The opinion of the court was delivered by: Justice Hoffman
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY HONORABLE LEONARD GRAZIAN, JUDGE PRESIDING.
The plaintiff, Janet Modelski, Special Administrator of the Estate of Joseph Modelski (Modelski), deceased, prosecuted the instant wrongful death action against the defendant, Navistar International Transportation Corporation (Navistar), charging that Navistar's negligence in the design, manufacture, sale, and distribution of its Farmall 450 tractor proximately resulted in Modelski's death. The jury returned a verdict in favor of Navistar, the trial court entered judgment on the verdict, and the plaintiff now appeals. For the reasons which follow, we reverse the judgment in favor of Navistar and remand this cause to the circuit court for a new trial.
The Farmall 450 tractor which is the subject of this litigation was manufactured by Navistar, then known as International Harvester Corporation, on June 1, 1957. Modelski purchased the tractor on April 22, 1989, from Brian Bigelow. Bigelow had purchased the tractor at a farm auction in 1983.
As designed, the seat on the Farmall 450 tractor is mounted atop a metal battery box, which rests on the tractor's rear axle. The cover of the battery box to which the seat is attached is hinged at the rear and secured at the front by two 1/2-inch bolts. To access the battery, the two bolts at the front of the battery box cover must be removed and the cover with the seat attached must be tilted to the rear.
On May 7, 1991, Modelski was using the tractor to mow a field on his 40-acre farm located in Vandalia, Illinois. Attached to the rear of the tractor was a rotary mower known as a "Bush Hog." Modelski died as a result of injuries he sustained when he was struck by the blade of the Bush Hog. There were no witnesses to the accident.
Modelski's body was found lying face down on the ground with severe lacerations to his head and upper body. The tractor was found in a ditch approximately 40 yards from Modelski's body. When the tractor was found, the motor was not running, the ignition switch was in the "on" position, there were no bolts holding down the battery box cover, and the seat was tilted to the rear. Only one rusty 7/16-inch bolt was found near the scene of the accident. No 1/2-inch bolts were ever found.
In her second amended complaint, the plaintiff sought recovery against Navistar on a negligence theory. The plaintiff charged, inter alia, that the negligent design of the Farmall 450 tractor caused Modelski to be ejected to the rear when the bolts holding the front of the battery box cover disengaged, that Navistar negligently failed to warn of the consequences of those bolts disengaging while the tractor was in operation, and that Navistar was negligent in selling the subject tractor without a safety interlock on the seat. Additionally, the plaintiff charged that Navistar was negligent in failing to provide post-sale warnings to foreseeable users of the Farmall 450 tractor after learning of the hazards associated with the design of the seat mounting and in failing to retrofit this model tractor to eliminate that hazard. Several months prior to trial, Navistar moved the court to strike the charging allegations relating to its alleged negligence in failing to provide post-sale warnings or to retrofit the subject tractor. Navistar also moved for partial summary judgment on the negligence claim which was based on the sale of the tractor without a safety interlock on the seat. Immediately prior to the commencement of trial, the court granted both of Navistar's motions and also denied the plaintiff leave to file a third amended complaint.
The case proceeded to trial before a jury. The plaintiff presented evidence in support of her theory that Modelski was ejected to the rear of the tractor when the bolt or bolts holding the battery box cover disengaged, causing him to fall into the path of the Bush Hog. Navistar, through the testimony of its reconstruction expert, Edward Caulfield, advocated the theory that Modelski was run over by the tractor and Bush Hog when he started the tractor while standing on the ground. Prior to the commencement of trial, the court denied the plaintiff's motion in limine to bar Caulfield's opinion testimony as speculative. The trial court also denied the plaintiff's motion to strike Caulfield's testimony on the same grounds made at the close of Navistar's case.
During the course of its deliberations, the jury requested permission to re-enter the courtroom to examine the tractor seat assembly. Although used demonstratively during the course of the trial, the seat assembly was never admitted into evidence. Nevertheless, the trial court granted the jury's request. Neither the Judge nor the attorneys for the parties were present when the jury conducted its examination.
