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04/14/87 Donna Renfro, v. Allied Industrial

April 14, 1987

DONNA RENFRO, PLAINTIFF-APPELLEE

v.

ALLIED INDUSTRIAL EQUIPMENT CORPORATION, DEFENDANT-APPELLEE (CROWN CONTROLS CORPORATION ET AL., DEFENDANTS-APPELLANTS; LOGISTICON INCORPORATED



Before leaving this issue, we must observe that Supreme Court Rule 220(b) (103 Ill. 2d R. 220(b)) now imposes an affirmative obligation on all parties to disclose their experts and to do so in a manner designed to insure that discovery of the experts can be completed before trial is expected to commence. That rule expressly provides:

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

et al., Third-Party Plaintiffs and

Separate Appellees; Monsanto

Company, Third-Party, Defendant-Appellee and

Separate, Appellant)

No. 5-85-0612

507 N.E.2d 1213, 155 Ill. App. 3d 140, 107 Ill. Dec. 844 1987.IL.498

Appeal from the Circuit Court of St. Clair County; the Hon. Thomas Daley, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. KARNS, P.J., and WELCH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiff, Donna Renfro, brought an action in the circuit court of St. Clair County to recover damages for personal injuries she sustained in accidents which occurred while she was operating an orderpicker during the course of her employment. Named as defendants were Crown Controls Corporation (Crown), the manufacturer of the orderpicker; Logisticon, Incorporated (Logisticon), the manufacturer of the orderpicker's electronic guidance system; and Allied Industrial Equipment Company (Allied), the orderpicker's dealer. Plaintiff's claims against Crown and Logisticon were based on strict liability. Her cause of action against Allied sounded in negligence. Crown and Logisticon each filed a third-party action for contribution against Monsanto, plaintiff's employer, alleging assumption of risk. In addition, Crown filed a counterclaim against Logisticon for contribution, and Logisticon filed a counterclaim for contribution against Allied.

Following a lengthy trial, the jury returned a verdict in favor of plaintiff, assessing her damages at $1,250,000. The jury apportioned liability for these damages at 0% for Allied, 90% for Logisticon, and 10% for Crown. It further found that Monsanto was liable for 15% of the damages assessed against Logisticon and for 10% of the damages assessed against Crown. Post-trial motions filed by Logisticon, Crown, and Monsanto were denied, and each of these parties now appeals.

Numerous issues have been presented for our review. Crown and Monsanto each contend that it is not liable as a matter of law and that the trial court therefore erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict. Logisticon makes the same argument with respect to the claims against it. Logisticon further asserts, in the alternative, that it should be granted a new trial because: (1) the jury's verdict, including its apportionment of damages, is contrary to the manifest weight of the evidence; (2) the trial court erred in ruling on the admission and exclusion of certain evidence; (3) improper remarks were made by plaintiff's attorney; (4) the jury was not correctly instructed; and (5) the amount of damages awarded by the jury was "beyond the flexible means of what is reasonably supported by the evidence." For the reasons which follow, we affirm.

In undertaking our review of this case, we must consider the evidence in the light most favorable to the plaintiff, the prevailing party. (See Holmes v. Sahara Coal Co. (1985), 131 Ill. App. 3d 666, 674, 475 N.E.2d 1383, 1389.) That evidence established that in 1980, Monsanto renovated one of its storerooms at its manufacturing facility in Sauget, Illinois. To increase the storage capacity of the storeroom, known as the BBZ warehouse, Monsanto converted it from what had been a ground-level operation to one utilizing high-rise shelving. The shelving reached a height of 21 feet and was arranged in two long (160-foot) rows separated by narrow (55-inch) aisles, designated as aisle A and aisle B.

Stored on the shelving were industrial parts, lubricants, and other items used by Monsanto's manufacturing facility. To deposit and retrieve those items, Monsanto decided to utilize "man on board order picking vehicles." With respect to the method for guiding the vehicles down the narrow aisles, research done by Monsanto disclosed the availability of two alternatives: a mechanical system and an electronic one. The mechanical, or guided rail, system consisted of steel rails mounted on the base of the shelves along with guidewheels mounted on outriggers on the orderpicker vehicles. The guidewheels would follow the steel rails, physically preventing the vehicles from striking the shelving and keeping them within the aisles. The electronic, or automatic, guidance system entailed burying a wire in the warehouse floor which would transmit signals to sensors mounted on the vehicles, permitting the vehicles to be guided automatically without the need for manual steering by the operator.

