Rule 401, Ariz.R.Evid., 17A A.R.S. See, e.g., Schwartz v. American Honda Motor Co., 710 F.2d 378, 382 (7th Cir. 1983); Darrough v. White Motor Co., 74 Ill. App.3d 560, 565, 30 Ill.Dec. 467, 393 N.E.2d 122, 125-26 (1979); Reiger v. Toby Enterprises, 45 Or. App. 679, 682-83, 609 P.2d 402, 404 (1980); McCormick, supra, § 200. There can be no doubt that evidence of safety-history is relevant.
161 Ill. App.3d at 761. Evidence of the absence of prior accidents involving the same or similar product has been admitted in strict liability actions in Illinois (see Salvi v. Montgomery Ward Co. (1986), 140 Ill. App.3d 896; Leischner v. Deere Co. (1984), 127 Ill. App.3d 175, 177; Darrough v. White Motor Co. (1979), 74 Ill. App.3d 560), and we believe that Schwinn's evidence was properly admitted here. We recognize that in Salvi, Leischner, and Darrough, the evidence introduced by the defendants showed a complete absence of prior accidents.
Given that both the Act and the civil practice rules are silent as to whether depositions may be used in posttrial proceedings, the State argues that respondent had no right to issue a subpoena and depose Doctor Tannan and thus, the court did not err in denying respondent's request. See generally Darrough v. White Motor Co., 74 Ill. App. 3d 560, 563 (1979) (noting that rules "providing for discovery in civil cases are silent as to whether discovery depositions may be taken or other discovery devices used post trial"). We are unpersuaded by the State's characterization of conditional release revocation proceedings as posttrial proceedings.
Hanson, 44 Ill. App. 3d at 893. In Darrough v. White Motor Co., 74 Ill. App. 3d 560, 393 N.E.2d 122 (1979), the Fourth District declined to decide the posttrial discovery issue because insufficient surprise was alleged to validate the request for a new trial based on newly discovered evidence. In Midwest Bank Trust Co. v. Village of Lakewood, 113 Ill. App. 3d 962, 447 N.E.2d 1358 (1983), the Second District noted that posttrial discovery is an open question, but the possible inability of plaintiffs to conduct posttrial discovery after their case was dismissed constituted sufficient prejudice to reverse the dismissal order.
( Central Production Credit Association v. Hans (1989), 189 Ill. App.3d 889, 545 N.E.2d 1063.) Plaintiff asserts that, where a party is surprised at trial by testimony relating to a new fact which could not have been foreseen, he may be entitled to a new trial if the newly discovered evidence constitutes surprise. Darrough v. White Motor Co. (1979), 74 Ill. App.3d 560, 562, 393 N.E.2d 122. Plaintiff further maintains that Beverly failed to comply with the notice to produce records regarding the estate property and testified falsely to the existence of documents evidencing money she received from sale of the property.
If other accidents are admissible to show the existence of a particular defect or condition, or that a situation is dangerous, or that defendant knew or should have known of the danger, then the absence of accidents during a period of similar exposure and experience would generally be receivable to show the nonexistence of these facts. (See Darrough v. White Motor Co. (1979), 74 Ill. App.3d 560, 393 N.E.2d 122, citing McCormick, Evidence sec. 200, at 476 (2d ed. 1972).) Here, the issue was whether the design of the bicycle and quick release mechanism was defectively dangerous.
Evidence of the number of accidents with the S-series would show the efficacy of the safety measures that plaintiff sought, a fact that is certainly relevant to this litigation. (See Darrough v. White Motor Co. (1979), 74 Ill. App.3d 560, 564-65, 393 N.E.2d 122, 125-26; Burke v. Illinois Power Co. (1978), 57 Ill. App.3d 498, 511, 373 N.E.2d 1354, 1367.) However, the judge refused the evidence because plaintiff was not injured on a model of the S-series and she could not show that the accidents with the other models occurred under circumstances that were similar to hers.
Other Illinois cases have recognized the questions raised by post-trial discovery, but have not addressed the issue directly. See, e.g., Midwest Bank Trust Co. v. Village of Lakewood (1983), 113 Ill. App.3d 962, 447 N.E.2d 1358 (post-trial discovery is an open question, but the possible inability of plaintiffs to conduct post-trial discovery after its case was dismissed constituted sufficient prejudice to reverse dismissal order); Darrough v. White Motor Co. (1979), 74 Ill. App.3d 560, 393 N.E.2d 122 (post-trial discovery issue not decided because insufficient surprise alleged to validate request for new trial based on newly discovered evidence). Respondent relies on Taxman v. Health Hospital Governing Com. (1980), 83 Ill. App.3d 499, 404 N.E.2d 419, which reasons that a 2-1401 proceeding is not designed to allow a litigant to do that which should have been done earlier, and is not meant to relieve a litigant of his own mistakes or negligence.
• 1 We first address the contentions raised by Frank Salvi. As stated previously, Frank claims the trial court committed prejudicial error when it: (1) permitted Coleman to introduce evidence showing an absence of claims; and (2) tendered an allegedly erroneous jury instruction regarding the knowledge required by a product manufacturer. Evidence tending to show an absence of prior accidents is generally admissible only if the offering party lays a proper foundation by establishing that the absence occurred while others were using a product similar to that which caused the plaintiff's injury. ( Darrough v. White Motor Co. (1979), 74 Ill. App.3d 560, 393 N.E.2d 122; Leischner v. Deere Co. (1984), 127 Ill. App.3d 175, 468 N.E.2d 182.) In addition, the absence of claims must have occurred while others were using that product under conditions substantially similar to those faced by the plaintiff in the case at bar.
• 1 To lay a proper foundation for testimony concerning the absence of similar prior accidents, the offering party must show that the absence occurred during the use of equipment similar to the injury-producing equipment. ( Darrough v. White Motor Co. (1979), 74 Ill. App.3d 560, 393 N.E.2d 122.) The offering party must also show that the absence occurred under conditions substantially similar to those surrounding the accident which gave rise to the suit.