APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. JUSTICE SMITH DELIVERED THE OPINION OF THE COURT:
OPINION AS MODIFIED AND SUPPLEMENTED ON REHEARING
• 1 Of the many questions presented by this appeal, we can disregard all but one if the rule in Pedrick v. Peoria and Eastern R.R. Company, 37 Ill.2d 494, 229 N.E.2d 504, is applicable. This rule, as we know, is simply that verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand.
• 2 Whether the proof presents a factual question or not for the jury's consideration, while easy to state, is difficult in application or at least can be, as is the case here. Defendant moved for a directed verdict and for a judgment n.o.v. and from their denial it appeals. As we have said, other issues are raised, but we do not reach them if we believe that it may fairly be said that all of the evidence viewed most favorably for plaintiff so overwhelmingly favors defendant that no contrary verdict based on the evidence could ever stand. It is our judgment that such is the case and that the trial court was in error in denying the defendant's motion for judgment notwithstanding the verdict.
This conclusion mandates a summary recital of all of the evidence. Plaintiff was injured severely when some steel flooring sheets or panels slipped from their bundle or container and struck him in the back. It happened like this. Bundles of nailable steel flooring panels were delivered to plaintiff's employer for use in the manufacture and construction of railroad freight cars. They were unloaded and stored on the premises for later removal to the erection site. Each panel of flooring was about four feet wide, four feet high and seven or eight feet long. They were stacked one on top of the other and a bundle consisted of fifteen panels with wooden strips between each as separators. Underneath the first panel of the fifteen (counting upwards) were three 4" x 4"'s which acted as a pallet so that the forks of a fork lift truck could scoop the bundle up. Widthwise, the bundle was encircled by three steel bands which were stapled to the three 4" x4"'s which served them as we have seen to make a pallet. There were no steel bands running lengthwise. Fifteen panels interspersed with wooden separators ran the height to about four feet. It weighed 5,000 pounds, or thereabouts. Since we are viewing the evidence, as we must, in the light most favorable to the plaintiff (opponent) and against movant (defendant) we will assume as proved the fact that the widthwise steel bandings were loose. This avoids an extended discussion as to whether green wood was used as separators which shrank effecting, so it was argued, the loose condition. Incidentally, defendant did not do the actual bundling, but rather it was done by another under its direction and control. Such other party was furnished drawings, and according to these, lengthwise bands were to be used if the bundle of panels were to be loaded for shipment crosswise in a railroad car and if the panels would then extend above the sides of the car. While the drawing specified that the wood separators were to be of hardwood, 3 3/4" x 3/4", it was silent as to the type of wood and whether it should be painted or otherwise impregnated. We will assume that green wood will shrink and maybe it did in this case, for as we said, the widthwise banding was loose loose enough to put a "hand in between".
On the morning in question, one of these bundles was being moved within the plant by a fork lift truck. Initially, the operator carried the bundle about a foot and a half above the ground, but then raised it to get over the top of some welding machines. The bottom of the bundle was now some four feet above the floor. This obscured his view, for as recited earlier, the height of the bundle was about four feet, thus assuming that he could see nothing or very little from under the bundle, his vision was obscured from the floor to a height of eight feet. While so moving, the left front wheel dropped into a hole tipping the truck and, of course, the fork and the bundle, which fell off. One of the panels struck the plaintiff. No issue is made that he might have avoided the injuries he suffered, or that he was in any way at fault. The facts are that he did not even see the truck coming, the bundle falling, and the panels cascading towards him. About half of the panels came to rest against the prong of the fork lift and the other half went into plaintiff's work area. One of the witnesses described the panels as sliding out one on top of the other "like a deck of cards" in the direction of the plaintiff "the whole load just going down the stairs gradually down from one another". The three steel bands were not broken and remained around the width of the panels leaning against the truck. As we have seen, there were no lengthwise bands.
