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Tucker v. Division Sales

July 31, 2000

LILYE W. TUCKER, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ELLIOTT TUCKER, DECEASED, PLAINTIFF-APPELLANT,
v.
DIVISION SALES, INC., AN ILLINOIS CORPORATION, AND JUSTEN PRODUCTS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 95--L--14322 Honorable Lawrence C. Gray Judge, Presiding

The opinion of the court was delivered by: Justice Holdridge

The plaintiff, Lilye W. Tucker, filed a products liability suit against the defendants, Division Sales, Inc., and Justen Products, after her son, Elliott, died while playing with a toy dart gun distributed by the defendants. The plaintiff claimed that the defendants' product was in a defective condition because it carried no warning about the possibility that the darts could be inhaled and interfere with the user's ability to breathe. A jury returned a verdict in favor of the defendants. On appeal, the plaintiff maintains that the jury's verdict was against the manifest weight of the evidence. She also claims that she was denied a fair trial when the defendants violated an order in limine. We agree that the defendants violated the order in limine and that these violations prejudiced the plaintiff's case. Consequently, we reverse the judgment of the trial court and remand for a new trial.

In December 1994, the plaintiff bought an "Uzi Dart Gun" set as a Christmas stocking "stuffer" for her son, Elliott, who was 12 years old. The darts included in this set were approximately 2½ inches long with a bulb at one end, which anchored the dart inside the gun, and a suction cup at the other end. The darts were made of a soft, malleable plastic.

On December 28, 1994, Elliott visited the apartment where the plaintiff's sister lived. With him were his siblings, several cousins, and two uncles. On that day, Elliott was playing with one of the darts from his dart set. He held the dart in his mouth with the suction cup hanging out between his lips.

Elliott's aunt lived on the third floor of her apartment building. Looking down from the apartment, Elliott and some of his playmates saw a girl whom they thought they recognized. They ran down the stairs to talk to her. When they got to the bottom of the stairs, the boys called to the girl, but they did not know her as they had thought. Elliott made a remark and started to laugh. Then he got a strange look on his face, raced up the stairs and collapsed in the apartment. He was rushed to the hospital, but he could not be resuscitated. Elliott died at approximately 7:30 p.m.

An autopsy of Elliott's body revealed a dart lodged in the right bronchus, the tube which carries air into the lungs. The dart had been aspirated with the bulb end of the dart farthest into the bronchus. The suction-cup end was completely blocking Elliott's airway.

The plaintiff sued the defendants, alleging they designed, manufactured and distributed the dart gun set which had been given to Elliott. Count I alleged strict products liability and claimed that the dart was defective and in an unreasonably dangerous condition when it left the defendants' control because the package contained no warning of the danger of accidentally aspirating a dart. Count II alleged negligence. The plaintiff claimed that the threat of harm to children posed by the dart was foreseeable and that the defendants had failed to warn consumers of the dangers.

Before trial, the plaintiff filed a motion in limine to bar the defendants from asserting that Elliott's parents were negligent or claiming that any such negligence should be imputed to Elliott. The plaintiff further sought to bar the defendants from soliciting opinions regarding any alleged lack of supervision by Elliott's parents on the day of the accident. The trial court granted the plaintiff's motion with regard to both issues.

At trial, several of the children present on the day Elliott died testified about the events which preceded Elliott's death.

The plaintiff testified that she was very careful about the toys she bought for her children. She stated that if the dart gun set had carried a warning that a child might inhale the dart and suffocate, she would not have purchased the dart set. Elliott's father also testified that if he had known that the dart set presented a choking hazard, he would not have allowed Elliott to play with it.

The plaintiff's expert testified that the dart gun set was unreasonably dangerous and defective because it carried no warning of the choking hazard it presented. In the expert's view, it was "imminently foreseeable" that a 12-year-old would place the dart in his mouth to moisten the tip because moistening the tip would allow the dart to stick better when shot. The expert also believed that it was foreseeable that while the dart was in the mouth, any number of things could cause a sharp intake of breath. This sharp intake of breath would cause the dart to be aspirated, causing the child's death.

The plaintiff's expert testified that he was aware that the dart gun package stated that the toy was for children aged 8 and over. He did not think this was an adequate warning because even children aged 8, 9, 10 or even 12 would not understand the risk of choking. In addition, the expert stated that his opinion would not change even though the toy passed the "cylinder test" which was developed to determine whether a toy presented a choking hazard to a three-year-old child.

On cross-examination of the plaintiff's expert, the defendants asked,

"If the mother or adult supervising this child, and we're talking about Elliott Robinson Tucker, had seen him throughout the day with this dart in his mouth, sucking on it, chewing on it, just rolling it around in his mouth, you would have expected there to have ...


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