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FIRST DIVISION
December 31, 2003

On February 11, 2002, a jury returned a general verdict for plaintiff Glen Blue and againstdefendant Browning-Ferris Industries, Inc., and third-party defendant John M. Smyth Co., findingdefendants guilty of negligence. At the close of the evidence, the jury also answered a specialinterrogatory submitted by defendant Browning in the affirmative. Finding that there was a fatalinconsistency between the general verdict and the response to the special interrogatory, the trialcourt granted Browning's motion for a judgment on the special interrogatory. Judgment wasthereafter entered for defendants. Plaintiff now appeals the trial court's judgment on the specialinterrogatory and we reverse and remand for the following reasons.

BACKGROUND

The evidence presented at trial established that in 1975, defendant Browning-FerrisIndustries, Inc. (Browning), sold to and installed a heavy duty trash compactor in the DownersGrove, Illinois, warehouse of third-party defendant John M. Smyth Co. (Smyth). The compactorwas generally used by Smyth employees to compact cardboard boxes, furniture and woodenskids, and was emptied by Browning upon request. The compactor consisted of a ram which slidback and forth to compact the refuse put into the chamber. It could be turned on and off aftereach compaction or could run in a continuous mode. The control panel of the compactorcontained a power switch and there was a pull cord hanging over the mouth of the compactorwhich would stop the machine.

In 1991, as the result of a safety audit conducted by the State of Illinois, Smyth installed agate at the mouth of the compactor, which was designed to turn off the compactor when opened. The bars of the gate were covered by wire mesh, which was subsequently removed by Smythemployees because it was regularly knocked off by boxes as they were pushed back by the ram.

In 1988, plaintiff began working part-time in Smyth's Northbrook, Illinois, warehouse,taking customer orders, retrieving furniture, accepting deliveries and operating the trashcompactor at that facility. In 1990, he was transferred to the Downers Grove warehouse where,he stated, his duties were similar to those he performed in Northbrook. Plaintiff testified that henever received training on the Downers Grove trash compactor, but had operated it a number oftimes and watched other employees use the compactor. Plaintiff stated at trial that the compactoroften jammed and it was the usual practice of the employees, including the warehouse supervisor,Phillip Polizzi, to push refuse down into the compactor with one's foot while it was moving. Hedid state, however, that he had been told not put his arms or legs into the moving compactor. Polizzi and assistant warehouse supervisor Andrew Banda denied that they ever put their arms orlegs into the moving compactor. They stated that if they had ever observed an employee doingso, he would have received a written citation.

On November 5, 1996, plaintiff was assigned to operate the trash compactor. He testifiedthat he informed Banda a number of times that the compactor was full and would not operateproperly. He stated Banda told him to continue operating the compactor as the loading dockneeded to be cleared of refuse. At trial, Banda denied that plaintiff reported the compactor wasfull. Plaintiff stated that after he placed a large sofa box into the compactor, the compactorstopped and would not crush the box. While the compactor was running in a continuous mode,plaintiff placed his leg through the bars of the closed gate and pushed the box down with his footso that it would be grabbed by the ram. However, plaintiff's foot became caught in the box andplaintiff was pulled into the compactor as the ram took hold of the box. Plaintiff stated he couldnot reach the pull cord to stop the compactor as it was several feet above his head when he was inthe compactor. He was thereafter hit by the ram approximately three times, resulting in a brokenpelvis, leg and foot.

On May 5, 1994, plaintiff filed a complaint against a number of defendants includingBrowning. Count I of the complaint was based in strict liability and alleged that at the time thetrash compactor left Browning's control it was unreasonably dangerous for one or more of fourlisted reasons. Count I was subsequently dismissed for being filed after the applicable statute ofrepose had expired. Count IV of the complaint, based in negligence, alleged that it wasdefendant's duty to distribute a machine that was reasonably safe for its intended purpose and thatone or more of the following acts or omissions by Browning proximately caused plaintiff'sinjuries:

"(a) Carelessly and negligently distributed a compactor machinewith inadequate safety guards and devices to protect the operator.

(b) Carelessly and negligently failed to provide a gate with a latchand safety switch; thereby creating an extra hazardous condition foroperators using the same.

(c) Carelessly and negligently failed to provide a Dead Man'sswitch near or at the site of the compactor's ram so that an operatorcould immediately stop the machine if his body was sucked into thesame.

(d) Carelessly and negligently failed to give employee adequateinstruction and training in the use of an exceptionally andreasonably [sic] dangerous compacting device.

(e) Carelessly and negligently failed to post adequate signs andfailed to warn the operator that his body could be sucked into themachine because there were no safety devices located at or near themachine."

In response to plaintiff's complaint, defendant asserted various affirmative defenses, including thatplaintiff assumed the risk of his injury by sticking his foot into the compactor, that plaintiffmisused the compactor thereby proximately causing his own injury, and that plaintiff wascontributorily negligent.

