Kwono v. M.T.D. Products, Inc.

1-95-4200

YONG CHUL KWON, father and next friend  )    Appeal from the 
of SOO YEON KWON, and YONG CHUL KWON,   )    Circuit Court of
individually,                           )    Cook County.
                                        )     
          Plaintiff-Appellant,          )    
                                        )
     v.                                 )    
                                        )    
M.T.D. PRODUCTS, INC.,                  )    Honorable
                                        )    Richard J. Elrod,
          Defendant-Appellee.           )    Judge Presiding.


     PRESIDING JUSTICE HARTMAN delivered the opinion of the court:
     Plaintiff Soo Yeon Kwon (Soo), by her father and next friend
Yong Chul Kwon (Kwon), appeals from the circuit court's order
denying her motion for judgment notwithstanding the verdict
pursuant to section 1202(b) of the Illinois Code of Civil
Procedure.  735 ILCS 5/2-1202(b) (West 1994).
     Kwon filed a products liability action against M.T.D.
Products, Inc. (M.T.D.), for injuries six-year-old Soo suffered on
July 21, 1987, after attempting to jump onto the back of a riding
lawn mower manufactured by M.T.D. and driven by Soo's aunt, Cecilia
Ford.  Ford, the mower's owner, did not see Soo on the rear of the
mower when she placed it in reverse. The rotating cutting blades
sliced through part of Soo's left knee and foot.  
     Kwon's complaint alleged that the lawn mower was unreasonably
dangerous in five respects:  the mower's cutting blades operated
when driven in reverse; the mower's design did not include an
adequate blade-braking mechanism; no labels on the mower warned
users of its dangerous condition and potential for injury; no
instructions warned users of its dangerous condition and
characteristics; and the mower was otherwise unreasonably
dangerous.  
     As a defense to liability, M.T.D. offered evidence that it
subsequently added a safety feature to its mowers after
manufacturing Ford's mower.  Kwon moved in limine to bar M.T.D.
from mentioning this safety feature at trial.  The circuit court
permitted M.T.D. to introduce the evidence in order to show that
the development of the feature was not feasible at the time M.T.D.
manufactured Ford's mower.  At the same time, however, the court
prohibited M.T.D. from offering evidence that no other
manufacturers used a similar safety feature, evidence that M.T.D.
was a "leader in industry safety," and any other evidence
addressing M.T.D.'s due care.
     At trial, Kwon's expert witness, John Sevart, testified that
M.T.D.'s mower was unreasonably dangerous because the mower should
have had a safety feature preventing the mower's blades from
operating when placed in reverse.  Several other companies filed
patents for similar "no-mow-in-reverse" systems before April 1980,
when M.T.D. manufactured Ford's mower.
     In response, M.T.D. introduced testimony that the mower was
not unreasonably dangerous, and that plaintiffs misused the mower
by allowing children to play around and ride on the mower.  At the
time of the accident, Ford's three-year-old son was riding on the
mower with her, as he often did.  Soo also had ridden on the mower
several times before with her father.    
     M.T.D.'s chief engineer, Gerald Plamper, testified that the
mower was reasonably safe.  Several labels on the mower warned
users against allowing children near the mower.  Ford's mower had
been altered from the time it left M.T.D.'s control, specifically, 
warning labels had been removed, a lever on the mower was broken,
and the mower's seat had been replaced. 
     Plamper testified that although M.T.D. and other lawn mower
manufacturers considered developing a no-mow-in-reverse feature
before 1980, no one yet had established the safety or reliability
of the feature.  Plamper asserted he developed a no-mow-in-reverse
mower for M.T.D. after April 1980, which no other manufacturer had
yet developed.  M.T.D. was the first manufacturer actually to
produce a mower containing the no-mow-in-reverse feature. 
     At the close of the evidence, M.T.D. unsuccessfully moved for
a directed verdict. The jury subsequently found for M.T.D.  Kwon
filed an unsuccessful motion for judgment notwithstanding the
verdict. 735 ILCS 5/2-1202(b) (West 1994).  Kwon appeals.  
