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12/02/88 Ronald Cornstubble, v. Ford Motor Company

December 2, 1988

RONALD CORNSTUBBLE, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

FORD MOTOR COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

532 N.E.2d 884, 178 Ill. App. 3d 20, 127 Ill. Dec. 55 1988.IL.1743

Appeal from the Circuit Court of St. Clair County; the Hon. Robert L. Craig, Judge, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. LEWIS, J., concurs. JUSTICE CALVO, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

Defendant-appellant, Ford Motor Company, appeals from a $1,298,344 judgment entered July 28, 1986, following a bench trial in the circuit court of St. Clair County, against defendant and in favor of plaintiff-appellee, Ronald Cornstubble, in a personal injury/negligence action. The trial court found plaintiff contributorily negligent to the extent of 30% and reduced the damage award accordingly.

Defendant presents three arguments on appeal: (1) that the trial court's finding of negligence is against the manifest weight of the evidence; (2) that the trial court's finding that the defendant's negligence was the cause in fact of the plaintiff's injuries is against the manifest weight of the evidence; and (3) that the trial court's determination of damages is against the manifest weight of the evidence. Plaintiff has filed a cross-appeal challenging the trial court's finding of contributory negligence.

We find it necessary to discuss only the first two issues presented by defendant and reverse the trial court's findings of negligence and causation as against the manifest weight of the evidence. We do not do this lightly, for we are most mindful of the great deference we must accord the findings of fact of the trial court (First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 794, 458 N.E.2d 193, 198-99), and of our obligation to view all of the evidence in the light most favorable to plaintiff-appellee (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412, 476 N.E.2d 1232, 1236). However, where the trial court's findings are contrary to the manifest weight of the evidence, it is also our duty to reverse. Cosmopolitan National Bank v. County of Cook (1983), 116 Ill. App. 3d 1089, 1102, 452 N.E.2d 817, 827, modified (1984), 103 Ill. 2d 302, 469 N.E.2d 183.

Plaintiff, Ronald Cornstubble, sustained injuries to his back when, on October 29, 1982, he fell while exiting from the cab of a dump truck designed and manufactured by defendant, Ford Motor Company. The truck had a gas tank step system for ingress to and egress from the cab, the faulty design of which, plaintiff alleged, caused his fall and resultant injuries. Plaintiff's complaint was originally filed in two counts, one sounding in strict products liability, the other in negligence. The strict products liability count was dismissed before trial on the basis of the "statute of repose." (Ill. Rev. Stat. 1985, ch. 110, par. 13-213(b).) Therefore, the case was tried and decided under the count of the complaint alleging negligent design.

Under a theory of negligence, the focus is primarily on the defendant's conduct in designing and manufacturing the product, rather than on the condition of the product itself. It is not sufficient to show that the product is defective or not reasonably safe; the plaintiff must also show that the defendant breached a duty owed to plaintiff. (Braband v. Beech Aircraft Corp. (1977), 51 Ill. App. 3d 296, 301, 367 N.E.2d 118, 122, aff'd (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857.) A manufacturer has a duty of due care to design and manufacture a product that will be reasonably safe for its intended and any reasonably foreseeable uses. (Sanchez v. Bock Laundry Machine Co. (1982), 107 Ill. App. 3d 1024, 1028, 438 N.E.2d 569, 572.) Not only must plaintiff prove that the product was not reasonably safe, but also that the defendant knew or, in the exercise of ordinary care should have known, that the product was not reasonably safe. (Watts v. Bacon & Van Buskirk Glass Co. (1959), 18 Ill. 2d 226, 232, 163 N.E.2d 425, 428.) In a negligence action, a defendant may rebut plaintiff's proof by showing its exercise of reasonable care through evidence of its testing and inspection procedures (Nave v. Rainbo Tire Service, Inc. (1984), 123 Ill. App. 3d 585, 591-92, 462 N.E.2d 620, 625), or evidence that it complied with industry custom and practice. Denniston v. Skelly Oil Co. (1977), 47 Ill. App. 3d 1054, 1067, 362 N.E.2d 712, 722.

After viewing all of the evidence in the light most favorable to plaintiff-appellee, we find that plaintiff has failed to demonstrate that defendant did not exercise reasonable care in designing the gas tank step system, or that any defect in the gas tank step system was the cause in fact of plaintiff's injuries. We therefore reverse the judgment of the circuit court of St. Clair County.

The following evidence was adduced at trial. Plaintiff, Ronald Cornstubble, testified that he had been a construction truck driver since 1966. On the morning of his accident, plaintiff was sent by his union to work as a dump truck driver for Hoeffken Brothers Construction Company.

The truck from which plaintiff fell has a gas tank step system for ingress to and egress from the cab which consists of a single step approximately 22 inches above the ground. This step is approximately 7 3/4 to 8 inches wide, but has a curved edge which reduces the flat surface by one to two inches. There is then a 12-inch step up into the cab of the truck. The cab of the truck has a seven inch-wide sill which serves as a second step. The top of the gas tank is several inches below the sill and extends beyond the sill approximately two inches. The gas tank is embossed with a slip-resistant diamond tread approximately one-eighth of an inch thick. The dump truck had been manufactured by Ford Motor Company in 1963, but the gas tank step system had been designed by defendant some years prior to 1958.

