dissenting:
After viewing the evidence in the light most favorable to plaintiff-appellee, I do not believe the findings of the trial court were against the manifest weight of the evidence, and therefore I would affirm the judgment of the trial court in favor of plaintiff.
The evidence at trial conflicted. In a bench trial, the trial court has the responsibility to determine the credibility of witnesses, to weigh the testimony, and to resolve conflicts in the evidence. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 235, 445 N.E.2d 418, 423.) Both parties presented evidence to support their respective positions. This court should not second-guess the trial court’s determination of the factual issues in this case.
On the issue of negligence, plaintiff provided one expert, Harrenstien, and defendant provided three experts, Bolcer, Noble and Miller. The majority points out that Harrenstien did not have any experience or training in the field of automotive or truck design or manufacture, or in the design or manufacture of ingress/egress systems for trucks. In contrast, two of defendant’s experts had education, training and experience specifically in the automotive and truck industry. Defendant, however, did not dispute on appeal that Harrenstien was qualified to be an expert witness. In fact, Harrenstien’s educational background, combined with his experience and training in the design of stairways, ramps and ladders for ingress to and egress from buildings, would render him a qualified expert.
Once an expert has been qualified, the expert’s background may be considered by the trier of fact in according weight to the expert’s opinion. (Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 98-99, 476 N.E.2d 1378, 1384.) Even though Bolcer and Noble qualified as expert witnesses, the trial court could have considered their opinions biased because of their extensive past employment with automobile and truck manufacturers. Bolcer had worked for Chrysler in the past, had worked for the defendant for 20 years, and at the time of trial was, in fact, still employed by the defendant. Noble worked for Chrysler for 30 years. Both men earned a degree of master of automotive engineering from the Chrysler Institute of Engineering. Consequently, neither Bolcer nor Noble could have rendered very objective opinions. The trial court could have accorded less weight to the testimony of Bolcer and Noble because of their employment in and probable bias toward the automotive and truck industry in general and toward the defendant in particular.
Plaintiff sufficiently impeached defendant’s third expert witness, Miller, so that the trial court could have properly discounted Miller’s testimony. Miller had the proper educational background to qualify him as an expert. Unlike Bolcer and Noble, Miller did not have any direct experience in the automotive or truck industry. Plaintiff, however, introduced into evidence a deposition which Miller had given in a pending Texas case, Patterson v. Ford Motor Company. Patterson involved a plaintiff injured in a dismount from the cab of a Ford truck. In Patterson, Miller testified for plaintiff and against Ford. Although the truck and step system in Patterson were not identical to those in the case at bar, Miller, in his deposition, rendered several of the same opinions regarding the step system as did Harrenstien in the case at bar. In order to prevent slippage, Miller recommended the use of a step with a sharp, rather than a rounded, edge; a three-point support system which did not involve a swinging door; and a system which allowed the ball of the foot to hit the step.
Plaintiff also introduced into evidence an article written by Miller in 1976 which stated:
“Access!exits for trucks. It has been estimated that about one-fourth of all driver injuries are associated with slips and falls in and around the tractor, and these injuries may be responsible for a large percentage of the permanent long-term disabilities, particularly with respect to back injuries. These falls seem to occur under three different types of tasks; the first is getting into and out of the cab itself just for the purposes of driving ***.”
In this article, Miller also noted that the Bureau of Motor Carrier Safety recommended that ladders with larger steps, handholds and skid-free step surfaces would help reduce slip and fall accidents.
Furthermore, plaintiff introduced into evidence two very different resumes Miller had published. In the 1979 resume, Miller cited the consulting work he had performed concerning many different products, including a drop forge hammer and an ice edger machine. Miller did not list this consulting work in the resume he supplied to plaintiff. The trial court noted that Miller had a curious lapse of memory with regard to the prior cases in which he had testified; some of these cases he listed in the 1979 resume. The court also pointed out that Miller admitted testifying for Ford in February of 1986 in New Jersey with regard to a dismount injury from a Ford truck.
All of these prior opinions certainly rendered Miller’s opinion in the case at bar less credible. Miller’s testimony also reduced the strength of Bolcer’s and Noble’s testimony. Both Bolcer and Noble testified that they were unaware of any claims or lawsuits involving an ingress/egress system employing a gas tank step. While this specific gas tank step system and truck may not have been the subject of prior litigation, Miller’s testimony rebutted the implication from Bolcer’s and Noble’s testimony that Ford had not previously participated in a dismount case, or that dismount accidents were infrequent. For the foregoing reasons, the trial court could have properly relied on Harrenstien’s opinion over that of Bolcer, Noble and Miller.
As for the substance of Harrenstien’s testimony, Harrenstien testified that defendant negligently designed the gas tank step system in eight ways. The trial court relied on six of Harrenstien’s eight opinions — opinions two through seven — in order to establish defendant’s negligence. The majority has already summarized these opinions, and the trial court thoroughly discussed these opinions at length in its order. I will not reiterate these opinions. Suffice it to say that I find no error with the trial court’s analysis or decision with regard to these six opinions. Harrenstien’s opinions provided a sufficient basis on which to find defendant negligent. His opinions certainly conflicted with those of defendant’s experts, but the trial court had the responsibility to judge the credibility of the witnesses and weigh the evidence.
