Opposition Brief — Furlow v. Allied Conveyor, Inc.

Sxprens Caut, U.S

EILEQD

JUL 21 19

No. 98-2024

OFEICE OF THE CLERK

In The

Supreme Court of the United States

MARY E. FURLOW AND LESTER FURLOW,

Petitioners,

ALLIED CONVEYOR, INC. and

DURR INDUSTRIES, INC.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

¢

Epwarp J. Szewczyk

Counsel of Record

DONOVAN, Ross, NESTER,

SzewczyYk & Joey, P.C.

8 East Washington Street

Belleville, Illinois 62220

(618) 235-2020

COCKLE LAW BRIEF PRINTING CO., (800) 225-6904

OR CALL COLLECT (402) 342-2831

(1)

(4)

QUESTIONS PRESENTED FOR REVIEW

Whether the respondent, Allied Conveyor, Inc., was

entitled to judgment as a matter of law under Rule

50 of the Federal Rules of Civil Procedure.

Whether the District Court properly found that Ver-

dict Form D was a general verdict with written inter-

rogatories under Rule 49(b) of the Federal Rules of

Civil Procedure.

Whether the petitioners waived the right to chal-

lenge the District Court’s interpretation of the jury’s

verdict by failing to request that the jury be recon-

vened in order to resume its deliberations.

Whether the entry of judgment in favor of Allied

Conveyor, Inc. was against the manifest weight of

the evidence and/or constituted an abuse of discre-

tion.

il

TABLE OF CONTENTS

Page

Questions Presented for Review ................... i

WRRe CE RATROTEED 2 0 6oo on sccsvecncvecessonssnsnss iv

RAGE 2 oo cc ccvccescsscsccvesscnseasescecessone 1

I. The Judgment In Favor Of Allied Was Properly

Affirmed Because Allied Was Entitled To Judg-

ment As A Matter Of Law ..................-.

II.

(a)

(b)

Plaintiffs Failed To Prove That Allied’s

Product Was Involved In The Accident, Or

That Allied Knew The Use To Which A Con-

veyor Would Be Put In The New Warehouse

Unloading Area Constructed By Others ...

Plaintiffs Failed To Prove That Allied’s Floor

Conveyor, Which Was Built To Durr’s Speci-

fications And Was A Component Of The

Painting Operation, Was Itself Unreasonably

Dangerous Or That The Conveyor Became

Unreasonably Dangerous When Integrated

Into The Finished Product ................

The Judgment In Favor Of Allied Should Be

Affirmed Based Upon The Jury’s Verdict.......

(a)

(b)

Verdict Form D Was A General Verdict With

Written Interrogatories Under Federal Rule

GD « 20000560068564enekeesetanenadeennane

Because Plaintiffs Did Not Request That The

Jury Be Reconvened, Plaintiffs Waived The

Right To Object To Any Inconsistency

Between The General Verdict And The

Answers To The Special Interrogatories ...

ee

iii

TABLE OF CONTENTS - Continued

Page

(c) The Entry Of Judgment In Favor Of Allied Was

Not Against The Manifest Weight Of The Evi-

dence, Nor Did The District Court Abuse Its

Discretion In Entering Judgment ............ 10

REG LE, I a a 11

iv

TABLE OF AUTHORITIES

Cases

Barnes v. Brown (7th Cir. 1970), 40 F. 2d 578.......... )

Billman v. Frenzel Construction Co. (1st Dist. 1994),

262 Ill. App. 3d 681, 635 NE 2d 435, 200 Ill. Dec.

RN emer awe rg ray amare rgm mre Ere er Pres MG Arr itn re, ee 2

Busch v. Graphic Coior Corp. (1996), 169 Ill. 2d 325,

662 NE 2d 397, 214 Ill. Dec. 831, cert. den., 117

2% |: Fe & Re Tr eee 1

Cundiff v. Washburn (7th Cir. 1968), 393 F. 2d 505

a aD NTE eh ReMi Fe I Gar Meer 7, 9, 10

Curry v. Louis Allis Company, Inc. (1st Dist. 1981),

100 Ill. App. 3d 910, 427 NE 2d 254, 56 Ill. Dec.

i Pee Perr r Terre Tere Te eee eT ee rrr e 7

Depre v. Power Climber, Inc. (1st Dist. 1994), 263 III.

