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09/23/87 Jean Schaffner Et Al., As v. Chicago and North Western

September 23, 1987





515 N.E.2d 298, 161 Ill. App. 3d 742, 113 Ill. Dec. 489

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Bosco, Judge, presiding. 1987.IL.1409


PRESIDING JUSTICE McNAMARA delivered the opinion of the court. WHITE and FREEMAN, JJ., concur.


Plaintiffs Jean and Perry Schaffner, as co-guardians of the estate and person of Daniel Schaffner, brought this action after their 15-year-old son Daniel sustained serious injuries when he fell off his bicycle, manufactured by defendant Schwinn Bicycle Company, as he rode the bicycle across railroad tracks owned and maintained by defendant Chicago and North Western Transportation Company.

A jury returned a verdict of $8,235,000 in favor of plaintiffs and against Chicago and North Western (the railroad). The jury also returned a verdict in favor of Schwinn and against plaintiffs. The trial court entered judgments on the verdicts, and the railroad appeals from both judgments. It contends that the trial court improperly admitted evidence of the post-accident repairs it made to the railroad crossing; that the trial court erred in excluding certain photographs which the railroad offered in evidence, while admitting photographs offered by plaintiffs; that the trial court erred in permitting Schwinn's counsel to comment on certain missing witnesses in closing argument; that numerous other errors individually or cumulatively resulted in prejudice to the railroad; and that the award of damages was excessive.

Plaintiffs appeal from the judgment in favor of Schwinn. They contend that the trial court erred in permitting Schwinn to introduce evidence regarding state of the art bicycles and evidence of bicycle sales; that the trial court erred in permitting Schwinn's in-court demonstration involving a juror; that the trial court erred in giving the jury an instruction which placed the burden of proving feasibility of alternative design upon plaintiffs; and that the jury verdict and special interrogatory in favor of Schwinn were against the manifest weight of the evidence.

On September 4, 1976, Daniel and two friends, James Fiocchi and Brian Coxon, rode their bicycles to a local movie theatre in Highland Park at about 10 p.m. The boys parked and locked their bicycles outside the theatre. At about midnight, they left the theatre on their bicycles. As they rode across a railroad crossing on Central Avenue in Highland Park, the front wheel of Daniel's bicycle disengaged from the front fork and became jammed within the bicycle frame. Daniel was thrown over the handlebars and onto the pavement beyond the crossing.

Daniel sustained serious head injuries and was hospitalized. He remained in a coma for two months. Consequently, he retained little or no reliable memory of the accident itself. Daniel remained in the hospital until June 30, 1977. During that time, surgery was performed three times in order to remove blood which accumulated in the skull; to remove one-third of the right side of the brain, which was damaged; and to relieve pressure on the skull caused by the swelling of the brain. He sustained numerous permanent injuries, including facial deformities, impaired speech, unstable and abnormal gait, left-sided hemiparesis and spasticity, clawed left hand, deformed left foot and gait, blindness in right eye due to optic nerve atrophy, loss of half of his visual field in the left eye, and inappropriate, uninhibited behavior.

Daniel is unable to live alone, and requires some supervision of his activities. Daniel is capable of providing for his basic physical needs, such as dressing and bathing himself, and performing simple cooking or homemaking activities. He currently lives with his parents. His life expectancy is 30 years longer than that of his parents. Daniel's total medical bills at the time of trial were $235,486.99. His future medical expenses were estimated to be $372,000, including the costs of jaw surgery, weekly speech and physical therapy, and weekly group therapy sessions.

The bicycle Daniel rode was a 1973 Schwinn "Continental" 10-speed bicycle equipped with a quick release mechanism on the front wheel. A quick release hub is a lever-activated device which permits the front wheel to be taken off the fork without tools. Daniel was given the bicycle, which was originally his brother's, in 1976. Prior to the accident he rode the bicycle frequently over a variety of good and bad road conditions without any problems. Daniel testified that he checked the tightness of the front quick release hub and wheel before leaving the movie theatre and that the wheel was fastened securely to the fork. Other witnesses testified that Daniel knew how to use the release mechanism properly.

Irving Hazard testified for plaintiffs as an engineering expert that in his opinion the cause of Daniel's injuries was the combination of the unsafe wheel design and the roughness of the crossing. The condition of the crossing contributed to Daniel's fall by causing the bicycle frame to move up sufficiently to allow the wheel to move out from the fork.

Hazard opined that the design of Daniel's bicycle was defective and unreasonably dangerous because the front wheel was not attached to the fork by means of a positive locking assembly. Without a positive retention system, there are foreseeable ways in which the wheel can disengage from the fork. The positive retention clips would have prevented the incident. The accident also could have been prevented if the bicycle had a C-clip design such as the one invented for Schwinn in 1972 or the C-clip used by Raleigh on its 1985 model bicycle. The foreseeability of the accident was demonstrated by the numerous other similar occurrences on Schwinn bicycles which had no positive retention device. The absence of reported accidents involving Schwinn bicycles equipped with positive retention clips proved to Hazard that the devices would in fact prevent such accidents.

