*1 GALION, INC., аl., LANCASTER, Plaintiff-Appellant, KEITH et JEFFREY Defendants-Appellees. Second District No. 78-162 Opinion filed November *2 WOODWARD, concurring. J., specially Miller, Forreston, appellant. Donald for J. Graves, Brassfield, Brassfield, Howard,
Eugene E. and Cowan Greenwald, Miner, Rockford, appellees. Maier & both of for court. opinion
Mr. LINDBERG delivered the of the JUSTICE Court of judgment from of the Circuit appeal This is an Galion, Inc., Jeffrey and Winnebago County enterеd for the defendants Keith Company, against Equipment plaintiff, Howell Tractor and and jury’s upon Lancaster. for defendants was based Judgment court found special interrogatory affirmative answer to a which trial *185,000. plaintiff verdict for jury’s general inconsistent with the for in ground giving that the appeals Plaintiff on the erred objection and special interrogatory over the for the issue objection sufficiently preserve was plaintiff’s review. 19,1972, injured working
On the was while morning of June Co. A tandem roller employee Blacktop of Rockford Construction defendant, Galion, Blacktop by Rockford by manufactured sold to defendant, Tractor, plaintiff’s leg. left severely injured Howell struck roller, at trial co-employee operator of the testified Herbig, Ronald accident, sрoke morning that he at work at 6:15 on the arrived moments, it warm then the roller to let for a few started in back of the to six feet up. standing ground Plaintiff was on the three The roller was day’s his road for the work. preparing paver roller and, Herbig when engine at the was started apparently gear time clutch, the machine disengaged brake and parking released brought backward, striking plaintiff. subsеquently Plaintiff jumped alleging liability, against theory of strict suit possession it left the the time switch, start in that it contained no neutral and control of the defendants lock, indicating the signs or directional ignition warning no and no diverter valve. gear shift lever and following tendered the In the on instructions defendants conference plaintiff objected: special interrogatory to of the evidence jury preponderance “Does the find from a Herbig, employee of Rockford by misuse of the roller Ronald injuries sustained Blacktop, cause of the question? the occurrence ANSWER: YES_
NO_’’ After considerable discussion the trial court overruled the jury. to the The special interrogatory and the submitted plaintiff, but answered the general returned a favor of defendant, trial court interrogatory in the affirmative. On motion set for defendants on the aside the verdict and entered plaintiff’s post-trial motion was special interrogatory. answer to the denied, subsequently appeal and this followed. plaintiff adequately preserved
We first address issue whether Special to the for review this court. *3 to, tendered, submitted interrogatories objected upon, shall be ruled 110, 1977, par. ch. (Ill. to the as in the case of instructions. Rev. Stat. 65.) any to may object Counsel the conference on instructions direction, prepared who prepared regardless instruction at the court’s of it, objections as as to other objections and the court shall rule on these well instructions, particularly be grounds objections for these shall 1977, 110A, specified. (Ill. par. 239(b).) supreme Rev. Stat. ch. Our recently has held: an interrogatory as well as preserve objection
“To to an instruction, with the trial court is specificity one must set forth so objection ruling. specific advised of the nature of the before 239(b); Delaney v. Ill. R. (Supreme 239(b), Court Rule Scilingo 168, 178; (1972), Badame see Havlovic (1971), 49 Ill. 918.) Additionally, plaintiff properly 7 Ill. if had App. 3d even proper still to tender a instruction. objected, required he is 2d, R.366(b)(2)(i); 58 Ill. Supreme 366(b)(2)(i), Court Rule 56 Ill. Department Buildings Public Works & Klehm of 667, 947, 121, 127, L. cert. denied 417 U.S. 41 Ed. 2d 379, Cartage (1978), 74 Ill. 2d S. Ct. 3072.” Saldana v. Wirtz 664, 385 N.E.2d specific present argue Defendants failed suggest thus special interrogatory, at trial to the objection form that the issue has been waived. instructions, objected to
During a reconvened conference on defendant, asking even for a brief tendered case go library provide recess to to the the trial court with the did objection upon plaintiff based argument In his go improper. to an fact and was therefore ultimate plaintiff maintained in the ultimate fact