App. 3d 116, 635 NE 2d 542, 200 Ill. Dec. 203..... 5

Elston v. Morgan (7th Cir. 1971), 440 F. 2d 47......... 7

Estate of Carey by Carey v. Hy-Temp Manufacturing,

ic. (70 Cie. WORE), SAP B. OS TARP ou ns cas nwessvccie 5

Gelfand v. Strohecker (D. C. Ohio 1956), 150 F. Supp.

655, aff'd, (6th Cir. 1957), 243 F. 2d 797............ 11

Hunt v. Blasius (1979), 74 Ill. 2d 203, 384 NE 2d

ee Be ee SN Hk Kai denne rene weseeneeeeens 3, 4

Kissell v. Westinghouse Electric Corp. Elevator Divi-

stom (iat Cin. FROG), BEF ©. OO BFS co. oe ceccsvessiuns 8

Kokoyachuk v. Aeroquip Corp. (ist Dist. 1988), 172

Ill. App. 3d 432, 526 NE 2d 607, 122 Ill. Dec. 348..... 6

Loos v. American Energy Savers, Inc. (4th Dist.

1988), 168 Ill. App. 3d 558, 522 NE 2d 841, 199

et Bs Sn ris Visenunersines sd euaaeeeuretaaeaeece 6

TABLE OF AUTHORITIES - Continued

Page

Lum Wan v. P. A. Esperdy (2nd Cir. 1963), 321 F. 2d

BEM i vosteeraduneeneeeneuneecesaedeonabeneeeeeeere 1

Mechanical Rubber and Supply Co. v. Caterpillar Trac-

tor Co. (3rd Dist. 1980) 80 Ill. App. 3d 262, 399

NE 24 722, 3 TH. Uec. 656.......65. iene ceaanes 3

Pasquale v. Speed Products Engineering (1995), 166

Ill. 24 337, 654 NE 2d 1365, 211 Ill. Dec. 314...... 5

Romano v. Howarth (2nd Cir. 1993), 998 F. 2d 101..... 8

Rotzoll v. Overhead Door Co. (4th Dist. 1997), 289 Il.

_App. 3d 410, 681 NE 2d 156, 224 Ill. Dec. 174...5, 6

Ruegger v. International Harvester Co. (1st Dist.

1991), 216 Ill. App. 3d 121, 576 NE 2d 288, 159

eT: GO a inn cnpcacus eins ineteenacancesewesueks 6

Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill. 2d

Oe, Hee EE Be Bio wk ae nkeen ketene 2

Scivally v. Time Insurance Co. (10th Cir. 1983), 742

SG rer er ree oe Mot har ee 1

Smith v. Eli Lilly & Co. (1990), 137 Ill. 2d 222, 560

ME 26 Oh, SE Ue. BF... ec ee. 2

Sparacino v. Andover Controls Corp. (1st Dist. 1992),

227 Ill. App. 3d 980, 592 NE 2d 431, 169 Ill. Dec.

Ee Ee eT er ee Ce eee 6

Turyna v. Martam Construction Co., Inc. (7th Cir.

Semen, GF. Fb TPR a nvevcs vcccennnespscncwurvcvenms 8

Webber v. Armstrong World Industries, Inc. (4th Dist.

1992), 235 Ill. App. 3d 790, 601 NE 2d 286, 175

Ill. Dec. 889, app. den., 148 Ill. 2d 654, 610 NE 2d

2 eS 5 OS SS Pre eee 2

vi

TABLE OF AUTHORITIES - Continued

Page

MIscELLANEOUS

5 Am. Jur. 2d, Appellate Review, sec. 829, pgs.

8 Re Tre 1

re rr eo ks ok kos Wha eh E RRR E ae E 8

eB Serre eer err rr err Te 1

Restatement, Third, Torts; Products Liability, sec. 5,

pg. 130, et seqg., including the Comments, Illus-

ns en Wee COU, 2. J. aesaktaeeaebucaneou’ 7

ARGUMENT

I. The Judgment In Favor of Allied Was Properly

Affirmed Because Allied Was Entitled to Judgment

As A Matter Of Law.

