Cassell was later dismissed as a party pursuant to section 2-621 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-621, formerly Ill. Rev. Stat. 1981, ch. 110, pars. 801 through 805). The case against defendant Guardian proceeded to jury trial and on April 15, 1985, the jury returned a verdict in favor of plaintiff in the amount of $50,000. However, the circuit court subsequently granted defendant's motion for judgment notwithstanding the verdict, finding that plaintiff failed to present sufficient evidence that the crutch which was the subject of the proceedings was defective. The plaintiff has perfected the instant appeal from this order.

Plaintiff contends that she presented a prima facie case of strict liability in tort and that the cause was properly submitted to the jury. Defendant responds that plaintiff failed to satisfy her burden of proving: (1) that the crutch was unreasonably dangerous; (2) that it was in that condition when it left defendant's control; and (3) that the unreasonably dangerous condition proximately caused plaintiff's injuries. Defendant also urges that the circuit court's judgment should be affirmed as a sanction for plaintiff's alleged violation of discovery rules. In the alternative, defendant asserts that the alleged discovery violation and trial errors entitle it to a new trial. We reverse and remand.

The relevant facts are as follows: Plaintiff, Ruby Varady, was 56 years of age and weighed approximately 185 pounds at the time of the incident in question. Her left leg had been amputated 4 inches above the knee more than 30 years prior to her alleged injury. On March 17, 1980, plaintiff purchased from Cassell a pair of new aluminum crutches manufactured by Guardian. An employee of Cassell's adjusted the crutches for plaintiff. On June 17, 1980, plaintiff drove to a ball field to see her grandson play baseball and she parked her car in a grass parking lot near the field. Plaintiff got out of her car and, using the crutches, walked to the trunk of the car to get a lawnchair. As she unlocked the trunk she saw her daughter approaching from her left. Plaintiff testified on direct examination as follows: "I saw my daughter and I started to turn around. And when I did, of course, naturally I'm holding onto my crutches, I could feel the crutch give way, and I, I held onto them like a dying man, but they just bent and I fell with them." On cross-examination plaintiff was asked if her crutch moved any as she turned and she responded: "No, the crutch went along with me, and then all of a sudden I could feel it give and I just stiffened up and held it and I went to fall."

Plaintiff testified that the crutch gouged her left armpit and that she felt pain in her shoulder, arm, and neck. Plaintiff was subsequently admitted to the hospital and underwent physical therapy. In the course of the next eight months plaintiff was treated by a variety of doctors. She admitted at trial that she had fallen several times during the period after the incident in question. Plaintiff testified that she had hurt her left shoulder in those later falls but not as severely as the June 1980 injury.

Plaintiff identified part of plaintiff's group exhibit number 1 as one of the crutches she purchased in March 1980. She testified that the crutches were in perfect shape when she bought them, that she did not notice any defect in the crutches before the incident, and that she did not alter the crutches in any way. At the time of trial, the entire bottom of the crutch was bent over and the tip was missing. Plaintiff could not remember what had happened to the tip except to say "it was in the lawyer's hands." Plaintiff testified further that the top of the middle piece of the crutch was bent to a greater degree immediately after the incident than at the time of trial. Each crutch apparently consisted of two parts: two columns of the upper piece narrowed at the bottom and were connected by bolts to a middle, third column. It is the bottom of the third column that actually contacts the ground. Plaintiff testified that the manager of a ball team attempted to straighten the crutch after the incident, and plaintiff's daughter later testified that the manager straightened the crutch "a small amount." The crutches identified by plaintiff were ultimately offered into evidence by defendant.

Defendant attempted to establish alternative explanations for the collapse of the crutch during cross-examination of plaintiff and direct examination of plaintiff's daughter, Delores Stines, who was called as a witness for defendant. Plaintiff testified that when she stood at the trunk of her car and turned to her left, there was a shallow hole in the ground, 6 to 8 inches wide and 1 1/2 to 2 inches deep. She testified that when she felt the crutch give way, the crutch was in the hole. However, she also stated that the ground was dry and that the crutch did not sink in the hole. Plaintiff related that the crutch stayed underneath her armpit when she fell. Defense counsel then asked plaintiff if her left leg hit the side of the crutch, to which plaintiff responded: "I have my stump so short it couldn't have possibly done that."

Delores Stines testified that she did not see plaintiff fall. She also testified that plaintiff had fallen several times before June 1980 and that plaintiff had sought medical treatment for dizziness before June 1980. The medical testimony in the record indicates that in March 1977 plaintiff complained of dizziness and loss of balance and that these may have been due to recent cataract surgery, her amputation, an inner ear problem, or brain stem ischemia. However, plaintiff testified that she was not suffering from dizzy spells at the time of the incident.

At trial, Ms. Stines testified that plaintiff told her after the incident "[t]hat her crutch went into the hole and her crutch bent and she lost her balance and fell." Stines admitted, however, that at her discovery deposition she had testified that "[plaintiff] said the tip of her crutch went into the small hole and she lost her balance and fell." A medical history given to a treating physician three days after the fall states: "She says her crutch got into a hole, thus causing the fall."

The only other witness to testify at trial, apart from the evidence depositions of three treating physicians, was defendant's expert, Dr. Leonard Gulbransen, a professor of physical metallurgy at Washington University. Professor Gulbransen testified that he previously had examined some Guardian crutches at defense counsel's request. However, he testified that the crutches he examined previously were similar to but were not the same crutches admitted into evidence as plaintiff's group exhibit number 1. Nevertheless, he testified without objection that he had performed hardness tests on the crutches given to him previously by defense counsel and that these tests indicated that those crutches could withstand a vertical load of 27,000 pounds per square inch. In answer to a hypothetical question, Professor Gulbransen stated that he was unable to determine what degree of force the crutch first furnished him at trial could bear ...


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