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Kerns v. Engelke

OPINION FILED JULY 26, 1977.

SANFORD KERNS, PLAINTIFF-APPELLEE,

v.

GUSTAV ENGELKE ET AL., D/B/A ENGELKE DAIRY FARM, ET AL., DEFENDANTS-APPELLANTS. — (MELVIN TIMMERMAN, D/B/A TIMMERMAN IMPLEMENT COMPANY, DEFENDANT-APPELLANT-APPELLEE.)



APPEAL from the Circuit Court of Madison County; the Hon. VICTOR J. MOSELE, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 12, 1977.

Defendants, Fox River Tractor Company (Fox River), and Melvin Timmerman, doing business as the Timmerman Implement Company (Timmerman), appeal from judgments entered by the Circuit Court of Madison County on jury verdicts finding them jointly liable for personal injuries suffered by the plaintiff, Sanford Kerns, and awarding damages in the amount of $225,000. Fox River also appeals from the court's judgment directing a verdict on Timmerman's counterclaim against Fox River for indemnification.

Plaintiff was injured while helping to set up for operation an implement of farm machinery, called a long-hopper forage blower, owned by his employers, Gustav and Leola Engelke. The forage blower was manufactured by Fox River and sold to the Engelkes by Timmerman. Plaintiff's complaint charged the Engelkes with negligence and stated causes of action against Fox River and Timmerman based upon strict liability in tort. The count of the complaint based upon strict liability alleged that the forage blower was unreasonably dangerous because its design failed to provide a mechanism to hold or cradle the power take-off assembly when the blower was being moved, and because there was no warning that the power take-off assembly should be removed when the blower was being moved. After a jury trial, all defendants, including the Engelkes, were found liable for plaintiff's injuries. As will be explained later in this opinion, however, the Engelkes did not appeal.

The forage blower is used to place ensilage into silos for storage. This is accomplished by placing the silage into a rectangular trough, referred to as the machine's hopper. The silage is then moved by a conveying device along the hopper and blown into the silo through a spout. The power necessary to operate the forage blower must be provided by an external source. For this reason, the blower is equipped with a power take-off assembly (PTO). The PTO consists of a shaft with a universal joint and a "quick disconnect" button located at each end. When one end of the PTO is attached to the forage blower and the other end is attached to the power take-off of a tractor, power generated by the engine can be transmitted to the forage blower. When the forage blower and tractor are properly connected, the PTO extends at an angle from one of the long sides of the hopper. The "quick disconnect" buttons are provided so that the PTO can be attached to or disconnected from either the blower or the tractor, as the situation requires. When one end of the PTO is attached to the forage blower or tractor, and the other end remains unattached, the universal joint assembly makes it possible to rotate the PTO shaft somewhat less than 90 degrees in any direction.

It is often necessary to move a forage blower from one silo to another. For this reason, the blower is equipped with a set of wheels and with a "tongue," by which it can be hitched to a tractor or other vehicle. The wheels are parallel to the length of the hopper and the tongue is attached to the hopper at the end opposite the blower mechanism. The PTO must be disconnected from the tractor whenever the forage blower is moved. It may or may not be removed from the forage blower. Two problems arise when the PTO is not removed from the forage blower before transportation. Because of the placement of the wheels, hitch and PTO, the PTO extends from the side of the machine. The resultant increase in the width of the forage blower is obviously undesirable, at least when the machine is transported over roadways. This problem can be alleviated to some extent by rotating the PTO on its universal joint either upward or to one side or the other. It is impossible, however, to turn the PTO a full 90 degrees, because movement of the shaft is blocked by metal guards and other devices placed near the point of connection between the PTO and the forage blower. The second problem is that the PTO will drag on the ground unless some method of holding it up is devised.

