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Peterson v. B/w Controls

OPINION FILED AUGUST 2, 1977.

MARION PETERSON, JR., PLAINTIFF-APPELLANT,

v.

B/W CONTROLS, INC., DEFENDANT-APPELLEE.



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

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a summary judgment entered in the Circuit Court of Peoria County, Illinois.

Plaintiff, Marion Peterson, Jr., was a certified electrician employed by the Midland Coal Company to do general electrical work. He was also a Federal mine specialist. He worked on controls and moved cables, the work normally done by a Federal mine specialist. Peterson had approximately 17 years of experience as an electrician. On August 11, 1973, Peterson went to a building known as the "east pump house" to shut off a circuit breaker in a panel which he had not previously inspected and with which he was unfamiliar. The circuit breaker controlled pumps located in the east pump house. The control panel box was approximately three feet square and eight to 10 inches deep. The door was in two parts, hinged on both sides and opened from the middle. There was no warning on the doors.

The control circuit wires were connected on one end to a relay switch which was lying in the right corner of the bottom of the control panel box. The relay switch did not fall out of the box. Plaintiff did not pay much attention to the relay switch. He was not looking for and did not see a triangular-shaped piece of metal on the relay switch with words written on it.

Control circuit wires connect a relay switch to something else. The control circuit wires which fell out of the control panel box extended across in front of the plaintiff to his left and behind the other door which remained closed. Plaintiff did not know whether the control circuit was leading to a pump or elsewhere.

Plaintiff opened the right hand door of the panel and insulated wires which were attached to a relay switch fell out. When the plaintiff saw the wires protruding from the box he reached down and attempted to push them back into the control panel box with his left hand. He did not touch the relay switch and he did not touch the control circuit wires within a foot of the relay switch. Plaintiff touched the wires with his exposed left index, middle, ring and little fingers. Plaintiff had hot gloves with him and had planned to wear them when shutting off the circuit breaker. He was standing on a rubber mat. He said that he was not touching the metal control panel box at the time of the incident and he did not know that he was grounded. The hot wires "paralyzed" him.

If the plaintiff had pulled the circuit breaker prior to pushing on the wires, the power to the relay switch would have been shut off. The plaintiff did not know of any defect in the switch itself.

The Type DH relay switch bearing serial number 626476 was manufactured and sold by B/W Controls, Inc., in 1970. At the time the relay switch was sold and placed into the stream of commerce by the manufacturer there were no external control circuit wires attached to the relay switch.

Peterson filed suit on August 18, 1975, against B/W Controls, Inc., B/W Controls International, Ltd., and The Anaconda Company. Anaconda, the alleged manufacturer of the insulated wire, was dismissed as a party by stipulation. Plaintiff conceded that B/W Controls International, Ltd., the alleged manufacturer of the relay switch, did not manufacture the relay switch. Summary judgment was entered on behalf of B/W Controls International, Ltd., on October 14, 1976. There is no appeal of those rulings.

Plaintiff's complaint alleged that B/W Controls, Inc., manufactured the relay switch; that the relay switch fell out of the control box; that plaintiff, in attempting to push the relay switch back into the box, touched a component wire of the switch; that the switch was not reasonably safe for its intended use because of various defects such as inadequate mounting, instructions, warnings, and insufficient insulation; and, that there was proximate causation between the condition of the product and plaintiff's resulting amputation of four fingers of his hand.

Defendant, B/W Controls, Inc., denied all the material allegations of plaintiff's complaint, including the manufacture of the relay switch. Defendant filed a motion for summary judgment and attached the transcript of plaintiff's deposition and an affidavit of defendant's president which stated that the relay switch as manufactured by B/W Controls, Inc., did not have attached thereto any external electrical control circuit wires leading away from the terminals on the switch at the time said relay switch left the control of B/W Controls, Inc., and therefore there could be no causal connection between an alleged defect in the switch and the injury to plaintiff for which defendant could be held liable.

Plaintiff's counteraffidavit stated that external wires existed on the switch at the time of the accident. There was no explanation of how the wires became attached to the relay switch. Plaintiff's deposition stated that some switches were prewired by the manufacturer and some were not.

On October 29, 1976, the trial court entered the summary judgment order which is the subject of this appeal.

The plaintiff raises two questions on appeal: (1) does a complaint, which otherwise alleges a cause of action in strict liability, fail because the allegedly defective condition of the product is not the contact point of plaintiff's injury, and (2) did the ...


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