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141 S. Main, Inc. v. Magic Fingers

OPINION FILED JUNE 13, 1977.

141 SOUTH MAIN, INC., PLAINTIFF-APPELLANT,

v.

MAGIC FINGERS, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Magic Fingers (a sensuous appellation!) is a manufacturer of vibrating bed devices, commonly found in public inns for the relaxation and soothing of the weary traveler.

141 South Main (a singular title for a corporate entity) owns and leases the Ambassador Motor Inn in Decatur where such oscillating machines were installed in 1965.

141 filed suit to recover damages caused by a fire which allegedly started in one of these bed vibrating devices manufactured by Magic Fingers, and owned (and installed) by defendant Lee Brooks. The complaint consisted of one count based on products liability, one on breach of implied warranty and two counts based on negligence. The trial court directed a verdict on all counts for the defendants Magic Fingers and Brooks, and 141 appeals.

The issues concern the directed verdicts and evidentiary rulings. In sum, we reverse and remand for a new trial on the products liability and implied warranty counts.

But first, some brief facts.

The owner of the vibrators from the time of their installation until April 1971 was Lee Brooks, franchisee for Magic Fingers in Decatur. The oscillators were actually installed by Vincent Albert who worked for Mr. Brooks. The coin-operated machines were leased to the Ambassador, which split the money obtained with Mr. Brooks.

On December 3, 1971, a fire occurred in Room 728. The occupant had put a quarter into the device, which did not work until after it had been shaken or slapped. It started working and very shortly thereafter there was a crackling sound. The occupant looked under the bed and saw sparks shooting up. He called the desk, and hotel employees first attempted to put out the fire themselves. Eventually, the fire department was called. Extensive damage resulted from the fire.

A Decatur fire inspector testified that, although he himself had no opinion on the cause of the fire, the official Fire Department records indicated it had been caused by the bed vibrating device. Extensive evidence was introduced concerning proper installation and the actual installation of the devices in the Ambassador. The vibrator from Room 728 was not available at trial.

Jeremy Davis, a consulting engineer, testified that, in his opinion, the fire was caused by a short circuit in the cord of the device. The covering of the cord would rub up against the springs of the bed or the clamps used to attach the cord to the bed frame. Eventually, because of the movement (of the machine itself, of the people on the bed, of the bed during cleaning) the covering could wear through and the device would short-circuit. He examined other cords on vibrators at the Ambassador and found cords which were pinched or penetrated although not entirely worn through. He testified that there were alternatives which existed at the time the devices were installed which would provide better protection than the covering used by Magic Fingers. These alternatives included metal braided cable or a light protection piece through which the cord could travel.

DEFECTIVE PRODUCT AND IMPLIED WARRANTY OF MERCHANTABILITY

The trial court directed a verdict for Magic Fingers on these two counts at the end of the plaintiff's case. 141 argues that this was error — and we agree.

• 1, 2 To present a prima facie case 141 South Main must prove three elements: (1) that the injury resulted from a condition of the product; (2) that the condition was unreasonably dangerous; and (3) that the condition existed at the time it left the defendant's control. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182, 188.) The defective condition need not manifest itself immediately (Larson v. Thomashow (1974), 17 Ill. App.3d 208, 307 N.E.2d 707) and it should be considered whether the defect is of such a character as to cause a delayed reaction. A lack of safety devices may cause a product to be unreasonably dangerous. Stanfield v. Medalist Industries (1975), 34 Ill. App.3d 635, 340 N.E.2d 276.

The trial court relied on Rios v. Niagara Machine & Tool Works (1974), 59 Ill.2d 79, 319 N.E.2d 232, in directing a verdict for the defendants, interpreting its holding as a retreat from Suvada. We do not, however, read Rios in such manner or as saying that there is no duty on the manufacturer to install a safety device on its product. Although the appellate court had held that a manufacturer of a multifunction machine with many safety devices possible (depending on the particular operation) did not have a duty to supply such safety devices, the supreme court specifically declined to base its holding on such a theory. In Rios, the employer had installed the safety device but it failed. The supreme court held that plaintiff had failed to prove the first element: that the injury resulted from a condition in the product. The injury, in fact, resulted from a failure of the safety device. In addition to the fact that the product in question here is not a complex ...


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