Stanley Jameson, a former Schwinn employee, testified that in 1972 he designed a "C-clip" attachment for the front fork of Schwinn bicycles at the request of his boss, Frank Brilando, in order to prevent wheel disengagement. The design was incorporated into a patent application filed in December 1972. On April 30, 1974, a patent was issued for the design. Jameson testified that he tested the design and was satisfied that it prevented wheel disengagement. Schwinn, however, never used the C-clip design. A 1985 Raleigh bicycle admitted into evidence incorporates the C-clip design.

Fiocchi and Coxon examined Daniel's bicycle following the accident and saw no damage to the front tire or wheel. The quick release was open. Norman Swalgren and Robert Knudson, Highland Park police officers, testified that they saw no damage to the tire or wheel assembly which might indicate a forced detachment from the quick release mechanism. Michael Fritz, Schwinn's investigator, also testified that he saw no damage to the front tire or wheel. Fritz testified further that Daniel would not have been injured if his bicycle had been equipped with the positive retention clips.

Fred DeLong testified for Schwinn as an expert based on his experience as a former bicycle racer and as an engineer. DeLong believed that the design of Daniel's bicycle was reasonable. DeLong also analyzed the forces involved in the sequence of events leading to the accident. He concluded that the front wheel struck an 8 1/2-inch-wide by two- to three-inch-deep depression on the crossing at a 15 degrees to 20 degrees angle from perpendicular. The impact caused the front wheel to deflect to the left approximately 57 degrees. Daniel was able to keep the bicycle upright by pulling hard on the handlebars to the right. During this sequence, 284 pounds of force were exerted on the right fork tip. The forces placed on the fork tip freed the quick release, removed its clamping force and permitted the wheel to release from the fork.

DeLong testified that the positive retention clips included on Schwinn's quick release wheels after 1976 provided an additional measure of safety. He had no opinion as to whether positive retention clips would have prevented the accident. DeLong believed the quick release hub was not secured as tightly as recommended by the owner's manual, but was adequately secured to keep the wheel engaged for normal riding conditions, including normal railroad crossings.

Schwinn engineering tests demonstrated that if the release is properly secured, it cannot be dislodged even by adverse road conditions. During some tests, the bicycles were in effect hurled against six-inch-high curbs. In other tests, the bicycles were tested on simulated road shocks lasting the equivalent of 97.7 continuous hours or 1,465 theoretical miles. If the adjusting nut was improperly tightened or the release lever was not properly closed, the wheel could be disengaged from the fork tips, causing the loss of the front wheel.

Schwinn stipulated at trial that between 1968 and 1985 it had received 131 complaints involving bicycles with quick release mechanisms where the front wheel disengaged while the bicycle was in motion. These complaints were received by Schwinn as early as 1968.

In 1977, Schwinn began to sell its quick release bicycles with a safety device, positive retention clips, designed to prevent front wheels from disengaging when the hub adjustment was loose or the lever was open. Frank Brilando, Schwinn's vice-president, designed the clips. On October 28, 1976, a patent application for the clips was filed. On August 1, 1978, a United States patent was issued.

Joseph Kostur testified for plaintiffs as an expert in the area of road and railroad maintenance and repair. Kostur found substantial vertical deviations between the tops of the rails and the crossing surface. Some of the deviations appeared to be approximately two inches, in violation of the relevant Illinois Commerce Commission order and rule that "the surface of the roadway shall be substantially flush with the top of the rails."

Kostur testified further that, based upon his review of photographs of the crossing, the maintenance problems throughout all areas of the crossing were created by age, deterioration, weather and use. The problems could be alleviated only by rehabilitation, not mere patchwork. Rehabilitation was feasible prior to September 4, 1976.

The Central Avenue railroad crossing in Highland Park was constructed in 1959, using gumwood timbers for the crossing surface. Maintenance was carried out on an "as needed" basis. In 1971, the railroad authorized the rebuilding of the crossing. The estimated cost of the project was $8,870. The funds were included in the railroad's budget for that year, and completion of the project was scheduled for August 1971. In its 1971 authorizing document, the railroad recognized numerous complaints from the public about the crossing's poor condition. The rebuilding project was subsequently cancelled.

During 1974 and 1975, Highland Park officials wrote to the railroad several times concerning the crossing's being "very rough, with loose planks," which posed a "hazardous situation." Highland Park requested "corrective maintenance before serious injury is incurred." The railroad ...

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