{ "id": 5102017, "name": "WAYNE EAVES, Plaintiff-Appellant, v. HYSTER COMPANY, Defendant-Appellee", "name_abbreviation": "Eaves v. Hyster Co.", "decision_date": "1993-03-26", "docket_number": "No. 1\u201491\u20143327", "first_page": "260", "last_page": "267", "citations": [ { "type": "official", "cite": "244 Ill. App. 3d 260" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "44 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891442 ], "pin_cites": [ { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0132-01" ] }, { "cite": "61 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3344846 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0833-01" ] }, { "cite": "195 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2495078 ], "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0001-01" ] }, { "cite": "74 Ill. 2d 379", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994217 ], "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0379-01" ] }, { "cite": "85 Ill. App. 3d 32", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3194930 ], "weight": 4, "pin_cites": [ { "page": "38" }, { "page": "38" }, { "page": "38", "parenthetical": "\"[wjhether the interrogatory was answered affirmatively or negatively, it would not have been inconsistent with any general verdict\"" }, { "page": "38-39", "parenthetical": "each finding submission of improper interrogatory not to require reversal absent showing of prejudice to plaintiff" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0032-01" ] }, { "cite": "44 Ill. 2d 419", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2889279 ], "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0419-01" ] }, { "cite": "78 Ill. App. 2d 153", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2569395 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/78/0153-01" ] }, { "cite": "19 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2691272 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/1018-01" ] }, { "cite": "130 Ill. App. 3d 140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3493372 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0140-01" ] }, { "cite": "228 Ill. App. 3d 692", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5222564 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0692-01" ] }, { "cite": "262 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4752908 ], "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill/262/0228-01" ] }, { "cite": "178 Ill. App. 3d 20", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2431648 ], "pin_cites": [ { "page": "24-25" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0020-01" ] }, { "cite": "107 Ill. App. 3d 1024", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3024786 ], "pin_cites": [ { "page": "1028" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/1024-01" ] }, { "cite": "126 Ill. App. 3d 244", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598741 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0244-01" ] }, { "cite": "74 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2993567 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/74/0364-01" ] }, { "cite": "174 Ill. App. 3d 101", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3516341 ], "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0101-01" ] } ], "analysis": { "cardinality": 726, "char_count": 16441, "ocr_confidence": 0.762, "pagerank": { "raw": 1.3163014759396483e-07, "percentile": 0.6256152385718241 }, "sha256": "991a14fc75f9068bdf299f3b6bfbe76f358f11edfdd93b737a6438f5abc84a33", "simhash": "1:abb47d2a7a77d759", "word_count": 2639 }, "last_updated": "2023-07-14T19:27:37.423199+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WAYNE EAVES, Plaintiff-Appellant, v. HYSTER COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GIANNIS\ndelivered the opinion of the court:\nPlaintiff, Wayne Eaves, sustained crushing injuries to both hands on August 8, 1983, while assisting in the repair of an industrial lift truck at his place of employment. At the time of the accident, plaintiff was attempting to replace a chain that had come off of its sheave. Plaintiff filed strict product liability and negligence claims against Hyster Company (defendant), the manufacturer of the vehicle. The strict liability counts were later found to be untimely and dismissed. In his first amended complaint at law, plaintiff alleged negligence on the part of defendant in defendant\u2019s failure to: (1) offer in its parts manual a \u201creplacement chain retaining device\u201d; (2) give adequate directions and warnings as to how to repair the lift truck in the event the chain slipped from its sheave; (3) issue adequate directions and warnings directing maintenance personnel as to how to block the mast sections of the truck that ultimately fell and injured plaintiff; (4) prepare adequate directions and warnings with respect to the proper and safe removal of the \u201cadapter plate\u201d; and (5) place legible and adequate warnings on the lift truck.