Perez v. Fidelity Container Corp.

                                             FIRST DIVISION
                                             June 30, 1997


No. 1-95-0375


FLORITO PEREZ and GLORIA PEREZ,

          Plaintiffs-Appellants,

     v.

FIDELITY CONTAINER CORPORATION,

          Defendant-Appellee,

     and     

MEAD CORPORATION,

          Third-Party/ 
          Defendant-Appellee.)
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)Appeal from the
Circuit Court of
Cook County.


No. 90 L 2771







Honorable
Irwin J. Solganick,
Judge Presiding.

     JUSTICE O'BRIEN delivered the opinion of the court:

     Plaintiffs, Florito and Gloria Perez, appeal from a directed
verdict for defendant, Fidelity Container Corp., in a personal
injury action alleging strict product liability and negligence.  We
affirm the directed verdict as to the product liability count and
reverse and remand as to the negligence count.
FACTS
     Plaintiff Florito Perez was employed by Edsal Manufacturing
Company.  Edsal manufactured steel shelving, storage cabinets and
shop furniture on five production lines.  The company used
corrugated cardboard cartons for its product.  Each of its
production lines used a different sized carton. 
     Edsal purchased its cardboard cartons from Fidelity, which
designed and distributed packaging.  The boxes were produced for
Fidelity by third-party defendant, Mead, which manufactured them
pursuant to Fidelity's instructions.  Fidelity normally conveyed a
customer's specific unitizing or baling requirements for packaging
to Mead but did not instruct Mead on how to unitize bales intended
for shipment to Edsal.
     Having received no instruction to the contrary, Mead baled
Fidelity's cartons for Edsal in units of 250, banding the bales
together with plastic straps.  A 250-unit bale of collapsed cartons
stood 45 inches tall and, depending on the cartons' dimensions,
could weigh as much as 1,300 pounds.  Mead shipped the 250-unit
bales directly to Edsal on wooden pallets or skids.  At Edsal, the
skids of collapsed cartons were stacked and moved to and from the
production line by forklifts.  
     The bales were unbanded by Edsal employees at the production
line so the cartons, along with their covers and inserts, could be
formed, assembled, and packed.  As workers pulled cartons off the
unbanded stack one by one, the stack would shift and, over a period
of time, become disheveled and unstable.  At the end of each
workday, stacks of unused cartons from opened bales were moved by
forklift from the production lines back to the shipping area for
storage.  The stacks of loose cartons were then stored atop 
5«-foot-tall rolling shop carts.  Having come from different
production lines, the collapsed cartons stored in this manner were
of assorted sizes.  The loose cartons were not secured in any
manner, but simply piled one atop another in twisted stacks
reaching as high as 30 feet.  Vibrations from the punch presses or
forklifts in the shop would sometimes cause these loose stacks of
cartons to fall.
     Edsal employed Florito to clean up and sweep the shop floor at
the end of the day.  The dumpster he used was located in the
shipping area, past the shop carts stacked with loose cartons.  As
he was walking past the shop carts, Florito heard a noise like a
skid breaking and a stack of boxes approximately five-feet-four
inches high fell on top of him.  The company nurse found Florito on
the floor amongst the loose cartons and several displaced banded
bales; his pelvis was crushed and he sustained other injuries.
     Florito and Gloria Perez filed a two-count complaint against
Fidelity based on strict product liability and common law
negligence.  The complaint alleged that Fidelity was liable for
Florito's injuries as a result of a defective bale of cartons that
it had delivered to Edsal.  Fidelity filed a motion to dismiss,
contending the injury to Florito did not involve any product.  The
trial court denied the motion on grounds a banded bale of cartons
was a product.  Fidelity then filed a third-party action for
contribution against Mead.  
     Thereafter, Fidelity filed a motion for summary judgment
contending that the banded bale of cartons was not defective for
either product liability or negligence liability and that there was
no act or omission by Fidelity that caused or contributed to
Florito's injury.  The motion was denied.
     The matter was then assigned to trial.  Fidelity filed a
motion in limine seeking to exclude certain opinions of plaintiffs'
expert, James Bodi, relating to possible alternative means of
safely securing the bales.  The trial court initially granted the
motion, but reversed itself upon plaintiffs' motion to reconsider.
     At trial, Frank Castro, the production superintendent at
Edsal, testified that at the time of the accident, Edsal had the
ability to reband loose corrugated cardboard cartons removed from
the production line.  He added, however, that the Edsal employees
responsible for rebanding loose cartons had quit in early 1988 and
had not been replaced as of the date of Florito's injury.  William
D. Ross, president of Fidelity, testified that bundling smaller
quantities of cartons within the bales was inappropriate.  Ross
explained that bundling is helpful for cartons small enough to be
transported manually but accomplishes nothing for cartons large
enough to require use of a forklift.  Edward Elsroth, testifying on
behalf of Mead, likewise claimed that bundling smaller quantities
of cartons within the bales was possible but "would have been
ridiculous on a sheet of this size."
     Immediately before the plaintiffs called their expert, James
Bodi, to testify, Fidelity renewed its motion to exclude his
opinions.  James Bodi was expected to testify that Fidelity could
have safely secured the bales by (i) bundling the cartons in
smaller packages, (ii) stretch wrapping the load, (iii) treating
the collapsed cartons with an antiskid coating before baling, or
(iv) banding the bales with reusable strapping.  After extended
argument, the trial court granted Fidelity's motion on grounds
Bodi's opinions were unreliable, based on speculation and
conjecture, and were contrary to the evidence adduced at trial. 
After plaintiffs presented the rest of their case, Fidelity moved
for a directed verdict.  The trial court found that Fidelity owed
no duty to Florito, that it could not have foreseen Florito's
injury, and that the product was not defective in design or
manufacturing.  Accordingly, the trial court granted Fidelity's
motion for directed verdict.  This appeal followed.
DISCUSSION
     On appeal, plaintiffs first argue that the trial court erred
in directing a verdict for Fidelity on the strict product liability
count of their complaint.  Directed verdicts are appropriate only
in those cases in which all of the evidence, when viewed in its
aspect most favorable to the opponent, so overwhelmingly favors the
movant that no contrary verdict based on the evidence could ever
stand.  Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967).
     To recover under strict product liability, a plaintiff must
plead and prove that the injury or damage resulted from a condition
of the product manufactured by the defendant, that the condition
was an unreasonably dangerous one, and that the condition existed
at the time the product left the manufacturer's control.  Coney v.
J.L.G. Industries, Inc., 97 Ill. 2d 104, 111, 454 N.E.2d 197, 200
(1983), citing Suvada v. White Motor Co., 32 Ill. 2d 612, 623, 210 N.E.2d 182 (1965) (adopting the Restatement (Second) of Torts 402A
(1965)).  
     Plaintiffs' complaint alleged that at the time the bundle of
cartons left Fidelity's possession and control, it was unreasonably
dangerous and defective in that: 
     "a) They designed, manufactured, and sold the bundles of
     cartons in such a manner that they were stacked too high
     in the said bundle for their safe intended use;