roller when it left the manufacturer’s control was the impute special case and further holding in Lewis v. negligence Herbig plaintiff contrary to the to the 128. It clear that Stran 311 N.E.2d is also Corp. Steel plaintiff’sobjection fully the trial court informed as to the basis of the fact as by clarifying meaning of ultimate joined colloquy since it was not by observing that misuse one that would the verdict and control defense. affirmative Baulos, This, then, Inc. clearly not a case like Struthers Jack 823, 825, made where the ” specific, made a only “general objection ‘for the record.’ Here objection concede that the objection. Apparently substantive defendants interrogatory;1 of the substance of the preserve was sufficient to review however, the form of the argue, that the issue of trying highlights problem case waived. The Struthers There interrogatory. of an distinguish between the form and substance contributory erroneously defined challenged special interrogatory “ordinary care.” caution” instead of negligence terms of “due care and short cause. While these Further made no reference to form, that the inter the court found comings may classified as errors be (52 verdict. with the rogatory, given, was not inconsistent short, cause a can also 827.) a defect form fact. Thus we would issue of interrogatory to fail to control an ultimate the consideration against precluding serious reservations have necessary for a resolution if of form such consideration However, plaintiff’s this cause. because we find of form. denied, the issue need to further discuss improperly we find no to the We now turn to the merits of impose upon the above-quoted language not be read to from Saldana should interrogatory. Supreme submitting *4 responsibility a curative here the additional of 110A, (2) party 1975, 366(b) (i)) (i) (Ill. par. states “No 366(b)(2) ch. Court Rule may Rev. Stat. it.” give have tendered appeal unless he shall raise on to an instruction failure give raising an added.) (Emphasis appeal, is not to instant failure overruling to an raising (interrogatory) of instruction interrogatory but rather he is obligation alternative given. to tender an was under no that was The clarifying or instruction.
823 interrogatory. The of this was that the did basis go not an verdict ultimate material fact would control because, law, injured person recovery as matter an is not barred from against by or for an the “misuse" of a injury seller caused manufacturer by unless that reasonably “misuse” not foreseeable However, argued during manufacturer. conference on theory alleged instructions their of defense was that it was not the roller, dangerous Herbig’s but rather “misuse” of the roller proximate that was the proximate cause the occurrence cause is an in liability ultimate material fact a strict The trial case. court construed the in the context of the Instructions, Civil, cause instruction derived from Illinois Pattern No. (2d 1501 1971) ed. to give special interrogatory. еlected
It well in product may is settled this State that “misuse” of bar recovery in an action for strict liability (Williams tort. Brown 418, 425, 309; Manufacturing (1970), 305, 45 Ill. 2d Co. N.E.2d Lewis Corp. (1974), 94, 102, 311 128, 133; v. Stran Steel N.E.2d Liberty Mutual Insurance & 62 Ill. (1975), Co. Williams Machine Co. Tool 77, 81, 857, 859; 338 N.E.2d Package Skinner Reed-Prentice Division 1, 15, 70 Ill. Machinery (1977), Co. 437, 443.) equally 374 N.E.2d It is settled, however, well recovery the “misuse” will preclude is a use which is neither intended nor foreseeable (Williams, 425; Sears, manufacturer. Gallee v. & Co. Roebuck 503; 834; 374 N.E.2d Vaughan Dunham v. Mfg. 315, 328, Bushnell Co. 42 Ill. aff'd 339, 344, Friedman, generally N.E.2d see 1 Frumer and Products Liability (1978).) materially This definition is different from §15 ordinary or common understanding the term. Webster’s Third Dictionary International incorrectly defines “misuse” as follows: “to use or carelessly” or wrong “to use for a improper purpose.” jury may or believed, case, have operated incorrectly, this that Herbig the roller improperly or carelessly, even operation but unless the manner of was not defendants, not a alleged misuse is bar follows, therefore, It recovery. or inter that an instruction rogatory foreseeability on “misuse” not or test qualified limited does not product liability reach ultimate in strict case. Our material issue a supreme recently foreseeability this reiterated rule 364, 369, Hyster Anderson v. Ill. 2d It also follows that the answer general necessarily this case inconsistent. Since operation use or will plaintiff’s recovery, bar unforeseeable jury’s conclusion that injury proximately by Herbig’s caused carelessly to, or improperly operating it entirely irrelevant but
824
consistent with, general plaintiff. in favor of We note here the verdict the 1977, 19, was findings thе trial court’s October that “the term ‘misuse’ of e” generally commonly ordinarily used in its understood sense and given, general In the that were the the context of instructions implicitly unreasonably dangerous that in an found the roller was possession condition when it left and control of the defendants. the rendering jury the had to conclude plaintiff verdict for the the also that or being operated a manner either intended was used the by the defendants. This follows from court’s no. as “unsafe when instruction 12 which defined put a use is the nature considering to that forseeable Friedman, of 2 generally function the tandem roller.” See Frumer Liability (1978). Products §16A [4][d] jury asked the argue interrogatory
