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07/28/88 Arthur Elliott, v. Sears

July 28, 1988

ARTHUR ELLIOTT, PLAINTIFF-APPELLANT

v.

SEARS, ROEBUCK & COMPANY, DEFENDANT-APPELLEE (EMERSON ELECTRIC COMPANY, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

527 N.E.2d 574, 173 Ill. App. 3d 383, 123 Ill. Dec. 111 1988.IL.1163

Appeal from the Circuit Court of Vermilion County; the Hon. Paul M. Wright, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

This appeal involves a products liability action for personal injuries against defendant Sears, Roebuck and Company, the seller of a Craftsman ACCRA-Arm 10-inch radial saw, model No. 11329410. Plaintiff Arthur Elliott had four fingers of his right hand amputated when the saw "kicked back" while plaintiff was using it to cut wood, thereby bringing the blade into contact with plaintiff's hand. This injury occurred on May 3, 1983.

The saw was manufactured by Emerson Electric Company in November 1965. It was then sold and shipped to defendant within one month after its manufacture. Plaintiff purchased the saw from defendant in early 1982.

Plaintiff filed suit against defendant on July 11, 1984. Emerson was later added as a party-defendant, but the strict liability count against Emerson was dismissed on the ground that suit was not initiated within the period required by the statute of repose. (Ill. Rev. Stat. 1985, ch. 110, par. 13-213.) The remaining counts against Emerson were also dismissed at a later time.

The three counts against Sears were couched in the language of strict liability, negligence, and wilful and wanton misconduct. In its second affirmative defense to count I, Sears (defendant) raised the statute of repose as an affirmative defense.

Plaintiff filed a motion to strike defendant's second affirmative defense to count I, which was denied. Defendant then filed a motion for summary judgment on count I based on the failure of plaintiff to bring the action within the period set out in the statute of repose. The trial court granted the motion for summary judgment on count I. Thereafter, the cause proceeded to trial against defendant on the negligence and wilful and wanton theories.

At the Conclusion of plaintiff's case in chief, the trial court directed a verdict in favor of defendant on the wilful and wanton count. Subsequently, the jury returned a verdict in favor of defendant on the negligence count and judgment was entered thereon.

Plaintiff's appeal involves three issues. First, does the statute of repose bar a strict liability action against defendant under the facts of this case? Second, is the verdict in favor of defendant on the negligence count against the manifest weight of the evidence? Third, did the evidence before the court at the time of considering the defendant's motion for a directed verdict as to the wilful and wanton counts, when viewed in a light most favorable to plaintiff, so overwhelmingly favor defendant that no contrary verdict could ever stand? In light of these results, the evidence presented at the trial relevant to these issues must be reviewed.

The plaintiff testified about his education and prior job experience and his experience with woodworking, including his use of power tools. Two of plaintiff's sons also testified as to plaintiff's experience in using a variety of tools and at various construction projects. Neither of these witnesses was present when plaintiff was injured, however. Plaintiff stated he had never used a radial arm saw before he bought the one in issue from defendant's store in Danville, Illinois, in March or April 1982.

At the time of purchasing the saw, plaintiff went to the store in response to an ad he saw in a local newspaper. When he arrived at the store, he saw the model he wanted sitting on the floor on display and told the salesman that was the saw he wanted to buy. He recalls paying about $190 cash. There were other radial arm saws on sale beside the model he purchased, but he told the salesman he wanted the cheapest saw they had. No one demonstrated the saw for him and no one warned him about kickbacks. When he picked up the saw at the delivery door behind the cart, it was in a box. The saw required some assembly. Plaintiff did that himself.

On the day he was hurt, he was ripping four-foot long one-by-fours. He described how he was positioned at the saw and explained how he set up the saw. He testified that while he was pulling one of the boards through the saw with his right hand, the board kicked back to the left very quickly and his fingers on his right hand were cut off.

On cross-examination, plaintiff testified that when he took the saw out of the box, he was satisfied that it was the same saw he told the salesman he wanted. It came out of a sealed box that did not appear to have been opened before. The instruction manual that came with the saw told him how to put it together, how to use it, and how to use it when ripping lumber. He read it approximately three times before he got hurt although not on the day he got hurt. He was confronted with a prior statement in his deposition wherein he stated he had only read the instruction booklet on the date he got it and not thereafter. He set the saw up in such a way that the only way to operate it was in front of the saw. He did not provide room at the side of the saw because he had placed a table there. He testified that if the saw was set up in the "in-rip position" it would have been much more difficult to operate because he could not stand on the side of the saw. He did not remember where the instruction booklet suggested he was to stand if he was doing an "in-rip" cut. He did not remember if the instruction booklet told him to use "in-rip" position to rip four-inch-wide wood. He was not using a push stick on the day in question nor did he ever use a push stick. He knew that the ...


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