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03/20/97 JOSEPH BRAVERMAN v. KUCHARIK BICYCLE

March 20, 1997

JOSEPH BRAVERMAN, PLAINTIFF-APPELLANT,
v.
KUCHARIK BICYCLE CLOTHING COMPANY, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE GARY L. BROWNFIELD, JUDGE.

Released for Publication April 24, 1997.

The Honorable Justice McNAMARA delivered the opinion of the court. Cerda, J., and Burke, J., concurring.

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

Plaintiff, Joseph Braverman, was thrown from his bicycle during a cycling race and suffered injuries to his head. Plaintiff brought this action against defendant, Kucharik Bicycle Clothing Company (Kucharik), alleging that he was wearing a Kucharik leather safety helmet at the time of the accident. Plaintiff alleged that the helmet was defectively designed in that it did not provide adequate protection when being worn in an ordinary and usual manner. During discovery, defendant became aware that plaintiff could not locate the helmet involved in the accident. Defendant moved for summary judgment on the ground that the helmet was lost. The trial court granted defendant's motion. Plaintiff now appeals.

Our review of an order granting summary judgment motion is de novo. Murphy v. General Motors Corp., 219 Ill. Dec. 863, 285 Ill. App. 3d 278, 279, 672 N.E.2d 371, 372 (1996). Summary judgment is proper only when the pleadings, together with any depositions, admissions, or affidavits on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1992); Murphy, 285 Ill. App. 3d at 279, 672 N.E.2d at 372. A summary judgment motion asks whether the nonmovant has presented any evidence to raise a genuine issue of material fact. Ralston v. Casanova, 129 Ill. App. 3d 1050, 1056, 473 N.E.2d 444, 449, 85 Ill. Dec. 76 (1984). All reasonable inferences drawn from the facts must be construed in the light most favorable to the nonmoving party. Murphy, 285 Ill. App. 3d at 279, 672 N.E.2d at 372. Although a plaintiff need not prove his case at the summary judgment stage, he must present enough evidence in support of each element of his cause of action to create a genuine issue of material fact. H & H Sand & Gravel , Haulers Co. v. Coyne Cylinder Co., 260 Ill. App. 3d 235, 248, 632 N.E.2d 697, 705, 198 Ill. Dec. 367 (1994); Mateika v. La Salle Thermogas Co., 94 Ill. App. 3d 506, 508, 418 N.E.2d 503, 505, 49 Ill. Dec. 649 (1981).

The pleadings, admissions, affidavits, and depositions on file here reveal the following pertinent facts. Plaintiff described the helmet he wore at the time of the accident as a "Kucharik Super Leather Hairnet Type Helmet." He claimed that he purchased the helmet by mail order from Itala Velo Sport in Florida. He was wearing the helmet when he was thrown from his bicycle during a race in Wisconsin. In response to interrogatories, plaintiff stated that it was "unknown at this time who has the helmet." Plaintiff also stated that there had never been any "alteration, modification, repair, maintenance and/or service performed to or upon the product in question."

Plaintiff identified Alex Tudor as an expert. Tudor is an engineer who previously worked for Schwinn Bicycle Company and currently works for Triodyne, Inc. Tudor opined that the Kucharik Super Helmet was defectively designed, unreasonably dangerous, and not fit for its intended use. The leather polyester-filled helmet failed to provide any protection around and above the ear area. Tudor stated that the helmet failed to comply with the criteria for protective headgear for bicycle users set by the American National Standards Institute (ANSI) and the Snell Memorial Foundation. Tudor never tested or inspected the actual helmet worn by plaintiff. In forming his opinions, Tudor examined the helmet's specifications, the literature accompanying the helmet, and an exemplar Kucharik Super Helmet that plaintiff's attorneys acquired by advertising in a bicycle magazine. He also reviewed plaintiff's deposition as well as the deposition of plaintiff's doctor. Tudor observed that defendant's literature essentially argued that its leather hairnet helmet was superior to a hard shell plastic helmet. Tudor found this "180 degrees in opposition to all of the head protective literature." Tudor also noted that Kucharik's literature demonstrated the company's awareness of an existing alternative design.

