{ "id": 2634563, "name": "TERESA ANN KINKA, Plaintiff-Appellant, v. HARLEY-DAVIDSON MOTOR COMPANY, INC., Defendant-Appellee", "name_abbreviation": "Kinka v. Harley-Davidson Motor Co.", "decision_date": "1976-03-01", "docket_number": "No. 61114", "first_page": "752", "last_page": "760", "citations": [ { "type": "official", "cite": "36 Ill. App. 3d 752" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "310 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406301 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0007-01" ] }, { "cite": "319 N.E.2d 232", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. 2d 79", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2960289 ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0079-01" ] }, { "cite": "336 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 279", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2791872 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0279-01" ] }, { "cite": "273 N.E.2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. 2d 118", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2909419 ], "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0118-01" ] }, { "cite": "179 N.E.2d 469", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 2d 386", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5234475 ], "pin_cites": [ { "page": "396, 397" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0386-01" ] }, { "cite": "236 N.E.2d 439", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. App. 2d 6", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5347360 ], "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0095-01" ] }, { "cite": "303 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. 2d 356", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2939210 ], "weight": 2, "pin_cites": [ { "page": "360" }, { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0356-01" ] }, { "cite": "264 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899701 ], "weight": 3, "pin_cites": [ { "page": "66" }, { "page": "69" }, { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0064-01" ] }, { "cite": "261 N.E.2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895709 ], "weight": 4, "pin_cites": [ { "page": "430" }, { "page": "430" }, { "page": "430, 431" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0418-01" ] } ], "analysis": { "cardinality": 830, "char_count": 21198, "ocr_confidence": 0.717, "pagerank": { "raw": 1.632267370920622e-07, "percentile": 0.6890782049455393 }, "sha256": "4eb5f16a66d0ed224a4ac6fe2caeaaffa7d7bb5d8bd23f3d677e318035727508", "simhash": "1:a2df32da03c25088", "word_count": 3478 }, "last_updated": "2023-07-14T20:55:53.941211+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TERESA ANN KINKA, Plaintiff-Appellant, v. HARLEY-DAVIDSON MOTOR COMPANY, INC., Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nTeresa Ann Kinka (plaintiff) brought an action for personal injuries against Harley-Davidson Motor Company, Inc. (defendant). Plaintiff was a passenger upon a motorcycle manufactured by defendant. Her complaint was based upon strict tort liability and alleged a design defect in that defendant had provided an insufficient covering over the drive chain between the motor and the rear wheel. The jury returned a verdict of not guilty and answered affirmatively a special interrogatory as to whether plaintiff rode on and used the motorcycle in such a manner that she assumed the risk of injury.\nPlaintiff appeals, contending only that the jury was erroneously instructed regarding the defense of assumption of risk.\nOn the evening of August 27, 1970, plaintiff, then 18 years old, accepted an invitation from her friend, Richard Holzer, to ride on the rear portion of the driver\u2019s seat of his 1970 model Harley-Davidson motorcycle. Plaintiff had ridden with Holzer in this manner once before. As she mounted the motorcycle, Holzer handed her his jacket, indicating that she should hold it for him. Because there was no strap or handle for plaintiff to hold, she put her arms around Holzer\u2019s waist and held the jacket in her hands in front of him.\nHolzer drove the vehicle out of the parking.lot of Chicago\u2019s Rainbow Beach. One of his friends, driving a motorcycle without a passenger, preceded them. They drove along 79th Street to its intersection with Lake Shore Drive. There the other cyclist went on but Holzer stopped for a traffic light, prior to a right turn onto northbound Lake Shore Drive. Plaintiff removed her arms from around his waist and commenced to put on the jacket so that she would not have to hold it in her hands.\nShe did not tell Holzer that she had let go of him, although he testified that he was aware that her arms were no longer around him. She then placed her right arm into the right sleeve of the jacket. She was attempting to put on the left sleeve when the traffic light changed and Holzer started and turned the comer. At that moment, a gust of wind blew the jacket away from plaintiff\u2019s left arm, and into the rear wheel of the motorcycle, on the right side. Plaintiff testified that she screamed because she did not know what was happening. After about one block,\nHolzer stopped and the motorcycle turned over on its left side, pinning him to the ground.