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12/08/95 DENNIS DAMRON v. MICOR DISTRIBUTING

December 8, 1995

DENNIS DAMRON, PLAINTIFF-APPELLANT,
v.
MICOR DISTRIBUTING, LTD., DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE WALTER J. KOWALSKI, JUDGE PRESIDING.

Petition for Leave to Appeal Denied April 3, 1996.

Presiding Justice Cousins delivered the opinion of the court: Gordon and T. O'brien, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

On January 17, 1990, Dennis Damron filed a complaint against Micor Distributing, Ltd. (Micor), for an injury caused by an allegedly defective pipe wrench that was distributed by Micor. A jury rendered a verdict in favor of Micor on April 15, 1994. On appeal, Damron contends that the jury verdict was against the manifest weight of the evidence because it was based on the speculative testimony of Micor's expert witness.

BACKGROUND

On January 17, 1990, plaintiff filed a complaint against Micor Distributing, Ltd., for an injury caused by an allegedly defective pipe wrench that was distributed by Micor. The complaint alleged that the wrench was unreasonably dangerous when it left Micor's control and the unreasonably dangerous condition of the wrench was the proximate cause of plaintiff's injury.

At trial, plaintiff testified that A&R Transport (A&R) hired him as a wash boy in 1985. This duty consisted of cleaning the inside and outside of bulk semitrailers and trucks. Two weeks after hiring plaintiff, A&R requested that plaintiff bring his tools to work and perform the duties of a mechanic. Plaintiff had no formal training as a mechanic; however, his mechanical experience ranged from building a car out of parts from three cars, maintaining and rebuilding tractor engines, and maintaining a bulldozer and laser trencher. As a mechanic for A&R, plaintiff provided general service on trailers and later advanced to service work on trucks.

On November 17, 1988, plaintiff attempted to fix a flat tire on a truck. Plaintiff removed the 10 outer lug nuts that secured the outside tire of the dual tire set on which he was working. The outer lug nuts were removed with an air impact wrench while the tractor was jacked off the ground. Several of the inner lug nuts holding the inner tire broke when the outer lug nuts were removed. This prevented the broken inner lug nuts from being removed with the impact wrench. Plaintiff was able to remove all the inner lug nuts except for one or two of the broken ones. Consequently, to remove the remaining broken inner lug nuts, plaintiff went to the parts room and obtained an 18 inch aluminum-handled pipe wrench. The pipe wrench appeared to be new because it had paint all the way around.

When plaintiff returned to the truck, he put the wrench on the nut and pulled it to make sure the nut was tight. When plaintiff pulled, the movable jaw of the wrench broke, and plaintiff fell on his buttocks. Plaintiff immediately felt pain in his back, buttocks and leg. His crew leader, Gerald Curl, came over to him and asked whether he was okay. Plaintiff then took a 20 minute break and returned to work.

Plaintiff received medical attention the next day that ultimately led to surgery in December 1988 to remove disk material from his back. Plaintiff returned to work on April 18, 1989. However, because he could not perform duties that involved a lot of heavy lifting and bending, plaintiff was only able to answer the phone and perform computer work.

Gerald Curl testified for the plaintiff. Curl has been a mechanic at A&R for approximately 12 years and is crew leader. Curl testified that occasionally the inner lug nuts of a tire would break off when a tire was being changed. He stated the usual method for removing these inner lugs would be to pull them off with a pipe wrench or to use a welder to weld the outer lug nut back onto the inner lug nut. However, he stated that using a pipe wrench was the preferred method because it was faster than welding.

Curl stated that on November 17, 1988, he was working next to plaintiff on the bay. He heard the sound of a wrench fall, and he walked around the rear of the trailer to see what happened. He noticed plaintiff sitting on the ground with air tools and the broken pipe wrench. Plaintiff sat on the ground for a few minutes and resumed working after taking a break. However, Curl stated that after plaintiff's shift was over, plaintiff did not return to work until six months later on light duty in the parts department. On cross-examination, Curl stated he did not actually see the wrench break or how much force plaintiff applied to the wrench. Curl also admitted that it was possible that the wrench slipped and broke when it hit the ground.

Plaintiff also introduced the testimony of Ed Oppenlander, the shop foreman at A&R. Oppenlander testified that mechanics supplied their own routine hand tools and A&R supplied specialty and larger tools such as the 18 inch pipe wrench. He also stated that it is normal to use a pipe wrench to take off a broken lug nut. He testified that the wrench was purchased on or about September 29, 1988, and was accessible to any of the 12 mechanics at the shop. He did not know when the wrench was used or the various ways in which the mechanics used the wrench. Oppenlander stated that after the wrench broke, he put it in his office for a couple of days and then turned it over to the safety department. He also stated that cheater bars were used on occasion at A&R; however, he was not aware of any ...


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