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Vassolo v. Comet Industries

OPINION FILED DECEMBER 17, 1975.

LA JUNE VASSOLO, PLAINTIFF,

v.

COMET INDUSTRIES, INC., DEFENDANT. — (COMET INDUSTRIES, INC., THIRD-PARTY PLAINTIFF-APPELLANT,

v.

LESLIE-LOCKE BUILDING PRODUCTS COMPANY, INC., THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Third-party plaintiff, Comet Industries, Inc., appeals from an order granting the dismissal of its third-party complaint, brought against Leslie-Locke Building Products Company, Inc., seeking indemnification. The facts are as follows.

Salvatore Vassolo (hereinafter referred to as "decedent"), an employee of Leslie-Locke Building Products Company, Inc., sustained injuries resulting in his death while operating a Saturn, three-stage, thermo forming machine. Plaintiff, the administratrix of the estate, sued Comet Industries, Inc., the manufacturer and seller of the machine, alleging that certain defects existed which made the machine unreasonably dangerous and proximately caused the death of the decedent.

Plaintiff alleged that the decedent was using the machine in the manner in which it was intended to be used and that the machine was defective and unreasonably dangerous at the time it left the possession of Comet Industries, Inc. The complaint listed five specific defects:

(1) the absence of enclosures around the machine which would impede entry into the immediate area of the machine during its operation;

(2) the absence of electrical shut-off devices on the aforementioned enclosures necessary to achieve a stop in the automatic operation of the machine should a person enter the enclosed area;

(3) the absence of photo electric circuitry surrounding the machine which would cause its automatic operation to cease should a person enter the enclosed area;

(4) the absence of additional "panic" buttons or switches in the immediate area of the machine by which all power to it could be cut off; and

(5) the capability of the machine to operate on its automatic cycle during the set-up periods in which it is being prepared to do a specific molding job.

Comet Industries (hereinafter third-party plaintiff) filed a third-party complaint against Leslie-Locke, third-party defendant, seeking indemnification for any and all judgments entered against it as a result of the original action. The third-party complaint alleged that the machine was in a safe condition when it left Comet's premises and that it only became unsafe after it came into the control of third-party defendant. Any liability to the plaintiff was said to be purely passive and technical. The following wrongful acts on the part of third-party defendant were alleged to have caused the machine to become defective and unreasonably dangerous.

(1) its selection of the area for installation of the machine in its plant;

(2) its supervision and total control over the set up and installation of the machine and its design or failure to design, and install enclosures necessary for safe operation;

(3) its failure to equip such enclosures with any electrical shut-off devices and electrical circuitry so as to stop the automatic operation of the machine ...


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