\nThe motorcycle sprocket is a circular plate with circumferential teeth similar to a gear. It is fastened to the center of the rear wheel. Power is transmitted from the motor back to the sprocket and rear wheel by a chain which fits into the sprocket teeth. These teeth have rounded outer surfaces but are cut sharply on both sides. Plaintiff\u2019s arm and the jacket were caught and entangled in the chain and sprocket so that she was severely injured.\nBoth parties introduced expert testimony regarding the design of the guard on the motorcycle\u2019s chain.\nPlaintiff called John Sheehan, a metallurgical engineer, who spends a portion of his time doing accident reconstruction work. His work as an engineer is concerned primarily with metallurgy as applied to types of materials used for various parts as distinguished from the configuration or design of parts and products. He testified that he was generally familiar with operation of a motorcycle. He had never owned or ridden on a motorcycle and had done no research regarding motorcycles in preparation for the trial. He had never done any design work on motorcycles. He had examined the motorcycle involved in the accident and had a copy of the manufacturer\u2019s manual on its operation. He was not aware that the chain of this particular motorcycle was designed so that it was continuously oiled until he heard defendant\u2019s expert witness testify to that effect.\nIn response to a hypothetical question, Sheehan testified that there was a greater likelihood that the chain guard on the 1960 model of defendant\u2019s motorcycle could have been more effective to prevent entanglement of clothing in the sprocket or chain than the guard on the 1970 model here involved. He qualified this opinion by saying that he could not state categorically that the older type chain guard as used in the 1960 model would have prevented the accident but only that it would have \u201cminimized the possibility\u201d. On cross-examination, he conceded that in his pretrial deposition he had testified that he had then not yet formed an opinion as to how the accident occurred, but that he believed it more logical that the jacket had been caught in the spokes of the rear wheel. He had reached the conclusion stated in his testimony before the jury within \u201cthe last week or two\u201d prior to trial.\nPlaintiff also called Richard Huebner, defendant\u2019s production engineer in charge of motorcycles and examined him as an adverse witness. He is a qualified engineer employed by defendant since 1957. He has had experience in the design of motorcycle chain guards. In 1970, defendant did not have a special department in charge of product safety. The witness testified that the guard on the 1970- model had been installed at the factory.\nHe expressed the opinion that the function of the chain guard is primarily to protect the rider against being spattered with mud and oil; and, secondarily, to protect the rider from getting caught in the chain. If the chain and sprocket were not covered or were improperly covered, it would be a hazard to a pass\u00e9nger. He compared the chain guards of the 1960 and 1970 models and concluded that, although the later model is smaller and more streamlined, both models function \u00e9qually well so that they present no difference in adequacy as regards safety. He testified that the motorcycle\u2019s chain is a roller chain and has no sharp edges on which clothing could get caught. On re-cross-examination, he added that it is conceivable that something could snag on the motorcycle\u2019s chain. In his opinion it would be unsafe for a person to attempt to put on a jacket while the motorcycle was in motion. He also testified that nothing could get caught in the upper portion of the chain and sprocket because the top portion of the chain is moving forward from the sprocket toward tire motor and front wheel. That is, the chain at the lower or bottom area is moving into the sprocket but at the top the chain is moving out of or away from the sprocket.\nWe note here that the difference in the appearance of the guard above the sprocket on both models of the motorcycle appears from two photographs received in evidence. In the 1960 model, the guard is larger and curved down at its rear portion so as to partially enclose most of the upper half of the sprocket. In the 1970 model here involved, the guard is smaller and extends horizontally straight over the top of the sprocket and slightly to its rear.\nDefendant alleged in an amendment to its answer that plaintiff as a passenger assumed the risk of injury \u201cby putting on a jacket while \u25a0the motorcycle was in motion with moving parts in which the jacket could become entangled.