The opinion of the court was delivered by: Justice South
Appeal from the Circuit Court of Cook County.
The Honorable James S. Quinlan, Judge Presiding.
This appeal arises from a jury verdict finding defendant Shell Oil Company not liable for plaintiff's injuries. The evidence adduced was as follows.
On May 17, 1992, plaintiff, William Demos, went to Ferris-Shell (Ferris) station on the corner of Montrose and Western in Chicago to put air in a tire he planned to use as a spare. The tire was purchased from Al Malita, a friend. While at the station, Demos attempted to inflate the tire with the air hose provided at the Ferris station when the tire exploded, causing him severe injuries.
At trial, Demos testified that a week before the accident, he brought his van to the station for service. While he was there, one of Ferris' employees mounted some tires and rims together for him. Demos said that the employee was having some difficulty mounting the tires and rims because they did not match and had to use "a big hammer" to make the rim fit on the tire.
During that visit, Charles Fox, a service manager at the station, testified that he had a conversation with Demos about mounting some tires that Demos brought into the station. Fox informed Demos that the wheels he brought in would not fit on his van because they were the wrong size tires. Fox also told Demos that because the tires were 16 inches in size and the rims were 16½ inches in size, they could not be mounted, and that "the bead would not seat on the rim." He said that "it would take too much air pressure to seat, if you could even get the tire on the rim," and that it would explode. Demos denied having any conversations with Fox regarding the tires, wheels or anything else.
On the date of the incident, the unmounted truck tire Demos attempted to inflate was 16 inches in size, and the rim was 16½ inches in size. While Demos attempted to inflate the unmounted tire and rim, the tire exploded. As a result of the accident Demos sustained severe, mid-facial trauma extending from the bridge of his nose, depressing it down with an open wound, destroying the nose, and essentially leaving a hole in the center of his face. He also experienced injury to both eyes, which left the left eye dangling from the socket; a fractured dislocation of the middle finger of his right hand; and an open laceration of his left knee.
After the paramedics arrived at the station, Demos was taken to Illinois Masonic Hospital, and he went through a number of reconstructive surgeries in an attempt to recreate portions of his face that had been damaged by the explosion. However, in addition to being permanently blind, Demos will have severe facial abnormalities, no sense of smell, and difficulty tasting.
Originally, plaintiff filed a negligence action against Robert Ferris and Ferris Service Station. Subsequently, plaintiff amended the complaint to include Shell Oil Company, General Tire Inc., the manufacturer of the tire, and the Budd Company, the manufacturer of the rim. All defendants, except the Shell Oil Company, settled with plaintiff prior to trial. On April 29, 1998, plaintiff filed a second amended complaint sounding in negligence against Shell Oil Company, and the case proceeded to trial before a jury.
Shell Oil Company (Shell) is the owner of the Ferris station, including all of the equipment on the premises. However, Ferris operates the station under a lease-type agreement whereby the dealer leases the station from Shell, and Shell sells petroleum products and accessories to the dealer. Ferris entered into a five-year renewal lease with Shell between March 1, 1991, through February 29, 1996. In addition to the lease agreement, the franchisor/franchisee relationship between Shell and Ferris was established by the provisions of a "Dealer Agreement" and an "Auto Care Agreement." Under the terms of the dealer agreement, Ferris was an independent dealer. The dealer agreement provides:
"Dealer is an independent business person, and nothing in this Agreement shall be construed as reserving to Shell any right to exercise any control over, or to direct in any respect the conduct or management of, dealer's business or operations conducted pursuant to this Agreement, but the entire control and direction of such business and operation shall be and remain in Dealer, subject only to Dealer's performance of the obligations of this Agreement. Neither Dealer not any person performing any duties or engaged in any work at Dealer's station for or on behalf of Dealer shall be deemed an employee or agent of Shell, and none of them is authorized to impose on Shell any obligations or liability whatsoever."