     Kwon argues that the circuit court abused its discretion by
admitting evidence of the no-mow-in-reverse feature and of M.T.D.'s
compliance with industry safety standards. The admission of
evidence is within the sound discretion of the circuit court, which
will not be reversed absent clear abuse.   Leonardi v. Loyola
University of Chicago, 168 Ill. 2d 83, 92, 658 N.E.2d 450, 454-55
(1995).  Evidentiary rulings will not be reversed unless the error
"was substantially prejudicial and affected the outcome of trial." 
Jackson v. Pellerano, 210 Ill. App. 3d 464, 471, 569 N.E.2d 167, 
     Kwon first argues that the circuit court erroneously allowed
M.T.D. to introduce evidence that in 1981 it developed a no-mow-in-
reverse feature, and installed the feature on all its mowers.  Kwon
claims that this evidence did not establish the nonfeasibility of
the feature on Ford's mower, but proves only M.T.D.'s lack of fault
and exercise of due care, and is therefore inadmissible.  M.T.D.
counters that testimony regarding its use of the safety feature is
directly relevant to the feasibility question of adding the feature
to its mowers before 1981.
     In order to prevail on a strict liability theory, plaintiff
must establish that the injury resulted from an unreasonably
dangerous condition of the product, which existed at the time it
left defendant's control.  Palmer v. Avco Distributing Corp., 82 Ill. 2d 211, 215-16, 412 N.E.2d 959, 962 (1980).  At trial, Kwon
attempted to establish the unreasonably dangerous element by
offering evidence of an available safety feature, which was
feasible for M.T.D. to install on its mowers before 1981.  Kwon
clearly did not want the jury to learn, however, that M.T.D. later
began installing a similar feature in all its mowers.
     Parenthetically, this case is unusual in that defendant, not
plaintiff, sought to introduce evidence of a subsequent remedial
measure taken by defendant, typically sought to be established by 
plaintiff. 
     Evidence of a subsequent remedial measure may not be used to
prove defendant's culpability; it may, however, be offered to
establish the feasibility of a safer design if defendant disputes
the issue.  Herzog v. Lexington Township, 167 Ill. 2d 288, 300-01,
657 N.E.2d 926, 932 (1995); Schaffner v. Chicago & North Western
Transportation Co., 129 Ill. 2d 1, 14, 541 N.E.2d 643, 647-48
(1989).  This rule is based on public policy principles, including
the desire to encourage manufacturers to improve their products and
make them safer, without fear that these improvements later could
be used as evidence against them.  Smith v. Black & Decker (U.S.),
Inc., 272 Ill. App. 3d 451, 456, 650 N.E.2d 1108, 1113 (1995).
     M.T.D. offered testimony that it developed the no-mow-in-
reverse feature after manufacturing Ford's mower; it was the first
mower manufacturer to use this feature; and no other manufacturers
had yet developed the feature for their own mowers.  This provided
indirect evidence of nonfeasibility, from which a jury could infer
that the use of the safety feature was not feasible before 1981
because no one else had used or developed the no-mow-in-reverse
feature until M.T.D. did so in 1981.
     Kwon claims, however, that the circuit court erroneously
admitted evidence of M.T.D.'s no-mow-in-reverse feature because the
evidence is probative only of due care.  In strict liability cases,
a defendant will be held liable for creating an unreasonably
dangerous product regardless of fault.  Cunningham v. MacNeal
Memorial Hospital, 47 Ill. 2d 443, 453, 266 N.E.2d 897, 903 (1970). 
Evidence of defendant's lack of negligent conduct, or exercise of
due care, is therefore irrelevant and should not be admitted. Nave
v. Rainbo Tire Service, Inc., 123 Ill. App. 3d 585, 591-92, 462 N.E.2d 620, 625 (1984).  Admission of this evidence constitutes
grounds for reversal if it improperly misled the jury into
believing defendant could not be liable because "it was not 'at
fault,' had done nothing 'wrong' and had exercised all due care." 
Nave, 123 Ill. App. 3d at 591, 462 N.E.2d  at 625.  
     Any evidence introduced by M.T.D. that proves only its lack of
negligence or reasonable care would not be admissible.  In the
present case, however, evidence of the safety feature supports
M.T.D.'s assertion that it was not feasible for M.T.D. to use the
safety feature before 1981.  Although several manufacturers sought
patents for their version of the no-mow-in-reverse feature in the
1970s, no one actually developed the product until 1981.  A jury
could infer from this evidence that the inclusion of a safety
feature on the lawn mower would not have been feasible until
someone actually manufactured this feature.