\u201d Thus, it alleged, the product was being misused \u201cby being used in a manner for which it was not intended by the manufacturer.\u201d\nPlaintiff tendered this instruction (Plaintiff\u2019s No. 4) taken from Illinois Institute For Continuing Legal Education, Illinois Product Liability Practice \u00a79.20 (1973):\n\u201cThe Plaintiff has the burden of proving each of the following propositions:\nFirst, that there existed in the motorcycle a condition that rendered it unreasonably dangerous in the way claimed by the Plaintiff as stated to you in thfese instructions;\nSecond, that such condition existed at the time the motorcycle left the control of defendant;\nThird, that the Plaintiff was injured;\nFourth, that such condition of the motorcycle was a proximate cause of Plaintiff\u2019s injury.\nIn this case, Defendant has asserted the affirmative defense of assumption of the risk of injury from use of the motorcyle.\nAs to the defense of assumption of the risk of injury by the Plaintiff from the use of the motorcycle, the Defendant has the burden of proving each of the following propositions:\nFirst, that the Plaintiff knew of the existence of a condition which rendered the motorcycle unreasonably dangerous;\nSecond, the Plaintiff appreciated the danger involved in the use of the motorcycle;\nThird, that such use of the motorcycle after knowledge of such condition and appreciation of the danger was voluntary and unreasonable;\nFourth, that such assumption of risk proximately caused the Plaintiff\u2019s injury.\nIn determining whether the defense of assumption of the risk of injury from use of the motorcycle has been proved, you should take into consideration the Plaintiff\u2019s age, experience, knowledge, and understanding; and the obviousness of such condition and the danger involved.\nIf you find from your consideration of all the evidence that each of the propositions required of the plaintiff has been proved and that all of the propositions of Defendant\u2019s affirmative defense required of the defendant has not been proved, then your verdict should be for the Plaintiff. If, on the other hand, you find from your consideration of all the evidence that any one of the propositions the Plaintiff is required to prove has not been proved, or that all of the propositions of the defendant\u2019s affirmative defense have been proved, then your verdict should be for the defendant.\u201d\nDefendant tendered this instruction (Defendant\u2019s No. 10, IPI-Civil No. 20.01 modified):\n\u201cThe plaintiff has the burden of proving each of the following propositions:\nFirst, that there existed in the motorcycle a condition that rendered it unreasonably dangerous in the way claimed by the plaintiff as stated to you in these instructions;\nSecond, that such condition existed at the time the motorcycle left the control of the defendant;\nThird, that the plaintiff was injured;\nFourth, that such condition of the motorcycle was a proximate cause of plaintiff\u2019s injuries.\nIn this case defendant has asserted the affirmative defense that plaintiff assumed the risk of injury by attempting to put on a jacket while the motorcycle was in motion, with moving parts in which the jacket could become entangled.\nThe defendant has the burden of proving this defense.\nIf you find from your consideration of all the evidence that each of the propositions required of the plaintiff has been proved and that defendant\u2019s affirmative defense has not been proved' then your verdict should be for the plaintiff. If, on tire other hand, you find from your consideration of all tire evidence that any one of the propositions the plaintiff is required to prove has not been proved or that the defendant\u2019s affirmative defense has been proved, then your verdict should be for the defendant.\u201d\nThe court gave its own instruction as follows:\n\u201cHie plaintiff has the burden of proving each of the following propositions:\nFirst, that there existed in the motorcycle a condition that rendered it unreasonably dangerous in the way claimed by the plaintiff as stated to you in these instructions;\nSecond, that such condition existed at the time the motorcycle left the control of the defendant;\nThird, that the plaintiff was injured;\nFourth, that such condition of the motorcycle was a proximate cause of plaintiff\u2019s injuries.\nIn this case defendant has asserted the affirmative defense that plaintiff assumed the risk of injury by attempting to put on a jacket while the motorcycle was in motion, with moving parts in which the jacket could become entangled.\nIn determining whether the defense of assumption of the risk of injury from use of the motorcycle has been proved, you should take into consideration the plaintiff\u2019s age, experience, knowledge, and understanding; and the obviousness of such condition and the danger involved.