\nDefendant subsequently filed a third-party complaint seeking contribution from plaintiff\u2019s employer, Imperial Clevite. Imperial Clevite and defendant settled immediately prior to trial and Imperial Clevite was dismissed. Following trial, the jury rendered a verdict for defendant, and the trial court entered judgment in defendant\u2019s favor. The trial court denied plaintiff's post-trial motion, and plaintiff has appealed.\nPlaintiff first argues that the trial court improperly instructed the jury on the duty and standard of care owed by defendant to plaintiff because the instruction ultimately given to the jury held defendant to a lesser duty and standard than required by Illinois law. Plaintiff claims that because defendant is a manufacturer, and because defendant held itself out as an expert, defendant should be held to an expert standard of care.\nIn Illinois, Supreme Court Rule 239(a) governs jury instructions in civil cases. It states:\n\u201cWhenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law. Whenever IPI does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given in that subject should be simple, brief, impartial, and free from argument.\u201d (134 Ill. 2d R. 239(a).)\nA trial court has the discretion to determine which instructions shall be given and, absent an abuse of discretion, its decision will not be disturbed. (Lee v. Calfa (1988), 174 Ill. App. 3d 101, 110.) The test is whether the instructions given, considered as a whole and read as a series, are sufficiently clear so as not to mislead the jury and whether they fairly and correctly state principles of law which pertain to the case. Lee, 174 Ill. App. 3d at Ill.\nAs plaintiff notes, Illinois law holds a manufacturer to the degree of skill and knowledge of an expert. (Anderson v. Hyster Co. (1979), 74 Ill. 2d 364; Collins v. Interroyal Corp. (1984), 126 Ill. App. 3d 244.) Plaintiff also points out that defendant has admitted that it held itself out as an expert in the design and maintenance of lift trucks. Plaintiff\u2019s first amended complaint at law states:\n\u201c6. That when preparing these manuals the defendant, HYSTER COMPANY, held itself out as an expert in the area of design and maintenance procedures of lift trucks, not limited to but including a certain lift truck known as model S70BCS, serial number B4L6015M, manufactured by this defendant.\u201d Defendant responded, \u201cHyster Company admits the allegations of paragraph 6.\u201d\nPlaintiff argued to the trial court that because Illinois Pattern Jury Instructions, Civil (3d ed. 1992) (hereinafter IPI Civil 3d), provides no instruction indicating that a manufacturer is held to the degree of skill and knowledge of an expert, and because defendant itself has admitted its expert status with regard to lift trucks, plaintiff was entitled to submit to the jury a modification of IPI Civil 3d No. 10.04. IPI Civil 3d No. 10.04 provides:\n\u201cIt was the duty of the defendant, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff. That means it was the duty of the defendant to be free from negligence.\u201d\nPlaintiff\u2019s modification of this instruction provided:\n\u201cThe defendant held itself out to be an expert in the design promulgation of instructions for the repair of lift trucks. Therefore, it was the duty of the defendant, before and at the time of the occurrence, to exercise that degree of care commensurate with that of a reasonably prudent expert engineer for the safety of the plaintiff. That means it was the duty of the defendant to be free from negligence.\u201d\nThe trial court refused plaintiff\u2019s modified instruction and, over plaintiff\u2019s objection, tendered to the jury the following:\n\u201cIt was the duty of the defendant, HYSTER COMPANY, before and at the time it produced the subject forklift truck and manuals, to use ordinary care for the safety of the plaintiff. That means it was the duty of HYSTER COMPANY to be free from negligence.\u201d\nPlaintiff complains that the trial use of IPI Civil 3d No. 10.04 without his suggested modifications improperly instructed the jury on Illinois law.\nContrary to plaintiff\u2019s assertion, the instruction tendered to the jury in this case is not inconsistent with the law regarding the imputed knowledge and skill of manufacturers. Plaintiff\u2019s position confuses the duty of care required of manufacturers with the level of knowledge and skill properly imputed to them. In Illinois a manufacturer has the same general duty of due care as any defendant. (Sanchez v. Bock Laundry Machine Co. (1982), 107 Ill. App. 3d 1024, 1028 (in product liability cause of action based on negligence, plaintiff must show defendant owed him a duty of reasonable care); Cornstub ble v. Ford Motor Co. (1988), 178 Ill. App. 3d 20, 24-25 (manufacturer has a duty of due care to design and manufacture a product that will be reasonably safe for its intended use).) \u201cDue care,\u201d \u201creasonable care,\u201d and \u201cordinary care\u201d are convertible terms which denote that degree of care which ordinarily prudent persons would exercise under the same or similar circumstances. (Roberts v. Chicago City Ry. Co. (1914), 262 Ill. 228, 233.) While jurors may presume a manufacturer has an expert\u2019s level of skill and knowledge with regard to a manufactured product, this is not the same as saying that a manufacturer has an elevated duty of care beyond that of \u201cdue care\u201d as used by IPI Civil 3d.