• 3 We think this is a fair summary of the evidence and we have summarized it we feel in the light most favorable to the plaintiff. Since the accident occurred in Indiana, its law governs, though so far as we can see, the applicable rules there, (Cornette v. Seargeant Metal Products, Inc. (Indiana) 258 N.E.2d 652), and here, (Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182), are the same. Plaintiff's action was based on strict liability in tort and negligence, that is, that the proximate result of his injuries was occasioned by the unreasonably dangerous condition of defendant's product or the negligence of defendant in the design of the bundle. Simply put, plaintiff's action is a products liability case: That the bundle of panels was unreasonably dangerous, that such dangerous and defective condition was defendant's fault, and caused his injuries. He says here that there is sufficient evidence under either the theory of negligence or strict liability in tort to support the verdict. Defendant argues on the other hand that the proximate cause of plaintiff's injuries was the misuse or mishandling of its product the bundle by others and that such mishandling negates tort liability on its part.
• 4 Was the use here or misuse as characterized by defendant of its product reasonably foreseeable by it as a matter of law for a duty to arise. It is said that "misuse" here more accurately mishandling negates the existence of a defect and causation as well, because such mishandling rather than the condition of the product itself is responsible for the injuries. (Greeno v. Clark Equipment Co. (1965, DC Ind.), 237 F. Supp. 427.) There it was said that a defective condition is a condition not contemplated by the user or handler, and which is unreasonably dangerous to him, that is, more dangerous than would be contemplated by the ordinary user with the ordinary knowledge of the community as to its characteristics and uses, but that a misuse, that is, a use different or more strenuous than that contemplated to be safe by ordinary users a misuse "would either refute a defective condition or causation". Again the question is: Was the misuse here foreseeable? Or does this beg the question for can "mishandling" or "misuse" ever really be foreseeable as a matter of law! Regardless, foreseeability is the test did the defendant here owe a duty to the plaintiff to foresee or perceive the use (or misuse) its product was put to. If it did or could, then its product would be defective or in a condition which was unreasonably dangerous and if other elements of strict liability are present, liability could ensue. Foreseeability here encompasses in part the aspects of angle and force. An angle sufficient to cause a sideways slipping, and a force sufficient to cause a movement a falling.
• 5, 6 Putting the question another way, could not it be reasonably contemplated that this bundle of steel panels, considering its weight and height, its length and breadth, its built-in pallet, its widthwise banding, would always be carried on a level to forestall sideways slippage. Was it unreasonably foreseeable that this bundle of steel plates, weighing two and one-half tons, would be dropped on its end with its uppermost panels falling some eight feet? In the words of Greeno, this is a use or happenstance in our opinion different or more strenuous than that which could have been reasonably contemplated by defendant. It was certainly an unsafe way to handle the bundle! If so this "misuse", it can be said, in effect refutes the existence of a defective condition and therefore causation. As was said in Evans v. General Motors Corp. (1966), 359 F.2d 822 with regard to automobiles: "A manufacturer is not under a duty to make his automobile accident-proof or fool-proof; nor must he render the vehicle `more' safe where the danger to be avoided is obvious to all." The duty, Evans holds, which a manufacturer owes to the users of its product presents an issue of law for the court. A manufacturer is not an insurer and he is not bound to anticipate and hence foresee the mishandling of its product. To paraphrase Schemel v. General Motors Corp. (1967), 384 F.2d 802, the dangers attendant on dropping two and one-half tons of steel panels sideways from a height of eight feet is neither latent nor concealed. In Schemel, it was held that while an automobile manufacturer can foresee that a vehicle could be operated in excess of the speed limit, it was "not bound to anticipate and guard against grossly careless misuse of his product by reckless drivers".