\nHie defendant has the burden of proving this defense.\nIf you find from your consideration of all the evidence that each of the propositions required of the plaintiff has been proved then your verdict should be for the plaintiff. If, on the other hand, you find from your consideration of all the evidence that any one of the propositions the plaintiff is required to prove has not been proved or that the defendant\u2019s affirmative defense has been proved, then your verdict should be for the defendant.\u201d\nThe following special interrogatory was given to the jury without objection and answered in the affirmative by the jury:\n\u201cDid the plaintiff, at the time of the occurrence in question, ride on and use the defendant\u2019s product-motorcycle in such a manner that she assumed the risk of injury?\u201d\nComparison shows that the court\u2019s instruction parallels that tendered by the defendant except for the additional added paragraph commencing with \u201cIn determining * * Plaintiff\u2019s tendered instruction contains additional material and thus differs from both of the others. The careful trial judge analyzed both tendered instructions and concluded that defendant\u2019s instruction did not adequately instruct the jury on the burden of proof on the affirmative defense of assumption of risk but, on the other hand, the instruction tendered by plaintiff placed an unreasonable burden upon defendant. The instruction given by the court is thus an attempted compromise between the conflicting views of the .parties,\nIn Illinois, assumption of risk is an affirmative defense in a strict liability tort action. (Williams v. Brown Manufacturing Co., 45 Ill. 2d 418, 430, 261 N.E.2d 305.) Recovery will be barred if the defendant \u201cby means of an affirmative defense, can show that the plaintiff knew the product was in a dangerous condition and proceeded to use the product in disregard of this known danger.\u201d (Sweeney v. Max A. R. Matthews & Co., 46 Ill. 2d 64, 66, 264 N.E.2d 170. See also Reese v. Chicago, Burlington & Quincy R.R. Co., 55 Ill. 2d 356, 360, 303 N.E.2d 382, and Ralston v. Illinois Power Co., 13 Ill. App. 3d 95, 98, 299 N.E. 2d 497.) The test to be applied is subjective since the \u201cknowledge, understanding and appreciation of the danger * *' *\u201d as regards the user must be considered rather than that of the mythical \"reasonably prudent person\u201d. (See Williams, 45 Ill. 2d 418, 430, citing Restatement (Second) of Torts \u00a7496D, comment (c) (1965).) Thus, existence- of plaintiff\u2019s knowledge of the defect which made the product unreasonably dangerous would seem an essential element of proof of the defense of assumed risk.\nWhile plaintiff is entitled to have correct instructions submitted to the jury, \u201cthe trial court\u2019s refusal to give incorrect instructions was not error.\u201d (Sweeney v. Max A. R. Matthews & Co., 46 Ill. 2d 64, 69.) If the plaintiff failed to meet her obligation to tender a proper instruction on the applicable law, she\" cannot complain that her instruction was refused. Sweeney v. Max A. R. Matthews, 94 Ill. App. 2d 6, 30, 236 N.E.2d 439.\nIn this.area, plaintiff\u2019s instruction did not conform to the proof offered by plaintiff or tq the allegations of defendant\u2019s answer concerning assumption of risk. Plaintiff\u2019s instruction described the first burden upon defendant as proving generally the knowledge \u201cof the existence of a condition which \u25a0 rendered the motorcycle unreasonably dangerous.\u201d Defendant\u2019s answer and the instruction on the issues given without objection set out that plaintiff assumed the risk by putting on the jacket while the cycle was in motion with moving. parts. Plaintiff\u2019s instruction was also deficient in that it defined assumption of the risk as requiring that plaintiff- appreciate the danger involved in the use of the \"motorcycle which was in a dangerously defective condition but it did not define or describe the allegedly defective condition. The trial court correctly stated that plaintiff\u2019s instruction placed an unreasonable burden of proof on defendant. Defendant\u2019s instruction failed to state specifically that plaintiff must have known of the defective design of the chain guard in order to have assumed the risk.