     b) Improperly stacked the cartons in the said bundle to
     prevent the slippage and falling of the said cartons in
     the bundle when said bundle was being used in a
     reasonably foreseeable manner;

     c) Fail[ed] to stack the cartons in said bundle in such
     a way as to prevent the slipping and falling and
     overturning of the said cartons and bundle when being
     used in a reasonably foreseeable manner;

     d) Failed to design the bundle of said cartons in such a
     way as to prevent the shifting and slipping and falling
     of said carton[s] when being moved from location to
     location in a factory setting, all of which was
     reasonably foreseeable.

     e) Improperly banded by the used [sic] of plastic straps,
     the stack of cartons in the said bundle to the skid,
     knowing that the said cartons would shift, slip and fall
     when the banding would be cut or removed;

     f) Failed to attach adequate cautionary notice and
     warnings to the said bundles, or to otherwise warn the
     person using the said bundles and persons being in the
     vicinity of said bundles, that the bundles of cartons
     stacked as aforesaid would slip, shift and fall; and

     g) Failed to design and stack the bundles in a manner to
     prevent the slipping, sliding and falling of the said
     cartons, when used in a foreseeable manner; and

     h) Used inadequate skids to form a proper and stable base
     for the said bundle of cartons."

     Plaintiffs contend the record shows that Fidelity's design and
specifications for the boxes that fell on Florito caused the
cartons to be dangerous when put to their normal use, that Fidelity
knew the cartons would be left standing after being unbound, and 
that the large size and significant weight of the cartons created
an unreasonable risk of harm to anyone near them.  In light of this
evidence, plaintiffs argue that the trial court erred in granting
Fidelity's motion for directed verdict on the strict product
liability count of plaintiffs' complaint.  We disagree.
     It is unclear from plaintiffs' complaint whether the allegedly
defective product was the carton, the bundle, the banding, or the
skid.  At trial it was the plaintiffs' theory that the unbound
stacks of collapsed cartons constituted a "product" and that the
stacks were unreasonably dangerous because they weighed some 1,300
pounds and were inherently unstable.  In support of their argument,
plaintiffs rely primarily upon Lewis v. Stran Steel Corp., 57 Ill. 2d 94, 311 N.E.2d 128 (1974).  Plaintiffs' reliance is misplaced.
     In Lewis a sheet of steel slipped from a banded bundle of
panels being transported by forklift injuring the plaintiff.  At
trial, the safety supervisor for plaintiff's employer testified
that the steel bands on the bundle were intact but loose, some
being "loose enough to put [his] hand in between."  57 Ill. 2d  at
99, 311 N.E.2d  at 131.  Thus, while it might be argued that Lewis
supports the proposition that a banded bundle is a product, it does
not support plaintiffs' claim that an unbanded stack is a product.
     Plaintiffs nevertheless press on arguing, in essence, that a
stack is a product that suffers from defective "unitization." 
Moreover, plaintiffs argue that the proffered testimony of their
expert witness would have established the existence of a packaging
defect.  While it is true that a strict product liability action
may be based upon injury resulting from defective packaging (see 
Restatement (Second) of Torts 402A, Comments g, h (1965)), we
nevertheless disagree with plaintiffs' analysis.
     The question of the scope and substance of the term "product"
as used in product liability law in this State was discussed at
length in Lowrie v. City of Evanston, 50 Ill. App. 3d 376, 379-85,
365 N.E.2d 923, 925-29 (1977).  After an extensive review of
pertinent Illinois case law, the Restatement and its commentary,
and of the history and purposes of product liability, the Lowrie
court concluded "that the policy reasons underlying the strict
