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03/20/89 Sieanna Mitchell, As Adm'r v. Wayne Corporation

March 20, 1989





536 N.E.2d 241, 180 Ill. App. 3d 796, 129 Ill. Dec. 557 1989.IL.365

Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

Rehearing Denied April 21, 1989.


JUSTICE NASH delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.


Brian Mitchell, age seven years, was struck and fatally injured by a car after exiting a school bus. Plaintiffs, Sieanna Mitchell, decedent's mother and administrator of his estate, and Tara and Eric Mitchell, decedent's sister and brother, appeal from a summary judgment entered in favor of defendant, Wayne Corporation, the manufacturer of the school bus in which Brian had been riding.

The decedent was fatally injured when he exited his school bus, which was stopped in the eastbound lane of the street, and walked in front of the bus into the westbound lane, where he was struck by an automobile traveling in that lane. Plaintiffs brought actions against the driver of the automobile which struck the decedent as well as the school bus owner, Board of Education of Community School District 427, in February 1984. (Mitchell v. Bush, 1987, No. 84 -- L -- 19, Circuit Court of De Kalb County, Ill.) In September 1985, plaintiffs commenced this separate action against defendants Ford Motor Company, Wayne Corporation, and Tallitsch Motors, Inc. Defendants Ford Motor Company and Tallitsch Motors, Inc., were granted summary judgment in July 1986, and plaintiffs have not appealed from those judgments. As the amended complaint stood at the time of the order from which this appeal is brought, it alleged actions sounding in both negligence and strict products liability against the remaining defendant, Wayne Corporation, relating to the manufacture and design of the warning devices on the school bus. The trial court granted the motion for summary judgment of this defendant on the grounds that plaintiffs failed to establish any facts showing that the bus was negligently manufactured or was manufactured in an unreasonably dangerous condition.

Plaintiffs appeal, contending that the trial court improperly barred plaintiffs from using an expert witness at trial and that material facts exist as to whether defendant failed to manufacture the bus in compliance with State safety standards, whether defendant knew or should have known that the warning system's design was imminently dangerous, and whether the warning system created an unreasonably dangerous condition.

We consider first whether the trial court abused its discretion when it barred plaintiffs from using an expert at trial.

The record reveals the following: On August 18, 1986, defendant served interrogatories on plaintiffs pursuant to Supreme Court Rule 220(c) to learn the identity of any expert witness plaintiff intended to call in trial. (107 Ill. 2d R. 220(c).) Plaintiffs answered that they did not yet have an expert witness. On January 22, 1987, the trial court, on defendant's motion, ordered plaintiffs to disclose all expert witnesses within 30 days. In its motion, defendant noted that no pretrial hearing was scheduled and requested a schedule of dates for compliance with the discovery of experts, when disclosed, pursuant to Supreme Court Rule 220. Plaintiffs did not disclose experts but instead filed, but did not set for hearing, a motion to continue the question of disclosure of experts. Defendant then noticed plaintiffs' motion to continue disclosure for hearing, and on April 2, 1987, plaintiffs were ordered to disclose on or before June 1, 1987. Plaintiffs again failed to disclose any expert witnesses but on June 30, 1987, filed another motion for an extension of time to do so. Finally, on July 30, 1987, more than 22 months after plaintiffs' complaint had initially been filed, and six months after first being ordered to disclose their expert witnesses, defendant moved for sanctions, and the court barred plaintiffs from calling an expert at trial. In November 1987, defendant filed a motion for summary judgment alleging there was no genuine issue of material fact which, after hearing, was granted.

In support of plaintiffs' response to defendant's motion for summary judgment, plaintiffs offered the affidavit of Frank J. Gruber IV, an associate professor of technology at Northern Illinois University, who was an expert in the field of safety studies. The trial court found that because plaintiffs were barred from presenting expert witnesses at trial, an affidavit by an expert in opposition to summary judgment would also be barred. (See James v. Yasunaga (1987), 157 Ill. App. 3d 450, 459, 510 N.E.2d 531 (where the court held that if use of an expert is barred from the trial, a party should not be able to circumvent the result under Rule 220 by offering the expert's report as a counteraffidavit in opposition to summary judgment because such affidavit must only contain facts which affiant could competently testify to at trial if sworn as a witness).) However, the trial court stated that, nevertheless, it had also read and considered the expert's opinion and found that it did not help the plaintiffs' case in opposing summary judgment.

We initially note that Supreme Court Rule 341(e)(4)(ii) now requires that an appellant's brief contain a statement of jurisdiction (122 Ill. 2d R. 341(e)(4)(ii)), and that plaintiffs-appellants have not ...

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