A reviewing court is not required to accept the rea-

sons given by the trial court for its judgment. The trial

court’s judgment may be affirmed on any grounds called

for by the record, regardless of whether the court relied

on those grounds and regardless of whether its reason

was correct. Scivally v. Time Insurance Co. (10th Cir. 1983),

724 F. 2d 101; Lum Wan v. P. A. Esperdy (2nd Cir. 1963), 321

F. 2d 123; Busch v. Graphic Color Corp. (1996), 169 Ill. 2d

325, 662 NE 2d 397, 214 Ill. Dec. 831, cert. den., 117 S. Ct.

55, 136 L. Ed. 2d 18; 5 Am. Jur. 2d, Appellate Review, sec.

829, pgs. 488-89 (1995).

Under Rule 50 of the Federal Rules of Civil Pro-

cedure, judgment as a matter of law may be entered for

the defendant when “there is no legally sufficient eviden-

tiary basis” for the plaintiff's claim. In the instant case,

Allied was entitled to judgment as a matter of law. The

judgment in favor of Allied was, therefore, properly

affirmed regardless of the jury’s verdict, as the case

against Allied shouid not have been submitted for the

jury’s decision. Accordingly, the petition for writ of cer-

tiorari filed herein should be denied.

(a) Plaintiffs Failed To Prove That Allied’s Product

Was Involved In The Accident, Or That Allied

Knew The Use To Which A Conveyor Would Be

Put In The New Warehouse Unloading Area

Constructed By Others.

In a product liability action, the plaintiff must iden-

tify the manufacturer of the product. Webber v. Armstrong

World Industries, Inc. (4th Dist. 1992), 235 Ill. App. 3d 790,

601 NE 2d 286, 175 Ill. Dec. 889, app. den., 148 Ill. 2d 654,

610 NE 2d 1276, 183 Ill. Dec. 32. In Schmidt v. Archer Iron

Works, Inc. (1970), 44 Ill. 2d 401, 256 NE 2d 6, for example,

a judgment for the defendant was affirmed because the

plaintiff failed to establish a sufficient connection

between the defendant and an admittedly defective “eye”

pin. Manufacturers are not general insurers of their

industry or of products made by others in the industry.

See, Smith v. Eli Lilly & Co. (1990), 137 Ill. 2d 222, 560 NE

2d 324, 148 Ill. Dec. 22, at pg. 43 (market share liability

theory rejected).

Petitioners in the case at bar failed to prove that

Allied’s product was involved in the accident. In fact, it

was undisputed that the new warehouse and unloading

area were built by Southern Systems and that Allied had

nothing to do with it. Petitioners introduced no evidence

indicating that an Allied product was being used in the

new area. The jury was permitted to speculate as to

whether an Allied dolly or chain were involved. One fact,

however, may not be inferred when a contrary fact could

be inferred with equal certainty from the same evidence.

Billman v. Frenzel Construction Co. (1st Dist. 1994), 262 Ill.

App. 3d 681, 635 NE 2d 435, 200 Ill. Dec. 96, at pg. 101.

a eT

Southern and Nascote were free to design and build a

conveyor and unloading area however they desired.

According to the testimony adduced at trial, the new

conveyor and unloading area were actually constructed

and laid out differently from the Allied product. Even if

Southern and Nascote used the Allied conveyor as a

model and attempted to reproduce it exactly, Allied can-

not be held legally responsible for the result. A party may

design a product or provide some other service related to

the product and have no liability, so long as the party

remains outside the chain of manufacturing and distribu-

tion. Mechanical Rubber and Supply Co. v. Caterpillar Tractor

Co. (3rd Dist. 1980), 80 Ill. App. 3d 262, 399 NE 2d 722, 35

Ill. Dec. 656. In the instant case, Allied was clearly out-

side the stream of commerce with regard to the new

construction and profited nothing from it. Furthermore,

Allied cannot be charged with knowledge of how a con-

veyor would be used in an unloading area which had not

even been conceived by the time Allied completed its

work for Durr. .