product liability concept should be considered in determining
whether something is a product within the meaning of its use in the
Restatement rather than * * * focusing on the dictionary definition
of the word."  50 Ill. App. 3d at 383, 635 N.E.2d  at 928.  Public
policy considerations advanced to support the imposition of strict
liability include: (1) the public interest in human life and
health; (2) the invitations and solicitations of the manufacturer
to purchase the product, representing it as safe and suitable for
use; (3) the justice of imposing the loss on the party who created
the risk and reaped the benefit; and (4) the superior ability of
the commercial enterprise to distribute the risk of injury
proximately caused by the defective condition of its product by
passing the loss on to the public as a cost of doing business. 
Immergluck v. Ridgeview House, Inc., 53 Ill. App. 3d 472, 474, 368 N.E.2d 803, 804 (1977).  
     Although Lowrie has been applied in numerous Illinois cases
(see, e.g., Immergluck, 53 Ill. App. 3d 472, 368 N.E.2d 803
(professional services and buildings); Dubin v. Michael Reese
Hospital & Medical Center, 74 Ill. App. 3d 932, 393 N.E.2d 588
(1979) (x-radiation and electricity); Heller v. Cadral Corp., 84
Ill. App. 3d 677, 406 N.E.2d 88 (1980) (condominium unit); Moorman
Manufacturing Co. v. National Tank Co., 92 Ill. App. 3d 136, 414 N.E.2d 1302 (1980) (storage tank); Walker v. Shell Chemical, Inc.,
101 Ill. App. 3d 880, 428 N.E.2d 943 (1981) (guardrail incorporated
into a building); Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 454 N.E.2d 210 (1983) (asbestos); Boddie v. Litton Unit
Handling Systems, 118 Ill. App. 3d 520, 455 N.E.2d 142 (1983)
(conveyor); Hubbard v. Chicago Housing Authority, 138 Ill. App. 3d
1013, 487 N.E.2d 20 (1985) (steam pipes incorporated into
building); Duncavage v. Allen, 147 Ill. App. 3d 88, 497 N.E.2d 433
(1986) (lights, windows and window locks incorporated into
building)), none have addressed the particular question presented
here.  Accordingly, we address the plaintiffs' argument that a
stack is a product that suffers from defective "unitization" as an
issue of first impression and look for guidance in our decision to
similar cases from other jurisdictions.  For reasons that follow,
we find that a stack is not a "product" within the meaning of
section 402A and the trial court properly directed a verdict for
the defendants on the strict product liability count of plaintiffs'
complaint.
     In Spellmeyer v. Weyerhaeuser Corp., 14 Wash. App. 642, 544 P.2d 107 (1975), a longshoreman employed to assist in moving the
defendant corporation's wood pulp out of port storage facilities
for further shipment brought action, inter alia, on a theory of
strict liability for injuries received when he was struck by bales
falling from a disintegrating eight-bale unit of pulp.  The
evidence in that case showed that the metal band on the involved
unit of bales had been loose prior to the attempt to lift the load
by forklift and was broken after the fact.  It did not, however,
establish the specific cause of the break or whether the band
parted before or during the insertion of the forks.  14 Wash. App. 
at 643, 544 P.2d  at 108.  Spellmeyer alleged in his complaint that
Weyerhauser "produced, manufactured, and packaged its product in a
defective condition unreasonably dangerous to handlers" in that it
"fail[ed] to properly unitize the baled wood pulp for handling and
storage."  14 Wash. App.  at 644-45, 544 P.2d  at 108-09.  In the
absence of any evidence of a defect in the bands other than pure
speculation, the court declined to apply the doctrine of strict
liability.  The Spellmeyer court reasoned:
     "Imposition of strict liability is premised on the sound
     policy consideration that the manufacturer who markets
     his product for use and consumption by the general public
     is best able to bear the risk of loss resulting from a
     defective product. The thrust of Section 402A is,
     accordingly, to protect the 'ultimate user or consumer'
     of the product."  14 Wash. App.  at 646, 544 P.2d  at 109.