Plaintiff, who had had previous experience working on ranches and farms, was employed by the Engelkes in August of 1968. He worked under the direction of the Engelke's son, Charles, and one Wilbur Leuscher. Both of these men knew that before moving the forage blower, the PTO could be removed and placed in the hopper, or otherwise moved separately to the new location. It is not clear whether plaintiff was familiar with the "quick disconnect" arrangement. When moving the forage blower a short distance, Engelke and Leuscher customarily left the PTO connected to the blower and supported it off the ground by tying one end of a piece of twine or bailing wire to the PTO and tying the other end to the body of the blower.

At the end of the work day on September 22, 1968, plaintiff assisted Charles Engelke and Wilbur Leuscher in "tying up" the PTO with bailing wire, in the manner described above. When plaintiff reported for work on the following day, he noticed that the forage blower had been moved to a different location. He was later summoned to help in connecting the PTO to a tractor. At that time, the PTO was still secured by the wire which had been attached on the previous day. Plaintiff testified at trial that Charles Engelke instructed him to hold the shaft of the PTO while Engelke removed the wire. Engelke discovered, however, that he could not remove the wire manually, so he asked Wilbur Leuscher to give him something to cut it with. Leuscher handed Engelke a pair of pliers or wirecutters with which he cut or untied the wire.

Once the wire was removed, plaintiff rested the unattached end of the PTO on the ground. Wilbur Leuscher then left the area to do other work and Charles Engelke walked over to the tractor, which was parked nearby. Engelke backed the tractor toward the forage blower so that he and plaintiff could connect the PTO. As Engelke approached in the tractor, plaintiff bent over and began lifting the PTO shaft. After lifting it only a short distance, however, he felt something strike him in the eye. Plaintiff stated that he did not know whether it was the wire which struck him; in fact, he could not recall seeing the wire after Charles Engelke removed it. Plaintiff was severely injured in this accident and, eventually, his eye was surgically removed.

Wilbur Leuscher and Charles Engelke both testified that Leuscher was not present when the wire was removed from the forage blower nor when plaintiff was injured. Engelke stated that the PTO was still tied up with wire when he was backing the tractor. He saw the wire "come loose" prior to plaintiff's accident but did not know whether plaintiff had untied it. He did not see the wire strike plaintiff's eye.

• 1, 2 The appellants' first contention is that plaintiff was required to plead and prove that an alternative design for moving the forage blower and PTO was feasible under the state of the manufacturing art at the time the machine was manufactured. We disagree. In a case tried on a strict liability theory, the focus is on the product, not the supplier's conduct. The seller or manufacturer may be held liable even though he has exercised all possible care in the preparation and sale of his product. In Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 266 N.E.2d 897 (1970), an action was brought against a hospital by a patient who had contracted serum hepatitis from defective blood supplied by the hospital. The supreme court decided that the hospital could be held liable even though the state of medical science was such that there were absolutely no means by which the existence of serum hepatitis virus could be detected in whole blood. In reaching this decision, the court reasoned that:

"To allow a defense to strict liability on the ground that there is no way, either practical or theoretical, for a defendant to ascertain the existence of impurities in his product would be to emasculate the doctrine and in a very real sense would signal a return to a negligence theory." (47 Ill.2d 443, 453, 266 N.E.2d 897, 902.)

The state of the art, concluded the court, "is of absolutely no moment." (47 Ill.2d 443, 455, 266 N.E.2d 897, 903. See also Stanfield v. Medalist Industries, Inc., 34 Ill. App.3d 635, 340 N.E.2d 276 (2d Dist. 1975); Matthews v. Stewart Warner Corp., 20 Ill. App.3d 470, 314 N.E.2d 683 (1st Dist. 1974); Gelsumino v. E.W. Bliss Co., 10 Ill. App.3d 604, 295 N.E.2d 110 (1st Dist. 1973).)