• 7 In determining duty, i.e., the duty of defendant to foresee the use to be had from which plaintiff's injuries flow, we must weigh the difficulty in foreseeing and eliminating the risk of injury from the use, against the gravity, both in probability and in magnitude, of the risk of the user's reliance on the defendant's ability to discover and prevent defects. As we said in Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill. App.2d 315, 229 N.E.2d 684: "Where the use is extremely unconventional and the cost of discovery to prevent the danger is excessive, a duty generally has not been imposed, but where the cost of prevention is minimal and the degree of reliance is high and the gravity of the risk substantial, a tort duty has generally been imposed."
• 8 So here too, defendant is not an insurer against "grossly careless misuse of its product" by fork lift truck drivers whose vision has been obscured and whose truck falls into a hole causing its load to tilt and fall. A two and one-half ton steel package, 4' x 4' x 8' is to be handled with care. It needs no sign of warning of dangers which are extrinsic, patent, and exoteric as opposed to intrinsic, latent and esoteric. Its dangerous condition when tilted at a height is so apparent that an omission to discern such would be negligence itself. Paraphrasing Evans above, defendant here is not under a duty to make its bundle of steel panels "accident-proof or fool-proof" nor must it render its bundle more safe "when the danger to be avoided is obvious to all". As Section 402A of the Restatement of the Law of Torts, 2d, provides in comment (g):
"The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed * * *."
Comment (h) of the same section of the Restatement in like vein states:
"A product that is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too much salt is added to food, or from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable * * *."
The handling of defendant's product here the bundle strikes us as anything but normal handling, rather it is abnormal. In our opinion it was the mishandling, not the product, which caused the harm, and only if such can be reasonably foreseen (at which point it ceases to be "mishandling") does a duty arise to do something to rectify what is now a defective condition. As defendant points out, if a manufacturer is obliged to foresee that a consumer will drop its two and one-half ton product, then any such product would be ipso facto dangerous, hence defective and hence liable in effect an insurer. Under the criteria set forth above from Dunham we perceive no duty to anyone to prevent the happenstance of falling. It is only when a product is used in the way that can be foreseen that a duty arises. The fact that it could be reasonably foreseen that a fork lift truck would be used to move the bundle is not the same as saying that defendant could have reasonably foreseen (and therefore under a duty to attempt to prevent same) that the truck would fall into a hole tilting its load and causing the panels to cascade out.
To put it another way, for liability, there must be more than an injury to plaintiff. (Fanning v. LeMay, 38 Ill.2d 209, 230 N.E.2d 182.) The injury must be caused by the fault of defendant. For there to be fault, there must be a duty owed the plaintiff by defendant. For that duty to arise in our context it must be said that defendant can perceive reasonably the danger, for the orbit of duty is the orbit of danger so perceived. Because we cannot say here that defendant should have so perceived, we find no duty, and if so, plaintiff's action must fail. That two and one-half tons of falling steel is a hazard cannot be gainsaid, but this is different from saying that a manufacturer who bundles such must guard against such happening.
• 9, 10 Plaintiff argues, however, that if lengthwise bands had been present, or the widthwise bands tighter, the hazard present here could have been avoided. He points to defendant's shipping requirements that if the bundle is to be carried crosswise in a railroad car and extend above the sides lengthwise strapping is required. But the nonforeseeability of what did happen heavily outweighs any duty upon defendant to strap the ends of the bundle, and in saying such we are assuming that lengthwise bands would have held the panels in. Whether such is in fact true is pure speculation. The same can be said for the widthwise banding. At least it is here, because there was no evidence that they would. Rather it seems that the purpose of the steel bands lengthwise was for the purpose of rail shipment. As was said in Day v. Barber-Colman Company, 10 Ill. App.2d 494, 135 N.E.2d 231:
"* * * [I]t is not of itself negligence to use a particular design or method in the manufacture or handling of a product or doing a job which is reasonably safe and in customary use in the industry, although other possible designs, whether in use in the industry or not, might be conceived which would be safer * * *. The fact that an accident was, conceivably, avoidable, and might conceivably, have been prevented does not warrant a ...