Defendants as submitted of only party dangerous to alleged decide whether third or is proximately Since causе roller caused accident. liability of strict clearly indispensable in a cause action for element tort, interrogatory went to an ultimate issue. contend that Plaintiff, however, in a or seller dispute does not that manufacturer product if liability may liability case avoid the evidence demonstrates injury. proximately that caused the product party third likely to the speciаl interrogatory Plaintiff’s to the went to might misunderstanding which lead term “misuse” contrary holding of impute Herbig’s to the negligence to the Lewis. opinion that agree with and are of the
We to the overruling plaintiff’s the trial court erred as material issue of fact failing go as to to an ultimate 1977, ch. (Ill. 65 Act. Stat. required by section of the Civil Practice Rev. 110, Further, 65.) it to answer par. was error for the find the general with verdict. inconsistent if argue that even
The defendants further basis that the given be affirmed on the improperly should product strict a cause of action for prove failed to the elements of they First They deficiencies. liability. point two contend is designed prove failed to roller required but (e.g., it could preventing injury complained incapable requirement for this operatеd safely). rely have been Defendants on. 151, 340 Authority Chicago v. Transit (1975), App. McClellan 34 Ill. 3d establish this it did not Although true that N.E.2d is aof essential element us to be an “requirement” appear it does not overwhelming majority liability in strict tort. cause of action for prima strict for case to establish in this State hold cases facie
825 (1) that proven: must be product liability following three elements design (either or from condition of the injury resulted a defective unreasonably (3) dangerous; construction); (2) that the condition was left the manufacturer’s at the time the that the condition existed 612, 210 (1965),32 Ill. 2d (or (Suvada v. Co. seller’s) control. White Motor 501, 182; Sears, App. 58 Ill. & Co. N.E.2d Gallee v. Roebuck Ill. 367 831; App. Brewer Ostendorf 214; Harvester N.E.2d Frisch International 90; R. D. N.E.2d also Werner Co. Gillespie see cases, hand, the other 1294.) There two N.E.2d are McClellan, suggested by the defendants: impose requirements Inc. Magic Fingers, and 141 South Main Inc. v. because requirement unjustified
Under conventional recover by an injuries caused proves proximately when hе that his were or sold the defendant. product manufactured for an dangerous A is when it is unsafe product unreasonably considered (Winnett v. reasonably intended or foreseeable use Winnett 7,11; Sears, 501, 503.) 58 Ill. App. Gallee Roebuck Co. Foreseeability injuries is also an element of cause in that the must result from an intended or use of a foreseeable product. (Gallee, 503.) Under standards suggested at defendants, however, by a injuries cannot recover for sustained manner, in a as a different long even when used Defendants, in other prevented injuries. have use could or avoided words, could deny plaintiff here because the roller have recovery it operated safely though way operated which was been even law, If that altogether time of the accident was foreseeable. is the Ill. Vaughan Mfg. App. and Bushnell Dunham injuries should not have recovered for aff'd against machinery sustained a hammer farm since a striking metal can clearly safely hammer be used other circumstances. The under liable, however, injured manufacturer held because Dunham foreseeable, albeit, way. (See it in a using while unintended 327-30.) practical Ill. is to resurrеct effect McClellan liability, negligence recovery as an bar to in actions strict effective for unwilling this court to adopt. Finally, argue judgment be affirmed should prove unreasonably roller was because failed to dangerous factory. at the time it left the Defendants contend Skogen, incompetent testimony plaintiff’s expert, Dennis by proper hypo opinions were nоt elicited inadmissible because questions on the object Defendants to two questions. thetical surrounding the ac incorporate failed to the facts questions basis that the unnecessary it that the trial court found cident. The record discloses included, however, unrelated to questions when the were these facts be asked whether questions of the accident. The the circumstanсes the roller signs or instructional rendered absence of a neutral start switch factory. Skogen had Since unreasonably dangerous when left expert personally and had tested qualified as an witness occasions, was able to answer separate he involved in the accident on two (Spence Com knowledge. personal the basis of his 550.) The monwealth Edison Co. familiarity with thе circumstances questions required no answers to the accident, trial court agree we with the surrounding proper. questions and answers not articulate interrogatory did opinion