We think that the same reasoning applies here, and that appellants' reliance on Sutkowski v. Universal Marion Corp., 5 Ill. App.3d 313, 281 N.E.2d 749 (3d Dist. 1972), and Lolie v. Ohio Brass Co., 502 F.2d 741 (7th Cir. 1974), is misplaced. Those cases did not hold, as appellants suggest, that plaintiff must plead and prove that an alternative design was feasible under the state of the manufacturing art at the time the machine was manufactured. What they decided was the quite different proposition that plaintiffs' evidence of post-occurrence changes in a product, offered to demonstrate that an alternative design was feasible, is admissible. The dictum of the Sutkowski court to the effect that "a manufacturer's product can hardly be faulted if safer alternatives are not feasible" (5 Ill. App.3d 313, 319, 281 N.E.2d 749, 753), to the extent that it is in conflict with Cunningham, Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965), and Restatement (Second) of Torts § 402A(2)(a) (1965), is not the law in Illinois. A finding of fault is not a prerequisite to the imposition of strict liability. Nor do we think that the "standard of proof" stated in Lolie *fn1 is consistent with the Illinois authorities.

Appellants' second argument is that, as a matter of law, the forage blower was not unreasonably dangerous at the time it left their control. They state that moving the forage blower without removing the PTO was a "non-intended" use and that plaintiff would not have been injured if the PTO had been removed. In other words, appellants argue that plaintiff's injury resulted from a "misuse" of their product.

• 3 A supplier may be liable for an injury caused by a "non-intended" use if such a use is foreseeable — that is, if it should be known to the reasonably prudent manufacturer. (Dunham v. Vaughan & Bushnell Manufacturing Co., 86 Ill. App.2d 315, 229 N.E.2d 684 (4th Dist. 1967), aff'd 42 Ill.2d 339, 247 N.E.2d 401 (1969).) Therefore, whenever the defense of misuse is raised, the question is whether such "misuse" was reasonably foreseeable. (See Lewis v. Stran Steel Corp., 57 Ill.2d 94, 311 N.E.2d 128 (1974).) Whether a particular use is foreseeable, or objectively reasonable to expect, is ordinarily a question of fact for the jury's determination. Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1 (1974); Williams v. Brown Manufacturing Co., 93 Ill. App.2d 334, 236 N.E.2d 125 (5th Dist. 1968), rev'd on other grounds, 45 Ill.2d 418, 261 N.E.2d 305 (1970); Stanfield v. Medalist Industries, Inc., 34 Ill. App.3d 635, 340 N.E.2d 276 (2d Dist. 1975); Krammer v. Edward Hines Lumber Co., 16 Ill. App.3d 763, 306 N.E.2d 686 (1st Dist. 1974).

The evidence in the instant case showed that the PTO weighed approximately 60 pounds and that some effort was required to attach or remove it because it fit snugly on the forage blower. Both Dr. Norval Wardle, plaintiff's expert witness, and appellant Melvin Timmerman stated at trial that "tying up" the PTO before moving a forage blower was a common practice. Timmerman testified that he, personally, had done so when moving short-hopper forage blowers. On the other hand, an expert witness called by defendants testified that "tying up" the PTO was not a customary or foreseeable practice and that he had never seen it done. However, other evidence was admitted indicating that some short-hopper forage blowers were equipped with devices for holding or cradling the PTO and that Fox River had considered attaching similar devices to its long-hopper model when it was being developed for production.

• 4, 5 As the jury was properly instructed in this case, jurors "have a right to consider all the evidence in the light of [their] own observation and experience in the affairs of life." (See IPI Civil No. 1.04.) Everyday experience indicates that the operator of a forage blower would devise some method to avoid, as much as possible, handling an unwieldy piece of machinery such as the PTO. Moreover, the manufacturer is charged with the knowledge of an expert and has a duty to keep informed of developments in his field. (Williams v. Brown Manufacturing Co., 93 Ill. App.2d 334, 236 N.E.2d 125 (5th Dist. 1968), rev'd on other grounds, 45 Ill.2d 418, 261 N.E.2d 305 (1970); Moren v. Samuel M. Langston Co., 96 Ill. App.2d 133, 237 N.E.2d 759 (1st Dist. 1968).) We feel that there was sufficient evidence to present the issue of foreseeability of misuse to the jury.