Apparently the only two electronic guidance systems available on the market at this time were the "Pathfinder," manufactured by Logisticon, and the "Ray-Guide," manufactured by Raymond Corporation. The "Ray-Guide" could be used only on the orderpicker manufactured by Raymond Corporation, while the "Pathfinder" was designed to be installed on vehicles manufactured by a variety of companies, including Crown. Monsanto ultimately selected the Pathfinder system and decided to have it installed on Crown's model 30SP42TT orderpicker.

The Crown 30SP42TT orderpicker chosen by Monsanto was an electrically powered, forklift-type vehicle. It weighed several tons and could travel at speeds of up to five or six miles per hour. The operator's compartment consisted of a rectangular platform, behind which were situated two forks for lifting. Installed on the forks was a steel cage for carrying items which were to be deposited or retrieved from the shelving in the warehouse. The sides of the operator's compartment were open. In front, above the steering controls, was a plexiglass shield to protect the operator from moving parts in the lifting mechanism. Above was a panel of four parallel steel bars intended to serve as an overhead guard.

The orderpicker was designed so that the operator's compartment would be lifted and lowered along with the carrying cage behind it. This was done in order to permit items to be deposited or retrieved manually by the operator. The orderpicker could be driven forward or backward while the operator's compartment and carrying cage were elevated. However, the maximum speed of the vehicle was automatically reduced when the elevation exceeded 24 inches, and travel was cut off entirely when the elevation reached 180 inches.

The orderpicker was equipped with a "deadman" brake. In order to drive the vehicle, the operator had to depress the brake pedal with his foot and keep it depressed. If the operator released the pedal, an hydraulic cylinder would activate the brakes, bringing the vehicle to a stop. In addition, release of the pedal would activate a time delay relay , which was supposed to shut off the vehicle's power steering after 20 seconds in order to conserve power while the operator was placing items on or retrieving them from the warehouse shelving.

Guidewheels, for use with a guided rail steering system, were available as an option on the Crown orderpicker, but were not purchased by Monsanto because of its decision to use Logisticon's Pathfinder electronic guidance system. Logisticon advertised that the Pathfinder system would be suitable for the type of warehouse configuration that existed at Monsanto's renovated BBZ warehouse, i.e., one with high storage shelving and narrow aisles, because it required only 4 inches of clearance on each side of the orderpicker and eliminated the need for steel guiderails. The Logisticon salesman who sold the Pathfinder system to Monsanto testified that when making his presentations to the company he emphasized the system's high degree of reliability. The salesman further indicated that he told Monsanto that guidewheels and rails would not be necessary if they bought the Pathfinder system.

Installation of the Pathfinder system required no factory modifications to Crown's orderpicker and could be accomplished at the purchaser's place of business by Logisticon personnel. The principal components of the system included: (1) a wire guidepath imbedded in the warehouse floor, energized by a "line driver" mounted on the warehouse wall; (2) a steering wheel assembly, which replaced the orderpicker's standard steering wheel; (3) an electronic power steering subsystem, comprised of tachometer, gear box, servo board, heat sink, and various other assemblies; and (4) a guidance subsystem, comprised of front and rear sensors mounted under the orderpicker, a "position potentiometer" connected mechanically to the orderpicker's steering mechanism, and a sensor amplifier, which processed and transmitted signals from the sensors and position potentiometer to the power steering subsystem.

The Pathfinder system permitted operation of the orderpicker in three alternative modes: manual, automatic, and override. Manual allowed steering to be controlled by the operator. It was to be used when the orderpicker was not in the narrow aisles or was exiting from the aisles. Although the operator himself had to steer in this mode, steering was power-assisted. When the automatic mode was chosen, the orderpicker would "seek" the energized wire. The vehicle would remain in manual until it was near the wire, where the sensors would "acquire" the signal and the vehicle would be automatically aligned over the wire and steered into the aisle. If the sensors lost the signal and the orderpicker left the wire guidepath, steering control would be returned to the operator. Override was simply a backup mode which bypassed the Pathfinder electronics entirely and permitted the orderpicker to be operated as originally equipped without the Pathfinder system.

