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No Post-Sale Duty on Hazards Under State Law: Appeals Court

Posted on in In the News

CHICAGO DAILY LAW BULLETIN

A tractor manufacturer had no duty to warn consumers or retrofit a used tractor when the seat assembly allegedly was hazardous, a state appeals court ruled Thursday.

But the 1st District Appellate Court panel also ordered a new trial in the wrongful-death case against the manufacturer because the trial judge improperly allowed jurors during their deliberations to view the seat assembly not admitted into evidence.

The appeals court also held that the trial judge erred by allowing an expert witness for the defendant, Navistar International Transportation Corp., to give speculative testimony. A jury returned a verdict in Navistar's favor and Cook County Circuit Judge Leonard R. Grazian entered judgment on the verdict.

The three-judge panel affirmed Grazian's holding that Navistar didn't have a duty to provide post-sale warnings to consumers or retrofit the tractor after learning a seat assembly was dangerous. The decision came in an appeal by Janet Modelski, who alleged that her husband Joseph's death in 1991 while using a Navistar tractor was caused by the company's negligence.

The panel upheld Grazian's dismissal of negligence courts alleging that Navistar failed to provide the post-sale warnings or retrofit the tractor. The appeals court rejected arguments by Modelski's attorneys that Illinois law and common law impose a duty to warn and retrofit the tractor in the case.

"The consequences of imposing upon manufacturers an extrastatutory duty to recall and retrofit used products to incorporate post-sale state of the art designs would be the equivalent of mandating that manufacturers insure that their products will always comply with current safety standards," Justice Thomas E. Hoffman wrote. "This we are unwilling to do.

"If such a continuing duty is to be imposed, it is the legislature that is better suited to the task," Hoffman added.

"(I)n the absence of ... a statutory obligation or a voluntary undertaking to retrofit, we know of no reported case in Illinois supporting such a duty on a manufacturer," Hoffman wrote.

The panel's decision not to impose a duty to recall and retrofit is supported by recent pronouncements in the Restatement (Third) of Torts: Products Liability (1997), according to the opinion.

Plaintiff attorney Christopher T. Hurley, who heads a Chicago law firm bearing his name, said Thursday he may ask the Illinois Supreme Court to consider addressing the duty issue raised in the case.

"I think Illinois should have a law requiring manufacturers to notify people of defective conditions, which can cause catastrophic injury, which the manufacturer learns about after the first sale of the product," Hurley said in a telephone interview.

But Arthur L. Klein, the attorney who argued Navistar's appeal, said Thursday that the appeals court's decision reaffirmed Illinois law on the duty issue.

"There's really no duty to warn based solely on post-manufacturer occurrences," Klein, an Arstein & Lehr partner, said in a telephone interview.

The lawsuit arose from a May 7, 1991, accident that occurred while Joseph Modelski was using a Farmall 450 tractor manufactured by Navistar, then known as International Harvester Corp., in 1957.

Modelski, a Chicago police officer on disability leave, was using the tractor to mow a field on his 40-acre farm located in downstate Vandalia, according to the opinion. A rotary mower known as a "Bush Hog" was attached to the tractor.

Modelski died from injuries suffered when he was struck by the blade of the mower. No witnesses saw the accident. The tractor was found in a ditch about 40 yards from Modelski and was not running.

Modelski's wife filed the wrongful death complaint against Navistar alleging that the negligent design of the tractor caused Modelski to fall backward into the path of the mower. The seat of the Farmall 450 tractor is mounted on a box which contains the tractor's battery. The plaintiff maintained that bolts holding the front of the battery box cover had disengaged, causing the seat to tilt to the rear.

When the tractor was examined on the date of the accident, there were no bolts holding down the battery box cover, and the seat was tilted to the rear, according to the opinion.

Navistar's attorneys asserted through the testimony of its reconstruction expert, Edward Caulfield, that Modelski was run over by the tractor and mower when he started the vehicle while standing on the ground.

While deliberating, the jury sought permission to reenter the courtroom and examine the tractor seat assembly. The seat assembly was used demonstratively during the trial but was never admitted into evidence.

Grazian granted the jury's request, leading Modelski's attorneys to raise that issue on appeal.

"We agree with the plaintiff that the jury should not have been granted access to the seat assembly, both because it had never been admitted into evidence and because the access invited the experimentation that took place," Hoffman wrote in the opinion joined by Justice Leslie Elaine South. Justice Warren D. Wolfson wrote a special concurrence.

During the trial Caulfield testified that he believed that the tractor stalled or that Modelski dismounted the tractor. On cross-examination, Caulfield acknowledged no physical evidence existed to support his opinions.

Modelski's attorneys argued on appeal that Caulfield's testimony about how Modelski was struck was speculation. The Appellate Court agreed.

"From Caulfield's admissions elicited through cross-examination, it is quite apparent that his opinions regarding a mechanical breakdown necessitation Modelski to dismount the tractor were based on sheer speculation and should have been stricken as unreliable and totally irrelevant," Hoffman wrote.

Navistar might ask the Supreme Court to review the appeals panel's ruling reversing the judgment in its favor and ordering a new trial, Klein said.

The case is Janet Modelski, Special Administrator of the Estate of Joseph Modelski, Deceased v. Navistar International Transportation Corp., No. 1-97-4675.

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