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Neal v. Whirl Air Flow Corp.





APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT E. HUNT, Judge, presiding.


Plaintiff James Neal brought this product liability action against defendants Whirl Air Flow Corporation and Whirl Air Flow Equipment and Supply Company to recover for loss of his left hand as a result of an industrial accident. Following a jury trial, a verdict was returned awarding plaintiff $120,000 damages. Defendants appeal from the judgment entered on that verdict.

At the time of the accident plaintiff, a journeyman pipefitter, had been employed for five months by Caterpillar Tractor Company to work in the maintenance department at the Mapleton Foundry. One part of the foundry made cores for large diesel tractors. The material used in the core-making machines consisted of a sand and oil mix which was transported under pressure by means of a "Large Oil Sand Delivery System" designed and manufactured by defendants. The system consisted of a control panel, a mixer, a pressure vessel, several hundred feet of four-inch pipe which led to receiver switches at six stations. There were two branches or legs of the system. One leg contained station 1, 2, 3, and 4, while the other leg contained stations 5 and 6. After a batch of material was mixed and pressurized, it was blown through the pipes to a selected station. The switch at that station would deflect the material down into a hopper from which it was fed into the core-making machines. This system was operated from a central control panel on which appeared a schematic diagram of the system showing the six stations arranged on two different legs. The system was designed so that, if the switch were open on station 3 and the operator at the control panel attempted to send material to station 5 or 6 on the other leg of the system, the switch on station 3 not in use would close. The control panel was about 200 feet from switch 3. The system was laid out so that the operator's station was not within view of the switches.

On March 30, 1971, plaintiff and another employee, Paul Chrisman, were assigned to clean a clogged switch at station 3. This was done by removing a section of pipe which was provided at that point for maintenance purposes to clean the switch. When the main electrical control panel was locked out, it was possible to reach the clogged area by activating the switch at station 3 by pushing a manual override button which raised the switch by air power.

Prior to March 30, 1971, plaintiff had worked on other machinery at the foundry, but he had never been assigned to work on the sand delivery system. Chrisman, who had been employed at Caterpillar for 15 years, went to the control panel and locked out the electrical power in the system by pulling the main power switch and, according to his testimony, by locking the main switch handle with his safety padlock. Such locks were issued to all maintenance men for that purpose. After plaintiff and Chrisman had been working for 1 1/2 or 2 hours on the clogged switch, the production foreman and the control operator came to station 3. The foreman told plaintiff and Chrisman that they had the whole foundry shut down, and asked if it would be okay to transport sand to station 5 or 6. After discussing the fact that the sand would be going in the opposite direction from station 3, on the other leg of the system, and would not blow sand toward station 3, Chrisman said it would be okay, and plaintiff also assented. Although the accounts of this conversation differed, each participant testified that he believed use of station 5 or 6 would not affect station 3, and there would be no danger. However, after the control panel was unlocked and activated, the switch at station 3 dropped into the "down" or "through" position while plaintiff had his hand inside the switch pipe. As a result, his left hand was severed at the wrist.

Prior to the accident, defendants' service engineer did not know that when sand was being sent to one leg, the switches on the other leg not in use would operate. The testimony of the defendants' engineer revealed that there was no safety device at switch 3 to cut off the power and prevent the switch from operating. Neither the control operator nor the production foreman, nor the maintenance supervisor, nor the pipefitters knew that the switch at station 3 would close in such a situation before plaintiff's accident. The installation and maintenance manual supplied by defendants contained no instructions for cleaning clogged switches, although defendants admitted that such maintenance was expected and that the switches were in fact designed to permit it.

In his complaint, plaintiff alleged that the system was designed and manufactured so that it was in an unreasonably dangerous condition in that there were no adequate instructions, no warning signs against foreseeable danger to maintenance personnel, no safety lockout device on the switch at station 3, and no positive safety device to prevent a switch from closing while being cleaned. Defendants' answer consisted of a general denial and the affirmative defenses of assumption of the risk and misuse of the machine, both of which were stricken by the trial court at the close of all the evidence.

Defendants appeal from the judgment entered on the verdict returned in favor of plaintiff for $120,000. Defendants contend that the system or machine was not, as a matter of law, unreasonably dangerous, that the affirmative defense of assumption of the risk was erroneously stricken, and that various rulings on evidence were reversible error. In our opinion, the judgment of the trial court should be affirmed.

Unreasonably Dangerous

• 1 The touchstone for product liability in Illinois is Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182, where the court held that a manufacturer can be held to strict liability in tort where the injured user of the product has proved that his injury resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time it left the manufacturer's control. Defendants here insist that the term "unreasonably dangerous" should be construed to incorporate the definition set out in the Restatement (Second) of Torts § 402A, comment (i) (1965), as follows:

"The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."

Defendants then reason that the "ordinary consumer" of industrial equipment is one possessing special knowledge and skills, and that the machine in this case was not unreasonably dangerous when used by trained workmen for whom it was intended.

This court expressly rejected the Restatement definition of "unreasonably dangerous" in Pyatt v. Engel Equipment, Inc. (3d Dist. 1974), 17 Ill. App.3d 1070, 309 N.E.2d 225, 228-29. Contra, Becker v. Aquaslide `N' Dive Corp. (4th Dist. 1975), 35 Ill. App.3d 479, 341 N.E.2d 369.

In Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill.2d 339, 247 N.E.2d 401, 403, the Illinois Supreme Court sought to clarify the "unreasonably dangerous condition" standard by equating it with the term "defect," which, the court said, "* * * rest[s] upon the common premise that those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function." The court then concluded it is for the jury to determine whether, considering all the circumstances ...

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