text:
    TOWNSHIP HIGH SCHOOL DISTRICT 203 (NEW TRIER), Plaintiff-Appellee, v. THE VILLAGE OF NORTHFIELD, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—2015
    Opinion filed April 20, 1989.
    — Rehearing denied June 18, 1989.

      Glass, Hill, Dallmeyer & Roth, Ltd., of Chicago (Everette M. Hill, Jr., Bradley M. Glass, and Michael M. Roth, of counsel), for appellant.
    Sonnenschein, Carlin, Nath & Rosenthal, of Chicago (Frederic S. Lane, John J. Lawlor, and Susan G. Connelly, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Township High School District 203, operated a public high school commonly known as New Trier West High School, in the Village of Northfield, Illinois (the Village). Plaintiff ceased operating the high school in 1985. A college subsequently expressed interest in buying New Trier’s property. The college, however, informed New Trier that it would not purchase the property so long as a recently enacted provision of the Village’s zoning ordinance was in effect. The zoning provision would have required the college to pay an annual fee to the Village.

New Trier brought this declaratory judgment action in the circuit court of Cook County against the Village. New Trier sought, inter alia, a declaration that the contested zoning provision is illegal. The trial court denied the Village’s motion to dismiss and subsequently granted New Trier’s motion for summary judgment on the first two counts of the complaint.

The Village appeals, contending that the trial court should have dismissed the complaint because: (1) New Trier lacked a sufficient interest to challenge the annual fee, and (2) no justiciable controversy existed between the parties. The Village also contends that the trial court erred in granting summary judgment for New Trier because: (1) the Village has the authority to impose such a fee, and (2) the fee is not an illegal tax.

We reverse and remand with directions.

Background

For purposes of review, a motion to dismiss admits all wellpled facts and reasonable inferences that can be drawn from the wellpled facts. (Mack v. Plaza DeWitt Ltd. Partnership (1985), 137 Ill. App. 3d 343, 349, 484 N.E.2d 900, 905.) New Trier owns approximately 43 acres of land within the Village, spread across Happ Road. Most of the land, approximately 33 acres, lies east of the road, with the remaining 10 acres, 25% of the total, lying west of the road. According to the Village’s zoning ordinance, which contains the official zoning map, the east parcel is zoned R-4, single-family dwelling zoning district. The west parcel is zoned M-l, light manufacturing zoning district.

New Trier received a special use permit from the Village in 1963 to build the New Trier West High School. The east parcel was improved with school buildings and outdoor sports facilities; the west parcel was improved with tennis courts and a parking area. New Trier operated the public high school from 1965 through June 1985. For several years thereafter, New Trier attempted to sell or lease the property.

The National College of Education (National College) is a not-for-profit, tax-exempt educational institution. In May 1987, National College began negotiations with New Trier to buy the property. In June 1987, according to New Trier’s complaint, National College “indicated its willingness” to bid $22 million for the property at a public auction.

During this time, the Village expressed to New Trier its concern over the future use of the property and the impact thereof on property taxes. The Village subsequently notified New Trier that it was considering amending the permitted use and special use provisions of the Village’s zoning ordinance. On several occasions, New Trier expressed to the Village its belief that the amendment would “have a material and adverse impact” upon its ability to market and sell the property to a college or university.

On July 28, 1987, the Village’s board of trustees amended article XII of its zoning ordinance, which relates to special uses. The amendment restricts college and university special uses to the O/R, office research; B-l, general business; and M-l, light manufacturing zoning districts. Further, the site must contain at least 25 acres. On October 13, 1987, the Village enacted a new section 6 to article XII, establishing conditions for granting a special use to a college or university. Section 6 provides in pertinent part:

“Section 6. A special use for a college and university (hereinafter some times referred to as facility) shall be granted only upon a finding that the application for said special use meets the following conditions: * * *
j. The facility shall enter into an agreement to reimburse the Village for service costs which are directly and uniquely attributable to the college or university use within Northfield. This annual impaction fee shall be payable within sixty (60) days after the beginning of the Village’s fiscal year and be based upon the following formula: ***.” (Village of Northfield, Ill., Zoning Ordinance art. XII, §6.)

National College informed New Trier that it would not bid on the property because of the Village’s annual impact fee.

New Trier filed a multicount complaint on December 31, 1987. In count I, New Trier sought a finding that the Village, a non-home-rule municipality, lacked the authority to require an annual payment as a condition to receiving special use approval. In count II, New Trier sought a finding that article XII, section 6(j), of the Village’s zoning ordinance amounted to taxation of tax-exempt property, in violation of the Illinois Constitution and statutes. New Trier also sought in each of the two counts a declaration that section 6(j) was unlawful and void, and an injunction preventing the Village from imposing the annual fee.

New Trier alleged in the remaining counts that section 6(j) denied it due process and equal protection, and amounted to a taking of its property without just compensation, all in violation of both the United States and Illinois Constitutions. Based on its allegations, New Trier additionally sought damages under the Civil Rights Act of 1964 (42 U.S.C. §1983 (1982)), and attorney fees under the Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C. §1988 (1982)).

The Village subsequently moved to dismiss the complaint; the trial court denied the motion. On May 25, 1988, the trial court granted New Trier’s motion for summary judgment on counts I and II of the complaint. The court also found that there was no just reason to delay the enforcement or appeal of the judgment. (See 107 Ill. 2d R. 304(a).) New Trier appeals.

Opinion

Section 2 — 701 of the Code of Civil Procedure provides in relevant part that a trial court “may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation *** and a declaration of the rights of the parties interested.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701(a).) Thus, a litigant must establish the following to secure a declaratory judgment: “ ‘(1) [a] plaintiff with a legal tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy between the parties concerning such interests, though there need not be any act in violation of any such interests.’ ” De Witt County Public Building Comm’n v. County of De Witt (1984), 128 Ill. App. 3d 11, 16, 469 N.E.2d 689, 693-94, quoting Griffin v. County of Cook (1938), 369 Ill. 380, 398, 16 N.E.2d 906, 915 (Stone, J., specially concurring).

I

The Village first contends that New Trier lacks a legal tangible interest regarding the annual impact fee. The Village notes that: (1) section 6(j) expressly applies only to colleges and universities, and (2) New Trier’s property cannot be used as a college or university under its current zoning. The east parcel is zoned R-4, for single-family dwellings, and the west parcel contains less than the required 25 acres for a college or university special use. Thus, the Village argues that New Trier lacks standing to seek declaratory relief.

The statutory requirement that a party be “interested in the controversy” demands more than merely having a curiosity about, or a concern for, the outcome of the controversy. Rather, the party seeking relief must possess a personal claim, status, or right that is capable of being affected. The dispute must touch the legal relations of parties who stand in a position adverse to one another. Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375-76, 362 N.E.2d 298, 301.

Citing these general principles, New Trier contends that it has the requisite interest regarding the annual impact fee. New Trier argues that it can challenge section 6(j) because the provision has an adverse impact on its ability to sell the property. Noting that it owns the property, New Trier argues further that it is the sole party who can challenge the provision.

We disagree. In Clark Oil & Refining Corp. v. City of Evanston (1961), 23 Ill. 2d 48, 177 N.E.2d 191, our supreme court held that a party having merely an option to purchase property contingent on rezoning had no standing to question the validity of a zoning ordinance. The court stated:

“[T]he plaintiff does, interestingly enough, argue that the ordinance prevents it from engaging in a lawful business there. We fail to see how the plaintiff can acquire a right to engage in business on a certain piece of property without first acquiring a right to use that property. As we have mentioned the plaintiff has not shown that in the absence of the ordinance it is entitled to the use of the premises for business or any other purpose.” (23 Ill. 2d at 50,177 N.E.2d at 192.)

The only right of the Clark Oil plaintiff, to buy the property, remained unchanged regardless of the validity or invalidity of the zoning ordinance. Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 788-89, 331 N.E.2d 380, 385.

In the case at bar, New Trier occupies a weaker position than the plaintiff in Clark Oil. In that case, our supreme court deemed an option to purchase contingent on rezoning insufficient to confer on a party the requisite interest to challenge a zoning ordinance. In the case at bar, National College does not seek declaratory relief — New Trier does, without any contractual or other legal relationship between it and National College. New Trier’s sole interest in the matter is that section 6(j) makes selling its property more difficult. However, only a college or university, under a special use, would pay the annual impact fee. Further, New Trier, National College, or any other potential buyer is not entitled to use the property for a college because it is not zoned for such a use. In other words, section 6(j) simply does not apply to New Trier’s property.

Based on this record, New Trier’s ability to sell its property remained unchanged regardless of the validity or invalidity of the annual impact fee. We conclude that New Trier lacked the requisite interest to challenge the validity of article XII, section 6(j), of the Village’s zoning ordinance. Consequently, we hold that New Trier lacked standing to seek declaratory relief.

II

Addressing a related issue, the Village also contends that no actual controversy exists between it and New Trier. The Village notes that: (1) neither National College nor anyone else ever contracted to buy the property; (2) the property cannot be used as a college or university under its zoning; and (3) no party has ever requested that the Village rezone the property or otherwise contested the property’s present zoning.

New Trier, on the other hand, contends that an actual controversy exists between it and the Village. New Trier argues that the very existence of section 6(j) impedes its marketing efforts.

A related requirement for seeking declaratory relief is that an actual controversy be present. This requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. The case must present a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof. Underground Contractors Association, 66 Ill. 2d at 375, 362 N.E.2d at 300.