Applying this reasoning to the facts at hand,  the Spellmeyer court
stated:
     "Weyerhauser produced and packaged a raw material in an
     intermediate state, which was stored awaiting shipment to
     another processor.  It did not harm or endanger any
     'ultimate user or consumer'; only expert loaders and
     expert carriers were required to deal with it.  We
     therefore conclude that, because of the character of the
     'product' and the status of the plaintiff, the policy
     considerations which support imposition of strict
     liability in other contexts are too severely diluted here
     and dismissal was correct as to the strict liability
     theory."  14 Wash. App.  at 646, 544 P.2d  at 109-10.

     In Dixon v. Gutnecht, 339 So. 2d 1285 (La. App. 1976), the
plaintiff was injured at a Kaiser Aluminum & Chemical Company
(Kaiser) plant when two large cartons of paper bags intended to be
used by Kaiser as packaging for its product fell on him.  Kaiser
purchased the bags from the manufacturer (St. Regis).  The bags
were shipped to Kaiser in palletized cartons.  The cartons
consisted of two large boxes approximately 48 inches x 48 inches
with open tops.  Approximately 2,000 paper bags were stacked in an
interlocking manner in one of the boxes.  The other box was then
inverted and placed over the box containing the bags.  Wooden
pallets were then placed above and below the cartons and the whole
assemblage bound together as one unit with metal bands.  The
palletized cartons weighed approximately 1,700 pounds.  Upon their
arrival at the Kaiser plant,  the palletized cartons were stored
until such time as the bags contained therein were needed.  When
bags were needed, the cartons were moved by forklift to the bagging
machine, the wire band cut and the cartons opened.  Individual bags
were then removed from the cartons, stenciled to designate the
shipment order, filled with product, and shipped to Kaiser's
customers.  
     Some of the palletized cartons were stored near the bagging
machine,  and it was Kaiser's practice to stack them as high as the
building would permit.  339 So. 2d  at 1287.  The plaintiff was in
the process of stenciling bags when the top two of a stack of four
cartons stored nearby fell on him causing injuries.  The plaintiff
sued St. Regis alleging, inter alia, that the carton was defective. 
339 So. 2d  at 1286.  Following a trial, the trial court, in its
written reasons for its judgment in favor of St. Regis, stated:
     "[T]he overwhelming weight of * * * testimony, together
     with the photographs filed in the record, demonstrate[s]
     clearly that the real and underlying cause of the
     accident was the improper stacking of the cartons which
     was solely attributable to the employees of Kaiser * * *"

