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06/15/88 Ralph Tomasovic, v. American Honda Motor

June 15, 1988





525 N.E.2d 1111, 171 Ill. App. 3d 979, 121 Ill. Dec. 804 1988.IL.936

Appeal from the Circuit Court of Cook County; the Hon. Albert S. Porter, Judge, presiding.


JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.


Plaintiff Ralph Tomasovic brought a products liability action against defendant American Honda Motor Company, Inc., alleging that he sustained injuries arising out of a motorcycle accident caused by a defective motorcycle manufactured by defendant. A jury returned a verdict in favor of defendant, and the trial court entered judgment on the verdict. On appeal, plaintiff contends that the judgment is against the manifest weight of the evidence; that the trial court erred in admitting the defense expert's speculative opinion regarding tampering; that the trial court improperly denied plaintiff's motion in limine to exclude evidence of the speed limit where plaintiff's conduct was not in issue; that the trial court erred in not excluding testimony of a treating physician due to his ex parte communication with defense counsel prior to trial; and that the trial court erred when it failed to resolve the jury's request for clarification of jury instructions.

On April 29, 1977, plaintiff suffered burn injuries in a motorcycle accident in Schaumburg, Illinois. The issue of liability turns on evidence of whether the crash or a fire occurred first, and expert evidence regarding the gas cap assembly on the motorcycle. At trial, plaintiff sought to prove that the gas cap assembly was not crashworthy and thus dangerously defective. He urged that the gasoline caught fire seconds after the crash forced open the gas cap. Defendant countered that the gasoline caught fire seconds before, and actually caused the crash. It argued that the gas cap was left partially open after plaintiff filled the tank just prior to the accident.

Dr. Raymond E. Hoffman, plaintiff's physician, testified for plaintiff regarding the burns plaintiff suffered. In reciting the history taken from plaintiff immediately after the accident, Dr. Hoffman testified he remembered that plaintiff "was riding his motorcycle and it exploded under him. And I remember the story he had to find a place to put a flaming motorcycle down when he was riding it."

Kathy Vanecko, an eyewitness, testified for plaintiff that she was walking near an intersection when plaintiff passed her. He was traveling at about 40 miles per hour. Just after he passed her, plaintiff lost control of the motorcycle and crashed into a house. She saw no fire on plaintiff or the motorcycle until after the crash.

Hiram Archibald, an eyewitness, testified for plaintiff that he was a passenger in a van driven by James Frasheski when he saw plaintiff's accident. Frasheski exclaimed, "Look at that," and at the same time Archibald saw plaintiff running to the street in flames. They were approximately 300 yards from plaintiff at the time they first saw him.

Plaintiff testified that he bought the motorcycle, which was used, one month before the accident and had ridden it three or four times. He had never owned a motorcycle before and did not have an owner's manual. He had driven various motorcycles and minibikes since he was in fifth grade. The day of the accident was the first time he had ever put gasoline into the motorcycle in question. On that day, he filled the tank and recalled that he replaced the cap when he was done. He testified, "With the palm, a firm motion down, hearing the click." He left the gas station, but did not look at the cap again. The accident occurred 7.8 miles from the gas station. During that time, plaintiff noticed nothing unusual about the gas tank and smelled no gasoline. Plaintiff testified that he lost control of the motorcycle when, traveling at 25 miles per hour, he attempted to go around a parked van.

Plaintiff denied telling a doctor that he saw a loose gas cap when he hit a bump. He denied reporting that the gasoline spilled out, causing his motorcycle and clothes to catch fire. He denied telling a doctor that he remembered the entire incident. Plaintiff also denied having worked on the gas cap with any tools.

Kevin Heinlein, an eyewitness, testified for plaintiff. He was playing ball near the intersection when he saw the motorcycle leave the street and saw a ball of fire emerge when the motorcycle hit a house.

Donna Heinlein testified for plaintiff regarding events following the accident. Laura Ann Tomasovic, Matthew Stephan and Nathan Dorsey testified for plaintiff regarding the condition of the motorcycle before and after the accident. There had never been any previous problems with the gas cap.

Dr. Harry Peterson testified as an expert for plaintiff that defendant's gas cap assembly was dangerously defective. The locking device installed on the Honda motorcycle gas caps pursuant to recall worked to prevent the caps from opening. Dr. Peterson opined that if the recall locking mechanism was on plaintiff's motorcycle he would not have suffered burns in the accident.

Dr. Percy McDonald testified for defendant. In a voir dire outside the presence of the jury, the court heard testimony regarding pretrial communication between Dr. McDonald and defense counsel. The court allowed plaintiff's attorney to question Dr. McDonald privately and then permitted the witness to testify in court.

Dr. McDonald saw plaintiff in the emergency room on the night of the accident. Dr. McDonald wrote in the medical chart that plaintiff was "alert, oriented to time and place and cooperative." Plaintiff told Dr. McDonald that he remembered the entire occurrence. Dr. McDonald wrote down plaintiff's description of the accident:

"Patient states that he was riding his motorcycle and noticed that the gasoline cap was loose and at the time he hit a bump . . .. The gasoline spilled over and ran down to the engine [and] subsequently exploded destroying the motorcycle and also setting fire to the patient's clothes."

Kathleen Collins, a nurse, testified for defendant that she treated plaintiff in the burn unit on the evening of the accident. She recorded: "Patient states that cap on gasoline tank came off of cycle that he was riding, it blew up and he ran into a house." Collins testified that she did not edit plaintiff's statement, and took it down "word for word."

James Frasheski, an eyewitness, testified for defendant that he was driving a van near an intersection when he saw plaintiff 100 to 125 feet away. He saw the gas cap on plaintiff's motorcycle fly up and fly back down. When the motorcycle hit the curb, fluid poured out of the gas tank and ran down the right side of the motorcycle. Plaintiff pushed the motorcycle down, and stood up, on fire. ...

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