We are of the jury’s liability action and in this an ultimate material issue for with the it was inconsistent affirmative answer to motion to deny plaintiff’s post-trial Thus it was error to plaintiff. judgment of interrogatory. The answer to the jury’s sеt aside the with and remanded County is reversed Winnebago Circuit Court of general verdict. plaintiff on the for the instructions to enter instructions. remanded with Reversed and GUILD, J., P. concurs. *7 WOODWARD, concurring: specially
Mr. JUSTICE I opinion Lindberg’s by result reached I with the concur Justice sufficiently preserved attorney plaintiff’s that agree and form its substance both in to allow question special appeal. in this be considered is as follows: quеstion in
The that the evidence of the jury preponderance find from a “Does the Herbig, an by Ronald misuse of evidence cause of proximate Blacktop, was the employee of Rockford in question? in the occurrence by injuries sustained ANSWER: YES_
NO_” affirmative. in the jury The answered given by the court and defining No instruction the term “misuse” in fact, this term was only place in where the court used Jury In- Illinоis Pattern interrogatory. The Committee Comments IPI (hereinafter cited as structions, Civil, Supp.) (2d No. 400.08 ed. it given; misuse of a be Civil) that no instruction on recommend states, rather is an element independent “It issue but further is not ‘unreasonably dangerous’ ‘proximate within the issues of contained ” unduly instruction on ‘misuse’ cause.’ It is further stated “[a]n added.) (Emphasis a element of those issues.” emphasize single was unrea- аlleged that the roller complaint Plaintiff’s (b) it (a) starting a neutral switch sonably dangerous as did not have gear of the shift or decal to indicate the any sign did not have that the of the roller answer denied lever. Defendants’ proximate was the dangerous and denied the condition unreasonably injuries. plaintiff’s cause of the 400.02 gave jury stating IPI Civil No.
The (a) that proving propositions including had the burden of five “unreasonably by plaintiff made it condition of the roller claimed (b) roller was the dangerous” and that the claimed condition of the Also, 400.06 injuries. gave the court IPI Civil proximate plaintiff’s cause of put defining “unreasonably dangerous” the term as “unsafe when to use considering that is the nature and function of the reasonably forseeable added.) (Emphasis tandem roller.” by submitted the defendant assumed roller; of the case which was to be
misuse of the this was element by jury under the definition of determined (IPI 400.06) noted above. Since the contained the instruction Civil No. an element of the case to be determined special interrogatory assumed thereby the effect of jury, jury’sprovince destroyed it invaded the response thereto. Defendant any special finding madе Herbig’s found that that the answer to the contends injuries. A cause of proximate of the roller was the sole Hyster argument was made Anderson similar injured by a forklift truck plaintiffs 690. There the N.E.2d defendant; truck was not plaintiffs claimed the manufactured plaintiffs, a verdict for design; after reasonably safe because defective operator claiming that the conduct appealеd, defendant injuries. page At plaintiffs’ cause of forklift was the sole supreme court stated: action, liability, in which theory of strict "In this based on finding
there was sufficient evidence to sustain safe, the conduct it was not designed was so would be defense operator of the forklift truck attributed to *8 plaintiffs’ if of the only actions such conduct constituted misuse v. (Williams Manufacturing Co. product. Brown 418, 425.) forеseeability misuse is Reasonable of the measured (Williams Manufacturing Co. an objective Brown standard 425), and such misuse would serve to break causal connection between the defective plaintiffs’ injuries if such was not only misuse 94, 102). (Lewis Corp. Stran Steel case, Herbig’s Applying Hyster to this to break serve the causal connection the condition of the roller and between if such misuse was injuries foreseeable. The objective fails to measure misuse standard therefore, nullity. foreseeability as required, reasonable answer is pertinent At this the rules for the point becomes to examine Cuneo-Henneberry Wicks special interrogatories. construction 344, 350, court that the guiding principle stated construing a special interrogatory is follows:
“All will in favor of presumptiоns reasonable be entertained verdict, general will nothing presumed while be aid special findings of fact.” purports to determine the plaintiff’s injuries, by assuming a misuse its effect
cause but aid; nullity in its destroyed; presumed will be it is a significance nothing cannot verdict of and the answer control entering error in upon proper based instructions. The for the defendant. WEST, Plaintiff-Appellee, v. EVELYN WEST, LUCILLE ROBERT BOYD Defendant-Appellant. No. 14836
Fourth District Opinion filed November