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04/26/89 Marjorie Restaino, v. Montgomery Ward and

April 26, 1989





540 N.E.2d 797, 184 Ill. App. 3d 770, 132 Ill. Dec. 875 1989.IL.602

Appeal from the Circuit Court of Cook County; the Hon. Louis J. Giliberto, Judge, presiding.


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


Plaintiff-appellant, Marjorie Restaino, appeals from a judgment of the circuit court of Cook County awarding her $39,725.25 in damages against defendant-appellee, Montgomery Ward & Company (Ward). On appeal, Restaino argues that the trial court erred in (1) instructing the jury on assumption of risk and in denying her post-trial motion with respect to assumption of risk; (2) denying her petition for attorney fees and costs; and (3) failing to enter judgment in her favor on the issue of liability in view of Ward's failure to comply with discovery procedures. We affirm in part, and vacate and remand in part.

In the spring of 1979, Restaino purchased an exercise bicycle (bike) from Ward that was manufactured by Beacon Enterprises, Inc. (Beacon). On August 18, 1979, while Restaino was operating the bike, the sharp metal seat post which holds the seat cut through the plastic seat, impaling Restaino on the seat post. Restaino thereafter filed suit against Beacon and Ward.

At trial, Restaino testified that she was 19 years of age when she was injured by the bike. She had ordered the bike from a Ward catalog via telephone. When she received the bike, she took it home, read the instructions and put the unassembled bike together. Restaino put all of the approximately 45 pieces together and there were none left over. Restaino further testified that on August 18, 1979, she was riding the bike as she normally had when the seat post cut through the plastic seat, penetrated her underpants and impaled her body upon the metal seat post. The metal seat post penetrated Restaino's rectum and tore through her vagina and the area posterior to the cervix. Restaino was taken to the hospital and emergency surgery was performed that same day.

Dr. Carl Levy, the surgeon who operated on Restaino, testified that she had acute peritonitis of the abdomen. He had to repair Restaino's rectal area and vaginal injury. There was also blood in her abdomen. A colostomy operation was performed and Restaino remained in the hospital for approximately two weeks. Restaino returned to the hospital for additional surgery to close the colostomy. Thereafter, excessive fluid was taken from her lungs and she was placed in intensive care. Restaino was diagnosed as having pulmonary embolus. This occurred from the clotting of her blood in her thigh caused by the bike injury. The clot dislodged from her thigh and passed through her system, thereby blocking the passage of blood into her lungs. The result was chest pains and shortness of breath. Restaino remained in the hospital for three weeks and was discharged. She was, however, readmitted within 24 hours and diagnosed as having an acute gall bladder attack. It was the surgeon's opinion that this gall bladder condition was caused by Restaino's injury from the bike and her subsequent operations.

Dr. Sheldon Ettleson, an internist, also testified. He stated that Restaino was readmitted to the hospital for pulmonary embolus to her left lung. The previous diagnosis was to the right lung. It was his opinion that she would have a permanent persistence of pulmonary embolus.

Two other witnesses, Penina Wilson and Ester Mae Perry, testified on behalf of Restaino. Both stated that they had purchased the same model exercise bike from Ward. Both suffered injuries similar to those of Restaino resulting from the seat post cutting through the plastic seat. Wilson testified that her bike was assembled by Ward for a fee of $5.

George Bombyk testified as an expert witness for Restaino. He stated that his experience in working for the National Safety Council led him to conclude that the instructions for this particular bike were too complicated for lay persons. The instructions contained no warnings regarding the potential dangers of not following the instructions. He further stated that the instructions should have directed the purchaser to inspect the seat and bolts each time prior to riding and that the seat should have had a metal plate underneath.

John Geremia testified on behalf of Ward. Geremia stated that he conducted three different tests on the bike. The compression test demonstrated that the bike could withstand 2,000 pounds of pressure before the seat post cut through the seat. The drop test indicated that it would take 150 pounds per foot of pressure before the machine collapsed. The third test, the drill test, demonstrated how long it would take the seat post to drill through the seat. Depending on the time factor, the results would indicate that the machine was not properly assembled and that the bolts were not put into place. Geremia relied on this test and concluded that the metal post cut through the seat of Restaino's bike because she did not properly connect the bolt to the seat post.

Following the close of evidence, Restaino made a motion to preclude assumption of the risk from jury consideration. This motion was denied. The jury returned a verdict in favor of Restaino in the amount of $113,501. However, the jury found that Restaino was guilty of assumption of the risk to the extent of 65%. Judgment was ...

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