\nPlaintiff next points to IPI Civil 3d Nos. 105.01 and 105.02 which set out jury instructions for use in \u201cprofessional negligence\u201d cases. While these instructions once applied only to health care workers, they have now been expanded to apply to all professional defendants and require all professionals to apply the same degree of knowledge, skill and ability as an ordinarily careful professional would exercise under similar circumstances. (See, e.g., Taake v. WH GK, Inc. (1992), 228 Ill. App. 3d 692 (architect); Horak v. Biris (1985), 130 Ill. App. 3d 140 (social worker); Brown v. Gitlin (1974), 19 Ill. App. 3d 1018 (attorney); Laukkanen v. Jewel Tea Co. (1966), 78 Ill. App. 2d 153 (engine\u00e9r).) Plaintiff asserts that these instructions demonstrate \u201cunequivocally\u201d Illinois\u2019 public policy of holding expert defendants to a higher standard of care in negligence cases. He argues that this policy favors his proposed instruction. Defendant responds that plaintiff did not tender IPI Civil 3d No. 105.01 or IPI Civil 3d No. 105.02 to the trial court in this case and has, therefore, waived this argument on appeal. Gille v. Winnebago County Housing Authority (1970), 44 Ill. 2d 419, 427 (\u201cone cannot complain that an instruction was not given where he does not show that the court was requested to give such instruction and refused to do so\u201d).\nAs defendant suggests, plaintiff\u2019s reliance on IPI Civil 3d No. 105.01 and IPI Civil 3d No. 105.02, at this stage of the proceedings at least, is misplaced. The only \u201cunequivocal\u201d conclusion that may be fairly drawn from the existence of IPI Civil 3d Nos. 105.01 and 105.02 is that \u201cprofessionals\u201d may be held to an elevated and objective standard of care. Plaintiff cites no authority for the proposition that admitted \u201cexperts\u201d must also be held to such a standard. While plaintiff insists that he now raises IPI Civil 3d No. 105.01 and IPI Civil 3d No. 105.02 \u201cby analogy only,\u201d a careful review of the language of his proposed instruction indicates otherwise. In his proposed instruction plaintiff sought to hold defendant to that standard of care appropriate to an \u201cexpert engineer.\u201d (Emphasis added.) While plaintiff might have chosen to have proceeded to trial alleging \u201cprofessional negligence\u201d against defendant as an engineer, he did not attempt to do so. It was not error, therefore, for the trial court to deny plaintiff\u2019s tendered instruction.\nIn any case, and as discussed below, the jury in this case expressly found that plaintiff\u2019s injuries were caused solely by the conduct of plaintiff\u2019s employer, Imperial Clevite. Therefore, the failure of the trial court to give the disputed instruction cannot have prejudiced the jury\u2019s ultimate decision, as a finding that Imperial Clevite was the sole proximate cause of plaintiff\u2019s injuries is inconsistent with a finding against defendant.\nPlaintiff next contends that the trial court\u2019s submission to the jury of three special interrogatories improperly influenced the jury\u2019s verdict in favor of defendant. Defendant tendered the following special interrogatories which were ultimately given to the jury:\n\u201c1. Was the failure of Imperial Clevite to maintain the subject forklift in a safe working condition and to instruct and train Wayne Eaves in the proper procedures for performing repairs on the subject forklift truck the sole proximate cause of plaintiff\u2019s injuries?\n2. Was the act of Wayne Eaves in undertaking to repair the upright assembly of the subject forklift truck when he knew that he was not qualified or trained to make such repairs the sole proximate cause of his injury?\n4. Do you find that an absence of warnings and instructions in the Hyster Company Service Manual, the parts manual and on the forklift truck was a proximate cause of plaintiff\u2019s injury?\u201d\nThe jury answered \u201cYES\u201d to No. 1, and \u201cNO\u201d to Nos. 2 and 4 (the trial court refused to tender defendant\u2019s special interrogatory No. 3, which is not at issue here).\nPlaintiff first argues that special interrogatory No. 4 was improper. The function of the special interrogatory is to require the jury to make a determination as to one or more ultimate facts and the special interrogatory thereby serves to operate as a check upon the jury\u2019s deliberations. (Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 38.) For a special interrogatory to be proper, a responsive answer thereto must be inconsistent with some general verdict which\" the jury might return. (Gasbarra, 85 Ill. App. 3d at 38.) In assessing the propriety of special interrogatory No. 4, it is not necessary to determine whether both a positive and negative answer thereto could control all possible general verdicts. Rather, a special interrogatory is proper if some response to special interrogatory No. 4 could serve to test some general verdict returned by the jury. (See Gasbarra, 85 Ill. App. 3d at 38 (\u201c[wjhether the interrogatory was answered affirmatively or negatively, it would not have been inconsistent with any general verdict\u201d).) Plainly, an affirmative response to special interrogatory No. 4 would have been inconsistent with the general verdict returned by the jury in favor of Hyster Company. Special interrogatory No. 4 was therefore proper.