The majority contends that while Harrenstien testified as to the defects he found in the gas tank step system, he failed to establish defendant’s lack of due care in the design of said system. The majority points out that Harrenstien was not familiar with the custom and practice in the truck manufacturing industry with respect to gas tank step systems at the time Ford designed and manufactured the system and truck in question. The majority notes that Bolcer and Noble were familiar with industry custom. Bolcer and Noble testified that all of the major truck manufacturers used a similar gas tank step system, that diamond tread was the custom in the industry, and that the height and rounded edge of the step were also designed in accordance with industry custom. In addition, the majority asserts that Bolcer’s and Noble’s testimony with regard to the testing and evaluation procedures used by defendant also established defendant’s due care.
The majority admits, however, that evidence of industry custom, and testing and evaluation procedures are not conclusive on the issue of negligence. (Denniston v. Skelly Oil Co. (1977), 47 Ill. App. 3d 1054, 1068, 362 N.E.2d 713, 723; see Nave v. Rainbo Tire Service, Inc. (1984), 123 Ill. App. 3d 585, 591-92, 462 N.E.2d 620, 625.) Such evidence is merely a factor to be considered when assessing whether a defendant has exercised due care. (Denniston, 47 Ill. App. 3d at 1068, 362 N.E.2d at 723; see Nave, 123 Ill. App. 3d at 591-92, 462 N.E.2d at 625.) Here again, the evidence conflicted. While Bolcer and Noble testified as to industry custom and testing procedures, Harrenstien testified that the gas tank step system was not reasonably safe and that reasonably safe design alternatives were available to defendant at the time Ford designed and manufactured the system. Harrenstien detailed the changes defendant could have undertaken in order to make the system reasonably safe. It is true that a manufacturer only has to provide a reasonably safe product and to exercise reasonable care in designing a product. The trial court, however, could have found that Ford did not exercise due care and that the gas tank step system was not reasonably safe. It was up to the trial court to remedy any conflict in the evidence.
The majority also asserts that although the court found that the system was unreasonably safe, it failed to make any findings with respect to defendant’s conduct in designing and manufacturing the system. The trial court did not discuss in its order defendant’s testing procedures or the industry custom. Nevertheless, it did find that defendant knew, or in the exercise of ordinary care should have known, that the system was not reasonably safe. This finding means that the court determined that defendant did not exercise due care. The court stated that “[t]here was substantial evidence bearing on Ford’s breach of duty, and on the fact that the breach caused the plaintiff to fall and sustain severe injury.” The court spent a lengthy part of its order discussing Harrenstien’s testimony, and it found that defendant, for six specific reasons and in six specific ways, did not exercise due care in designing the system. This finding did not mean the court did not consider Bolcer’s and Noble’s testimony. The court, in resolving the conflicting evidence, merely chose to elaborate on Harrenstien’s opinions, because it relied on Harrenstien’s opinions in finding defendant negligent. Contrary to the majority opinion, the trial court did not blur the distinction between strict products liability and negligence.
I also do not believe that the trial court’s finding that the negligent design of the gas tank step system caused plaintiff's fall was against the manifest weight of the evidence. Plaintiff testified that as he got out of the truck his right foot hit the riser, and he fell and hit his upper and lower back in the fall. Moreover, Harrenstien testified that the design of the gas tank- step system could have caused plaintiff’s fall.
In addition, the trial court did not err in considering as evidence McGlynn’s fall off the gas tank step during the demonstration at trial. McGlynn positioned himself exactly in the same way as plaintiff had been positioned at the time of plaintiff's fall. Although McGlynn’s demonstration was certainly not conclusive proof of causation, the trial court could properly consider the demonstration. Of course, McGlynn could point out to the court that his recent surgery may have caused him to fall and that the circumstances between his fall and plaintiff’s fall were different. Again, while McGlynn’s demonstration was not conclusive on the issue of causation, it was one factor which the court could consider. Thus, the testimony of plaintiff and Harrenstien, combined with McGlynn’s demonstration, provided a sufficient basis for the court to find that defendant’s design of the gas tank step system was the cause in fact of plaintiff’s fall.
The majority points out further that plaintiff could not exactly state what caused him to fall. Plaintiff did testify that he thought his right foot hit the riser as he tried to step down. Harrenstien testified that the gas tank step system was negligently designed because it invited drivers to walk down the step as they would a stairway, and that from the cab, drivers could not discern that it had a closed riser upon which the drivers could hit their heel as they descended. Even if defendant presented conflicting evidence, however, the trial court had the responsibility to judge the credibility of the witness and weigh the conflicting evidence. Defendant spent a great deal of time during the trial attempting to impair the credibility of plaintiff and to find holes in his testimony. Defendant was entitled to do this to defend its case. Nevertheless, the trial court expressly found that plaintiff’s testimony was credible and that it “had a clear understanding from the first day of trial how the accident occurred, and there was nothing in the evidence throughout the remainder of the trial which persuaded the court otherwise.” The court then held that the testimony of plaintiff and Harrenstien, along with the demonstration by McGlynn, established causation. The court weighed the conflicting evidence and found in favor of plaintiff. Thus, the court did not base its decision on the issue of factual causation on speculation or conjecture. The evidence at trial provided the court with a reasonable certainty that defendant’s conduct caused plaintiff’s fall. The court could have reasonably concluded that the alleged defects in the defendant’s design of the gas tank step system were substantial factors in bringing about plaintiff’s accident, or that but for the defects, plaintiff’s accident would not have occurred. (Kerns v. Engelke (1977), 54 Ill. App. 3d 323, 333, 369 N.E.2d 1284.) Therefore, the trial court’s decision was not against the manifest weight of the evidence.
Because the majority did not render an opinion on the issue of damages or on plaintiff’s cross-appeal, I likewise render no opinion on these two issues for purposes of this dissent.