     In addition, Kwon cannot now complain that the evidence misled
the jury, because Kwon himself raised the issue of whether M.T.D.
could have installed a safety feature on Ford's mower.  Kwon first
offered evidence of the safety feature through Sevart, his expert
witness, who testified that the feature was feasible in 1980. 
Sevart stated that M.T.D. could have installed a safety device on
the lawn mower, and listed the names of several patents for a
safety feature sought by other lawn mower manufacturers as early as
1975.  
     This testimony opened the door for M.T.D.'s rebuttal evidence
through testimony of its own expert, Plamper.  Kwon's attorney then
thoroughly cross-examined Plamper, who was asked why he waited
until 1981 to invent and develop his own version of the no-mow-in-
reverse feature when sketches and plans for similar safety features
existed six years earlier.  He testified that designs of potential
safety features may have been created in the 1970s, but the actual
production of such a feature was not feasible until 1981.  The
circuit court therefore did not abuse its discretion by admitting
this evidence.
     Kwon next argues that M.T.D. violated the court's order not to
introduce evidence of its due care.  In order for the violation of
an in limine order to serve as the basis for a new trial, the order
must be specific in its prohibitions.  In addition, any violations
of the order must be clear.  Chiricosta v. Winthrop-Breon, 263 Ill.
App. 3d 132, 149, 635 N.E.2d 1019, 1032 (1994); Schaffner v.
Chicago & North Western Transportation Co., 161 Ill. App. 3d 742,
760, 515 N.E.2d 298, 309 (1987), aff'd, 129 Ill. 2d 1, 541 N.E.2d 643 (1989).  Furthermore, the violations must have deprived
plaintiff of a fair trial.  Schaffner, 161 Ill. App. 3d at 760.
     Kwon points to statements made by Plamper, asserting that they
were relevant only to due care.  During M.T.D.'s direct examination
of Plamper, the circuit court asked Plamper if he obtained a patent
for the no-mow-in-reverse feature.  He responded that neither he
nor M.T.D. ever attempted to obtain a patent because they wanted
the feature to be available to the entire industry.  Defense
counsel then asked if anyone had since copied the device, and
Plamper responded in the negative.   Kwon now objects to these
responses as improper evidence of due care.  The record reflects,
however, that Kwon did not object to the testimony at the time it
was presented. 
     Kwon's failure to timely object to the testimony at trial
precludes him from raising this issue on appeal.   Liddle v.
Cepeda, 251 Ill. App. 3d 892, 896, 623 N.E.2d 849 (1993).  Absent
waiver, Plamper's testimony did not violate the in limine order,
and its admission did not prejudice Kwon.  Viewed in the light most
favorable to M.T.D. (Perry v. Murtagh, 278 Ill. App. 3d 230, 239,
662 N.E.2d 587 (1996)),  Plamper's testimony shows only that M.T.D.
planned to share its technology with other manufacturers who
already knew of the technology, and who had prepared similar
designs.  His testimony did not make M.T.D.'s actions appear unduly
generous or careful.
     Kwon also challenges M.T.D.'s questioning of its expert,
Sevart.  On cross-examination, over Kwon's objections, M.T.D. asked
Sevart whether he had ever purchased any M.T.D. lawn mowers
containing the no-mow-in-reverse feature.  Sevart testified
regarding his opinion of the nature of mowers manufactured by
M.T.D. before 1981; however, M.T.D.'s question addressed his
ownership of mowers manufactured after 1981.  Sevart's ownership of
mowers manufactured after 1981 does not help explain why M.T.D.
could not manufacture a similar mower before 1981.  Arguably,
Sevart's response, that he is an expert on mowers who owns an
M.T.D. mower, helps prove defendant's reputation for manufacturing
high quality mowers.  
     Responding to the question of whether other manufacturers
currently produced no-mow-in-reverse mowers,  Sevart asserted that
only M.T.D. and its subsidiaries manufactured the mower.  The
circuit court's order explicitly prohibited M.T.D. from introducing
any evidence that no other manufacturer had ever used a no-mow-in-
reverse feature.  The question asked Sevart directly related to
that issue, and Sevart's response helped establish M.T.D.'s due
care.  The circuit court therefore committed error in admitting
this evidence.      
