APPEAL from the Circuit Court of Kane County; the Hon. ERNEST
W. AKEMANN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
The sole question here is whether a manufacturer and a distributor of a material shredding machine, having settled a products liability claim brought against them by a plaintiff personally injured by it, may obtain indemnification from the injured person's employer on the grounds that such employer negligently or recklessly failed to supervise or instruct as to its use, removed certain safety devices, allowed certain hazardous work practices and allowed a handicapped person to operate the machine. The trial court denied the third-party defendant's motion to dismiss the amended third-party complaints and certified the case to us. We have previously allowed leave to appeal. We now hold that no right to indemnification exists and therefore reverse the order denying the motion to dismiss and dismiss the amended third-party complaints without remandment.
Ronald Stevens, a mentally retarded and physically handicapped employee of General Box Company (the third-party defendant) was severely injured while operating a shredding machine on his employer's premises. After collecting compensation benefits, he filed suit against Silver Manufacturing Company, d/b/a Industrial Shredder and Cutter Company, the manufacturer and Steelcraft Corporation, the assembler and installer of the machine, alleging that:
1. The shredder did not contain adequate or any guards for the sharp cutting edges of the spiral knives and the mechanism leading thereto.
2. The shredder did not contain adequate controls for the operator thereof, such that in the operation of the machine his hands were kept clear of the spiral knives.
3. The shredder's accompanying instructions were not adequate as to the proper and safe method of operating the machine.
4. The shredder contained inadequate cutoff and safety switches to shut the machine in situations of danger.
5. The shredder did not have affixed thereto any warnings of its inherent dangers.
6. (as to Steelcraft only) The defendant failed to adequately instruct the employer in the proper use of the baling system.
Both defendants denied that the product was unreasonably dangerous or in a defective condition when it left their control or that any defective condition proximately resulted in the plaintiff's injuries and in addition raised the defenses of misuse and assumption of the risk. Silver also defended on the grounds the sole proximate cause of the injury was the employer's negligence. Both defendants also filed third-party complaints for indemnity against the employer and Steelcraft also filed a counterclaim against the manufacturer. The court granted the employer's motion to strike these third-party complaints.
The defendants then settled the plaintiff's claim, Silver paying $227,000 and Steelcraft $113,000.
Silver and Steelcraft then amended and refiled their third-party complaints against the employer. The first count of Silver's second amended third-party complaint alleged that if the manufacturer was liable to Stevens it was only because it had manufactured the machine and that it had no knowledge of the use to which the machine was put, the quality or character of the operators, the actual volume and configuration of the material fed into the machine, nor any discussion with respect to the providing of safety devices, nor had it had any knowledge of the hiring of a physically handicapped and mentally retarded person to operate the machine, and that Silver's liability, if any, was based on passive or secondary tortious conduct, for the following reasons:
(a) The machine as manufactured was reasonably safe for operators thereof who operated and fed material from the feeder end of the machine.
(b) The instructions and warnings accompanying the machine were adequate to describe the proper and safe procedure with respect to clearing jam-ups of material in the blades, and preventing the operator ...