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May 5, 1971


The opinion of the court was delivered by: Juergens, Chief Judge.


This diversity action seeks recovery for injuries allegedly received due to a defective steering valve on a hydraulically operated ram car manufactured by defendant.

In his amended Count I plaintiff alleges that on February 22, 1968, he was an employee of Peabody Coal Company (Peabody), working in Eagle Mine No. 1 in Shawneetown, Illinois; that defendant sold to Peabody hydraulically operated ram cars, which were in use on and prior to the date of the injury; that on February 22, 1968, plaintiff was engaged in his employment when one of the ram cars went out of control due to a defective steering valve and collided with and broke a high pressure air hose, which struck him, causing serious and permanent injuries; that at the time the defendant sold the hydraulically operated ram cars to Peabody, the same were unreasonably dangerous in that there was a defective steering valve on the ram car in question.

Defendant moves for summary judgment as to Amended Count I, charging that plaintiff was an employee of Peabody; that the injury to plaintiff resulted from a collision of the alleged defective ram car with a high pressure line which then struck the plaintiff, causing the injury for which this suit is brought; that plaintiff has admitted in his deposition that he had gone to work for Peabody as a repairman and electrician at Eagle Mine No. 1 on September 11, 1967, about six months prior to the accident; that on the day in question he had been assigned on the particular ram car which he alleges caused his injury; that when he was injured he was not on the ram car but was standing in an open passageway, waiting for the ram car in question to arrive from another passageway; that as the ram car approached, it struck an air line which broke and flipped into plaintiff, causing his injuries; that the air line is not part of the ram car but is a one inch metal tube which comes into the mine from outside and is anchored at the roof of the mine; that it has been conclusively established through pleadings and depositions that plaintiff's status relative to the allegedly defective product at the time of the occurrence was not as a "user or consumer," but that of a "bystander"; and that in an action based on a defective product in the State of Illinois, a bystander has no standing to sue the manufacturer of a defective product, and plaintiff will, therefore, not qualify as a party eligible to recover under the theory of strict liability in products.

In Suvada v. White Motor Company, 32 Ill.2d 612, 210 N.E.2d 182, the Supreme Court of Illinois laid to rest the privity defense in actions against manufacturers, sellers, contractors, etc., and held these parties to strict privity-free liability for any injury or damage caused by any unreasonably dangerous products which one or all of them might place in the stream of commerce insofar as users and consumers are concerned. Prior to Suvada, privity was an essential ingredient to liability in a negligence action against a manufacturer.

The Fifth District Appellate Court in Wright v. Massey-Harris, Incorporated, 68 Ill. App.2d 70, 215 N.E.2d 465, a products liability case dealing with an allegedly defective cornpicker, discussed post-Suvada law in Illinois and compared the new products liability provisions with the provisions which existed prior to Suvada, stating:

  "The wisdom of Suvada is well illustrated by the
  result reached in the case of Murphy v. Cory Pump &
  Supply Company, 47 Ill. App.2d 382, 197 N.E.2d 849,
  relied upon by the defendant. Plaintiff, a seven year
  old child, lost her leg by falling in front of a
  power mower with a rotary blade which was being
  operated by her eleven year old sister. The
  negligence charged was that the mower was inherently
  dangerous in that the rotary blade would be likely to
  injure and maim children and that although the rotary
  blade appeared to be covered, it lacked a safety
  screen or bar.
  "The Appellate Court upheld the action of the trial
  court in allowing a motion for summary judgment in
  favor of the defendant, giving as its reason that the
  manufacturer of this mower owed no duty to the
  "Murphy illustrates a typical result which Suvada
  seeks to remedy by placing the losses caused by
  unreasonably dangerous machines or products on those
  who have created the risk and reaped the profit
  rather than on an innocent seven year old child."
  (Emphasis supplied.)

Although the Fifth District Appellate Court in Wright did not have before it the factual situation presented in the Murphy case, it nevertheless indicates it would, if presented a similar factual situation in a post-Suvada case, apply the doctrine of Suvada and extend liability to cover the innocent child although the child would under such circumstances be, as the plaintiff might be considered to be in the present action, a mere bystander.

In a case closely analogous to that here presented, the Illinois Supreme Court in Schmidt v. Archer Iron Works, Inc., 44 Ill.2d 401, 256 N.E.2d 6 (1970), did not reach the question as to whether a manufacturer would be liable for a defective product for injuries resulting to an employee while working adjacent to an allegedly defective product. In Schmidt the plaintiff was injured when a metal pin used to secure a concrete pouring chute to a 104-foot-high tower broke, permitting the chute to fall upon and injure the workman. The Court there stated:

  "The narrow issue before us is whether there was
  sufficient evidence that the defendant furnished the
  defective pin to justify the jury's verdict."

The Supreme Court found that the evidence was totally insufficient to establish that the defendant was the manufacturer of the defective pin and did not touch upon the question as to whether or not under such circumstances the manufacturer of the defective product would be liable to a worker or bystander.

Strict liability in tort for a defective product has been extended by the Illinois courts to include food and food products, motor vehicles and other products where the defective condition makes ...

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