     Kwon further argues that M.T.D.'s attorney made two statements
during closing arguments that directly violated the circuit court's
order.  First, the attorney mentioned that M.T.D. was "the first"
to develop a no-mow-in-reverse concept.  In addition, the attorney
noted that M.T.D. is "a leader in industry safety."
     An attorney retains wide latitude in closing argument. 
Statements must be clearly improper and prejudicial to support
reversal.  Perry, 278 Ill. App. 3d at 238.  Comments on the
evidence during closing argument are proper if proven by direct
evidence, or if fairly and reasonably inferable from the facts. 
278 Ill. App. 3d at 238.   
     With regard to the first contested statement, M.T.D.'s
attorney simply restated a fact already in evidence; however,
M.T.D.'s attorney violated the circuit court's order by referring
to M.T.D. as an industry leader.  Upon Kwon's objection, however,
the court immediately struck the latter statement from the record
and instructed the jury to disregard it, noting that the statement
was irrelevant to the case.  The court also repeatedly told the
jury that the attorney's comments should not be considered
evidence.  The court's actions cured any error or potential for
prejudice caused by the attorney's statement.  Lecroy v. Miller,
272 Ill. App. 3d 925, 933, 651 N.E.2d 617 (1995). 
     Kwon next contests the admissibility of evidence of M.T.D.'s
policy of complying with industry safety standards.  On direct
examination, Plamper testified that M.T.D. employees "will not
produce a unit, any machines, any consumer product which would not
meet all the requirements of any safety standards which cover that
product, period."  Kwon argues that this statement emphasized
defendant's conscientiousness and due care, and did not establish
whether the product at issue conformed to industry standards.
     Evidence of industry standards may be relevant and admissible
in a products liability action to determine whether a condition is
unreasonably dangerous.  Ross v. Black & Decker, Inc., 977 F.2d 1178, 1184 (7th Cir. 1992); Ruffiner v. Material Service Corp., 116 Ill. 2d 53, 58, 506 N.E.2d 581, 584 (1987).  Kwon correctly argues,
however, that M.T.D.'s evidence does not establish whether Ford's
mower complied with existing industry standards.  Instead, the
testimony shows only that M.T.D. makes special efforts to comply
with industry standards.  Plamper's statement improperly addresses
M.T.D.'s due care and should not have been admitted.
     Although Kwon acknowledges that each of the above mentioned
errors individually would not be enough to require reversal, he
argues that the cumulative effect of the errors were significant
enough to warrant a new trial.  
     An erroneous ruling on evidence is harmless if the ruling did
not affect the result, and the result was the only one warranted by
other evidence in the case.  Holston v. Sisters of the Third Order
of St. Francis, 247 Ill. App. 3d 985, 999, 618 N.E.2d 334, 344
(1993), aff'd, 165 Ill. 2d 150, 650 N.E.2d 985 (1995).  Moreover,
a jury's finding will not be disturbed unless the verdict was
"palpably erroneous and wholly unwarranted."  Perry, 278 Ill. App.
3d at 239.
     Plaintiff relies on Nave v. Rainbo Tire Service, Inc., a case
involving similar facts and issues, to support his argument that
the cumulative effect of the court's errors warrant reversal.  In
Nave, however, the lower court erroneously admitted detailed
testimony that explained a process described in a large manual,
which also should not have been admitted.  Conversely, in the
present case, the errors that occurred constituted small portions,
no more than a few lines, of all the testimony at trial, and are
insignificant when compared to the errors that occurred in Nave.
     The cumulative effect of the errors here are harmless and
therefore insufficient to require reversal.  M.T.D. submitted
sufficient evidence at trial to support both of its defenses: 
first, that it was not feasible to create a safety device at the
time M.T.D. manufactured Ford's lawn mower; and second, that the
lawn mower was not unreasonably dangerous as long as children were
kept away from it.  This evidence was sufficient to support a jury
verdict for defendant.  
     For the foregoing reasons, the judgment is affirmed.
     Affirmed.
     SCARIANO and BURKE, JJ., concur.