(b) Plaintiffs Failed To Prove That Allied’s Floor

Conveyor, Which Was Built To Durr’s Speci-

fications And Was A Component Of The Paint-

ing Operation, Was Itself Unreasonably

Dangerous Or That The Conveyor Became

Unreasonably Dangerous When Integrated

Into The Finished Product.

It was undisputed at trial that Allied built the floor

conveyor involved strictly according to the specifications

provided by Durr. In Hunt v. Blasius (1979), 74 Ill. 2d 203,

4

384 NE 2d 368, 23 Ill. Dec. 574, the Illinois Supreme Court

explained that:

“An independent contractor owes no duty to

third persons to judge the plans, specifications

or instructions which he has merely contracted

to follow. If the contractor carefully carries out

the specifications provided him, he is justified in

relying upon the adequacy of the specifications

unless they are so obviously dangerous that no

competent contractor would follow them.” 23

Ill. Dec., at pg. 577.

In the instant case, Allied carefully carried out Durr’s

specifications. There was no evidence adduced to indicate

that the specifications were “so obviously dangerous that

no competent contractor would follow them.” For that

reason, Allied owed no duty and breached no duty owed

to the plaintiffs.

The Allied product involved in this case was the floor

conveyor only. Allied was not responsible for the entire

paint line, which was designed and built by other com-

panies. The bumper carriers or racks were specifically

excluded from the contract and were designed, built and

installed by Nascote itself. Furthermore, Allied had no

responsibility for designing an unloading process for the

bumpers or to train Nascote employees in any such pro-

cess. In fact, Allied did not know if the bumpers were to

be removed manually or by machine. Allied was, there-

fore, the manufacturer of a component part of the paint

line, which was used by Nascote in the process of paint-

ing bumpers.

Illinois law is very clear that because the manufac-

turer of a component part has no control over that part

once it is sold and no control over its use in the final

assembly of a machine, a component part manufacturer

may not be held liable if an injury resulted from a dan-

gerous condition created by the party who created the

final product. Depre v. Power Climber, Inc. (1st Dist. 1994),

263 Ill. App. 3d 116, 635 NE 2d 542, 200 Ill. Dec. 203. As

explained by the Seventh Circuit in Estate of Carey by

Carey v. Hy-Temp Manufacturing, Inc. (7th Cir. 1991), 929

F. 2d 1229:

“Manufacturers of component parts made to

specifications are liable for injuries caused by

the fully assembled products, but only if the

component part was in an unreasonably dan-

gerous condition when it left the defendant’s

control or if the specifications obviously showed

the part would become dangerous when inte-

grated into the finished product.” 929 F. 2d, at

pg. 1234. (emphasis added).

The Illinois Supreme Court has indicated that a compo-

nent part manufacturer can be held liable only when the

injurys directly attributable to a defect in the component

part. Pasquale v. Speed Products Engineering (1995), 166 IIl.

2d 337, 654 NE 2d 1365, 211 Ill. Dec. 314.

The recent opinion in Rotzoll v. Overhead Door Co. (4th

Dist. 1997), 289 Ill. App. 3d 410, 681 NE 2d 156, 224 Il.

Dec. 174, illustrates Illinois law regarding the liability of

component part manufacturers. Plaintiff’s decedent in

Rotzoll was using a walker to cross the threshold of an

automatic sliding door when the door closed, knocking

her down and injuring her. Plaintiff contended that safety

beams which were supposed to prevent the door from

closing failed to detect the walker, thereby causing the

accident.

The defendant, Overhead Door, in the Rotzoll case

manufactured and sold the automatic sliding door, which

included a twin “safety-beam” system for threshold pro-

tection. The door system was ordered, installed and con-

figured by Tee Jay Central, Inc. Tee Jay ordered and used

- motion detectors which initiated the opening and closing

of the door from two other manufacturers who were not

parties to the action.