Following the presentation of the evidence summarized above, the jury was instructed thatit could find defendant guilty of negligence if it found that plaintiff was injured and that the injurywas proximately caused by the acts or omissions of defendant. The jury was further instructedthat if plaintiff's own negligence contributed to his injury, then it must find plaintiff wascontributorily negligent and reduce any recovery accordingly; however, if it found plaintiff'scontributory negligence to be more than 50% of the total proximate cause of his injury, plaintiffwould be barred from any recovery. The jury was also provided with a special interrogatory, overplaintiff's objection, which asked, "Was the risk of injury by sticking a foot over or through a gateinto a moving compactor open and obvious?" During the course of deliberations, the jury sent aquestion to the trial judge asking, "On the special interrogatory question, by answering yes, doesit mean that the plaintiff was more than 50 percent negligent?" The court responded, "Jurors,please answer the special interrogatory based on the evidence presented to you by all parties. Also please review all of the instructions on the law that were given to you."

The jury then returned a general verdict for plaintiff and against defendant Browning andthird-party defendant Smyth. It awarded plaintiff $1,120,588, attributing 33% of the negligenceto Browning, 35% to Smyth and 32% to plaintiff, thereby reducing plaintiff's recovery to$762,000. However, the jury also answered Browning's special interrogatory in the affirmative. Thereafter, Browning filed a motion for a judgment on the special interrogatory, arguing that thejury's response to the special interrogatory controlled over the general verdict and judgmentshould be entered in favor of defendants. In granting the motion, the court stated:

"I do find that the special interrogatory did relate to an ultimate issue of fact, andthat it was inconsistent with the jury's finding for the plaintiff in assessing him only32 percent contributorily negligent.

I appreciate the plaintiff's argument that the special interrogatory was notinconsistent with the jury's finding; but in reviewing his cases, they all madereference to the plaintiff being distracted or the defendant anticipating harm despitethe obvious danger. And I'm not convinced from his argument that it's consistent.

There is a finding that the jury's answer of yes to the special interrogatoryis inconsistent; therefore, I am going to vacate the judgment of the jury and enter ajudgment on the special interrogatory for the defense."

In its written order, the trial court further indicated that Browning's motion for judgmentnotwithstanding the verdict and for a new trial were "conditionally" denied, and Smyth's motionfor reduction of verdict was "conditionally" granted. According to the record, the motions werenot considered on their merits and the trial judge entered the "conditional" decisions based solelyon her entry of the judgment on the special interrogatory. Plaintiff now appeals the trial court'sjudgment on the special interrogatory, contending that the special interrogatory should never havebeen submitted to the jury, as it was improper. He further argues that even if the specialinterrogatory was proper, the jury's response was not inconsistent with the general verdict. Wereverse the judgment on the special interrogatory and reinstate the jury verdict.

ANALYSIS

The purpose of a special interrogatory is to guard " 'the integrity of a general verdict in acivil jury trial.' " Simmons v. Garces, 198 Ill. 2d 541, 555, 763 N.E. 2d 720, 730 (2002), quotingO'Connell v. City of Chicago, 285 Ill. App. 3d 459, 460, 674 N.E. 2d 105, 106 (1996). To do so,the special interrogatory tests the general verdict against the jury's determination regarding anultimate question of fact. Simmons, 198 Ill. 2d at 555, 763 N.E. 2d at 730. Specialinterrogatories are governed by section 2-1108 of the Code of Civil Procedure, which provides:

"Unless the nature of the case requires otherwise, the jury shall render ageneral verdict. The jury may be required by the court, and must be required onrequest of any party, to find specially upon any material question or questions offact submitted to the jury in writing. Special interrogatories shall be tendered,objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed onappeal, as a ruling on a question of law. When the special finding of fact isinconsistent with the general verdict, the former controls the latter and the courtmay enter judgment accordingly." 735 ILCS 5/2-1108 (West 2002).

Plaintiff here contends that the trial court erred in submitting the special interrogatory tothe jury because it was in an improper form and it was confusing. A special interrogatory is inproper form if it meets the following criteria: "(1) it relates to an ultimate issue of fact upon whichthe rights of the parties depend, and (2) an answer responsive thereto is inconsistent with somegeneral verdict that might be returned." Simmons, 198 Ill. 2d at 563, 763 N.E. 2d at 734. Furthermore, it should be a single question, the terms of which are simple, unambiguous, andunderstandable to the jury; it must not be repetitive, confusing or misleading. Simmons, 198 Ill.2d at 563, 763 N.E. 2d at 735.

In this regard, plaintiff specifically argues that the special interrogatory was not in properform as the question of whether a danger is open and obvious in a negligence action does notrelate to an ultimate issue of fact upon which the rights of the parties depend, nor would ananswer responsive thereto be inconsistent with any general verdict that might be returned. Defendant responds that the special interrogatory was properly submitted because where a dangeris open and obvious, a product cannot be found to be unreasonably dangerous and therefore it isnot actionable. The central question we must consider then is whether the open and obviousdoctrine served to bar the instant cause of action, thereby raising it to the level of an ultimatequestion of fact, the answer to which might be inconsistent with a general verdict againstdefendant.

Prior to addressing this question, however, we must resolve the parties' apparentdisagreement regarding the theory of liability upon which this case was tried. Defendant refers tothis case as one based in product liability and thereafter analyzes it primarily under a theory ofstrict liability. Plaintiff asserts that by doing so defendant misapplies Illinois law, as the cause ofaction was based in common law negligence.

Under the Restatement (Second) of Torts and existing case law, an action may be broughtagainst the manufacturer of a product based on a theory of strict liability or common lawnegligence or both. See Restatement (Second) of Torts