APPEAL from the Circuit Court of McLean County; the Hon. WAYNE
C. TOWNLEY, JR., Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
This appeal involves another foray into that only partially-charted terra incognita of the law, known as strict liability in tort.
On April 30, 1970, one of plaintiff's decedents was the owner-operator of a motor vehicle proceeding in a southerly direction on Interstate Highway 55 near Normal, Illinois. The other plaintiffs were passengers in the vehicle. An exit sign pole, bearing the legend, "Normal-El Paso Exit," was located two feet off the shoulder of the highway. It contained over 1100 pounds of steel and was imbedded in concrete. The vehicle left the highway and collided with the pole. The impact killed two of the occupants and seriously injured the other three.
The defendant Fosco Fabricators (herein Fosco) was the manufacturer and installer of the pole and sign. Both the manufacture and installation were done in accordance with plans and specifications created and furnished by the State of Illinois with whom Fosco had a contract for such manufacture and installation of the pole in question and others along the particular stretch of Interstate 55. Fosco completed its contract and its work was approved and accepted by the State about 3 1/2 years before the accident.
An original complaint was filed against all defendants and subsequently dismissed as to Blasius, Jeremenc and McDougal-Hartman Company. An amended complaint against Fosco only was then substituted. In it, plaintiffs advance two theories negligence in failing to follow modern methods of highway construction, failure to erect "break-away" poles, creating an unusually dangerous condition along the highway and otherwise negligently constructing, designing and controlling the pole; and strict liability in designing and installing a pole inconsistent with modern highway construction, designing and installing the pole, anchoring solid steel in concrete within three feet of the roadway, all of which were alleged to be unreasonably dangerous.
Both sides moved for summary judgment. The trial court granted Fosco's motion and ruled that Fosco was an independent contractor and relieved of any liability since the post was not an imminently dangerous object. The trial court noted that its decision would be the same on either theory advanced, negligence or strict liability. This appeal ensued.
Central to the disposition of this case are two undisputed facts: (1) that the pole was manufactured and installed according to the design and specifications mandated by the State of Illinois, and (2) that Fosco was neither an employee nor an agent of the State, but simply a bidder on a public contract.
Turning first to the charge of negligence, the trial court placed reliance on Paul Harris Furniture Co. v. Morse (1956), 10 Ill.2d 28, 40, 139 N.E.2d 275, 282-83, wherein the supreme court said:
"The general rule is that where an independent contractor is employed to construct or install any given work or instrumentality, and has done the same and it has been accepted by the employer and the contractor discharged, he is no longer liable to third persons for injuries received as the result of defective construction or installation. [Citation.] This rule, however, is subject to certain well recognized exceptions whereby a contractor may be held liable even after acceptance of his work by the contractee (1) where the thing dealt with is imminently dangerous in kind, such as explosives, poisonous drugs, and the like, (2) where the subject matter of the contract is to be used for a particular purpose, requiring security for the protection of life, such as a scaffold, and (3) where the thing is rendered dangerous by a defect of which the constructor knows but deceitfully conceals, and which causes an accident when the thing is used for the particular purpose for which it was constructed. [Citations.]"
Harris was a negligence case and was decided prior to Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182. Hence, it is dispositive of the negligence theory in the case at bar, unless the pole can be brought within the "imminently dangerous" exception. There is no contention that the other two exceptions have any application here.
The Harris court did not undertake to define the term "imminently dangerous," but rather used examples of "explosives, poisonous drugs and the like." Webster's New International Dictionary (2d ed. 1941) defined "imminent" as "threatening to occur immediately." Webster's Dictionary of Synonyms (1st ed.) lists as analogous words: "inevitable, ineluctable, inescapable, unavoidable."
1 It may therefore be deducted that "imminently dangerous" means that the danger exists in the very nature and purpose of the product. Tested by these standards, we do not believe that the pole was imminently dangerous.
Plaintiffs cite Kinsch v. Di Vito Construction Co. (1964), 54 Ill. App.2d 149, 203 N.E.2d 621, for the "imminently dangerous" doctrine. Kinsch is distinguishable. There a contractor had removed a concrete head wall and placed it on the shoulder of the road in order to construct a sewer. The court noted that drivers must occasionally use the shoulder in emergencies and other situations. In the case at bar, the pole was more than two feet off the shoulder in an area where no traffic would be expected. Furthermore, the accident in Kinsch occurred during the course of construction, not more than three years later as in the case at bar.
Plaintiffs place further reliance on Watts v. Bacon & Van Buskirk Glass Co. (1959), 18 Ill.2d 226, 163 N.E.2d 425. In that case the plaintiff was injured when a glass door shattered. The trial court directed verdicts of not guilty for the owners of the store and the glass company which furnished the door. The jury found the tenant not guilty. Appeal was taken only as to the owner and the glass company. The appellate court reversed as to the ...