In response to the plaintiff's allegation that the palletized
cartons were not only improperly designed but also defectively
constructed, the Dixon trial court noted:
     "Other than the implication that the pallets involved in
     the accident may have been improperly constructed because
     of a cracking sound heard by Dixon before the fall, there
     was no substantive evidence showing defective
     construction or fabrication of the cartons or pallets." 
     339 So. 2d  at 1288.

The Dixon trial court concluded that "St. Regis did not have a duty
to test cartons for safe stacking nor to warn plaintiff of danger
in stacking cartons four high" on grounds that "all of the
properties and characteristics of the product which would make it
unsafe were easily observable to the prospective user."  The court
added that, "[c]learly, if the cartons were stacked too high in an
imperfect fashion, they would not defy gravity, but would fall." 
339 So. 2d  at 1288.
     On appeal, the plaintiff in Dixon assigned as error the
failure of the trial judge to hold St. Regis strictly liable as a
manufacturer of a defective product.  After noting that Louisiana
had adopted the common law equivalent of section 402A (339 So. 2d
at 1289), the court of appeals affirmed.  In so doing, it rejected
the plaintiff's argument that the cartons were defectively designed
in that they could not be safely stacked more than two high.  339 So. 2d  at 1290.  The court of appeals explained that "[t]o
determine that the cartons fell because of a particular defect in
the wood would be rank speculation."  The court added that St.
Regis was not "required to furnish Kaiser with a carton that could
be stacked to the height Kaiser's personnel presumed to stack
them," as it had never been "asked or required by Kaiser to design,
produce or furnish Kaiser with a carton possessing any particular
stacking capability."  339 So. 2d  at 1290.  The court of appeals
therefore concluded its analysis, stating:
     "Certainly, if any object is stacked too high it will
     have a tendency to fall.  This does not make the item
     itself dangerous or defective.  There was nothing
     inherently dangerous in the carton itself.  Only its
     subsequent improper use made it dangerous in the instant
     case.  By such use, plaintiff was placed in a position of
     peril.  The persons responsible were his immediate
     superiors who failed to observe and correct a hazardous
     situation created by the improper placement of one of the
     cartons in a leaning position."  339 So. 2d  at 1291.

     Finally, in Elk Corp. v. Jackson, 291 Ark. 448, 727 S.W.2d 856
(1987), a truck driver was injured when 740 rolls of roofing felt
banded together in bundles of 20 and loaded onto a flatbed truck by
Elk Corporation employees (Elk) shifted during transport, causing
the truck to overturn.  Jackson, the injured truck driver, alleged
that "Elk's failure to secure the bundles of twenty rolls of
roofing with two metal bands, rather than a single band, caused the
bundles to be more likely to come apart and thus made them
unreasonably dangerous as 'packages'."  291 Ark. at 458-A, 727 S.W.2d  at 856.  In support of his argument, Jackson maintained that
banding the rolls together for shipment was "packaging" in the same
manner that a carton containing Coke bottles is a package.  The
supreme court applied Arkansas' strict product liability statute
(Ark. Stat. Ann. 34-2802(e) (Supp. 1985)) which, like section 402A
of the Restatement provides that product liability may be premised
upon injury resulting from defective packaging, and came to a
different conclusion.  It distinguished "a shipper's act of banding
together rolls of roofing for loading a tractor-trailer" (291 Ark.
at 458-B, 727 S.W. 2d at 857) from the Coke carton intended as "an
integral part of the product and its use." 291 Ark. at 458-B,727 S.W.  at 857.  It stated:
     "[W]e consider the rolls of roofing themselves to be the
     only 'product' in this case.  The act of banding them
     together for shipment is simply part of the loading and
     transporting process for which Elk can only be liable on
     a negligence theory."  291 Ark. at 458-B, 727 S.W.2d  at
     857.