In affirming summary judgment in favor of Overhead

Door, the court of review explained that:

“The law in Illinois is clear that the obligation

that gives rise to a duty to avoid reasonably

foreseeable injury to another does not extend to

the anticipation of how manufactured compo-

nents, not themselves inherently dangerous or

defective, can become potentially dangerous

when integrated into a unit designed, assem-

bled, installed and sold by another. [Citations

omitted.]” 224 Ill. Dec., at pg. 177.

Since the plaintiff failed to prove a defect in the Overhead

Door product, summary judgment was properly entered.

Illinois case law on the subject all emphasizes that a

defect in the component part itself must be present to

impose liability on its manufacturer. Sparacino v. Andover

Controls Corp. (1st Dist. 1992), 227 Ill. App. 3d 980, 592 NE

2d 431, 169 Ill. Dec. 944; Ruegger v. International Harvester

Co. (1st Dist. 1991), 216 Ill. App. 3d 121, 576 NE 2d 288,

159 Ill. Dec. 619; Kokoyachuk v. Aeroquip Corp. (1st Dist.

1988), 172 Ill. App. 3d 432, 526 NE 2d 607, 122 Ill. Dec.

348; Loos v. American Energy Savers, Inc. (4th Dist. 1988),

a

168 Ill. App. 3d 558, 522 NE 2d 841, 199 Ill. Dec. 179;

Curry v. Louis Allis Company, Inc. (1st Dist. 1981), 100 Ill.

App. 3d 910, 427 NE 2d 254, 56 Ill. Dec. 174. This inter-

pretation is also consistent with the general trend and

cases from other jurisdictions. See, Restatement, Third,

Torts: Products Liability, sec. 5, pg. 130, et seq., including

the Comments, Illustrations and Notes (1998).

It was undisputed in the case at bar that Allied’s

conveyor was reasonably safe when it left the manufac-

turer’s control. Allied had no control over the use of its

conveyor in the completed system, the number or type of

bumper carriers to be used, or the manner of unloading

bumpers. Petitioners’ evidence was all directed to prov-

ing alleged defects in the bumper carriers, to Nascote’s

decision to unload bumpers manually and to Nascote’s

failure to train its employees in that process. The Allied

conveyor, which was only 14 inches high at its highest

point, merely moved slowly forward, as it was designed

to do. No defect in the conveyor itself was involved in the

accident. At most, the conveyor provided a mere condi-

tion or substrate which was acted upon by others to

produce Mrs. Furlow’s accident.

Il. The Judgment In Favor Of Allied Should Be

Affirmed Based Upon The Jury’s Verdict.

The interpretation and reconciliation of verdicts and

special interrogatories is a matter of federal law and is

entrusted to the sound discretion of the trial court. Elston

v. Morgan (7th Cir. 1971), 440 F. 2d 47; Cundiff v. Washburn

(7th Cir. 1968), 393 F. 2d 505. In the instant case, the

District Court properly found that Verdict Form D consis-

ted of a general verdict accompanied by written interrog-

atories under Rule 49(b) of the Federal Rules of Civil

Procedure. The Court further found that the jury’s

answers to the written interrogatories controlled the gen-

eral verdict and entered judgment in favor of Allied. The

District Court’s ruling was, therefore, properly affirmed

on appeal.

(a) Verdict Form D Was A General Verdict With

Written Interrogatories Under Federal Rule

49(b).

District Courts have wide discretion in formulating

special interrogatories for submission to the jury. Romano

v. Howarth (2nd Cir. 1993), 998 F. 2d 101. Special interrog-

atories may consist of mixed questions of law and fact.

Kissell v. Westinghouse Electric Corp. Elevator Division (1st

Cir. 1966), 367 F. 2d 375.

In the instant case, the District Court correctly deter-

mined that Verdict Form D consisted of a general verdict

with written interrogatories under Federal Rule of Civil

Procedure 49(b). In Turyna v. Martam Construction Co., Inc.

