APPEAL from the Circuit Court of St. Clair County; the Hon.
D.W. COSTELLO, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Third-party plaintiff, International Harvester Inc., appeals from an order granting dismissal of its second amended third-party complaint brought against United States Steel, seeking indemnification.
Elbridge Robinson, plaintiff, an employee of United States Steel, sustained severe injuries while operating an International Pay Loader H-25B an industrial truck. Plaintiff's amended complaint alleged that International Harvester Inc. was in the business of manufacturing farm and industrial machinery including the International Pay Loader H-25B, and charged International Harvester Inc. with negligence in:
1. Failing to equip the Pay Loader with an operator protective canopy.
2. Negligently designing the Pay Loader so that the machine was unstable.
3. Failing to warn or place safety signs in the machine to alert the operator as to the hazard of raising or tipping.
4. Failing to fulfill the requirements of the standards in the field particularly in regard to operator protection and protective frame performance requirements.
Plaintiff's amended complaint against International Harvester Inc. also alleged a strict liability in tort theory in that certain defects existed in the Pay Loader when it left the possession of International Harvester Inc., which made the machine unreasonably dangerous and proximately caused the plaintiff's injury. These defects were:
1. The Pay Loader did not come equipped with an operator protective canopy.
2. The Pay Loader was designed in such a way that with a full load in the bucket it is precariously balanced over the front axle.
3. The brakes which are controlled by dual, simultaneously acting brake pedals, are in the front drive wheels which when applied will tend to lift the rear of the Pay Loader.
4. There were no directions for operation of the machine, nor were there warning or safety signs on the machine to alert the operator to the hazard of tipping or to guide him in how to prevent the tipping.
International Harvester Inc. (manufacturer) filed a second amended third-party complaint against United States Steel seeking indemnification for any sum that may be adjudged against it as a result of plaintiff's action. The second amended third-party complaint alleged that the plaintiff was employed by United States Steel (employer); that the plaintiff was acting within the scope of employment when injured, and that the Pay Loader was sold to employer by manufacturer several years prior to plaintiff's injury. The Pay Loader was marketed as a multipurpose piece of equipment and had optional equipment available depending on the purpose for which it was used. The manufacturer further alleged that the Pay Loader was knowingly purchased without the standard optional equipment and that employer knew of the availability of overhead protection devices prior to plaintiff's accident.
It is alleged that any acts or omissions which could make manufacturer liable to the plaintiff would be technical, passive, or secondary and that the loss sustained, if held liable, would be the direct and proximate result of the ...