     Applying the findings of Spellmeyer, Dixon, and Elk to the
facts herein, we conclude that, under Lowrie, the unbound stacks of
collapsed cartons did not constitute a "product" within the meaning
of section 402A.  The public interest in human life and health does
not purport to protect Florito under these facts.  He was not the
'ultimate user or consumer' of Fidelity's cartons but, rather, an
Edsal employee whose position brought him into daily contact with
stored cartons as they awaited transport to Edsal's production
line.  Spellmeyer, 14 Wash. App. 646, 544 P.2d 107.  Furthermore,
we find no evidence Edsal ever requested that Fidelity provide it
with cartons designed and unitized in a manner suitable for storage
in jumbled stacks atop movable shop carts, nor that Fidelity ever
represented it was safe to store its cartons in such a manner. 
Dixon, 339 So. 2d 1285.  Rather, the evidence is clear that
Fidelity banded its cartons together in 250-unit bales for shipment
and that the bands were not intended as an integral part of the
cartons or their use.  Elk Corp., 291 Ark. 448, 727 S.W.2d 856. 
Finally, we see little justice in imposing the loss on Fidelity
when it was Edsal that created the risk by storing the cartons in
such obviously hazardous stacks  (Dixon, 339 So. 2d 1285) and that
also as a manufacturer was capable of passing the loss on to the
public.  In the absence of public policy considerations supporting
a finding that a stack of cartons is a product within the meaning
of section 402A, we decline to do so.  Lowrie, 50 Ill. App. 3d 376,
365 N.E.2d 923.  We therefore reject plaintiffs' argument that a
stack is a product which suffers from defective "unitization."  
     This result is consistent with other Illinois cases, which
establish that misuse of product or assumption of risk may bar
recovery under strict product liability theory (see Williams v.
Brown Manufacturing Co., 45 Ill. 2d 418, 261 N.E.2d 305 (1970)),
recognize that the term "products liability" does not normally
encompass injury resulting from a condition on the premises, as
distinguished from injury occasioned by a defective product (see
generally Duncavage v. Allen, 147 Ill. App. 3d 88, 497 N.E.2d 433
(1986); Black's Law Dictionary 1089 (5th ed. 1979)), and conclude
that product liability does not make a manufacturer an insurer of
all foreseeable accidents that involve its product (see Hunt v.
Blasius, 74 Ill. 2d 203, 211, 384 N.E.2d 368, 372 (1978); Coney, 97 Ill. 2d  at 111, 454 N.E.2d at 200).  In sum, the unbound stacks of
cartons are not defective or unreasonably dangerous merely because
it is possible to be injured while using them.  We therefore affirm
the trial court's grant of a directed verdict in favor of Fidelity
on the strict product liability count of plaintiffs' complaint. 
Pedrick, 37 Ill. 2d 494, 229 N.E.2d 504.
     This brings us to a tangential concern: the plaintiffs'
argument on appeal that the trial court erred in excluding the
testimony of plaintiffs' expert, James Bodi, relating to possible
alternative means of safely securing the bales.  Because we have
concluded that a stack is not a product that might suffer from
defective "unitization," Bodi's testimony was irrelevant to
plaintiffs' strict product liability claim and thus properly
excluded from evidence on that count.
     Plaintiffs next contend that the trial court erred in
directing a verdict for Fidelity on the common law negligence count
of their complaint.  Liability attaches under the common law
negligence doctrine where plaintiff proves duty, breach, injury,
and causation.  Duncavage, 147 Ill. App. 3d at 96, 497 N.E.2d  at
437.  
     Plaintiffs' complaint alleged that Fidelity had a duty to
exercise ordinary care in the design, manufacture, packaging and
sale of its bundles of cartons, but was careless and negligent in
that it: 
     "a) Designed, manufactured and sold bundles of cartons
     that were not reasonably safe for their intended use in
     a factory setting;

     b) Failed to design, stack, fasten or secure said bundle
     of cartons so as to prevent [sic] said cartons from
     shifting, slipping, and falling when being used in a
     reasonably foreseeable manner;

     c) Stacked said cartons in a bundle with inadequate
     binding and placed said cartons on a defective or
     inadequate base or skid so as to render the load unstable
     when being used in a reasonably foreseeable manner;

     d) Sacked [sic] said cartons in a bundle of excessive
     height and weight so as to render the bundle unstable and
     dangerous when used in a reasonably foreseeable manner; 

     e) Failed to give adequate instructions on the proper use
     and handling of said bundles, and failed to give adequate
     warning of the risks involved in the use and handling of
     said bundles;

     f) Used inadequate and broken wooden skids on which the
     bundles were placed which rendered the load unstable; and

     g) Failed to provide a reasonable method for securing the
     bundle for moving purposes once the load had been opened
     for use."
     