A plaintiff seeking a declaratory judgment must show that such relief would be based on an actual justiciable controversy. If a plaintiff’s rights would be infringed, and thereby be adversely affected, only if some future possibility in fact occurs or does not occur, then the right in question is speculative and a court cannot enter a declaratory judgment. (Berg v. City of Chicago (1968), 97 Ill. App. 2d 410, 417, 240 N.E.2d 344, 348.) In other words, if the question of whether the plaintiff will suffer any infringement of its rights is speculative — if the plaintiff’s interests would be adversely affected only in the event some future possibility occurs or does not occur — the action for a declaratory judgment should be dismissed. State Farm Mutual Automobile Insurance Co. v. Morris (1961), 29 Ill. App. 3d 451, 460, 173 N.E.2d 590, 594.

Applying these principles to the case at bar, it is clear that no justiciable controversy exists between New Trier and the Village. The record before us shows that the annual impact fee simply does not affect New Trier or anyone else, adversely or otherwise. The annual fee would infringe New Trier’s rights only if two future possibilities were to occur. First, as discussed earlier, New Trier would need to find an actual buyer, a party legally obligated to purchase the property. National College made no such obligation. Second, the property currently is not zoned for a college or university use. So even if National College were obligated to buy the property, it would need to have the property rezoned to permit such a use. Alternatively, if National College could not have the property rezoned, it would need to successfully challenge the validity of the property’s current zoning. An actual controversy over section 6(j) would exist only if these events occurred. They have not, however, and the mere possibility that they might occur is insufficient to enter a declaratory judgment. We conclude that no actual controversy is present in this action. Consequently, we hold that New Trier lacks standing to seek declaratory relief.

For the foregoing reasons, the judgment of the circuit court of Cook County is. reversed, and the cause remanded with directions that the trial court dismiss the action.

Reversed and remanded with directions.

JOHNSON and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    TIMM FORD, Plaintiff-Appellant, v. MABLE A. WILSON et al., Defendants (First Mall Management Corporation, Defendant-Appellee).
    Third District
    No. 3—88—0375
    Opinion filed May 8, 1989.
    Modified opinion filed June 16, 1989.— Rehearing denied June 19, 1989.

      John A. Slevin, of Vonachen, Cation, Lawless, Trager & Slevin, of Peoria, for appellant.
    D. Kendall Griffith and Gerald Haberkorn, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and Brian P. Thielen, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Bloomington, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The plaintiff, Timm Ford, brought a negligence action against the defendants, Hable A. Wilson, Bettye E. Munson, La Salle National Bank, and First Mall Management Corporation. The defendant First Mall Management Corporation (First Mall) filed a motion to dismiss the plaintiff’s amended complaint as it related to First Mall. The trial court granted the motion. The plaintiff appeals.

The plaintiff’s amended complaint alleged the following. On July 16, 1980, the 13-year-old plaintiff was riding his bicycle to Sandburg Mall, a large shopping complex managed by First Mall. The mall was surrounded by a large parking lot, with a road circling the outer edge of the lot. A two- to three-foot-high cable fence ran outside the road. An opening in the fence served as an entrance to the mall property from a bike path located on property adjacent to the mall. Children around the plaintiff’s age frequently rode their bicycles from a nearby residential neighborhood to the mall over this bike path. At the point where the bike path entered the mall property, weeds, brush, and shrubs on the adjacent vacant lot had grown to a height of approximately five to six feet. Due to the vegetation, drivers on the road circling the mall could not see children riding their bicycles from the bike path to the mall parking lot. As the plaintiff rode his bike from the bike path to the mall property, he was hit by a car on the road.

The plaintiff sued the driver of the car, the owners of the adjacent lot, the owner of the mall, and First Mall. The plaintiff settled with all of the parties except First Mall. The trial court dismissed count III of the plaintiff’s complaint, which related to First Mall.

The issue on appeal is whether the trial court properly dismissed the plaintiff’s complaint for failure to state a cause of action against First Mall. First Mall moved to dismiss the complaint on the bases that the plaintiff had failed to establish that it had a duty to protect him from the obvious dangers of a roadway and that the plaintiff’s complaint failed to allege the existence of any hazardous condition which would support a negligence action under Illinois law. The trial court agreed and granted the defendant’s motion.

A motion to dismiss accepts as true all well-pleaded facts and should be granted only when it appears that no set of facts could be proved which would entitle the plaintiff to recover. (Willard v. Northwest National Bank (1985), 137 Ill. App. 3d 255, 484 N.E.2d 823.) It is fundamental that there can be no recovery in tort unless the defendant has breached a duty owed to the plaintiff. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116.) The duty issue is a question of law for the court’s determination. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.

Generally, the owners or occupiers of land are under no duty to keep their premises in any particular state or condition to promote the safety of persons who come upon the premises without express or implied invitation. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836; Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) An exception exists, however, where: (1) the owner or person in possession knows or should know that young children habitually frequent the premises; (2) a dangerous condition is present on the land; (3) the dangerous condition is one that is likely to cause injury to the children because they, by reason of their immaturity, are incapable of appreciating the risk involved; and (4) the expense or inconvenience of remedying the condition is slight compared with the risk to the children. (Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.) In such cases, there is a duty upon the owner or person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Kahn, 5 Ill. 2d at 625, 126 N.E.2d at 842.) Foreseeability of harm to children is the cornerstone of liability. Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180.

First Mall concedes for purposes of the motion to dismiss that it knew children used the path to gain access to the mall. Regarding whether the intersection of the roadway and the bicycle path presented a dangerous condition, we note that a dangerous condition is one which is likely to cause injury to the general class of children who by reason of their immaturity might be incapable of appreciating the risk involved. (Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180.) If the condition complained of presents obvious risks which children would be expected to appreciate and avoid, there is no duty to remedy that condition. Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023.

According to the instant allegations, the bike path went through the vacant lot, which was overgrown with weeds, brush, and shrubs to a height of about five to six feet. The path ended where the vacant lot met the edge of the mall property. Although there was a two- or three-foot-high fence along the mall property, there was an opening in the fence. This opening provided children with a fast and easy entrance to the mall and served as an invitation to children to use this short cut. The presence of cyclists on the path was not apparent to the motorists traveling on the perimeter road of the parking lot, nor was it apparent to the cyclists when cars were traveling on this road. Accepting these well-pleaded facts as true for purposes of the motion to dismiss, we conclude that a reasonable person could find that the intersection of the bike path and the roadway could constitute a dangerous condition which was not obvious to children. Moreover, the cost of remedying this condition would be slight compared with the risk it posed to children. We therefore reverse the order of the trial court granting the defendant’s motion to dismiss and remand the cause for further proceedings.

The judgment of the circuit court of Knox County granting the defendant’s motion to dismiss is reversed and the cause is remanded.

Reversed and remanded.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE QUINLAN

text:
    JOHN DARRILL CONNELLY, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1081
    Opinion filed May 1, 1989.
    Rehearing denied June 23, 1989.

      Lord, Bissell & Brook, of Chicago, and General Motors Corporate Office of the General Counsel, of Detroit, Michigan (William J. White, Hugh C. Griffin, Douglas L. Toering, and Judith A. Zakens, of counsel), for appellant.
    Asher, Pavalon, Gittler & Greenfield, Ltd., of Chicago (Eugene I. Pavalon, Geoffrey L. Gifford, and Gary K. Laatsch, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

The plaintiff, John Connelly, sued the defendant, General Motors Corporation, alleging that the defendant was strictly liable for injuries that plaintiff had sustained in an automobile accident. The accident occurred when the right rear tire of a 1969 General Motors Buick Opel Kadett Model 1900 station wagon blew out, causing the vehicle to leave the road and flip over twice, during which time the plaintiff was thrown from the car. The plaintiff alleged that defendant was strictly liable for the defective design of its vehicle and for failure to warn of a dangerous condition. The trial jury returned a verdict for plaintiff on both of his strict liability counts and awarded him $5 million, which was reduced by the amount the plaintiff had received from a settlement with Uniroyal, the tire manufacturer. General Motors now appeals the verdict for plaintiff to this court. We affirm.

In late October 1970, plaintiff, a 19-year-old University of Chicago student, drove to California with four other university students. Plaintiff borrowed his father’s car for the trip, a 1969 Opel Kadett Model 1900 station wagon (Model 1900). En route to California, the students stopped at a gas station and had the tires on the station wagon rotated because the front tires were more worn than the back tires. The plaintiff then instructed the attendant to inflate the back tires to 32 pounds per square inch (psi), in accordance with directions in the owner’s manual for the car. The plaintiff also noted at that time that the owner’s manual recommended a maximum load of 900 pounds for the vehicle. It was estimated that the combined weight of the five students and their luggage was 860 pounds. Michael Rosin, one of the students, testified that the only other incident occurring on the way to California was when the station wagon was driven for a short time on a gravel road, although plaintiff did not remember driving on such a road.

When the students arrived in California, they unloaded the station wagon. They drove the unloaded vehicle while in California and at certain times the station wagon may have carried as many as seven people. The students stayed in California for several days and then began their return to Chicago. Plaintiff testified that shortly before the accident, the students gave a ride to a hitchhiker, who was in the car for approximately four to five hours. However neither Michael Rosin nor Jean Howard, another student who testified at trial, remembered picking up a hitchhiker. On the way to Chicago, the plaintiff testified that they stopped briefly in Colorado and dropped off the hitchhiker. The students then resumed their journey. The posted speed limit was 70 miles per hour and the students were driving approximately 75 miles per hour when the blow out occurred. There was no evidence that the station wagon had hit or run over any objects in the road just before the blow out. Plaintiff suffered severe injuries when he was thrown from the car and, as a result of those injuries, the plaintiff was rendered a paraplegic.

