APPEAL from the Circuit Court of Champaign County; the Hon.
JOHN P. SHONKWILER, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendants, Moore Farm Building Company, a corporation (Moore), and Equipment Specialists, Inc., a corporation (Specialists), appeal from judgments entered on jury verdicts in the respective amounts of $100,000 for personal injury to Dale Johnson, $76,250 for the subsequent death of Dale Johnson, and $105,383 to Myrtle Johnson for expenses, loss of support and loss of consortium. They also appeal from a summary judgment entered in favor of F.S. Services, Inc. (Services), in a third-party action for indemnity.
On January 5, 1973, Dale Johnson, aged 60, was an employee of Services and had been so employed for several years. Services operated a facility for drying seed corn and seed beans. On that date Johnson was assigned to clean the system of bins employed to dry the seed and during the afternoon was found lying at the bottom of a bin with the injuries from which he subsequently died in January 1975. He did not recover sufficiently to describe what acts or events had occurred prior to his being found.
Mr. Johnson was a habitually careful, cautious, sober, and prudent person. His primary job was as a truck driver, however he performed other tasks as assigned by his employer.
The drying facility consisted of 10 bins, each 28 feet long, 16 feet wide, and 15 feet deep. On the second floor of the structure the long axis of the bins was bisected by a conveyor suspended from the roof. A cross-shuttle supported a hopper which received grain from the conveyor to empty seed through openings into the bins. The hopper had provisions for securing it with bolts. The hopper was found in the bottom of the bin next to Johnson. The configuration of the main conveyor was such that the hopper had to be moved from its normal position in order to load the two westernmost openings in the floor. Apparently, the securing bolts were removed from the hopper for this purpose. Testimony differed as to whether the hopper had to be removed completely and then reaffixed at a different location or whether the hopper could have been loosened and then moved to the new location.
Also, on the second floor of the structure were a series of 4-feet-by-8-feet trap doors or hatches. There were four of such doors to each bin, two on each side of the conveyor. The 8-feet dimension of the door coincided with the long axis of the bin. Each opening or hatch was placed along the wall of a bin so that from the scale drawings in evidence it appears that there are 8 feet of solid floor between the doors of each bin on either side of the conveyor, about 4 feet of solid floor between the outer end of the door and the outer wall, had about 4 feet of floor area in the center and of the conveyor system. The solidity and effectiveness of the doors when closed is not an issue in this case.
The hatches or openings in the bin served as a means of placing grain into the bins and of exhausting air from the bins during the process of drying. During the filling procedure, all bin doors would be closed except for the bin into which seed was being emptied. As to such bin, all four doors would be open during the filling process. During the drying process, it was necessary for the employees to get in and out of the bins at frequent intervals to obtain samples.
It was required that the area around each bin be cleaned between batches and that the whole second-floor area be cleaned at the end of each season. Each bin would be loaded some 10 times during a season. The cleaning process was accomplished by sweeping up the excess grain and included the sweeping of the ledges upon which each door or hatch rested. The employee had to sweep around the edge.
At the time of the discovery of the accident all of the doors or hatches were closed except one over the bin in which decedent was found.
Services determined to build the facility in the latter part of 1967. Specialists, who designed and built the conveyor and drying systems, was invited to be a bidder and was awarded the general contract. Specialists entered into a subcontract with Moore for the construction of the building. There was testimony that all engineering and construction drawings were to be furnished by Specialists.
The evidence showed that Specialists and Moore were not licensed architects or structural engineers. Robert Moore, president of Moore, testified that Moore had no prior experience with grain dryers, and he consulted no outside architect or engineer.
Delbert Smith, an architect and engineer, testified as an expert witness for plaintiff. American National Standards Institute is accepted by architects as standard safe construction procedures. It was Smith's opinion that the grain dryer would not comply with the standards unless it had a safety railing at the openings. The building could have been constructed with four 2' x 5' holes without impairing its function. In his opinion, the building was not safe for workmen. The preparation of drawings showing the layout of the second floor of the building was the practice of architecture; the design for structural members would be structural engineering. He testified that a person using the ordinary care of an architect or structural engineer would not have designed the dryer without guardrails. It is the architect's function to recommend inclusion of safety features whether or not the owner says that he wants them.