The jury returned a verdict in favor of Navistar. The trial court entered judgment on the verdict and denied the plaintiff's post-trial motion. The plaintiff now appeals, contending that: 1) the jury's verdict is against the manifest weight of the evidence; 2) the trial court erred in permitting the jury to perform experiments upon the tractor seat assembly which was never admitted into evidence; 3) the trial court erred in striking the allegations in plaintiff's second amended complaint charging Navistar with negligence for failing to provide post-sale warnings or to retrofit the subject tractor; 4) the trial court erred in refusing to admit photographs into evidence depicting Modelski's injuries; 5) the trial court erred when it denied the plaintiff's motion to strike Caulfield's testimony; 6) the trial court erred in granting Navistar's motion to exclude certain evidence of prior similar occurrences; and 7) the trial court abused its discretion when it sustained Navistar's objection to plaintiff's proffered evidence that none of Navistar's competitors used a similar seat assembly design in 1957, refused to allow the plaintiff to demonstrate that the 7/16-inch bolt found near the accident scene would fit into a 1/2-inch nut, refused to permit the plaintiff's expert witness to testify concerning the feasibility of Caulfield's theory, and permitted Navistar to make use of photographic exhibits which had not been produced pursuant to the plaintiff's Supreme Court Rule 237 notice to produce (166 Ill. 2d R. 237).
We address first the propriety of the trial court permitting the jury to have access to the tractor seat assembly during deliberations. After closing arguments, the trial court stated that it would not allow the seat assembly to be sent to the jury room. However, after the jury requested access to the seat assembly, the trial court acquiesced, and the unsupervised jury was permitted to re-enter the courtroom, where the device was located. Among the pleadings in support of her post-trial motion, the plaintiff submitted the affidavits of two jurors, Barbara Peterson and Erin Nye. Peterson averred that the jury tested the seat both with and without bolts, and Nye averred that the jury tested the seat with one bolt threaded into the battery box. Both jurors also swore that another juror, Richard Schaller, mounted the seat and bounced up and down. According to Nye, Schaller bounced on the seat with one bolt threaded into the battery box. According to Peterson, Schaller mounted the seat both with and without bolts present, and fell backwards when he tested the seat without bolts.
Navistar made only one substantive objection, either before the trial court or in its brief on appeal, to these juror affidavits. It objected to the paragraphs in which the jurors stated that the results of the experiment were "very compelling." Navistar is correct in its assertion that statements concerning the mental processes of a jury are inadmissible to impeach its verdict. People v. Szymanski, 226 Ill. App. 3d 115, 120-21, 589 N.E.2d 148 (1992). Consequently, we have ignored the offending paragraphs in the affidavits of Peterson and Nye. However, since Navistar interposed no other substantive objection to these affidavits, we have considered the remaining factual averments contained therein.
A trial court has considerable discretion in determining which exhibits, if any, may be taken into the jury room during deliberations. Bautista v. Verson Allsteel Press Co., 152 Ill. App. 3d 524, 532, 504 N.E.2d 772 (1987). The problem stemming from a jury's access to tangible exhibits was addressed in Main v. Ballymore Co., 116 Ill. App. 3d 1040, 1042, 449 N.E.2d 169 (1983), where the court observed that: "[b]ecause of the fundamental rule that the jury may not receive evidence out of court, it has been held that insofar as tests or experiments carried out by the jury during deliberations have the effect of introducing new evidence out of the presence of the court and parties, such are improper; and, if the new evidence in question has a substantial effect on the verdict, prejudicial."
We agree with the plaintiff that the jury should not have been granted access to the seat assembly, both because it had never been introduced into evidence and because access invited the experimentation that took place. Navistar contends, nonetheless, that the plaintiff suffered no prejudice under the circumstances of this case. It argues that the jury's experiment revealed nothing other than an uncontroverted fact; namely, that the tractor seat would tilt to the rear if a person mounted the seat when no bolts were present in the battery box cover. What Navistar's argument fails to consider, however, is that the jury's experiment did not address the controverted question of whether bolts holding the battery box cover could vibrate loose while the tractor was being operated. Just as in Main, the jury's experiment in this case was not conducted under circumstances similar to those present when the accident occurred, was not subject to evidentiary constraints or cross-examination, and constituted the introduction of new evidence in the jury room. Main, 116 Ill. App. 3d at 1043. We believe, therefore, that the prejudice is manifest.
Next, we address the question of whether Caulfield's opinion testimony should have been stricken. To place the issue in perspective, we deem it helpful to briefly recount the theories ...