# Lancaster v. Jeffrey Galion, Inc. > Appellate Court of Illinois · November 1, 1979 · 77 Ill. App. 3d 819 URL: https://www.frixlaw.com/law-library/cases/9744150 ## Case - **Full name:** KEITH LANCASTER, Plaintiff-Appellant, v. JEFFREY GALION, INC., Et Al., Defendants-Appellees - **Court:** Appellate Court of Illinois - **Decided:** November 1, 1979 - **Citations:** 77 Ill. App. 3d 819; 33 Ill. Dec. 259; 396 N.E.2d 648; 1979 Ill. App. LEXIS 3453 - **Precedential status:** Published - **Opinion:** Concurrence by Woodward - **Judges:** Lindberg, Woodward - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744150 ## Opinion text Mr. JUSTICE WOODWARD, specially concurring: I concur with the result reached by Justice Lindberg’s opinion and I agree that plaintiff’s attorney sufficiently preserved his objection to the special interrogatory in question to allow both its substance and form to be considered in this appeal. The interrogatory in question is as follows: “Does the jury find from a preponderance of the evidence that the evidence that the misuse of the roller by Ronald Herbig, an employee of Rockford Blacktop, was the proximate cause of the injuries sustained by the plaintiff in the occurrence in question? ANSWER: YES_ NO_” The jury answered in the affirmative. No instruction defining the term “misuse” was given by the court and in fact, the only place where the court used this term was in the special interrogatory. The Committee Comments to Illinois Pattern Jury Instructions, Civil, No. 400.08 (2d ed. 1977 Supp.) (hereinafter cited as IPI Civil) recommend that no instruction on misuse of a product be given; it further states, “It is not an independent issue but rather is an element contained within the issues of ‘unreasonably dangerous’ and ‘proximate cause.’ ” It is further stated that “[a]n instruction on ‘misuse’ would unduly emphasize a single element of those issues.” (Emphasis added.) Plaintiff’s complaint alleged that the roller in question was unreasonably dangerous as (a) it did not have a neutral starting switch and (b) it did not have any sign or decal to indicate the position of the gear shift lever. Defendants’ answer denied that the condition of the roller was unreasonably dangerous and denied that the condition was the proximate cause of the plaintiff’s injuries. The trial court gave the jury IPI Civil No. 400.02 stating that the plaintiff had the burden of proving five propositions including (a) that the condition of the roller claimed by the plaintiff made it “unreasonably dangerous” and (b) that the claimed condition of the roller was the proximate cause of plaintiff’s injuries. Also, the court gave IPI Civil 400.06 defining the term “unreasonably dangerous” as “unsafe when put to a use that is reasonably forseeable considering the nature and function of the tandem roller.” (Emphasis added.) The special interrogatory submitted by the defendant assumed the misuse of the roller; this was an element of the case which was to be determined by the jury under the definition of unreasonably dangerous contained in the instruction (IPI Civil No. 400.06) noted above. Since the special interrogatory assumed an element of the case to be determined by the jury, it invaded the jury’s province and thereby destroyed the effect of any special finding made by the jury in response thereto. Defendant contends that the answer to the special interrogatory found that Herbig’s misuse of the roller was the sole proximate cause of plaintiff’s injuries. A similar argument was made in Anderson v. Hyster Co. (1979), 74 Ill. 2d 364 , 385 N.E.2d 690 . There the plaintiffs were injured by a forklift truck manufactured by the defendant; plaintiffs claimed the truck was not reasonably safe because of defective design; after a verdict for plaintiffs, defendant appealed, claiming that the conduct of the operator of the forklift was the sole proximate cause of plaintiffs’ injuries. At page 369, the supreme court stated: 4 "In this action, based on a theory of strict liability, in which there was sufficient evidence to sustain the finding that the product was so designed that it was not reasonably safe, the conduct attributed to the operator of the forklift truck would be a defense to plaintiffs’ actions only if such conduct constituted a misuse of the product. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 425 .) Reasonable foreseeability of the misuse is measured by an objective standard (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 425 ), and such misuse would serve to break the causal connection between the defective product and the plaintiffs’ injuries only if such misuse was not reasonably foreseeable (Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 102 ). Applying Hyster to this case, Herbig’s misuse would serve to break the causal connection between the condition of the roller and plaintiff’s injuries only if such misuse was not reasonably foreseeable. The special interrogatory fails to measure misuse by the objective standard of reasonable foreseeability as required, therefore, the answer is a nullity. At this point it becomes pertinent to examine the rules for the construction of special interrogatories. In Wicks v. Cuneo-Henneberry Co. (1926), 319 Ill. 344, 350 , the court stated that the guiding principle in construing a special interrogatory is as follows: “All reasonable presumptions will be entertained in favor of the general verdict, while nothing will be presumed in aid of the special findings of fact.” The special interrogatory in question purports to determine the proximate cause of plaintiff’s injuries, but by assuming a misuse its effect and significance is destroyed; nothing will be presumed in its aid; it is a nullity and the answer cannot control the general verdict of the jury which was based upon proper instructions. The trial court was in error in entering a judgment for the defendant. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744150. Public record. Not legal advice.