The auto care agreement provides that Shell cannot exercise any control over or direct in any respect the conduct or management of Ferris. The "Motor Fuel Station Lease" provides that Ferris had a duty to maintain the premises and all of the equipment on the premises, including the air compressor.
At trial, Robert Ferris testified that Demos, a frequent customer of his, was knowledgeable about mechanical things and that he rebuilt engines and installed transmissions. Demos had used the air at the station between 2,000 to 3,000 times over the years. He also testified that Demos had never actually mounted a tire prior to the date of the accident but usually had it done by someone at the station. Ferris testified that the tires which caused plaintiff's injuries required 80 pounds per square inch (psi) to properly inflate them. He also stated that the decision to use a air gauge was entirely his.
Robert Gieringer, the territory manager for Shell's northern district between 1988 and November 1991, testified that inspections of the dealership were made for "image" compliance and to look for obvious unsafe conditions. Gieringer recommended that Ferris remove the pay air machine that was located on the premises and replace it with a compressor that put out between 150 to 175 pounds of pressure. Shell made all capital expenditures for the payment of the compressor. The compressor was installed approximately 1½ years prior to the date of the accident. In addition to the air hose that was used by Demos on the date of the accident, the compressor was also used for operation of the tire-changing machine, air tools, impact wrenches, and a grinder.
Merton Porter, Shell's expert who has been employed by the compressed gas industry since 1981, testified regarding the setup of the air compressor system. The air compressor involved in this accident was set up in accordance with the guidelines of the Compress Air and Gas Institute (CAGI). CAGI is a not-for-profit organization that recommends levels of air pressure to be used under various conditions. CAGI recommends that the air pressure output on an inflation line at an automotive station shop be between 125 and 150 psi, and there is no recommendation that an air inflation line be restricted to 40 psi. He also testified that it is not feasible for a gas station to regulate it because of the different types of pressure for different types of tires.
On May 13, 1998, the jury returned a unanimous verdict in favor of the defendant, Shell. On August 12, 1998, plaintiff filed a post-trial motion for entry of judgment in his favor notwithstanding the verdict or, in the alternative, a new trial. This motion was denied, which gives rise to the present appeal.
On appeal, plaintiff raises the following issues: (1) whether plaintiff should be granted judgment notwithstanding the verdict; (2) whether plaintiff should be granted a new trial as the jury's verdict is contrary to the manifest weight of the evidence; (3) whether the trial court abused its discretion in its evidentiary rulings entitling plaintiff to a new trial; and (4) whether the trial court erred in denying plaintiff's request for a directed verdict as to defendant's affirmative defenses and in instructing the jury. A judgment notwithstanding the verdict (judgment n.o.v.) should be granted if the evidence so overwhelmingly favors the moving party that no contrary verdict could ever stand. Peterson v. Ress Enterprises, Inc., 292 Ill. App. 3d 566, 573-74, 686 N.E.2d 631, 637 (1997). This evidence must be viewed in a light most favorable to the non-movant. On appellate review, the denial of a judgment n.o.v. is de novo. Peterson, 292 Ill. App. 3d at 574, 686 N.E.2d at 637.
Plaintiff argues that the evidence clearly shows that Shell owed him a duty, that this duty was breached, and that this breach was the proximate cause of his injuries. In the court below, plaintiff based his argument against Shell on a theory of premises liability. However, Illinois law is clear that a lessor is not liable for injuries caused by the dangerous or defective conditions on the premises leased to a tenant. Rowe v. State Bank, 125 Ill. 2d 203, 220-21, 531 N.E.2d 1358, 1366 (1988).
Plaintiff argues in his appellate brief that Shell was negligent in performing a voluntary undertaking and that Shell was negligent in performing duty it assumed to provide a free air machine which functioned safely for customers who came to the Ferris station. Plaintiff also argues Shell assumed the duty to warn customers of the dangers attendant to the use of equipment such as the free air hose.
Shell responds that plaintiff should not be allowed to assert this argument on appeal because it was never raised in the lower court, it was never argued at trial, and no ...