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09/28/88 Curtis Lease, A Minor By v. Ional Harvester Company

September 28, 1988

LEASE, PLAINTIFF-APPELLANT

v.

INTERNATIONAL HARVESTER COMPANY, DEFENDANT-APPELLEE



Before proceeding to the complicated legal problem at the heart of this case, we briefly dispose of charges and countercharges arising from the testimony of Bertrand Strauss, an expert witness who testified for the plaintiff. Strauss stated the mower was unreasonably dangerous because, at the time of the manufacture of the mower (1) it was "feasible" to have installed a device which would automatically stop the rotation of the mower blade when the mower was being moved in reverse; and (2) the manufacturer failed to install such a device. Strauss did not define the term "feasible." Strauss also stated on cross-examination that he did not consider a product defective unless and until it had caused an "accident." The parties agree the existence of an "accident" is not necessary for a product to be defective, although a resultant injury is necessary for the existence of a tort action for strict liability.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

CURTIS LEASE, a Minor by his Mother and Next Friend, Janet

529 N.E.2d 57, 174 Ill. App. 3d 897, 124 Ill. Dec. 340 1988.IL.1471

Appeal from the Circuit Court of Adams County; the Hon. Edward B. Dittmeyer, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On July 23, 1984, the minor plaintiff Curtis Lease by his mother and next friend filed suit in the circuit court of St. Clair County seeking recovery for personal injuries he suffered when his leg was run over by a power riding lawn mower. Defendant International Harvester Company , the manufacturer of the power mower, and defendant James Thompson, the operator of the mower, were charged with responsibility in tort for the injuries. The cause was removed to the circuit court of Adams County, where it was tried before a jury on a third-amended complaint. The first count alleged strict liability for defective product against IH. The second count charged IH with negligence. The third count charged

Plaintiff has appealed claiming, as error, only the direction of the verdict as to portions of the first count. The theory of that count was the power mower was in a defective, dangerous condition when it left the control of IH because: (a) the blade of the mower would cut when the mower was in reverse; (b) "[the] lawn mower failed to have adequate shields or safety devices to prevent its blades from coming in contact with persons, including plaintiff"; and (c) the mower was defectively designed because it lacked proper view to the rear. Verdict was directed only as to allegations (a) and (b). Thus, the sufficiency of the proof to make a prima facie case as to those allegations is all that is before us. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) We conclude that proof was insufficient. Accordingly, we affirm.

The evidence showed defendant Thompson purchased the mower new in 1968 or 1970. On June 16, 1974, he was using it to cut his lawn with his two grandsons, one of whom was plaintiff, then 2 1/2 years old, riding with him. At some point, plaintiff got off and went into Thompson's house. Thompson continued mowing with the other grandson on his knee. Thompson testified that when he neared a downhill slope in his yard, he stopped, looked over his shoulder, put the mower in reverse, and backed up about three feet and ran over plaintiff's leg. Thompson testified he knew of the existence of a device on the mower to disengage the cutting apparatus, but he did not use it before backing. Plaintiff testified he had returned to the mower and was attempting to climb aboard from the rear when the mower was placed in reverse, and he fell with his leg then being cut by the mower. Amputation of portions of the leg was required.

The parties do not dispute that for a manufacturer of a product to be strictly liable for a defect in a product, the defect must exist at the time the product leaves the control of the manufacturer. (Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104, 111, 454 N.E.2d 197, 200.) IH maintains Strauss' statement that a product is not defective until

Plaintiff maintains IH improperly confused the circuit court as to the effect of Strauss' testimony and led it into erroneously directing a verdict. We need not examine this assertion in detail as this matter does not affect our decision. The question of the propriety of a directed verdict is one of law. If the evidence of record requires the direction of a verdict, we must uphold that decision regardless of the reasoning of the court in directing the verdict. If the evidence of record does not require the direction of a verdict, we must reverse the order directing the verdict.

We also note preliminarily that plaintiff offered no testimony to show that the mower was unreasonably dangerous because of any failure of the mower to have more of a shield or other safety device to prevent the blades from coming into contact with plaintiff's leg. Plaintiff does not seriously argue that the directed verdict on this charge should be overturned.

This appeal turns on the complicated issue of whether plaintiff made a prima facie case to recover on the theory that the design of the mower was unreasonably dangerous because the mower was not equipped with a device to automatically stop the running of the mowing blades when the mower was moving in reverse. To prove the allegedly unreasonable nature of the danger presented by having no such automatic device on the mower, plaintiff relies upon the testimony of Strauss. A highly respected text on torts explains two approaches which have been taken to define the basis for determining whether an unreasonably dangerous design defect ...


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