APPEAL from the Circuit Court of Franklin County; the Hon.
CLARENCE E. PARTEE, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 9, 1975.
Plaintiff appeals from a judgment of the trial court in favor of the defendants in a case wherein the plaintiffs claimed the defendants were strictly liable to plaintiffs because of an accident caused by a claimed design defect in an axle assembly unit manufactured by defendant Ford Motor Company (Ford) and sold by defendant Musgrave Ford Sales (Musgrave).
There are two principal questions in this appeal:
(1) Was the axle unit unreasonably dangerous as a matter of law?
(2) Was there sufficient evidence to submit the defense of assumption of the risk to the jury?
In 1960 the plaintiff Lew Cushman, a supervisor for plaintiff Collins Brothers Oil Company (Collins), received a new 1960 Ford F-100 halfton truck for business use. Customary maintenance and repairs were performed by Musgrave. On January 8, 1962, Cushman was driving the truck when he suddenly lost acceleration. He coasted into a nearby driveway and was able to stop the truck safely. Upon inspecting the vehicle, Cushman noticed that the right rear wheel protruded out several inches from the fender. Cushman had the truck towed to Musgrave where he instructed the service manager to fix anything that was found wrong. While the record shows that Cushman was familiar with automobile mechanics, he did not observe the repairs. Musgrave's service manager testified that a new axle unit assembly provided by Ford was installed in the truck. After the repairs were completed, Cushman picked up the truck and continued to use it in Collins's business.
On February 17, 1962, Cushman was driving on Highway 15 near Fairfield at a speed of approximately 55 miles per hour. As he approached the city limits he decreased his speed by releasing the accelerator. When he came to a gradual incline before entering the main square he tried to accelerate, but found that the accelerator did not work. Realizing that something was wrong and not wanting to stop on the highway, Cushman decided to coast into Musgrave's lot which was just ahead. As he entered the lot, he applied the foot brakes and then the hand brake, but found them inoperative. The only control he had over the vehicle was steering. He steered away from a gas main and several automobiles and finally stopped the truck by hitting a brick wall of an abutting Buick garage. The wall collapsed inward, injuring one Ed Shaw. Cushman testified that when he inspected the truck, he found the right rear wheel protruding out, beyond the fender, ball bearings lying on the ground beneath the axle, and smoke rising from the brake-drum area.
Shaw subsequently filed an action against Cushman and Collins and recovered $19,000 in a post-verdict settlement which was paid by the Collins's insurer, the plaintiff United States Fidelity and Guaranty Company. The plaintiffs thereupon brought this action alleging in damages the sum of $19,000 paid by the plaintiff insurance company and $1756.50 in attorneys' fees paid in defending the action of Shaw.
Plaintiffs' complaint alleged that the right rear axle assembly, designed and manufactured by defendant Ford and installed by defendant Musgrave, was so assembled that when a sealed bearing in the axle assembly failed, the right rear wheel attached to the assembly moved out of position and impaired the braking system and transmission of power to the rear wheels. Detailed evidence was presented by the plaintiffs in support of their contention. Plaintiffs further alleged that the defect was an unreasonably dangerous condition existing at the time the axle left Ford's control and was the proximate cause of Cushman's February 17 accident. The defendants raised the affirmative defenses of misuse of product and assumption of risk. The jury was instructed on both defenses. A special interrogatory concerning assumption of risk was submitted to the jury. The jury returned a verdict that answered the interrogatory in the affirmative and that was in favor of the defendants. Judgment was entered on the verdict.
The plaintiffs first contend that the axle assembly was unreasonably dangerous as a matter of law. On the facts of this case, the plaintiffs' argument is persuasive. They reason that since they proved that a failure of the sealed bearing within the axle assembly caused the driver to lose all control of the car except for steering, the evidence so favored a finding of an unreasonably dangerous condition that a contrary verdict could never stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) Defendants contend that the existence of a condition does not make it an unreasonably dangerous condition. The fact that a condition is dangerous does not necessarily mean that it is an unreasonably dangerous condition. The evidence presented created a fact issue from which the jury was entitled to conclude that the condition complained of was not an unreasonably dangerous condition.
• 1-3 We have found no authority in Illinois or elsewhere for holding a product not inherently dangerous, such as drugs, unreasonably dangerous as a matter of law. Several jurisdictions have for various reasons abandoned the unreasonably dangerous requirement. (Clary v. Fifth Avenue Chrysler Center, Inc., 454 P.2d 244 (Alas. 1969); Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972); Glass v. Ford Motor Co., 123 N.J. Super. 599, 304 A.2d 562 (1973).) The majority of jurisdictions, however, including Illinois, follow section 402A of the Second Restatement of the Law of Torts in requiring proof of an unreasonably dangerous condition. In Illinois, a product must be shown to be unreasonably dangerous and the question is one for the jury. Suvada v. White Motor Company, 32 Ill.2d 612, 210 N.E.2d 182; Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1.
Was there sufficient evidentiary basis to justify submitting the affirmative defense of assumption of risk to the jury?
• 4-6 In a strict products liability tort action, plaintiff need not prove exercise of due care, but his recovery is barred if defendant proves that plaintiff knew the product was in a dangerous condition and proceeded nonetheless to use the product in disregard of the known danger. (Sweeney v. Max A.R. Matthews & Co., 46 Ill.2d 64, 264 N.E.2d 170; Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305.) Assumption of risk is an affirmative defense to be alleged and proved by defendant. (Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co., 16 Ill. App.3d 638, 306 N.E.2d 337.) The burden is on defendant to prove that plaintiff knew that the product was defective and that he appreciated the danger, but nevertheless deliberately and unreasonably exposed himself to the danger, or that the defect and danger were so open and obvious that plaintiff must have comprehended them. (Sweeney v. Max A.R. Matthews & Co., 94 Ill. App.2d 6, aff'd, 46 Ill.2d 64, 264 N.E.2d 170. See also Restatement (Second) of Torts § 402A, comment n (1965).) Thus, on the facts involved in this appeal, defendants would have to prove that plaintiff Cushman received some substantial forewarning that the wheel axle assembly on his Ford pickup truck would fail, thus impairing the functioning of his brakes and his ...