in a position of apparent safety," and holding that it was not unforeseeable that truck driver would try to manually reload a fallen pallet); Gilbertson, 150 Ill. App.3d 192, 103 Ill.Dec. 637, 641, 501 N.E.2d 954, 958 (1986) (citing cause/condition rule and deciding case on foreseeability of intervening act); Duncavage v. Allen, 147 Ill. App.3d 88, 100 Ill.Dec. 455, 460, 497 N.E.2d 433, 438 (1986) (noting application of rule), appeal denied, 113 Ill.2d 573, 106 Ill.Dec. 46, 505 N.E.2d 352 (1987); Duncan v. Rzonca, 133 Ill. App.3d 184, 88 Ill.Dec. 288, 301, 478 N.E.2d 603, 616 (1985); Orrico v. Beverly Bank, 109 Ill. App.3d 102, 64 Ill.Dec. 701, 706, 440 N.E.2d 253, 258 (1982) (noting this rationale and distinguishing rule); Reed v. Danville Concrete Prod. Co., 102 Ill. App.3d 205, 57 Ill.Dec. 707, 429 N.E.2d 605 (1981); See also W. Page Keeton, Prosser and Keeton on Torts, § 42 at 278 (5th ed. 1984) (theory has been almost universally abandoned by the courts except in this form). Cf. Falkenbury v. Elder Cadillac, Inc., 109 Ill. App.3d 11, 64 Ill.Dec. 628, 633, 440 N.E.2d 180, 185 (1982) (ignoring cause/condition dichotomy in case where buyer of car tried to repair broken wire wheel himself and was injured; issue was whether his decision to repair the wheel and his method of doing so was reasonably foreseeable). Thus, our inquiry is whether the Defendants could have reasonably foreseen that Ms. Wilson would attempt to escape Madden if given the opportunity and that, if she did so, she would be in danger of harm.
The question of whether it was foreseeable that a user of Sani-Tate would wring out a cloth with her bare hands was properly reserved for jury determination in this case. See Schwartz v. American Honda Motor Co., 710 F.2d 378 (7th Cir. 1983); Brownlee v. Louisville Varnish Co., 641 F.2d 397 (5th Cir. 1981); Brown v. Sears, Roebuck Co., 136 Ariz. 556, 667 P.2d 750 (Ct.App. 1983); Self v. General Motors Corp., 42 Cal.App.3d 1, 116 Cal.Rptr. 575 (1974); Falkenbury v. Elder Cadillac, Inc., 109 Ill. App.3d 11, 440 N.E.2d 180 (1982); Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo. 1969); Smialek v. Chrysler Motors Corp., 290 Pa. Super. 496, 434 A.2d 1253 (1981). Accordingly, we conclude that instruction No. 15 was a correct statement of the law of misuse in Colorado and that under the circumstances of this case it was proper to tender the issue of misuse for jury determination.
The conflicting testimony of experts generally raises an issue which is determinable by the trier of fact, who is in a better position to review pertinent exhibits and to assess witness credibility. ( Falkenbury v. Elder Cadillac, Inc. (1982), 109 Ill. App.3d 11, 440 N.E.2d 180.) Indeed, the jury, as the trier of fact, is entitled to believe one expert over the other where the experts offer divergent conclusions. Wille v. Navistar International Transportation Corp. (1991), 222 Ill. App.3d 833, 584 N.E.2d 425.
) As a general rule, however, questions of foreseeability are ordinarily for the jury to resolve. The courts of this State have so held in a variety of contexts (see, e.g., Falkenbury v. Elder Cadillac, Inc. (1982), 109 Ill. App.3d 11, 18, 440 N.E.2d 180, 186; Medina v. Air-Mite Devices, Inc. (1987), 161 Ill. App.3d 502, 507, 515 N.E.2d 770, 773), and this rule has been expressly applied in the context of claims for consequential damages based on breach of warranty under the Uniform Commercial Code (see Annot., Buyer's Incidental Consequential Damages from Seller's Breach under UCC § 2-715, 96 A.L.R.3d 299, 329 (1980); 67A Am.Jur.2d Sales § 1314, at 739 (1985)). Foreseeability should be decided as a matter of law only where the facts demonstrate that plaintiff could never be entitled to recovery.
Resolution of conflicting expert testimony is properly for the trier of fact. ( Falkenbury v. Elder Cadillac, Inc. (1982), 109 Ill. App.3d 11, 18, 440 N.E.2d 180, 186.) Since the record does not dictate an opposite conclusion, and because a reviewing court may not substitute its judgment for the circuit court where its finding is not against the manifest weight of the evidence ( In re Estate of Galvin (1983), 112 Ill. App.3d 677, 682, 445 N.E.2d 1223, 1226; Malloy, 96 Ill. App.3d at 1029, 422 N.E.2d at 83), we affirm the circuit court's denial of petitioner's petition seeking restoration as to his estate.
To establish proximate cause, a plaintiff must prove that the alleged defect in the product was an actual effective cause of the injuries rather than a mere condition. Merlo v. Public Service Co. (1942), 381 Ill. 300; Falkenbury v. Elder Cadillac, Inc. (1982), 109 Ill. App.3d 11, 17-18; Schierer v. Ameritex Division, United Merchants Manufacturers, Inc. (1980), 81 Ill. App.3d 90, 93. • 8 The plaintiff has failed to establish that Pella had a duty to install extraordinary security devices on the windows in question.
The conflicting testimony of expert witnesses normally raises an issue uniquely determinable by the trier of fact who is better able to assess the credibility of the witnesses. ( Falkenbury v. Elder Cadillac, Inc. (1982), 109 Ill. App.3d 11, 18, 440 N.E.2d 180, 186.) The trier of fact has the discretion to accept the opinion of one expert over that of another.
The conflicting testimony of the experts was determinable by the court as the trier of fact which was in a better position to assess credibility. Falkenbury v. Elder Cadillac, Inc. (1982), 109 Ill. App.3d 11. The petitioner also relies upon her testimony to support a claim for a plenary guardian.