\n\u2022 This problem results from a rather unusual dichotomy between plaintiff\u2019s complaint and defendant\u2019s answer. The complaint described the alleged design defect upon which plaintiff depended. The answer denied the allegations of the complaint and added an affirmative defense by amendment. The amendment alleged affirmatively that plaintiff assumed the risk by putting on the jacket while the motorcycle was in motion with moving parts in which the jacket could become entangled. The affirmative defense is thus not a true confession and avoidance by defendant, but it seeks to charge plaintiff with assumption of a risk other than that which allegedly resulted from the unreasonably dangerous defect in the product as alleged by plaintiff. No motion was made to strike this allegation of the answer and thus the parties joined in erroneously presenting the issue to the court. In strict tort liability cases, the assumption of risk stems from use of-the product with knowledge of- its allegedly defective condition. This comports with the definition of assumption of risk as set forth in Sweeney (46 Ill. 2d 64, 66) and Williams (45 Ill. 2d 418, 430, 431.) Any other definition would permit interjection \u201cof simple contributory negligence, not a defense in a products liability action.\u201d Reese v. Chicago, Burlington & Quincy R.R. Co., 55 Ill. 2d 356, 360.\nPresented with this formidable dilemma, unrecognized by the parties, the able trial judge combined parts of both instructions to form a court\u2019s instruction which he gave to the jury. The jury was correctly instructed to consider plaintiff\u2019s age, experience, knowledge and understanding and the obviousness of such condition as well as the danger involved in determining whether the affirmative defense precluded her from recovering. (Williams v. Brown Manufacturing Co., 45 Ill. 2d 418, 431.) However, for the reasons above stated, we cannot regard this given instruction as a satisfactory model for use in other cases.\nExamination of the record here requires us to conclude that there was no error in this trial which prejudiced plaintiff\u2019s rights so as to require reversal. On the contrary, it is a most reasonable assumption in this case that no different verdict would be reached on another trial. (See Kosowski v. McDonald Elevator Co., 33 Ill. App. 2d 386, 396, 397, 179 N.E.2d 469.) The testimony adduced by plaintiff in support of the allegations of her complaint was not impressive. Plaintiff\u2019s expert had minimal experience in working with motorcycles. In his pretrial deposition he testified that it was more likely that plaintiff was injured because the jacket became caught in the spokes of the rear wheel. He reached the conclusion regarding the cause of the accident which he stated to the jury only a week or two prior to trial. In his deposition he testified that the motorcycle chain was relatively smooth and had no protuberance to catch a coat. When confronted with this testimony at trial, he stated that the deposition question had reference to such chains in general and not to the chain on this specific motorcycle.\nThese potent factors eroded, virtually to the point of eradication, the somewhat equivocal opinion of plaintiff\u2019s expert that there was a greater likelihood that the guard used in 1960 could have prevented entanglement of clothing than the one used in 1970. By way of contrast, defendant\u2019s expert was a man with years of practical experience who testified definitely and unequivocally that there was no difference in safety adequacy between the chain guards on the earlier and later motorcycles. Since this expert testimony went to the ultimate issue in the case, the jury as the trier of fact was not required to accept the opinion of either expert. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co., 49 Ill. 2d 118, 122, 273 N.E.2d 809, and cases there cited.) The. jury was more than amply warranted in accepting the opinion advanced by defendant\u2019s expert which strongly supports the result reached in the general verdict.\nFurthermore the disparity between the relative strength of the testimony of the two experts fully justified the general verdict because of lack of proof of proximate causation between the alleged design defect and the injury. The same observation applies to weakness of the proof on the issue of reasonable foreseeability to the manufacturer of the injury. See Wenzell v. MTD Products, Inc., 32 Ill. App. 3d 279, 336 N.E.2d 125, leave to appeal denied, January 26, 1976, citing Rios v. Niagara Machine & Tool Works, 59 Ill. 2d 79, 319 N.E.2d 232, and Winnett v. Winnett, 57 Ill. 2d 7, 310 N.E.2d 1.\nThis verdict of not guilty is most strongly supported by tire evidence. The judgment appealed from is accordingly affirmed.\nJudgment affirmed.\nBURKE and SIMON, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "B. John Mix, Jr., and Stanley Pagorek, both of Chicago, for appellant.", "Menk, Bishop & Kezelis, of Chicago (John Cadwalader Menlc and John T. Mehigan, of counsel), for appellee." ], "corrections": "", "head_matter": "TERESA ANN KINKA, Plaintiff-Appellant, v. HARLEY-DAVIDSON MOTOR COMPANY, INC., Defendant-Appellee.\nFirst District (1st Division)\nNo. 61114\nOpinion filed March 1, 1976.\nB. John Mix, Jr., and Stanley Pagorek, both of Chicago, for appellant.\nMenk, Bishop & Kezelis, of Chicago (John Cadwalader Menlc and John T. Mehigan, of counsel), for appellee." }, "file_name": "0752-01", "first_page_order": 778, "last_page_order": 786 }