Monsanto purchased two Crown orderpickers and two Pathfinder systems from Allied, which was a dealer of these products and others. As part of the purchase agreement, Allied was to provide one year's free service and preventative maintenance on the orderpickers, and Crown was to assist Monsanto in training its operators. The orderpickers were delivered, the Pathfinder systems were installed, and the vehicles were placed into service at the BBZ warehouse by Monsanto in December of 1980 or early January 1981. For purposes of this Discussion, these orderpickers shall be referred to as unit 1 and unit 2. Generally, unit 1 was assigned to operate in aisle A of the warehouse, and unit 2 was assigned to aisle B.

Problems with the equipment appeared almost immediately. Logisticon field service reports disclosed that on January 5, 1981, Logisticon was notified of difficulties with both units. Unit 1 was reported to have "no automatic guidance," while unit 2 had no "steering." John Mills, a Logisticon field service representative, went to the warehouse two days later. He repaired a crushed position potentiometer cable on unit 1 and replaced the heat sink assembly and servo board on unit 2.

The day after these repairs, Logisticon was notified that unit 2 again had "no power steering." The field service report noted that this was the "2nd failure." John Mills returned to the warehouse four days later, on January 12, 1981, and "checked all wiring -- replaced heat sink & servo [board], rechecked all servo adjustment[s]." Other evidence showed that the deadman switch may also have been replaced during this period.

Tom Vartanian, an employee of Monsanto assigned to the BBZ warehouse, testified that he subsequently had an accident while operating one of the orderpickers in aisle B. At the time of the accident, which took place in late February or early March of 1981, Vartanian had been operating the orderpickers for about two months. According to Vartanian, the orderpicker was in its automatic mode and the operator's compartment was elevated approximately 10 feet. He had made several stops along the aisle to deposit items on the shelving and was about to stop again when "the thing jumped off [the wire]." As it did so, the storage cage behind the operator's compartment apparently hit the shelving and was pulled off, striking the floor.

After the accident, Vartanian and his foreman tested the equipment in an attempt to duplicate what had happened. When they could not, the foreman placed a disciplinary letter in Vartanian's personnel file based on his belief that operator error was to blame. Although Vartanian admitted on cross-examination that he could not say for sure that the orderpicker really went off the wire, the evidence showed that after plaintiff's accident a few months later, Vartanian's foreman removed the disciplinary letter from his file, apparently because the foreman then realized that equipment failure and not operator error was the cause for Vartanian's accident.

Another Monsanto employee assigned to the BBZ warehouse, Cecilia Larson, testified that she too had experiences in which the orderpicker she was operating went off the wire. Larson stated that she started operating the orderpicker in aisle A in April of 1981. According to her:

"here was a couple of incidents. It [the orderpicker] went off the track, it hit the bins, but there was no major damage. In the last one I was backing out, it [the orderpicker] went off the track and it took off a couple of shelves of steel phlanges. [ sic ]"

A Logisticon field service report showed that on April 15, 1981, the company was notified that unit 1, the orderpicker used by Larson, had "poor reverse guidance." This call was serviced by a Logisticon representative named Merrill Lewis on April 17, 1981. The report shows that Lewis checked the position potentiometer and cabling and made certain adjustments. The previous week, on April 9, 1981, Logisticon had also been notified that unit 2 "jumps rear guidance at times." The vehicle was checked on April 10, 1981, and a different Logisticon field representative, Fred Wojciuch, reported that he found and repaired a bad connector on the front sensor.

Throughout this period Allied performed the routine preventative maintenance and did some service work on units 1 and 2. According to the maintenance schedule, Allied was due to provide its next service call on May 4, 1981. On that date, Logisticon's central response center in California received a call from Monsanto that unit 2 was "going off track." This was the type of problem which Logisticon, and not Allied, was normally requested by Monsanto to correct. Logisticon assigned Merrill Lewis ...


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