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06/10/94 SHELBYVILLE MUTUAL INSURANCE COMPANY v.

June 10, 1994

SHELBYVILLE MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLANT, M. LYLE SIMS, AND E. LORENE SIMS, PLAINTIFFS,
v.
SUNBEAM LEISURE PRODUCTS COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Christian County. No. 91-L-10. Honorable Joseph L. Fribley, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Lewis, Chapman, Rarick

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Plaintiff, Shelbyville Mutual Insurance Company (insurance company), appeals from the trial court's orders granting motions to bar evidence and for summary judgment in favor of defendant, Sunbeam Leisure Products Company (Sunbeam). The issue raised by this appeal is whether the trial court abused its discretion by barring plaintiffs from presenting certain evidence in their product liability case. For reasons we will more fully explain, we affirm the orders of the trial court.

Plaintiffs, M. Lyle Sims and E. Lorene Sims (Mr. and Mrs. Sims), filed the original complaint in this case on March 14, 1991. They do not participate in this appeal, as the real party in interest and subrogee of Mr. and Mrs. Sims, the insurance company, was added as a party plaintiff on March 19, 1993, in plaintiffs' first amended complaint. The complaint alleged that on April 4, 1989, a gas grill owned by Mr. and Mrs. Sims and manufactured by Sunbeam was not reasonably safe in design or manufacture, and that as a direct and proximate cause of alleged defects, the grill caught fire and was destroyed along with other possessions.

After the parties conducted discovery for over a year, Sunbeam filed a motion to bar evidence, pursuant to Supreme Court Rule 219(c). (134 Ill. 2d R. 219(c).) Basically, the motion to bar evidence alleged that plaintiffs had lost, misplaced, destroyed, or spoiled parts of the grill alleged to be defective, and that, as a result, plaintiffs should be barred from presenting any testimony or evidence concerning the alleged defects in the grill or as to the cause and origin of the fire. Plaintiffs filed responses to the motion, and Sunbeam filed a reply to those responses. Both parties attached copies of certain pretrial discovery to the motions and responses, which the court considered prior to granting the motion by a docket entry order on April 17, 1993.

The facts disclosed by the discovery can be summarized as follows: About a year before the accident, Mr. and Mrs. Sims purchased and assembled a gas grill manufactured by Sunbeam. On April 4, 1989, Mr. Sims used the grill to cook supper. The grill was located under their carport, which was attached to their home. After cooking, Mr. Sims removed the food and followed the recommended cleaning procedure: he turned both burners up to high and closed the lid. Mr. Sims then went inside his house to eat supper. After about ten minutes, the lights in the house went out. Mr. Sims walked outside to check on the grill. By then, the grill and part of the house were in flames.

Shortly after the fire, Alan Clark, director of investigative services for Grinnell Mutual Reinsurance Company (Grinnell), came to Mr. and Mrs. Sims' home to investigate the cause of the fire on behalf of the insurance company. Clark took numerous photographs of the grill and the fire scene. Shortly thereafter, he or someone at his direction removed the entire assembled grill, including the propane tank used just before the fire and the wooden frame, from the Sims' home. When removed, the grill was in the same condition it was in immediately after the fire.

The grill was stored at the insurance company's office in Shelbyville, Illinois, until the spring of 1990, when Clark and Tom L. Hayes, the secretary/manager for the insurance company, mutually decided to disassemble the grill for shipping to another of plaintiff's experts, Dr. V. R. Nelson, in Sioux Falls, South Dakota. At that time, the grill body and its component parts were packaged into a wooden crate and sent for examination to Dr. Nelson. The grill frame, propane tank, regulator, and rubber propane hose were not sent to Dr. Nelson. In August 1990, the regulator and rubber propane hose were sent to Dr. Nelson, and the grill frame and operating propane tank remained at the insurance company's office. The wooden grill frame was inadvertently discarded when the insurance company's office was remodeled. The operating propane tank was used for approximately a year at the home of a secretary of the insurance company.

Dr. Nelson examined the grill parts and concluded that the fire was caused by excessively high gas pressure resulting in high temperature and high flames. Excessive gas pressure is usually a problem with the pressure regulator, but the regulator was working properly at the time Dr. Nelson examined it. However, Dr. Nelson stated that pressure regulators can temporarily malfunction if dirt or other debris pass through the regulator. Each time the propane tank is filled, foreign material can be introduced into the regulator, causing it to temporarily malfunction. Dr. Nelson concluded that the product was not defective and, therefore, the insurance company had no case against Sunbeam.

After Dr. Nelson examined the grill, it was shipped to Grinnell's office in Grinnell, Iowa. The insurance company was apparently dissatisfied with Dr. Nelson's Conclusion, because in February 1991, Clark personally transported the wooden crate containing the grill remains to Dr. S. P. Sutera at Washington University in St. Louis, Missouri. After examining the grill, Dr. Sutera concluded that the flame was abnormally high inside the closed grill and that the regulator was set higher than normal for gas appliances like this grill. The abnormally high flame was "due, in part, possibly to the accumulated meat grease which had dropped on the lava rock, and possibly in part due to the high outlet pressure of the regulator." The high flame made continuous contact with the hood of the grill to the point where it began to deform. The deformation of the hood caused the glass viewing window to break out, allowing flames to shoot out of the grill. He concluded that the materials in the hood and window attachment were inadequate to withstand the heat generated from the recommended cleaning procedure.

After Dr. Sutera examined the grill, it was again packaged into a wooden crate and transported to the Grinnell office in Iowa, and then, in July 1992, the same, unopened wooden crate was transported to the insurance company's office in Shelbyville, Illinois. In September 1992, Dr. William Baynes, Sunbeam's expert, examined the grill at the insurance company's office. Dr. Baynes testified that the only parts of the grill available for his examination were "two castings, a control panel, a burner, a piece of burned hose, a piece of a rotisserie, some metal parts like a warming rack, the remainder of a heat indicator, a window frame and a couple of wooden handles." He was not able to examine the operating propane tank, the regulator, a second burner, or the wooden grill frame. However, just prior to the time that the court granted the motion to bar evidence, the insurance company located both the regulator and the operating propane tank and offered them to Sunbeam for inspection.

Based upon his examination, Dr. Baynes testified that the fire started in the venturi tubes connecting the propane tank to the grill burners, due to a spider or some other obstruction in the venturi tubes. He refuted Dr. Sutera's Conclusions and stated that he did not need to investigate further because he felt comfortable with his opinion, but ...


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