     Here again, plaintiffs contend the record shows that
Fidelity's design and specifications for the boxes that fell on
Florito caused the cartons to be dangerous when put to their normal
use, that Fidelity knew the cartons would be left standing after
being unbound, and that the large size and significant weight of
the cartons created an unreasonable risk of harm to anyone near
them.  In light of this evidence, plaintiffs argue that the trial
court erred in granting Fidelity's motion for directed verdict on
the common law negligence count of plaintiffs' complaint.  We
agree.
     The trial judge entered a directed verdict in favor of
Fidelity on plaintiffs' common law negligence claim "for the
reasons given in open court."  In open court, the trial judge
stated, inter alia:
     "The only evidence that I have heard in this particular
     cause that would lead the Court to believe that anybody
     was negligent was that Edsal through its various
     employees on the shop line in the stacking of their
     cartons and placing the cartons in the heights that they
     were placed or in the manner in which they were placed,
     possibly Mr. Perez, if the Court is to believe Mr.
     Castro's statement that Mr. Perez said he had pushed the
     cart or to sweep as the cart that contained the cartons
     that fell upon him that possibly Mr. Perez may also have
     been negligent; but I have seen nothing that would lead
     the Court to believe that Fidelity Container Corporation
     based on the facts that have been presented so far as a
     matter of law would lead the trier of facts to believe
     that the defendant was negligent." 

The trial court's comments reveal that it did not properly apply
the Pedrick standard.  Rather than viewing the evidence in its
aspect most favorable to the plaintiffs, the trial court ignored
proffered testimony (1) Fidelity had a duty to secure its bales of
cartons so that they could be safely transported to Edsal's
production line, (2) it knew how Edsal stacked leftover cartons yet
failed to unitize the cartons in smaller, lighter, bundles, stretch
wrap the load, treat the cartons with an antiskid coating, or band
the bales with reusable strapping, and (3) Fidelity's failure to do
so was a cause of Florito's injuries.  It then weighed the
remaining evidence and determined that Edsal and perhaps also the
injured plaintiff were wholly at fault.  Accordingly, we reverse
the trial court's grant of Fidelity's motion for a directed verdict
on the common law negligence count of plaintiffs' complaint and
remand the matter for further proceedings.  Pedrick, 37 Ill. 2d 494, 229 N.E.2d 504.  
     Because we remand on the common law negligence count, we again
address plaintiffs' tangential claim that the trial court erred in
excluding the testimony of plaintiffs' expert, James Bodi, relating
to possible alternative means of safely securing the bales. 
Because expert testimony will be needed to establish the nature and
extent of Fidelity's common law duty, and whether it breached that
duty (see Pease v. Ace Hardware Home Center of Round Lake No. 252,
147 Ill. App. 3d 546, 553, 498 N.E.2d 343, 348 (1986)), and because
the trial court allowed William D. Ross of Fidelity and Edward
Elsroth of Mead to testify that bundling smaller quantities of
cartons within the bales was inappropriate and ridiculous,
plaintiffs also should have been allowed to present expert
testimony that it was not.  Bodi's testimony was therefore both
relevant and necessary to plaintiffs' common law negligence claim
and should have been admitted in relation to that count.  
     We therefore order that, on remand, the plaintiffs' expert
should be permitted to testify and the trier of fact permitted to
determine whether, in light of that testimony, Fidelity's practice
of securing its 250-unit bales of cartons with a single,
nonreusable, strap constituted negligent conduct.  See Lewis, 57 Ill. 2d  at 101-02, 311 N.E.2d at 132-33; Spellmeyer, 14 Wash. App. 
at 649-50, 544 P.2d at 110-12; Elk Corp., 291 Ark. 448, 727 S.W.2d 85.
     Affirmed in part; reversed in part, and remanded for further
proceedings not inconsistent with this opinion.
     CAHILL, J., and THEIS, J., concur.