The bins and dryers were put into operation in September 1968, and were used continuously until the injury to Johnson in January 1973. The record does not show any other injuries from the use of the bins.
The allegations of plaintiff's complaint state a theory that the defendants negligently designed and constructed the hatch or openings without guardrails or protective devices to prevent workmen from falling through the open doors and that they negligently designed and constructed the openings in the floor larger than necessary for the operation of grain drying. We, therefore, decide this case under the negligence theory; strict liability plays no part here.
An issue raised upon motions to dismiss and the post-trial motions and upon appeal is whether or not the allegations in the complaint and the evidence establish a duty and a breach of duty upon the part of the defendants.
"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 in installation. (Empire Laundry Machinery Co. v. Brady, 164 Ill. 58.) 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 explosive, 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." 10 Ill.2d 28, 40, 139 N.E.2d 275, 282.
3 The rule is as applicable to one who designs as it is to one who constructs. (Laukkanen v. Jewel Tea Co., (1966), 78 Ill. App.2d 153, 222 N.E.2d 584.) The rule is not clear on its face and has been said to have been swallowed by its exceptions. In the instant case we would be justified in holding that the first exception is applicable. Oversized floor openings designed and constructed without guardrails do not appear at first blush to fit the phrase "imminently dangerous in kind, such as explosives, poisonous drugs, and the like." However, long ago this venerable phrase was construed far more broadly than any lay dictionary would reveal. In Rotche v. Buick Motor Co. (1934), 358 Ill. 507, 193 N.E. 529, the Illinois Supreme Court adopted the holding of, and quoted the following from, MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050:
"`If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.'" 358 Ill. 507, 514.
The rules of the Restatement (Second) of Torts (1965), have found favor in the Illinois Supreme Court. (See Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182 (section 405A); Sparling v. Peabody Coal Co. (1974), 59 Ill.2d 491, 322 N.E.2d 5 (sections 352 and 353).) We are confident that were this case now before the supreme court, it would adopt Restatement (Second) of Torts (1965), section 385, as the applicable law: "One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others."
Several jurisdictions have adopted section 385, or a similar rule. (Montijo v. Swift (1963), 219 Cal.App.2d 351, 33 Cal. Rptr. 133; Hunter v. Quality Homes (1949), 45 Del. 100, 68 A.2d 620; Hanna v. Fletcher (D.C. Cir. 1956), 231 F.2d 469, 58 A.L.R. 2d 847, cert. denied (1956), 351 U.S. 989, 100 L.Ed. 1501, 76 S.Ct. 1051; Thompson v. Burke Engineering Sales Co. (1960), 252 Iowa 146, 106 N.W.2d 351; Russell v. Community Hospital Association, Inc. (1967), 199 Kan. 251, 428 P.2d 783; Saylor v. Hall (Ky. 1973), 497 S.W.2d 218; Marine Insurance Co. v. Strecker (1957), 234 La. 522, 100 So.2d 493; McDonough v. Whalen (1974), 365 Mass. 506, 313 N.E.2d 435; Kapalczynski v. Globe Construction Co. (1969), 19 Mich. App. 396, 172 N.W.2d 852; Russell v. Arthur Whitcomb, Inc. (1956), 100 N.H. 171, 121 A.2d 781; Totten v. Gruzen (1968), 52 N.J. 202, 245 A.2d 1; Baker v. Fryar (1966), 77 N.M. 257, 421 P.2d 784; Inman v. Binghamton Housing Authority (1957), 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895; Krisovich v. John Booth, Inc. (1956), 181 Pa. Super. 5, 121 A.2d 890; Leigh v. Wadsworth (Okla. 1961), 361 P.2d 849; Pastorelli v. Associated Engineers, ...