• 6, 7 In addition to alleging that the forage blower was defectively designed, plaintiff also alleged that it was unreasonably dangerous because there was no warning that the PTO should be removed when the machine was being moved. Even though a product may be faultlessly made, if it is not reasonably safe for a foreseeable use, the public policy of this State imposes a duty on the supplier of the product to give an adequate warning of its dangerous propensities. (Dunham v. Vaughan & Bushnell Manufacturing Co., 86 Ill. App.2d 315, 229 N.E.2d 684 (4th Dist. 1967), aff'd, 42 Ill.2d 339, 247 N.E.2d 401 (1969); Jonescue v. Jewel Home Shopping Service, 16 Ill. App.3d 339, 306 N.E.2d 312 (2d Dist. 1973).) As we said in Williams v. Brown Manufacturing Co., 93 Ill. App.2d 334, 360, 236 N.E.2d 125, 139, "failure to warn may itself be the defect" in a strict products liability case." (See also Frisch v. International Harvester Co., 33 Ill. App.3d 507, 515-16, 338 N.E.2d 90, 97 (1st Dist. 1975), and authorities cited.) Because the purpose of a warning is to apprise someone of a danger of which he is not aware, so that he can protect himself against it, there is, of course, no duty to warn where the danger is obvious or known to the user. Jonescue v. Jewel Home Shopping Service; Weiss v. Rockwell Manufacturing Co., 9 Ill. App.3d 906, 293 N.E.2d 375 (1st Dist. 1973); Willeford v. Mayrath Co., 7 Ill. App.3d 357, 287 N.E.2d 502 (4th Dist. 1972).

• 8 Appellants contend that an adequate warning was given. They also argue that such a warning was unnecessary for two reasons. First, because the Engelkes and Wilbur Leuscher knew that the PTO could be removed. Second, because the danger involved in moving the forage blower without removing the PTO was obvious. In our opinion, plaintiff's allegation that a warning was required but not given presented a question for the jury. Therefore, even if we were to assume that the design of the forage blower was not, in itself, unreasonably dangerous, we would not be required to reverse the judgment of the trial court.

• 9 An instruction manual given to the Engelkes when they purchased the forage blower contained pictures, entitled "Method of Transport," depicting the forage blower with its PTO removed. Appellants rely on these pictures and on the old adage that one picture is worth a thousand words in arguing that an adequate warning was given. At most, however, the pictures merely informed the reader of the manual that the PTO could be removed, not that failure to do so was dangerous. As this court pointed out in Williams v. Brown Manufacturing Co.:

"`* * * [T]he manufacturer must give both adequate directions for use and adequate warning of potential danger. Directions and warnings serve different purposes. Directions are required to assure effective use, warning to assure safe use. It is clear from the better reasoned cases that directions for use, which merely tell how to use the product, and which do not say anything about the danger of foreseeable misuse, do not necessarily satisfy the duty to warn." (93 Ill. App.2d 335, 361-62, 236 N.E.2d 125, 139-40, quoting from 1 Frumer-Friedman, Products Liability § 8.05; see also T. Lambert, Editorial, 36 Atla. L.J. 1, 2 (1976), and authorities cited.)

Under this reasoning, it was clearly for the jury to determine whether an adequate warning was given. The same reasoning leads us to reject appellants' contention that a warning was unnecessary because the Engelkes and Wilbur Leuscher knew that the PTO could be removed. Such knowledge, alone, would not necessarily lead them to the conclusion that failure to remove the PTO was dangerous.

• 10 We feel that it was also for the jury to determine whether the danger posed in moving the forage blower without removing the PTO was obvious. As Mr. Justice Seidenfeld wrote in Jonescue v. Jewel Home Shopping ...


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