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12/13/89 Matthew A. Kempes, A Minor v. Dunlop Tire and Rubber

December 13, 1989

MATTHEW A. KEMPES, A MINOR, BY HIS MOTHER AND NEXT FRIEND, JACQUELINE KEMPES, PLAINTIFF-APPELLANT

v.

DUNLOP TIRE AND RUBBER CORPORATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

548 N.E.2d 644, 192 Ill. App. 3d 209, 139 Ill. Dec. 259 1989.IL.1934

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. WHITE and CERDA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff, Matthew Kempes, by his mother and next friend, Jacqueline Kempes, sued defendant, Dunlop Tire and Rubber Corporation, in strict liability in tort for injuries sustained when plaintiff cut into the center of a golf ball allegedly designed, prepared, manufactured, advertised, distributed, supplied, and/or sold by defendant. In lieu of answering the complaint, defendant filed a motion for summary judgment. The trial court granted the motion. Plaintiff appeals.

The injuries for which plaintiff sought recovery occurred on May 30, 1979, when plaintiff was eight years old. About a week before that date, one of plaintiff's older brothers brought home a grocery bag, one-quarter full, of golf balls. Sometime prior to his accident, plaintiff observed another brother cut open one of the golf balls. Plaintiff's brother removed the ball's cover and the rubber bands underneath it to find a little rubber ball at the center. On May 30, plaintiff came across one of the golf balls, in his backyard, on which he had previously seen the name "Dunlop" printed. About one quarter of the cover of the ball had been chewed off by the family dog, and the remainder of the ball had teeth marks over it. Plaintiff removed the ball's cover and then began removing the rubber bands surrounding the ball's inner center. Plaintiff grew impatient with this process and obtained some scissors to cut the rubber bands. As plaintiff was doing so, he also cut into the little ball underneath the rubber bands and the contents of the ball squirted into his right eye. Plaintiff eventually underwent two operations to correct his eye injuries.

In discovery, plaintiff deposed Martin R. Potzler, the technical manager for Dunlop Sports Company since 1969. Dunlop Sports Company is a division of defendant. Potzler testified to the following. As technical manager, he was responsible for product design, process improvements and quality control of sports products. Defendant did not manufacture any golf balls designated as "Dunlop 65" in the United States containing a paste center. Such balls were manufactured in Ireland and the United Kingdom by defendant's English division. After examining the golf ball plaintiff cut into, Potzler concluded that the rubber ball at its center contained a paste. There were at least four different golf balls which defendant manufactured in the United States with paste centers, none of which were designated "Dunlop 65." Defendant no longer manufactured paste center golf balls. Defendant switched to a water center to save money. Potzler was directed to develop a golf ball with a water center in approximately 1966. The paste center of the golf balls defendant made in the United States contained bentonite clay, water, barium sulfate, zinc, glycerin and methyl salicylate. Potzler knew before plaintiff's accident that children sometimes took defendant's golf balls apart. He knew that before he went to work for defendant. Potzler himself took apart a golf ball as a child. If all of the rubber bands under the cover of a paste center golf ball were removed and the hard rubber center was cut with a knife or scissors, the paste would not come out as if under pressure but would simply leak out. However, if the rubber bands were still around the hard rubber ball when the ball was cut, the paste at the center would come out under pressure.

Potzler further testified that he first learned that eye injuries could result from the cutting of golf balls with paste centers when he heard of a New Jersey child injured in that manner in 1970 or 1971. Potzler had also learned of a 1975 Massachusetts case and one in New York City in the late 1970's. Based on his determination that its cover was not manufactured in the United States, Potzler concluded that the golf ball plaintiff cut into was not manufactured by defendant in the United States. However, the writing on the ball was similar to that on the "Dunlop 65" manufactured in the United States. Moreover, the thread in the cover of the ball was very similar to latex thread manufactured by defendant. However, such thread was not used on paste center balls made in the United States by defendant. Potzler did not know when the golf ball plaintiff cut into was manufactured. Defendant ceased the manufacture of paste center golf balls in 1967 and did not manufacture a "Dunlop 65" golf ball until 1968. The "Dunlop 65" manufactured in 1968 and thereafter did not contain a paste center. Defendant's English division began using the name "Dunlop 65" in the 1930s. Because the first "Dunlop 65" balls made in the United States were imprinted with printing dies sent from England, it could not be determined where the ball plaintiff cut into was manufactured. Potzler could not testify that defendant did not sell the ball which injured plaintiff.

Defendant moved for summary judgment on the grounds that plaintiff could not prove that defendant made the golf ball he cut into, the golf ball was not in the same condition at the time of the accident as it was when it left defendant's control, plaintiff had no expert witness, the accident was not reasonably foreseeable, and it would have been impossible to warn plaintiff. The trial court granted the motion on the ground that plaintiff's conduct constituted an unforeseeable alteration of the golf ball. In doing so, the trial court reasoned, inter alia, that "[i]t would be unreasonable to impose a duty upon a defendant whose product is especially unsusceptible to dismantling to warn of the dangers that such a misuse [of the product] poses."

Opinion

In appealing the summary judgment for defendant, plaintiff contends that the record establishes that defendant knew that children cut into its paste center golf balls and the risk of injury posed by such balls. Plaintiff cites Potzler's deposition testimony and the deposition testimony of James Fox, defendant's vice-president, secretary and general counsel, as revealing defendant's knowledge of those facts. Plaintiff concludes from this evidence that, at the very least, a genuine issue of material fact existed with regard to the foreseeability of his injuries by defendant.

Preliminarily, we must note a variance between plaintiff's complaint, on the one hand, and the questions plaintiff's counsel put to Potzler and Fox and their answers thereto during their discovery depositions, on the other hand. The former predicated defendant's liability on, e.g., the manufacture, distribution and/or sale of a "Dunlop 73" golf ball. The latter, however, concerned only defendant's manufacture, distribution or sale of undesignated golf balls or golf balls designated as "Dunlop 65." There is no reference in the record whatsoever to a "Dunlop 73" golf ball other than in plaintiff's complaint. This variance results in the failure of the record to raise a genuine issue of material fact regarding defendant's liability for injuries caused by a "Dunlop 73" golf ball. Conclusory allegations in a complaint do not raise a question of fact when unsupported by facts admissible in evidence and when affidavits and depositions in support of a motion for summary judgment contain evidentiary facts to the contrary. (See Lesnik v. Estate of Lesnik (1980), 82 Ill. App. 3d 1102, 1106, 403 N.E.2d 683.) On this basis, we find that summary judgment was properly entered for defendant. However, we find that summary judgment was properly entered for defendant even disregarding this variance.

Summary judgment is proper only where the record reveals that there is no genuine issue of any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005.) While a plaintiff is not required to prove his case in responding to a motion for summary judgment, he is required to present facts to support the elements of his claim. (Technical Representatives, Inc. v. Richardson-Merrell, Inc. (1982), 107 Ill. App. 3d 830, 438 N.E.2d 599.) There are several elements to a cause of action in strict liability for an unreasonably ...


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