Madison - St. Clair Record

Friday, August 23, 2019

Crowder denies Wal-Mart’s summary judgment request in Byron’s suit; Crowder: Facts are not made undisputed simply by disagreeing

By Heather Isringhausen Gvillo | Feb 21, 2018


Madison County Circuit Judge Barbara Crowder denied Wal-Mart’s request for summary judgment in former Circuit Judge Nicholas Byron’s suit alleging he was injured when a defective saddle stool collapsed.

In her Feb. 14 order, Crowder held that Wal-Mart “cannot make the facts undisputed simply by stating that it disagrees.”

Crowder added that the suit involves disputed issues of material fact on subject matters within the purview of the trier of fact.


Byron

“The court may only grant a motion for summary judgment where the movant’s right to prevail is clear and free from doubt,” Crowder wrote. “Summary judgment may not be granted where there are genuine issues of material fact that prevent entry of a judgment.”

Crowder wrote that the issue before the court is whether Byron can withstand Wal-Mart’s motion for summary judgment where the facts are in dispute and Byron failed to hire an independent expert.

Byron argues he is proceeding under the “consumer expectation” or “risk utility” test for product liability by providing evidence showing the stool failed to safely perform as expected.

Crowder held that Byron “is allowed to create an inference that the product was unreasonably dangerous by direct or circumstantial evidence that there was no abnormal use of the product and the product failed to perform in the manner reasonably expected in light of its nature and intended function.

“The ‘consumer expectation’ test allows a plaintiff to show that there is a design defect that goes beyond a danger an ordinary consumer would contemplate.

“The plaintiff may choose the ‘risk utility’ test by showing a problem with the design. Failure to adequately instruct may also lead to an unreasonably dangerous product,” Crowder wrote.

Byron filed his complaint on Oct. 8, 2015, through attorney Eric J. Carlson of Byron, Carlson, Petri & Kalb LLC.

In his deposition, Byron said he purchased a “Mainstays” brand 24-inch saddle stool from the Glen Carbon Wal-Mart to use in his bedroom as a place to sit while getting dressed. The stool was placed on a wood floor.

Byron alleges that on Dec. 17, 2013, he was sitting on the stool while leaning forward to put a sock on his left foot. As he was leaning back to straighten up, he claims the stool tipped backwards, causing him to fall. He claims the stool collapsed because the back bottom crossbar of the stool had broken off and a portion of the crossbar chipped apart. The rest of the stool remained intact.

Byron alleges the impact was “instantaneous,” causing him to injure his ribs and tailbone area and develop an open sore. He also alleges he had to have surgery as a result of the fall.

Byron alleges the stool was unreasonably dangerous in that it lacked adequate fasteners or hardware, was improperly assembled and was more dangerous than an ordinary consumer would expect.

Wal-Mart filed a motion for summary judgment on Jan. 3 through attorneys Heath Sherman and Shana Scheid of Nyhan Bambrick Kinzie & Lowry PC in Chicago.

The defendant argues that Byron was required to identify his witnesses before Oct. 12, 2017. However, on Nov. 28, 2017, Byron’s counsel advised that he made a strategic decision to proceed without an expert. As a result, the plaintiff failed to timely disclose a liability expert and cannot support his claims in the complaint.

Further, Wal-Mart argues that Byron failed to identify any evidence of a defect in the stool when it left the defendant’s possession.

The defendant argues that the stool did not “collapse,” but that Byron simply fell from the stool. Wal-Mart argues that its expert witness and mechanical engineer Dr. John E. Meyer did not observe any “witness marks” on the stool, which would have been present had it collapsed.

Madison County Circuit Court case number 15-L-1306

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Organizations in this Story

Byron, Carlson, Petri & Kalb, LLC Madison County Circuit Court Nyhan, Bambrick, Kinzie & Lowry, P.C.