\nPlaintiff next faults special interrogatory No. 4 for its failure to include reference to his \u201cchain retaining device\u201d theory of the case. This omission does not change, however, the propriety of special interrogatory No. 4 under the Gasbarra standard. Moreover, it must be noted that plaintiff failed to request that special interrogatory No. 4 address the chain retaining device theory during the jury instruction conference with the trial court, nor did he tender an alternate special interrogatory than that tendered by defendant. Plaintiff has therefore waived this issue for appeal. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 387.) In addition, it should be noted that plaintiff has elected to prepare only limited portions of the transcript of proceedings below in pursuing the instant appeal. Because the record does not contain the trial transcripts, a review of the record fails to indicate that any instruction on plaintiff\u2019s chain retaining device theory would have been supported by the evidence. See Continental Concrete Pipe Corp. v. Century Road Builders, Inc. (1990), 195 Ill. App. 3d 1, 10 (on appeal, appellant has burden of presenting sufficiently complete record, and absence of transcript may prevent reviewing court from finding trial court abused discretion); Yakstis v. William J. Diestelhorst Co. (1978), 61 Ill. App. 3d 833 (to justify giving of instruction, record must contain some evidence that theory set forth in instruction was presented to jury).\nFinally, even if it is assumed arguendo that special interrogatory No. 4 was improperly submitted to the jury, such error would not require reversal in this case. See Bruske v. Arnold (1969), 44 Ill. 2d 132, 136-37; Gasbarra, 85 Ill. App. 3d at 38-39 (each finding submission of improper interrogatory not to require reversal absent showing of prejudice to plaintiff).\nPlaintiff next argues that the trial court submission of the three special interrogatories, taken together, misled the jury on the issue of proximate cause. Plaintiff notes that special interrogatory No. 1 focused on the conduct of plaintiff\u2019s employer, Imperial Clevite, and asked if Imperial Clevite was the \u201csole proximate cause\u201d of plaintiff\u2019s injuries. Special interrogatory No. 2 focused on the conduct of plaintiff and again queried the jury regarding \u201csole proximate cause.\u201d Finally, special interrogatory No. 4 made inquiry regarding the conduct of defendant, but asked not about \u201csole proximate cause,\u201d but rather, about \u201ca proximate cause.\u201d Plaintiff claims that the three special interrogatories together \u201cconditioned\u201d the jury to think in terms of \u201csole proximate cause,\u201d rather than on the possibility that the conduct of plaintiff, plaintiff\u2019s employer and defendant may together have caused plaintiff\u2019s injury. Plaintiff also argues that special interrogatory No. 4\u2019s use of \u201ca proximate cause,\u201d rather than \u201csole proximate cause,\u201d improperly focused the jury\u2019s attention away from the conduct of defendant.\nPlaintiff\u2019s arguments are without merit. In this case each special interrogatory directed the jury\u2019s attention to all potential culpable entities: Imperial Clevite, plaintiff and defendant. Thus, the special interrogatories did not serve to emphasize defendant\u2019s theory of the case above plaintiff\u2019s, but presented a balanced set of questions regarding the ultimate facts of the case. While two of the three interrogatories used the words \u201csole proximate cause,\u201d the jury was carefully instructed that there may have been more than one cause of plaintiff\u2019s injury and that more than one party may be to blame for those injuries. It must be assumed, therefore, that the jury was capable of understanding and answering the special interrogatories in conformity with the law.\nFor all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nEGAN and RAKOWSKI, JJ., concur.", "type": "majority", "author": "JUSTICE GIANNIS" } ], "attorneys": [ "Bernard R. Nevoral & Associates, Ltd., of Chicago (Bernard R. Nevoral, David L. Cwik, and Michael E. Tabor, of counsel), for appellant.", "Pope & John, Ltd., of Chicago (John M. Christian, Jeffrey M. Rubin, and Michael K. Bartosz, of counsel), for appellee." ], "corrections": "", "head_matter": "WAYNE EAVES, Plaintiff-Appellant, v. HYSTER COMPANY, Defendant-Appellee.\nFirst District (6th Division)\nNo. 1\u201491\u20143327\nOpinion filed March 26, 1993.\nBernard R. Nevoral & Associates, Ltd., of Chicago (Bernard R. Nevoral, David L. Cwik, and Michael E. Tabor, of counsel), for appellant.\nPope & John, Ltd., of Chicago (John M. Christian, Jeffrey M. Rubin, and Michael K. Bartosz, of counsel), for appellee." }, "file_name": "0260-01", "first_page_order": 280, "last_page_order": 287 }