Dr. George Bartl was plaintiff's treating physician. Bartl testified in his deposition that plaintiff suffered lacerations and abrasions above the hair line as a result of the accident. Plaintiff also had a linear fracture of the temporal area, a left basilar skull fracture, and a left temporal lobe contusion.

Dr. Jeffrey Feldstein was retained by plaintiff as a medical expert witness. In his affidavit, Feldstein explained that plaintiff's head injuries were located in areas covered by the Kucharik helmet. He opined that the injuries were of the type that would be expected from someone not wearing a helmet. The trial court struck an additional opinion of Feldstein's that a hard shell plastic helmet might have prevented plaintiff's injuries. The court found this last opinion outside the doctor's expertise.

In its motion for summary judgment, defendant argued that "without the actual helmet involved in plaintiff's accident, he can never prove his case." Defendant pointed out that, after repeated requests to produce the helmet, plaintiff failed to do so. Defendant stressed that plaintiff's expert never saw, inspected, photographed, or tested the helmet plaintiff was wearing. Plaintiff responded that the absence of the helmet is not fatal to his cause of action. Plaintiff argued that, even though he was not in possession of the actual helmet he wore, he had set forth a prima facie case that the product's defective design served as a proximate cause of his injuries.

Following a hearing, the trial court granted summary judgment in defendant's favor. The court did not strike the testimony of plaintiff's expert or treating physician. The court struck only Dr. Feldstein's opinion that a plastic shell helmet may have prevented plaintiff's injuries. The court noted that plaintiff would be able to show the condition of the product when it left the manufacturer by use of Kucharik's literature and the exemplar helmet. The court reasoned, however, that the absence of the actual helmet involved in the accident would prejudice Kucharik in trying to defend the case. For example, the court observed, defendant could not show whether the helmet was altered or modified after its purchase. The court entered judgment in favor of Kucharik, therefore, "based upon *** the fact that the evidence was lost."

To prevail at summary judgment in a product liability case, the plaintiff must present evidence that the injury or damage resulted from a condition of the product, that the condition of the product was unreasonably dangerous, and that the condition existed at the time the product left the manufacturer's control. H & H Sand & Gravel Haulers, 260 Ill. App. 3d at 248, 632 N.E.2d at 706; Samansky v. Rush-Presbyterian-St. Luke's Medical Center, 208 Ill. App. 3d 377, 389, 567 N.E.2d 386, 395, 153 Ill. Dec. 428 (1990). These elements may be proved inferentially, by either direct or circumstantial evidence. H & H Sand & Gravel Haulers, 260 Ill. App. 3d at 248, 632 N.E.2d at 706; Mateika, 94 Ill. App. 3d at 508, 418 N.E.2d at 505. "Proper circumstantial evidence would include either proof that tends to exclude other extrinsic causes or expert testimony that the product was defective." H & H Sand & Gravel Haulers, 260 Ill. App. 3d at 248-49, 632 N.E.2d at 706; see also Mateika, 94 Ill. App. 3d at 508, 418 N.E.2d at 505.

It is clear that preservation of the allegedly defective product, if possible, is of the utmost importance in both proving and defending against a strict liability action. Graves v. Daley, 172 Ill. App. 3d 35, 38, 526 N.E.2d 679, 681, 122 Ill. Dec. 420 (1988); Ralston, 129 Ill. App. 3d at 1057, 473 N.E.2d at 449. However, the absence of the product is not fatal to a plaintiff's cause of action. Murphy, 285 Ill. App. 3d at 282, 672 N.E.2d at 374; Samansky, 208 Ill. App. 3d at 389, 567 N.E.2d at 395; see also H & H Sand & Gravel Haulers, 260 Ill. App. 3d at 248-49, 632 N.E.2d at 705-6; Neighbors ex rel. American States Insurance Co. v. City of Sullivan, 31 Ill. App. 3d 657, 659, 334 N.E.2d 409, 411 (1975). "It is possible to ...


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