Thereafter, the plaintiff filed suit against General Motors Corporation, alleging that the defendant was strictly liable for the defective design of the Model 1900 because the Model 1900 had an inadequate and dangerous tire reserve load percentage. Plaintiff further alleged that the defendant was strictly liable for failing to warn that overloading the Model 1900 would lead to a tire blow out.

The tire on the vehicle here had 18,830 miles on it and was the car’s original tire. Information was stamped on the sidewall of the tire which said that the tire had a maximum load capacity of 880 pounds and the owner’s manual recommended inflation of the rear tires to 32 psi. The tire was manufactured by Uniroyal at its Belgium plant in June 1969 and was installed on the Opel Kadett Model 1900 in Opel’s Belgium plant. Also, Opel was a wholly owned subsidiary of the defendant General Motors.

The relevant testimony at trial was as follows. Plaintiff presented two witnesses who were qualified as experts in tire failure. The first witness, Ronald Schoonover, testified that in his opinion the tire blow out on plaintiff’s Opel Kadett station wagon was due to an adhesion failure in the tire combined with vehicle overload. Schoonover stated that the tire was not worn out, nor did the tire show any evidence of impact failure. Schoonover explained that adhesion problems were typical in tires manufactured at that time, so manufacturers compensated for the adhesion problems by building a tire reserve load into the tires, which provided the tires with a percentage of extra strength. The tires, then, with this extra strength, would wear out before a blow out due to adhesion problems could occur. Schoonover said that the higher the percentage of tire reserve load, the safer the load margin.

Schoonover testified that the Model 1900 had a tire reserve load safety margin of 2%, basing this 2% figure on information that defendant itself had submitted to the U.S. Department of Transportation, which was then published in a booklet entitled “Performance Data For New Passenger Cars and Motorcycles.” He said the figure determined the amount of overload a tire could safely endure. Schoonover believed that a 2% margin of safety was inadequate and unreasonably dangerous for the Model 1900 since the Model 1900 was a station wagon and was specifically designed to transport larger loads than regular-sized cars. Schoonover noted that other tires were available to the defendant at the time the Model 1900s were manufactured that provided a greater tire reserve load margin of safety and which also fit the rims on the Model 1900. Those tires, he stated, could have been used on the Model 1900 without requiring the defendant to alter the Model 1900’s design.

John Stilson also testified for the plaintiff as an expert witness. Stilson’s opinion was that the tire here blew out due to overloading, which precipitated an adhesion defect in the tire. Stilson found nothing in the owner’s manual which warned that exceeding the 900-pound maximum weight on the vehicle would cause premature failure of the tires. Stilson said that the defendant was aware of the dangers in overloading the Model 1900, because within two months after plaintiff’s car had been manufactured, the defendant was required by Federal regulations to put a warning on all cars it manufactured regarding vehicle overload.

Stilson believed that the 2% tire reserve load safety margin on the defendant’s Model 1900 was unreasonably dangerous, and he also stated that he knew there were other tires available to defendant at that time which fit the rim of the vehicle as designed and provided a higher margin of safety. In addition, Stilson observed that the tire used on the Model 1900 was used on all of defendant’s Opel vehicles, but that it provided a higher tire reserve load safety margin on those vehicles because they weighed less than the Model 1900. Stilson found no signs of external road impact on the tire and disagreed with the defendant’s experts, who believed that the tire failed because it encountered an object in the road.

The defendant then presented three expert witnesses of its own. Sjirk VanderBurg, defendant’s first expert, was not a tire-failure expert, but had been the director of research and development for Uniroyal when the tire in this case was manufactured. VanderBurg said that when a tire manufacturer wanted to build a tire which would have an 880-pound load capacity at 32 psi, the manufacturer would design the tire so that it could be inflated to 8 to 10 times its normal inflation pressure when it had no weight on it. The manufacturer would then perform tests on the tires. In the first test, the tire was inflated to 36 psi and run at 37½ miles per hour for 24 hours, with a load of 880 pounds. Every 24 hours, for 120 hours thereafter, the load was increased by approximately 80 pounds. In order to pass the quality control standards, the tire must last for 120 hours and by the end of the testing period have held 1,322 pounds of weight.

VanderBurg further stated that the tires manufactured in 1969 also had to meet Federal Motor Vehicle Standard 109, which was an endurance and high speed test. In this test, a tire designed for a 32 psi load was inflated to 24 psi and loaded with 750 pounds, the maximum weight for that pressure. The tire was then tested for six hours at 50 miles per hour. Next, he said, it was tested for six hours with an 820-pound load, which was 108% over the rated load capacity. The load was finally increased to 880 pounds at 24 psi for 24 hours, or 117.5% over the rated load capacity. The tire had to pass the test of 880 pounds at 24 psi in order to pass Standard 109. If a tire met Standard 109, VanderBurg testified, Uniroyal subjected it to yet another test. In this test, the same tire was inflated to 20 psi and loaded with 880 pounds for 48 hours. At 20 psi, the tire’s rated load capacity was 640 pounds, so the tire was 137.5% over its rated load capacity. According to VanderBurg, Uniroyal did not market a tire unless it had passed the last test. VanderBurg concluded that in his opinion, a load weighing over 880 pounds on a tire inflated to 32 psi, as the tire here, would not create a danger if the tire had not encountered any road hazards during its lifetime.

On cross-examination, VanderBurg admitted that the tests measuring the effect of different weight loads on the tires were designed to determine an inflation overload factor, not a tire reserve load factor. In addition, VanderBurg was unaware of any tests done by Uniroyal or by the defendant where a Model 1900 was tested at its rated load capacity of 880 pounds with its tires inflated to 32 psi. Moreover, he agreed that the tires that were tested were newly manufactured and were tested on a test wheel in a controlled environment, rather than on an automobile under road conditions. Additionally, VanderBurg testified that he had never examined the tire at issue in this case, nor would he render an opinion regarding the cause of the tire failure on plaintiff’s car.

Anthony Parrottino was the defendant’s next witness. Parrottino testified that he was employed by the defendant and from 1968-75 was the manager of reliability and quality control for two of defendant’s assembly plants in Belgium. Because the trial court refused to allow Parrottino to testify concerning lack of complaints similar to the plaintiff’s, the defendant made an offer of proof regarding the testimony. In the offer of proof, Parrottino said that his responsibilities as manager of reliability and quality control had included receiving complaints about the defendant’s vehicles and that he had never received any other complaints similar to plaintiff’s complaint.

James Tomlinson was defendant’s third expert witness. Tomlinson testified that a 2% tire reserve load was reasonable and that large tire reserve loads did not make any additional contributions to safety. He also noted that the Federal regulations requiring manufacturers to disclose tire reserve loads was abolished in 1982 because the National Highway Traffic Safety Administration concluded that the information was of no value to consumers. He said that even if the Model 1900 here had been overloaded with a sixth passenger for four to five hours, this overload of approximately 60 pounds would not have created a hazard that required a warning and would not have caused a blow out. Tomlinson inspected the tire and found no signs of severe overloading. In his opinion, the blow out occurred due to a road hazard encountered when the plaintiff’s car was driven on a dirt and gravel road.

As noted earlier, following presentation of the above evidence for the plaintiff and the defendant, the jury returned a verdict for plaintiff. The defendant’s post-trial motions were denied and it subsequently filed the appeal in this court.

On appeal, defendant initially contends that it was entitled to a judgment n.o.v. on both the plaintiff’s defective design theory and his failure to warn theory. The defendant claims that plaintiff’s experts relied upon the “absolutely untrue” assumptions that the Model 1900 tires had a maximum load capacity of 880 pounds, along with only a 2% margin of safety, and that the jury’s verdict based upon these untrue assumptions should have been set aside. The defendant also contends that plaintiff’s experts ignored the evidence that the Model 1900 tires had safety margins of 117% and 137.5%, and that, consequently, the opinions of plaintiff’s experts were not based upon the facts of the case and defendant was entitled to judgment in its favor as a matter of law.

The plaintiff responds that there was more than sufficient evidence to support his experts’ opinions and, in fact, there was little evidence to support defendant’s claim that its tires had a tire reserve load safety margin greater than 2%. Thus, the plaintiff asserts that this court should affirm the trial court’s judgment.

Judgment n.o.v. is proper only when all of the evidence in the case, viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that the jury’s verdict based on that evidence cannot stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14; Robles v. Chicago Transit Authority (1988), 173 Ill. App. 3d 46, 50, 527 N.E.2d 361, 364; International Meat Co. v. Bockos (1987), 157 Ill. App. 3d 810, 814, 510 N.E.2d 1013, 1016.) Furthermore, a trial judge should not substitute his or her judgment for that of the jury merely because he or she would have reached a different conclusion concerning the credibility of witnesses or the preponderance of evidence. (In re Village of Bridgeview (1985), 139 Ill. App. 3d 744, 753, 487 N.E.2d 1109, 1116.) It is also erroneous for a trial court to enter a judgment n.o.v. when there is a substantial factual dispute in the case or when the assessment of a witness’s credibility or the evaluation of conflicting evidence is necessary to determine the outcome of the case. Cadral Corp. v. Solomon, Cordwell, Buenz & Associates, Inc. (1986), 147 Ill. App. 3d 466, 482, 497 N.E.2d 1285, 1295; Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 509, 492 N.E.2d 1364,1372.

