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06/30/97 FLORITO PEREZ AND GLORIA PEREZ v. FIDELITY

June 30, 1997

FLORITO PEREZ AND GLORIA PEREZ, PLAINTIFFS-APPELLANTS,
v.
FIDELITY CONTAINER CORPORATION, DEFENDANT-APPELLEE, AND MEAD CORPORATION, THIRD-PARTY/DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 90 L 2771. Honorable Irwin J. Solganick, Judge Presiding.

As Corrected July 14, 1997. Rehearing Denied July 30, 1997. Released for Publication August 21, 1997.

The Honorable Justice O'brien delivered the opinion of the court. Cahill, J., and Theis, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Plaintiffs, Florito and Gloria Perez, appeal from a directed verdict for defendant, Fidelity Container Corp., in a personal injury action alleging strict product liability and negligence. We affirm the directed verdict as to the product liability count and reverse and remand as to the negligence count.

FACTS

Plaintiff Florito Perez was employed by Edsal Manufacturing Company. Edsal manufactured steel shelving, storage cabinets and shop furniture on five production lines. The company used corrugated cardboard cartons for its product. Each of its production lines used a different sized carton.

Edsal purchased its cardboard cartons from Fidelity, which designed and distributed packaging. The boxes were produced for Fidelity by third-party defendant, Mead, which manufactured them pursuant to Fidelity's instructions. Fidelity normally conveyed a customer's specific unitizing or baling requirements for packaging to Mead but did not instruct Mead on how to unitize bales intended for shipment to Edsal.

Having received no instruction to the contrary, Mead baled Fidelity's cartons for Edsal in units of 250, banding the bales together with plastic straps. A 250-unit bale of collapsed cartons stood 45 inches tall and, depending on the cartons' dimensions, could weigh as much as 1,300 pounds. Mead shipped the 250-unit bales directly to Edsal on wooden pallets or skids. At Edsal, the skids of collapsed cartons were stacked and moved to and from the production line by forklifts.

The bales were unbanded by Edsal employees at the production line so the cartons, along with their covers and inserts, could be formed, assembled, and packed. As workers pulled cartons off the unbanded stack one by one, the stack would shift and, over a period of time, become disheveled and unstable. At the end of each workday, stacks of unused cartons from opened bales were moved by forklift from the production lines back to the shipping area for storage. The stacks of loose cartons were then stored atop 5 1/2-foot-tall rolling shop carts. Having come from different production lines, the collapsed cartons stored in this manner were of assorted sizes. The loose cartons were not secured in any manner, but simply piled one atop another in twisted stacks reaching as high as 30 feet. Vibrations from the punch presses or forklifts in the shop would sometimes cause these loose stacks of cartons to fall.

Edsal employed Florito to clean up and sweep the shop floor at the end of the day. The dumpster he used was located in the shipping area, past the shop carts stacked with loose cartons. As he was walking past the shop carts, Florito heard a noise like a skid breaking and a stack of boxes approximately five-feet-four inches high fell on top of him. The company nurse found Florito on the floor amongst the loose cartons and several displaced banded bales; his pelvis was crushed and he sustained other injuries.

Florito and Gloria Perez filed a two-count complaint against Fidelity based on strict product liability and common law negligence. The complaint alleged that Fidelity was liable for Florito's injuries as a result of a defective bale of cartons that it had delivered to Edsal. Fidelity filed a motion to dismiss, contending the injury to Florito did not involve any product. The trial court denied the motion on grounds a banded bale of cartons was a product. Fidelity then filed a third-party action for contribution against Mead.

Thereafter, Fidelity filed a motion for summary judgment contending that the banded bale of cartons was not defective for either product liability or negligence liability and that there was no act or omission by Fidelity that caused or contributed to Florito's injury. The motion was denied.

The matter was then assigned to trial. Fidelity filed a motion in limine seeking to exclude certain opinions of plaintiffs' expert, James Bodi, relating to possible alternative means of safely securing the bales. The trial court initially granted the motion, but reversed itself upon plaintiffs' motion to reconsider.

At trial, Frank Castro, the production superintendent at Edsal, testified that at the time of the accident, Edsal had the ability to reband loose corrugated cardboard cartons removed from the production line. He added, however, that the Edsal employees responsible for rebanding loose cartons had quit in early 1988 and had not been replaced as of the date of Florito's injury. William D. Ross, president of Fidelity, testified that bundling smaller quantities of cartons within the bales was inappropriate. Ross explained that bundling is helpful for cartons small enough to be transported manually but accomplishes nothing for cartons large enough to require use of a forklift. Edward Elsroth, testifying on behalf of Mead, likewise claimed that bundling smaller quantities of cartons within the bales was possible but "would have been ridiculous on a sheet of this size."

Immediately before the plaintiffs called their expert, James Bodi, to testify, Fidelity renewed its motion to exclude his opinions. James Bodi was expected to testify that Fidelity could have safely secured the bales by (i) bundling the cartons in smaller packages, (ii) stretch wrapping the load, (iii) treating the collapsed cartons with an antiskid coating before baling, or (iv) banding the bales with reusable strapping. After extended argument, the trial court granted Fidelity's motion on grounds Bodi's opinions were unreliable, based on speculation and conjecture, and were contrary to the evidence adduced at trial. After plaintiffs presented the rest of their case, Fidelity moved for a directed verdict. The trial court found that Fidelity owed no duty to Florito, that it could not have foreseen Florito's injury, and that the product was not defective in design or manufacturing. Accordingly, the trial court granted Fidelity's motion for directed verdict. This appeal followed.

ARGUMENT(S)

On appeal, plaintiffs first argue that the trial court erred in directing a verdict for Fidelity on the strict product liability count of their complaint. Directed verdicts are appropriate only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967).

To recover under strict product liability, a plaintiff must plead and prove that the injury or damage resulted from a condition of the product manufactured by the defendant, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer's control. Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 111, 454 N.E.2d 197, 200, 73 Ill. Dec. 337 (1983), citing Suvada v. White Motor Co., 32 Ill. 2d 612, 623, 210 N.E.2d 182 (1965) (adopting the Restatement (Second) of Torts 402A (1965)).

Plaintiffs' complaint alleged that at the time the bundle of cartons left Fidelity's possession and control, it was unreasonably dangerous and defective in that:

"a) They designed, manufactured, and sold the bundles of cartons in such a manner that they were stacked too high in the said ...


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