(7th Cir. 1996), 83 F. 3d 178, The Court explained that:

“General verdicts simply ask the jury to answer

the question ‘who won’, and if the winning

party is entitled to a monetary award to answer

the question ‘how much’.” 83 F. 3d, at pg. 181.

Under that definition, the initial finding and paragraph

“First” of Verdict Form D qualified as a general verdict.

Paragraph “Third” of Verdict Form D, however, speci-

fically told the jury that, “If you find any defendant not

liable to the plaintiff * * * then you should enter a zero (0)

as to that person or persons.” The District Court pointed

out in its order entering judgment in favor of Allied that

this constituted a “necessary factual determination.”

A similar situation arose in Barnes v. Brown (7th Cir.

1970), 430 F. 2d 578. In that case, the jury returned a

general verdict in favor of the plaintiff, but answered a

written interrogatory to indicate that plaintiff was guilty

of contributory negligence. According to the law at the

time, contributory negligence was an absolute bar to the

plaintiff’s claim. Accordingly, the District Court accepted

the interrogatory answer and entered judgment in favor

of the defendant. The District Court’s decision was

affirmed on appeal, with The Court stating that when the

answer to a special interrogatory contradicts a general

verdict, the special interrogatory controls.

(b) Because Plaintiffs Did Not Request That The

Jury Be Reconvened, Plaintiffs Waived The

Right To Object To Any Inconsistency Between

The General Verdict And The Answers To The

Special Interrogatories.

In Cundiff v. Washburn, supra, the plaintiff brought a

negligence action arising out of an automobile accident.

The defendant filed a counterclaim against the plaintiff.

The jury returned a verdict finding against the plaintiff

on his claim and against the defendant on her counter-

claim. The jury also responded to a special interrogatory

by finding that the plaintiff had not been contributorily

negligent. The trial court entered judgment against both

claimants, consistent with the jury’s general verdict.

10

On appeal, the plaintiff argued that under Indiana

law one of the parties must have been at fault and that in

its special interrogatory answer the jury found that the

plaintiff was not at fault. The plaintiff concluded that the

defendant must have been at fault as a result. Plaintiff

asserted, therefore, that the jury’s verdict against the

plaintiff was inconsistent with the interrogatory answer.

The Seventh Circuit, however, found that the plaintiff had

waived the argument by answering in the negative when

the trial court asked if the jury should be returned to the

jury room for further deliberation.

Petitioners in the case at bar failed to request that the

jury be returned to the jury room to resume its delibera-

tions. As explained by The Court in Cundiff, this left, “to

the trial court alone the discretion to choose the means of

correcting inconsistency”, subject to appellate review. 393

F. 2d, at pg. 507.

(c) The Entry of Judgment In Favor Of Allied Was

Not Against The Manifest Weight Of The Evi-

dence, Nor Did The District Court Abuse Its

Discretion In Entering Judgment.

Allied has already analyzed the evidence in this case

at great length in arguing that it was entitled to judgment

as a matter of law. Accordingly, Allied will not repeat that

analysis here. Under the facts of this case, it is clear that

the jury intended to exonerate Allied and find Nascote

directly liable to the plaintiffs. The jury chose the only

vehicle seemingly available to accomplish this objective.

One purpose of special interrogatories is to give parties

11

the opportunity to ascertain whether the jury has under-

stood and applied the law properly to the proven facts.

Gelfand v. Strohecker (D.C. Ohio 1956), 150 F. Supp. 655,

aff'd, (6th Cir. 1957), 243 F. 2d 797. The special interroga-

tories here accomplished that objective, as they disclosed

that the jury was attempting to produce a result not

permitted by the applicable law.

+

CONCLUSION

For the reasons stated herein, the respondent, Allied

Conveyor, Inc., respectfully requests that petitioners’

Petition for Writ of Certiorari be denied.

Respectfully submitted,

Epwarp J. Szewczyk — IL #02791765

DoNOvAN, Rose, NESTER,

Szewczyk & Jo ey, P.C.

8 East Washington Street

Belleville, Illinois 62220

(618) 235-2020