In this case, plaintiff’s experts testified that the 2% tire reserve load was based on information that the defendant submitted to the Federal government in the “Performance Data for New Passenger Cars and Motorcycles” booklet (Performance Data booklet). This 2% factor was based on an Opel Kadett Model 1900 station wagon, with the rear tires inflated to 32 psi. This defendant did not dispute that it had submitted the 2% figure, but claimed that this figure was inaccurate. The defendant claimed that the 2% figure was submitted merely to show the government that the Model 1900 complied with Federal standards and that the tires on the Model 1900 actually had a 117% and a 137.5% tire reserve load factor. We note, however, as the defendant’s experts admitted on cross-examination, that these factors were based on tests to determine inflation overload rather than tire reserve load and were performed on tires inflated to only 24 psi. We further note that defendant failed to introduce any evidence of tests performed on the Model 1900.

Based upon a review of the record, we find that the evidence here was conflicting and that the plaintiff’s experts relied upon information submitted to the Federal government by defendant; hence, these experts did not rely upon absolutely untrue assumptions as claimed by the defendant. The trial jury here was in the best position to evaluate the conflicting evidence and, viewing all of the evidence in this case in a light most favorable to the plaintiff, we cannot say that the evidence so overwhelmingly supported the defendant that the jury’s verdict could not stand. Accordingly, the trial court properly denied the defendant’s motion for a judgment n.o.v..

Defendant next claims that it was deprived of a fair trial when the trial court refused to admit defense exhibit C, the Performance Data booklet, into evidence and, thus, the defendant asserts it was entitled to a new trial. Defendant argues that the excluded exhibit, which listed tire reserve load percentages for all vehicles sold in the United States as of January 1, 1970, was admissible in this case as evidence of industry standards, practices and customs. Further, it contends that this exhibit was crucial because the booklet showed that other station wagons in 1970 had tire reserve loads which were less than 2%, and this proved that the Model 1900 with a 2% tire reserve load was not defectively designed.

Conversely, the plaintiff argues that defendant failed to preserve this issue for review because it never proffered the Performance Data booklet to the court as evidence, never offered any testimony concerning the contents of the booklet, and never made an offer of proof. Further, even if this issue was properly preserved for review, the plaintiff asserts that the booklet merely contained “state of the art” evidence, which evidence the defendant could not, in any event, have properly used as a defense in a strict liability case.

Evidence of “state of the art” is not a defense to a strict liability case. (See Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 266 N.E.2d 897; Murphy v. Chestnut Mountain Lodge, Inc. (1984), 124 Ill. App. 3d 508, 464 N.E.2d 818; Gelsumino v. E.W. Bliss Co. (1973), 10 Ill. App. 3d 604, 295 N.E.2d 110.) A plaintiff in a strict liability action, however, may introduce evidence of feasible alternative designs and, in such a case, the defendant may then introduce state of the art type evidence as rebuttal evidence on that issue (Murphy, 124 Ill. App. 3d at 515, 464 N.E.2d at 823), such as evidence of compliance with national or Federal standards (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 443 N.E.2d 575; Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534; Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 418 N.E.2d 1079; Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 404 N.E.2d 311).

However, here we agree with the plaintiff and hold that the evidence offered of tire reserve load percentages on station wagons manufactured by other automobile companies was impermissible state of the art evidence. The plaintiff did not attempt to present evidence of a feasible alternative design for the Model 1900, which might have opened the door for defendant to introduce rebuttal evidence, but instead presented evidence that tires with higher tire reserve load percentages could have been used on the Model 1900 without altering the design of the vehicle. This did not allow the defendant to present state of the art type evidence. In addition, while defendant claims that a 2% tire reserve load margin was the industry standard, the evidence at trial showed that other vehicles manufactured by defendant’s own Opel division had significantly higher tire reserve load percentages. Finally, the defendant was in fact allowed to introduce evidence that it had complied with Federal standards. Hence, we do not find that the defendant was denied a fair trial by the trial court’s exclusion of the Performance Data booklet.

The defendant next argues that exhibit C, the Performance Data booklet, was admissible under the “Rule of Completeness.” The defendant contends that because plaintiff’s experts were allowed to testify based on portions of the Performance Data booklet, under principles of fairness it was entitled to have other portions of that booklet admitted into evidence.

The rule of completeness is a rule of evidence providing that “if one party introduces part of an utterance or writing the opposing party may introduce the remainder or so much thereof as is required to place that part originally offered in proper context so that a correct and true meaning is conveyed to the jury.” (Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 556, 356 N.E.2d 779, 786.) In Lawson, our supreme court held that the rule of completeness applied to allow the defense to introduce an entire committee report into evidence because the plaintiff there had repeatedly referred to portions of that report which were beneficial to her case. (Lawson, 64 Ill. 2d at 556, 356 N.E.2d at 786.) The supreme court said that the defendant could introduce the entire committee report, including portions that were detrimental to the plaintiff’s case, in order to put the committee report in its proper context. (Lawson, 64 Ill. 2d at 556, 356 N.E.2d at 786.) In contrast, we find that the plaintiff’s experts here did not take the information in the Performance Data booklet concerning Opel vehicles out of context, nor did they distort the meaning of the booklet because, unlike the situation in Lawson, all information concerning defendant’s vehicles was introduced into evidence, rather than only select portions of information.

The fourth issue that the defendant raises on appeal is that the Performance Data booklet should have been admitted into evidence to rebut the plaintiff’s evidence of industry standards, practices and customs. The defendant alleges that the plaintiff's experts testified concerning tire reserve loads and safety practices of other automobile manufacturers and, therefore, the defendant was entitled to present rebuttal testimony concerning this evidence. The plaintiff responds that any testimony concerning other manufacturers was elicited by the defendant, was not objected to by the defendant and, thus, the defendant cannot now claim that the exclusion of the Performance Data booklet from evidence constituted reversible error.

An error in the exclusion of evidence does not require reversal where there is no prejudice or where the evidence has not materially affected the result in the case. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 414, 476 N.E.2d 1232, 1237.) Here, we cannot say that the exclusion of the Performance Data booklet prejudiced the defendant in any way. As the plaintiff noted, the defendant did not object to the testimony of plaintiff’s experts. Further, Schoonover mentioned only once on direct examination that a 10% to 15% tire reserve load was built into the tires of another manufacturer, and the defendant on cross-examination in fact specifically questioned Schoonover about this 10% to 15% figure. Also, the defendant questioned Stilson on cross-examination concerning Stilson’s deposition testimony that Ford Motor Company attempted to maintain a 150% safety factor in their vehicles, even though the plaintiff had never mentioned this deposition testimony in his direct examination of Stilson. Therefore, since the defendant itself brought out much of this testimony, it cannot now claim that the admission of the testimony and the exclusion of the Performance Data booklet prejudiced it in the presentation of its case. Moreover, the other testimony which the defendant now finds objectionable did not concern specific tire reserve load figures; hence, the Performance Data booklet could not, in any event, have been used to rebut that testimony.

The defendant also contends that it should have been allowed to rebut the testimony concerning industry customs, standards and practices because the testimony was introduced while the plaintiff still had a negligence count pending against the defendant, although he later dropped the negligence count. The defendant alleges that the plaintiff deliberately waited to drop his negligence count until he had introduced evidence of industry standards, and then dropped the count before the defendant could rebut that evidence. The trial court, in ruling on the issue, held that the plaintiff was free to drop his negligence count whenever he wished and that defendant was not prejudiced by the court’s refusal to admit the Performance Data booklet into evidence.

A trial court’s determination of whether evidence is or is not admissible is a matter of discretion and will be reversed only if it is clear that the trial court abused its discretion. (Behrstock v. Ace Hose & Rubber Co. (1986), 147 Ill. App. 3d 76, 84, 496 N.E.2d 1024, 1029.) The record here shows that the trial court did not abuse its discretion in refusing to admit the Performance Data booklet into evidence. Although plaintiff waited until after the trial had commenced to drop his negligence count, the focus of the case to that point was on the strict liability counts. Therefore, the jury was not presented with extensive evidence centering on negligence which the defendant was then left unable to rebut when the negligence count was dropped. Finally, as noted above, the defendant itself brought out much of the evidence to which it . now objects. Thus, the admission of the testimony by plaintiff’s experts and the exclusion of the Performance Data booklet did not amount to reversible error.

In its next issue on appeal, the defendant contends that the Performance Data booklet was admissible in order to cross-examine and challenge the credibility of plaintiff’s experts. Defendant asserts that it was prejudiced by the trial court’s refusal to allow it to cross-examine Stilson and Schoonover based on the Performance Data booklet, because the booklet would have shown that Stilson and Schoonover ignored evidence that the Model 1900 had an adequate tire reserve load based on a comparison with tire reserve loads of other vehicles.

The defendant relies upon Trower v. Jones (1988), 121 Ill. 2d 211, 520 N.E.2d 297, in support of this argument, asserting that Trower buttresses its contention that an attorney should be given great latitude in cross-examining expert witnesses and that its attorney was not given such latitude here. However, the issue in Trower was whether an expert witness could be cross-examined concerning his annual fees for testifying as an expert and the frequency with which he had testified as an expert witness (Trower, 121 Ill. 2d 211, 520 N.E.2d 297), issues which were irrelevant to the cross-examination of Stilson and Schoonover.

Next, we further note that the scope and extent of cross-examination is committed to the sound discretion of the trial court and a reviewing court will not disturb a trial court’s ruling in this regard unless the trial court has abused its discretion and the party cross-examining was thereby prejudiced. (Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 518, 492 N.E.2d 1364, 1377-78.) Here, the trial court did not abuse its discretion when it refused to allow defendant to cross-examine plaintiff’s experts based on the Performance Data booklet. The defendant was allowed to challenge Stilson’s and Schoonover’s conclusions and to confront them with the conclusions reached by its own experts. Also, the record shows that defendant did in fact challenge the credibility of plaintiff’s experts and was not prejudiced in its cross-examination due to the exclusion of the Performance Data booklet from evidence.