Plaintiff had entered and exited the truck two or three times without difficulty prior to his fall. Plaintiff described his fall as follows. He was sitting in the cab behind the steering wheel. He opened the door with his left hand and held the steering wheel with his right hand. As the door opened, plaintiff began to move his left foot out of the cab. As he put his left foot down, he grabbed the "B" pillar behind the driver's door with his left hand and reached for the window sill on the open door with his right hand. He swung his body toward the outside of the cab and began to move his right foot out of the cab. His left foot was not firmly planted. Just as his right foot came down it "hit that riser or something, and I just fell." As he fell, plaintiff hit his lower back, shoulders and neck.

Plaintiff had three back surgeries following his fall. The first was to remove a lumbar disc, the second was to repair stitches from the first surgery which had torn loose, and the third was to remove a cervical disc. Plaintiff continued to have pain at the time of trial and testified that he was unable to do any physical work.

Plaintiff called Dr. Howard Harrenstien as his expert witness on the issues of negligence and causation. Dr. Harrenstien has a B.S. degree in architectural engineering, an M.S. degree in civil engineering and a Ph.D. degree in theoretical and applied mechanics, which he described as

"the study of the effect of forces on bodies at rest and in motion and the prediction of their behavior, both external and internal. It deals with statics, dynamics, strength of materials, experimental stress analysis, elasticities, plasticity, similitude in engineering, things of that sort."

At the time of trial, Dr. Harrenstien was employed as a professor of civil and architectural engineering at the University of Miami. He has spent most of his career in the academic arena and has never been employed in the field of automotive or truck design or manufacture. Dr. Harrenstien has never belonged to any societies or professional organizations related to automotive or truck design or manufacture. Most of Dr. Harrenstien's experience and training involves engineering design work relating to buildings or components of buildings. Dr. Harrenstien has very little, if any, specific experience or training in the field of automotive or truck design or manufacture or the design or manufacture of ingress/egress systems for trucks. Dr. Harrenstien does have experience and training in the design of stairways, ramps and ladders for ingress to and egress from buildings.

On cross-examination, Dr. Harrenstien testified that a civil engineer is not necessarily qualified to testify as an expert about the design of ingress/egress systems for trucks. Dr. Harrenstien testified, however, that the education he received in obtaining his Ph.D. degree and the work he has done since then qualifies him to review a design of a truck ingress/egress system and render opinions as an expert. He testified that his expertise in the area of truck ingress/egress systems includes his architectural background, his theoretical and applied mechanics background, his knowledge of how people ascend and descend stairways and ladders, how they climb on things and the work he has done in previous court cases in which he has testified.

Dr. Harrenstien inspected, measured and analyzed the truck and the gas tank step system from which plaintiff fell, as well as plaintiff's boots. He determined the coefficient of friction between the gas tank step and plaintiff's boot to be .545. The coefficient of friction represents the amount of force necessary to slide plaintiff's boot on the gas tank step.

Dr. Harrenstien detailed eight ways in which he believed the gas tank step system had been negligently designed. Dr. Harrenstien's first opinion was that the design and manufacture of the gas tank step system was negligent in that its dimensions did not maintain their integrity during foreseeable uses. The step became indented with use and the diamond tread became worn smooth, thereby losing any nonslip qualities which it might have had.

Dr. Harrenstien's second opinion was that the gas tank step system was negligently designed in that the front edge of the step was rounded or curved, with an intended radius of one inch. This gradually changing slope from horizontal to vertical causes a person standing on the step to slip.

Dr. Harrenstien's third opinion was that the gas tank step system was negligently designed in that it did not have a nonslip, self-cleaning surface. Self-cleaning surfaces are open gratings which allow foreign matter to drop down off the step. These materials were known and available at the time the gas tank step system was designed. The diamond tread did not maintain its integrity, but became worn smooth. Other nonslip surfaces which would maintain their integrity were known and available at the time the gas tank step system was designed.

Dr. Harrenstien's fourth opinion regarding negligent design was that defendant did not follow well-known building construction industry standards with respect to width of steps and height of risers in stairways. He testified that the gas tank step system has all the characteristics of a portion of a stairway and therefore design engineers should have investigated stairway specifications when they designed the gas tank step system. Relying on the 1941 Miami Beach building code, he testified that in the building construction industry, the preferred height of a step from the ground is 16 inches. The height from the ground of the gas tank step was 22 inches. Further, relying on a 1968 document entitled "U.S.A. Standard Requirement for Fixed Industrial Stairs," Dr. Harrenstien testified that the gas tank step was not sufficiently wide. According to that document, stairs having a width of less than nine inches should have an open riser so that the end of the foot can extend beyond the step. The gas tank step was less than nine inches wide but had a closed riser. Finally, Dr. Harrenstien testified that the second step into the truck cab was negligently designed in that the top of the gas tank extends two inches beyond the cab sill step, creating an "inconsistent riser."

Dr. Harrenstien's fifth opinion regarding negligent design of the gas tank step system was that it invites drivers to walk down the steps as they would a stairway and it is not discernible from the cab that it is a closed riser ...


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