The defendant’s sixth issue on appeal is that its own experts should have been allowed to testify that they relied on the Performance Data booklet in concluding that the Opel Kadett Model 1900 tire was not unreasonably dangerous. The defendant, relying on Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, asserts that an expert can testify concerning the data upon which he based his opinion, even though that data itself might not be admissible in evidence.

In Wilson, the Illinois Supreme Court adopted Rules 703 and 705 of the Federal Rules of Evidence and held that an expert could give an opinion based on facts not in evidence, ruling that adoption of these rules would save time and expedite trial proceedings by eliminating the need for authenticating witnesses. (Wilson, 84 Ill. 2d 186, 417 N.E.2d 1322.) Specifically, the supreme court there held that a physician could render an opinion in response to a hypothetical question concerning certain hospital records, even though the records were not in evidence, because hospital records are highly reliable since they are normally relied upon by doctors in rendering opinions. Wilson, 84 Ill. 2d at 194, 417 N.E.2d at 1326. See also Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 530 N.E.2d 1007 (report must be the type reasonably relied upon by experts, hence, reports made in expectation of litigation not admissible); Piano v. Davison (1987), 157 Ill. App. 3d 649, 510 N.E.2d 1066 (doctor may testify about statements made by medical personnel if he relied upon those statements).

We do not find Wilson applicable to this case. This case is more analogous to the situation in Lovelace v. Four Lakes Development Co. (1988), 170 Ill. App. 3d 378, 523 N.E.2d 1335. In Lovelace, the Second District Appellate Court held that although substantively inadmissible evidence may be admissible for the limited purpose of explaining the basis for an expert’s opinion, the expert must show that reliance on the evidence was both customary in his field and reasonable. (Lovelace, 170 Ill. App. 3d at 382-83, 523 N.E.2d at 1338.) The court there, however, stated that the proponent of otherwise inadmissible evidence would not be allowed to circumvent the exclusion of the evidence merely by finding an expert to rely upon the evidence in forming his opinion. Lovelace, 170 Ill. App. 3d at 384, 523 N.E.2d at 1339.

Likewise, here, testimony concerning other automobile manufacturers was inadmissible state of the art evidence and was irrelevant to plaintiff’s case. Therefore, any reliance by defendant’s experts upon this evidence would be unreasonable. In fact, it is unclear whether defendant’s experts even actually relied upon the Performance Data booklet in reaching their conclusions, inasmuch as they testified at trial that they believed the Model 1900 was safe because it had inflation reserve loads of 117% and 137.5% and not because they had compared the Model 1900 to other vehicles.

Defendant’s seventh and last issue on appeal is that it was denied a fair trial because it was not allowed to introduce evidence of lack of prior complaints or claims concerning the tire reserve load capacity on its Model 1900. Defendant asserts that this evidence should have been admitted to rebut the plaintiff’s claim that the Opel Kadett tires were defectively designed. The plaintiff responds that this evidence was inadmissible because defendant failed to lay the proper foundation for the evidence.

A party seeking to introduce evidence concerning a lack of prior claims must first lay the proper foundation for the admission of the evidence. (Salvi v. Montgomery Ward & Co. (1986), 140 Ill. App. 3d 896, 905, 489 N.E.2d 394, 400.) The proponent of such evidence must show that the absence of such claims occurred when others were using the same product as the injured party under conditions substantially similar to those conditions present when the injury occurred. (Myre v. Kroger Co. (1988), 176 Ill. App. 3d 160, 167-68, 530 N.E.2d 1122, 1126; Salvi, 140 Ill. App. 3d at 905, 489 N.E.2d at 400.) A trial court’s decision to admit or refuse to admit evidence is a matter of discretion, and its decision should be reversed on appeal only if the court has abused its discretion. Myre, 176 Ill. App. 3d at 168, 530 N.E.2d at 1126.

Here, defendant’s expert Parrottino testified, in an offer of proof, that he was responsible for receiving complaints concerning defendant’s Opel Kadetts and that he had never received a complaint regarding a tire blow out due to overloading. But, defendant failed to provide any evidence that the absence of these complaints occurred when others were using the same product as the plaintiff under conditions substantially similar to those present here. Further, on cross-examination in defendant’s offer of proof, Parrottino admitted that he might be unaware of some tire blow outs that had occurred on Model 1900s. For example, Parrottino said he might not learn of a blow out if the Model 1900 owner merely took the vehicle to a gas station for repairs, without reporting the blow out to the defendant. Consequently, we find that the defendant failed to establish the proper foundation here to admit evidence of lack of prior complaints and that the trial court did not abuse its discretion in excluding this evidence.

Therefore, for all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.

       Justice Quinlan participated in this decision prior to his assignment to the sixth division.

      The plaintiff had additionally filed suit against Uniroyal, but later reached a settlement with Uniroyal before the case proceeded to trial. As part of his settlement with Uniroyal, plaintiff specifically agreed that he would not pursue a cause of action against General Motors for a manufacturing defect.


author: JUSTICE PINCHAM

text:
      In re MARRIAGE OF CAROL J. REINES, Petitioner-Appellant, and EDWARD J. REINES, Respondent-Appellee.
    First District (5th Division)
    No. 1—86—2010
    Opinion filed May 12, 1989.
    — Rehearing denied July 3, 1989.

      Richard S. Cohan, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Melvyn H. Berks, of Des Plaines, for appellee.
   JUSTICE PINCHAM

delivered the opinion of the court:

This is an appeal by Carol J. Reines, petitioner, from an order of the circuit court denying her motion to vacate or modify the judgment of dissolution of petitioner’s marriage to Edward Reines, respondent, as the judgment pertains to the disposition of the marital property. The circuit court entered the judgment of dissolution pursuant to a prove up and the presentation of petitioner and respondent’s property settlement agreement, which agreement was incorporated in the judgment of dissolution. Petitioner moved to vacate or modify the judgment of dissolution on the grounds that material facts relating to respondent’s assets were not disclosed to her, that petitioner was in effect represented by respondent’s attorney, rather than by independent counsel, and that the trial court would not have otherwise entered the judgment had it known of the undisclosed material facts of respondent’s assets. On the basis of the following, we reverse the trial court’s order denying petitioner’s motion to vacate the judgment.

The Reines’ marital settlement agreement provided in pertinent part as follows:

“WHEREAS, the husband and wife each having made full disclosure to the other of all their assets:
WHEREAS, the husband and wife wish to enter into this Marital Settlement Agreement dealing with all property rights, child custody and support, maintenance and attorney’s fees;
Therefore, in consideration of the foregoing premises and the following premises:
IT IS AGREED:
* * *
ARTICLE II
WAIVER OF MAINTENANCE
The husband and wife in consideration of the mutual promises and undertakings set forth in this agreement, agree to waive against the other any and all claims for maintenance whether past, present or future.
ARTICLE IV
CHILD CUSTODY AND SUPPORT The husband will pay to the wife, as and for the support of the minor children the sum of $530 per month. In addition the husband will pay all medical, dental and optical expenses for the minor children. The wife shall have the sole care, custody, education and control of the minor children *** with the husband to have liberal rights of visitation.
ARTICLE V
REAL ESTATE
The parties now own two parcels of real estate in joint tenancy located at 1509 North Kolin Avenue in Chicago being a two flat building and 6808 West Ardmore, Chicago, Illinois which is a single family home. The income from the Kolin property will be used first to pay the mortgages on both properties and monies in excess of said mortgages will be divided equally by the parties. The wife shall have the sole and exclusive right to reside in the Ardmore property. That both properties are to remain in joint tenancy. If said properties are sold either party shall have the first right to purchase the property. The wife shall have the right to reside in the Ardmore property until the children are emancipated.
ARTICLE VI
MUTUAL WAIVER
The husband and wife hereby waive any and all claims against the other for maintenance, homestead, dower, and all other property rights, whether real, personal, or mixed, whether now owned or hereafter acquired including but not limited to any rights to the proceeds of any life insurance policies on the life of either party. Other than those rights and provisions hereto contained and reserved in this Marital Settlement Agreement each party is forever barred and foreclosed from asserting any of the aforesaid rights, which they have agreed to waive against the other.” (Emphasis added.)

Following the dissolution of the marriage, petitioner, a secretary, moved to vacate or modify the judgment of dissolution as it pertained to the disposition of property and further sought a rule to show cause against respondent, a police officer, for allegedly failing to comply with the support provisions of the judgment of dissolution. In her petition to vacate or modify the judgment of dissolution, petitioner stated that she and respondent had retained the same attorney and that respondent had prepared a draft of the property division and directed the attorney to draft an agreement according to respondent’s wishes. Petitioner alleged that she had not been informed of, nor had she received full disclosure of, all of respondent’s assets when she entered into the marital settlement agreement.

Petitioner’s section 2 — 1401 petition (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) alleged that the property settlement agreement signed by the parties failed to consider the various properties owned by them, or to designate marital as opposed to nonmarital property, or special equities, that the court was not advised of the facts which would lead to specific findings of the property classification; that substantial property and important facts were omitted from the agreement and were not referred to after prove up so that the court was unable to make any disposition with respect thereto.

The section 2 — 1401 petition further alleged that the marital settlement agreement was “manifestly unfair” to petitioner because respondent was thereby allowed to retain possession of a $9,000 boat without a similar credit to her; that respondent retained his undisclosed credit union account, his undisclosed pension and profit-sharing plans, undisclosed bonds and other undisclosed investments he purchased through payroll deductions, while no interest or equivalent provision was given petitioner for any of these undisclosed assets of respondent.

The section 2 — 1401 petition also alleged that no provision was made for various life insurance policies maintained by petitioner or for the college education of the parties’ two teenage children. Also, according to the petition, a portion of the rental income earned on the two-flat apartment building, which was a gift from petitioner’s grandmother, was used to pay part of the mortgage payments on the marital residence, but petitioner received no recognition or benefit in the property settlement agreement for the nonmarital or special equitable interest she had in these two properties.

Petitioner also contended in her petition that she and respondent made separate oral agreements which were not reflected in the marital settlement agreement to the effect that petitioner and respondent were each responsible for payment of one-half of the remaining balance on the mortgage payments on the single-family marital dwelling which the rental income from the two-flat apartment building did not cover, and that respondent agreed to pay any repair costs arising on the single-family marital dwelling, but that respondent breached each of these oral agreements.

Additionally, petitioner alleged in her petition that her father had loaned petitioner and respondent $8,000 for the purchase of the single-family marital dwelling, but that no provision had been made for the division of proceeds in the event of the sale of the single-family marital dwelling.

Finally, the petition alleged that respondent had not complied with the child support obligations as provided in the marital settlement agreement and that petitioner was not provided sufficient information about respondent’s wages or income to determine whether support payments were fair or proper within the guidelines of the court.

Petitioner’s petition prayed for a rule against respondent to show cause why he should not be held in contempt of court for his failure to make monthly child support payments; that the judgment of dissolution be vacated or modified as to the property settlement agreement; and that the court permit discovery for the purpose of reassessing the proper allocation of marital and nonmarital property.

In response to petitioner’s written interrogatories, respondent acknowledged that throughout 1985, $150 and $250 deductions were made from each of his paychecks as “miscellaneous” items; but he denied that he owned any stocks, bonds, debentures, certificates of deposit, interest in real estate, business interests or any other assets. Respondent also denied that he owned any interest in any property on which his name did not appear of record.

Petitioner amended her petition to vacate or modify the judgment of dissolution, and in her affidavit in support thereof she stated that there was no fiduciary relationship with her attorney, that although she was “technically being represented by counsel,” “for all practical purposes she was without legal counsel.” The affidavit averred that respondent handled all the business and financial matters of their family and that she could only afford a divorce if it were conducted according to his terms or otherwise she would “lose everything”; that respondent selected the attorney, took petitioner to the attorney’s office and provided the attorney with the information upon which the property settlement agreement was prepared and signed. The affidavit also alleged that, petitioner was never shown respondent’s payroll records as proof of his earnings and that the support payments ordered by the court were therefore based upon insufficient information.

Respondent told the attorney who represented them in the dissolution proceedings that his policeman’s pension and retirement funds were unrelated to the divorce. Through discovery, and after retaining different counsel, petitioner learned of the previously undisclosed “miscellaneous” payroll deductions from respondent’s payroll checks, which she maintained would have been a significant factor in the proper assessment of child support payments and the disposition of their property rights.

In response to petitioner’s amended petition to vacate or modify the judgment of dissolution as it pertained to the disposition of property, respondent contended that petitioner had been represented by counsel during the dissolution proceedings and he appeared pro se. Respondent contended further that petitioner acknowledged both the existence of his various assets and her agreement to waive any and all interest therein; that the agreement was not unconscionable or fraudulent as petitioner alleged; and that the petition to vacate or modify the judgment of dissolution was insufficient at law.

Petitioner thereupon moved for an order to obtain full discovery and disclosure of the assets which the parties owned prior to the dissolution of their marriage in support of her amended petition to vacate or modify the judgment of dissolution and informed the court that she had repeatedly, to no avail, requested information about respondent’s police pension and other benefits which he had not voluntarily produced. Further, the petition stated, no determination of the conscionability of the property division could be properly made without respondent’s full disclosure of his assets.

The trial court struck petitioner’s petition to vacate or modify the judgment of dissolution and denied her request for discovery. Petitioner moved for reconsideration of the court’s order and contended that she was disadvantaged at the hearing on the motion to reconsider because she had still not received full disclosure of respondent’s assets and that in the absence of discovery she was handicapped in her attempts to argue the unconscionability of the property division. The trial court denied petitioner’s motion for reconsideration.

On appeal, petitioner first contends that the trial court erred in striking her petition to vacate or modify the judgment of dissolution as it pertains to the disposition of property because the property settlement agreement was unconscionable and that she was therefore entitled to the equitable relief, vacation or modification of the judgment of dissolution as it pertained to the property settlement agreement, for which she prayed in her petition. We agree.

It is well settled that a court may vacate or set aside a settlement agreement entered pursuant to the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1985, ch. 40, par. 502(b).) In In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 929-30, 428 N.E.2d 1005, the court stated:

“Section 502(b) of the Illinois Marriage and Dissolution of Marriage Act [citation] has changed Illinois law with respect to determining the validity of separation agreements. [Citation.] Pursuant to section 502(b) the terms of a separation agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds that the agreement is unconscionable. However, this section does not eliminate many of the traditional grounds for setting aside settlement agreements, including fraud, coercion and violation of any rule of law, public policy or morals. [Citation.]” (Emphasis added.)

In Carlson, the court held that the judgment incorporating the settlement agreement “was properly vacated because the agreement is unconscionable.” (101 Ill. App. 3d at 930.) The court stated the standard of unconscionability (as it is found in the Smith-Hurd historical and practice notes (1980), section 502(b)), to be:

“[The] standard [of unconscionability] as it relates to separation agreements includes ‘protection against overreaching, concealment of assets, and sharp dealing not consistent with the obligations of marital partners to deal fairly with each other.’ *** In order to determine whether the agreement is unconscionable, the court may look to the economic circumstances of the parties resulting from the agreement, and any other relevant evidence such as the conditions under which the agreement was made, including the knowledge of the other party.” (Emphasis added.) Ill. Ann. Stat., ch. 40, par. 502(b), Historical and Practice Notes, at 401 (Smith-Hurd 1980).

The court in Carlson stated further:

“The term ‘unconscionability’ includes ‘an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.’ [Citation.] A contract is unconscionable when it is improvident, totally one-sided or oppressive. [Citations.]” Carlson, 101 Ill. App. 3d at 930.

In this case sub judice, the trial court summarily denied petitioner’s motion to conduct discovery to establish her claim that her husband had artfully concealed certain material property and assets, had dictated the terms of the settlement agreement and had employed his own attorney to effectuate these purposes, even though the attorney ostensibly appeared on the wife’s behalf. In In re Marriage of Lorenzi (1980), 84 Ill. App. 3d 427, 405 N.E.2d 507, the trial court likewise denied a post-judgment petition to vacate or set aside a property settlement agreement and denied the petitioner an evidentiary hearing. The husband in Lorenzi testified at the uncontested hearing for divorce and related the terms of an oral settlement agreement with his wife in which they agreed that he would retain the marital home, pay various debts and receive all nonmarital property other than certain personal property belonging to the wife. The wife later moved to set aside the judgment of dissolution, contending that she was tricked in the proceeding and had not agreed to the division of the property as her husband had related it to the court. The husband filed affidavits in opposition to the wife’s petition. The trial court entered findings of fact and accepted the affidavits of the husband to the effect that the property in question was premarital and that the wife therefore had no interest in that property. On appeal, however, the appellate court held that the affidavits of the husband were contradictory and should not have been resolved in a summary judgment hearing. The Lorenzi court stated:

“It is apparent from both the petitions and answers thereto that the matters at issue were dehors the record and could not be determined by the court’s examination of the record in this case. ‘Section 72(2) of the Civil Practice Act [now designated as Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401], provides that, as to the matters not of record, the petition must be supported “by affidavit or other appropriate showing.” This, together with section 69(2) of the Civil Practice Act (Ill. Rev. Stat. 1963, ch. 110, par. 69(2)), indicates that the evidence may be presented and the issues tried by affidavit, at least where the facts set forth in the affidavit do not controvert one another.’ [Citation.] Where, as here, however, the facts are controverted, the proof should be presented at an orderly hearing by examination of witnesses under oath, subject to cross-examination. [Citations.]” (Emphasis added.) 84 Ill. App. 3d at 432.

Similarly, in Zieske v. Zieske (1976), 41 Ill. App. 3d 746, 354 N.E.2d 513, the court held that the former husband was entitled to an evidentiary hearing where his section 72, currently section 2 — 1401, petition alleged that the former wife had failed to disclose to him certain material facts, including matters challenging the propriety of the property settlement agreement. The following provisions of the property settlement agreement in Zieske were also incorporated into the divorce decree and commenced with a recital similar to the agreement in the case sub judice:

“ ‘The parties hereto, after full disclosure of all pertinent facts, have amicably agreed to settle their respective rights and obligations.’ ” 41 Ill. App. 3d at 747.

Moreover, the husband’s section 72, currently section 2 — 1401, petition in Zieske, alleged, inter alia:

“[Pjlaintiff, through coercion and fraud, forced defendant to enter into the agreement full well knowing its inequity. Defendant further stated that the parties met with plaintiff’s attorney prior to the entry of the property settlement agreement in an attempt to reconcile their differences. At the time, defendant alleged that he believed the attorney was aiding both parties.” 41 Ill. App. 3d at 747.

The Zieske court concluded:

“ ‘The law is well settled that parties to an action for divorce may adjust between themselves the amount required for the future support of a "wife by a husband, and that they may, if such a course is desired, voluntarily effect a settlement of their property interests. [Citations.] When such agreements are made a part of the divorce decree, they become merged in such decree and are regarded as contracts between the parties which, if fairly made and in good faith, will be accepted and enforced by the courts. [Citations.] They will, however, be set aside and vacated for fraud or coercion practiced by either party, or if contrary to any rule of law, public policy or morals. [Citations.] *** [Contracts of such nature are, in theory, in furtherance of the duty incumbent upon a husband to support his wife. Thus the interest of the public, as well as that of the parties, is involved, and public policy requires that such contracts be not only free from taint *** and sufficient, having regard to the station in life and the circumstances of the parties.’ ” (Emphasis added.) 41 Ill. App. 3d at 748.

The court in Zieske found that the trial court erred in not allowing the defendant to present testimony and evidence in support of his petition for post-judgment relief and held that “a complete evidentiary hearing is necessary to determine the justiciability of defendant’s position.” 41 Ill. App. 3d at 749.

In the present case, the record undisputedly reveals that respondent failed to disclose his interest in a pension and retirement plan based upon his 23-year tenure in the Chicago police department. The law clearly allows the evaluation of a spouse’s pension plan for the purpose of apportioning marital assets. In re Marriage of Fair-child (1982), 110 Ill. App. 3d 470, 442 N.E.2d 557; In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300; In re Marriage of Kundit (1982), 107 Ill. App. 3d 310, 437 N.E.2d 77; In re Marriage of Evans (1981), 85 Ill. 2d 523; In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.

If the trial court in the instant case had been made. aware of respondent’s undisclosed pension benefits, the court could have and would have included the pension benefits in the couple’s property settlement agreement. Moreover, petitioner’s section 2 — 1401 petition brought to the attention of the court several other assets,' respondent’s credit union account, withdrawals from that account, payroll deductions from his salary as a police officer, bonds and other investments, which respondent failed to disclose prior to entering into the settlement agreement with petitioner. Petitioner was thus deceived into disclaiming any maintenance on the part of her husband.

In addition, the parties agreed that the income from the two-flat apartment building, a gift to petitioner from her grandmother, would be used to repay the mortgages on both the two-flat apartment building and the single-family marital residence and that respondent would keep the single-family dwelling in good repair. Respondent failed to repair the property according to his oral agreement with petitioner, which was not incorporated in the written property settlement agreement and the judgment of dissolution.

We conclude that the foregoing inequities, respondent’s failure to disclose fully his assets, as well as his retention of an attorney who counseled both spouses, rendered the judgment of dissolution unconscionable by the standards enunciated in Carlson and Zieske. The trial court erred in refusing to inquire further into the assets and conduct of respondent to determine whether he had, as alleged by petitioner, concealed the existence of material assets.

Petitioner also contends that the trial court abused its discretion in denying her the right of discovery in pursuit of her claim that respondent failed to disclose fully his assets and thereby compromised the fairness and conscionability of the settlement agreement. We agree.

In the context of a section 2 — 1401 petition, the petitioner’s right to discovery in order to support the petition with proof of the facts alleged therein has been upheld. In People v. MacKay & Sons, Inc. (1986), 141 Ill. App. 3d 137, 490 N.E.2d 74, the prosecution sought an order of contempt in a section 2 — 1401 proceeding against the defendant for failure to respond to the State’s requests for discovery. The defendant contended that “there was no authority for discovery in a section 2 — 1401 proceeding.” On appeal, the court in MacKay held that discovery should be permitted in a section 2 — 1401 proceeding to prevent a party from reaping a benefit from his own fraudulent conduct. 141 Ill. App. 3d at 140-41; Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513.

Respondent’s response to petitioner’s section 2 — 1401 petition to vacate or modify the judgment of dissolution did not deny that he had pressured his wife into acceptance of the settlement agreement on a “take it or leave it” basis, as she alleged. Nor did respondent deny that he retained an attorney to represent both his wife and himself. Therefore, as in MacKay, the trial court in the instant case should have permitted petitioner to proceed with discovery in support of her claim that the settlement agreement was procured by fraud or duress.

Petitioner lastly contends that her section 2 — 1401 petition was a proper method by which to attack the validity and fairness of the property settlement agreement which was incorporated into the judgment of dissolution. We agree.

In In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 428 N.E.2d 1005, the court set forth the basic elements entitling a party to relief from a dissolution of marriage judgment under section 72, currently section 2 — 1401, of the Civil Practice Act. The court granted the petitioner relief and stated, inter alia:

“A motion for relief under section 72 of the Civil Practice Act [citation] is addressed to the equitable powers of the court. [Citations.] Whether the petition should be granted lies within the sound discretion of the court and depends upon the facts and equities presented. [Citations.] *** Furthermore, this court is justified in disturbing the judgment of the trial court only when it finds that the discretion vested in the trial court has been abused. [Citations.]” 101 Ill. App. 3d at 929.

Also, the court in Zieske v. Zieske (1976), 41 Ill. App. 3d 746, 748, 354 N.E.2d 513, ruled:

“Assuming sufficient grounds, relief from a divorce decree may be had through a petition filed under section 72 of the Civil Practice Act. [Citation.] A decree of divorce procured through the fraud of either party may be vacated or modified under the section. [Citation.]”

A motion to dismiss a section 2 — 1401 petition is tested by the same standards as any motion to strike or dismiss a pleading. A motion to strike or dismiss a pleading should be denied only when the well-pleaded allegations, considered in a light most favorable to the nonmovant, indicate that no set of facts could be proven upon which the petitioner would be entitled to the relief requested. (Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444, 449, 434 N.E.2d 476.) In addition, the motion to strike or dismiss is directed, not to the factual sufficiency of the pleadings, but to their legal sufficiency. Browder v. Hanley-Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 379 N.E.2d 1206.

We conclude that petitioner’s amended section 2 — 1401 petition, supported by affidavit, presented sufficient facts, if true, to entitle petitioner to relief from the property settlement agreement incorporated in the judgment of dissolution. In re Marriage of Lorenzi (1980), 84 Ill. App. 3d 427, 405 N.E.2d 507.

Further, respondent’s motion to strike and dismiss the petition to vacate or modify the judgment of dissolution did not controvert the allegation in the petition that the written settlement agreement did not incorporate the terms of the aforesaid oral agreements between the spouses. This factor alone required the trial court to grant petitioner an evidentiary hearing under the holding of Lorenzi. 84 Ill. App. 3d 427.

The order of the trial court denying petitioner’s section 2 — 1401 petition is reversed, and the portion of the judgment of dissolution of marriage as it pertained to the incorporated property settlement agreement is vacated. This cause is remanded for further proceedings on the issues raised in the petition.

Reversed and remanded.

LORENZ and COCCIA, JJ., concur.


author: JUSTICE McMORROW PRESIDING JUSTICE JIGANTI,

text:
    SAVAGE MANUFACTURING AND SALES, INC., Defendant-Appellant and Third-Party Plaintiff-Appellant, v. PAUL DOSER, Plaintiff-Appellee (Chrysler Motors Corporation, Third-Party Defendant-Appellee).
    First District (4th Division)
    No. 1—87—1720
    Opinion filed May 18, 1989.
    — Rehearing denied June 29, 1989.
    JIGANTI, P.J., dissenting.

      Burr E. Anderson, of Speckman & Anderson, of Chicago, for appellant.
    Bernard R. Nevoral, of Bernard R. Nevoral & Associates, Ltd., of Chicago, for appellee Paul Doser.
    Pappas, Power & Marcus, of Chicago (Debra K. Marcus and William R. Power, of counsel), for appellee Chrysler Motors Corporation.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant Savage Manufacturing and Sales, Inc. (Savage), appeals from a judgment entered upon a jury verdict that found Savage strictly liable in tort for injuries to plaintiff Paul Doser (Doser) proximately caused by Savage’s failure to provide safety guards or adequate warnings on a hydraulic machine press. Doser’s left-hand finger was amputated by the press while Doser was aiding a fellow Chrysler employee assigned to operate the press. Savage also appeals from trial court orders that severed Savage’s third-party contribution claim against Doser’s employer, Chrysler Motors Corporation (Chrysler), and thereafter dismissed the third-party claim because of a settlement reached between Doser and Chrysler.

We reverse.

Evidence at trial established the following facts surrounding Doser’s injury and Chrysler’s purchase of the hydraulic press. Doser was injured on August 8, 1979, when the ram of a hydraulic press was activated and amputated a finger on his left hand. No mechanical failure or malfunction of the press caused or precipitated the injury. At the time of the accident, Doser was an employee at Chrysler’s Belvidere automobile plant. Doser was experienced at operating the press which caused the injury. He admitted at trial that he knew the press was to be operated by only one person at a time.

On the date of the injury, Doser had completed his assigned tasks at his hydraulic press and volunteered to assist a fellow employee, Willie Wilcox (Wilcox), in using Wilcox’ machine to press bushings onto ■ the “knuckle” of automobile steering systems, which was normally a front-feed operation. To help Wilcox in performing this work, Doser side fed certain parts into the press. Wilcox then front fed other parts into the press and, using both, hands, pressed two palm buttons located on the front of the machine. Once Wilcox activated the machine by simultaneously pressing both buttons, the ram of the press descended upon the parts and forced them together into place. Doser’s left-hand finger was severed when Wilcox prematurely activated the dual palm buttons, causing the ram to descend on Doser’s hand.

Chrysler purchased the press from Savage in 1973 following Chrysler’s provision of specifications to and receipt of quotations from a manufacturing machine broker. Chrysler indicated to Savage that the press was to be manufactured without a “point of operation,” i.e., without dies or other toolings. The press purchased by Chrysler complied with the requirement that it have no point of operation, and Chrysler installed dies on the press when received from Savage. The press was designed, manufactured and sold with the following safety features: dual palm buttons, which required that both hands of the operator be used simultaneously to activate the machine; an anti-tie-down feature, which prevented one of the palm buttons from being tied down into a permanently activated position; guards around the palm buttons, extending the same distance from the machine as the buttons, which prevented activation of the palm buttons by accidental contact; and an anti-repeat feature, which prevented the press from automatically repeating the downward stroke of the ram. The press also carried a warning on the front which stated, “Never place your hands in the die area.” A manual which was sent to Chrysler with the press included safety instructions that warned against operation of the press by two persons at the same time.

Doser’s expert witness testified that, in his opinion, the Savage press Chrysler purchased was dedicated to a single use and was therefore unifunctional. The expert further testified that in his opinion the press was unreasonably dangerous because it was not equipped with safety guards around the point of operation of the machine. The expert explained that safety guards could have been either fixed barrier guards, interlocking barrier guards, adjustable barrier guards, or presence-sensing devices such as light curtains, radio frequencies, or infrared light curtains. Doser’s expert also stated that the press should have clearly and specifically carried a warning against two-persons operation of the press.

The expert witness who testified on behalf of Chrysler disagreed with Doser’s expert on each of these points. Savage’s expert testified that in his opinion the hydraulic press was a multifunctional machine; because its use was multifunctional, it was his opinion that Savage could not have reasonably equipped the press with safety guards around the machine rams when the press was manufactured and sold to Chrysler. Savage’s expert also gave his opinion that the warnings were adequate.

The jury returned a verdict in favor of Doser and against Savage, and awarded Doser a total of $205,000 in damages. The jury also found that the fault attributable to Doser warranted reduction of the award by 20% (amounting to $41,000), causing a net verdict in favor of Doser in the amount of $164,000. The court entered judgment in accordance with the jury’s verdict and denied Savage’s post-trial motion. Savage appeals.

Savage argues that the jury’s verdict must be reversed because the evidence showed that the hydraulic press was equipped with adequate safety features and sufficient warnings. With regard to whether the press should have been made with safety guard surrounding the point of operation, Savage maintains that plaintiff’s evidence established that no guards were required. Savage’s argument is premised on the testimony of plaintiff’s expert that if the press was multifunctional, it could not be equipped by Savage with any particular kind of point of operation safety guard. Savage asserts that the documents submitted to it by Chrysler’s broker, and the multiple uses to which Chrysler put the press after it was purchased by Chrysler, demonstrated that the press was multifunctional. Based on these arguments, Savage maintains that the press it sold to Chrysler was not unreasonably dangerous. We agree.

The record shows that the plaintiff’s expert witness testified that in his opinion, Savage should have ascertained whether Chrysler intended to use the press for a single purpose or for multiple purposes. Plaintiff’s expert further testified that such an inquiry by Savage would have revealed that Chrysler intended to use the press for a single purpose. Based on this conclusion that Chrysler intended the press to be unifunctional as opposed to multifunctional, plaintiff’s expert testified that the press, as a unifunctional machine, could have been readily equipped with various types of safety guards at the point of operation.

However, a manufacturer has no duty to inquire whether a machine is intended for single or multiple use by a purchaser. “Needless to say, this would require the manufacturer to confer with every prospective buyer and make a judgment, at his peril, of what the buyer needed. Alternatively, the manufacturer would be under a duty to recommend to or provide the buyer all of the accessories [or safety guards] available regardless of how limited was the intended use. No case has been cited, or do we think one exists, extending the doctrine of strict liability to this extreme.” (Emphasis in original.) (Weiss v. Rockwell Manufacturing Co. (1973), 9 Ill. App. 3d 906, 912, 293 N.E.2d 375.) The opinion of the plaintiff’s expert that the hydraulic press was unifunctional was premised on the assumption that Savage had a duty to inquire whether Chrysler intended the hydraulic press for unifunctional or multifunctional use. Contrary to the opinion of plaintiff’s expert, Savage had no duty to so inquire of Chrysler in the case at bar.

Plaintiff produced no evidence at trial to show that Savage had been informed by Chrysler of the particular use to which Chrysler originally intended to put the hydraulic press. Defendant’s expert testified that if Chrysler did not inform Savage of the particular use to which Chrysler intended to put the press, the documents received by Savage indicated that Chrysler intended the hydraulic press to be multifunctional. Thus defendant’s expert stated that, in his opinion, Savage provided Chrysler a multifunctional hydraulic press. Plaintiff’s expert presented no testimony disputing the conclusion of defendant’s expert to the effect that the documentation received by Savage indicated an order for a multifunctional hydraulic press. Plaintiff’s expert agreed at trial that it would be virtually impossible to provide safety guards at the point of operation of Savage’s hydraulic press if the press were intended for multifunctional use. Plaintiff’s expert also admitted at trial that Savage’s failure to provide safety guards at the point of operation was not unreasonably dangerous if the press were multifunctional rather than unifunctional. This evidence proved, without contradiction, that Savage’s press was not unreasonably dangerous for lack of safety guards at the point of operation. See generally Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 504 N.E.2d 772; Rios v. Niagara Machine & Tool Works (1973), 12 Ill. App. 3d 739, 299 N.E.2d 86, affd (1974), 59 Ill. 2d 79, 319 N.E.2d 232; Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74; Soto v. E.W. Bliss Division of Gulf & Western Manufacturing Co. (1983), 116 Ill. App. 3d 880, 452 N.E.2d 572.

On appeal, plaintiff maintains that the multifunctional nature of Savage’s press does not dispose of the question of whether the press was unreasonably dangerous. In this regard, plaintiff relies upon Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 319 N.E.2d 232. In Rios, the Illinois Supreme Court commented, “Although the multifunctional nature of a product would be a factor to consider in determining whether a product is unreasonably dangerous, it would not necessarily be decisive of that question.” 59 Ill. 2d at 86-87.

We do not believe this statement by the Illinois Supreme Court in Rios should be interpreted to relieve the plaintiff in this case of his burden to produce evidence that Savage’s press, as a multifunctional product, was unreasonably dangerous. The record shows that plaintiff produced no evidence to establish how Savage’s press, as a multifunctional machine, could have reasonably been fitted with safety guards at the point of operation. Plaintiff’s expert witness testified that Savage’s press was not unreasonably dangerous, as a multifunctional press, for failure to provide safety guards at the point of operation. Thus the record shows that plaintiff produced no evidence to establish that Savage’s press, as a multifunctional machine, was unreasonably dangerous for lack of point of operation safety guards. Accordingly, we find plaintiff’s reliance upon the legal principle recognized in Rios insufficient ground to affirm the trial court’s judgment.

Savage also argues that the hydraulic press was not unreasonably dangerous because of inadequate warnings. We agree. The danger of injury from two-person operation of the press, wherein one worker would place his hands in the die area without having to remove his hands in order to operate the press, was open and obvious, and Doser so conceded when he admitted at trial that he knew the press was not to be used simultaneously by two workers. Furthermore, Savage placed a warning on the front of the machine advising “[njever place your hands in the die area,” and provided an additional warning in an operating manual that accompanied the press against two-person operation of the machine. Given these considerations, we conclude that the hydraulic press was not unreasonably dangerous because of inadequate warnings. See, e.g., Anderson v. Dreis & Krump Manufacturing Co. (Wash. App. 1987), 739 P.2d 1177; see generally Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.

In light of these conclusions, we must reverse the judgment entered in favor of Doser at trial. Other arguments raised upon review need not be addressed.

Reversed.

JOHNSON, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

The majority holds that Savage’s press was multifunctional and therefore not unreasonably dangerous for lack of safety guards at the point of operation. With this holding, the majority opinion stands for the proposition of law that a press without safety guards at the point of operation is not unreasonably dangerous if it is multifunctional. However, this is not the law. In Illinois, the manufacturer is under a nondelegable duty to produce a product which is reasonably safe and such duty is not obviated because a product is multifunctional. (Medina v. Air-Mite Devices, Inc. (1987), 161 Ill. App. 3d 502, 508, 515 N.E.2d 770, 774; Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 986, 326 N.E.2d 74, 84.) Although the multifunctional nature of a product may be a factor to consider in determining whether a product is unreasonably dangerous, it is not, as the majority opinion indicates, determinative of that issue. Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 86-87, 319 N.E.2d 232, 236.

In the instant case, the plaintiff’s expert testified that based on the documents he reviewed as well as his experience in selling presses, Savage knew that the press would be used to press bushings. Savage also knew the press required several ram dimensions in order to fit the existing tooling which Chrysler intended to attach to the ram. The expert concluded that based on this information, Savage could have guarded the point of operation with one of four types of guards used throughout the press industry. According to the expert, these guards were suitable for the subject press and would have protected the operator as well as others in the area of the press from coming in contact with the point of operation. In his opinion, the press was unreasonably dangerous without one of these guards. The expert acknowledged that at the time of the incident the press was being used for a different purpose. However, the expert testified that the modification of a press to perform a different function did not change his opinion that the press was unreasonably dangerous for failure to properly guard the point of operation.

Although the defendant’s expert disagreed with the plaintiff’s expert’s testimony, a jury verdict should not be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 530, 504 N.E.2d 772, 776.) Viewing the evidence in the light most favorable to the plaintiff, I cannot say that the jury verdict is against the manifest weight of the evidence. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412, 476 N.E.2d 1232, 1236.) Therefore, I would affirm the decision of the trial court.