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Richelman v. Kewanee Mach. & Conveyor Co.





APPEAL from the Circuit Court of St. Clair County; the Hon. WILLIAM P. FLEMING, Judge, presiding.


Defendant appeals from a judgment in the amount of $75,000 entered by the circuit court of St. Clair County after a jury found the issues in favor of the plaintiff in a suit based upon strict liability and negligence.

On November 17, 1972, Mark Richelman, then 2 years 9 months of age, suffered a traumatic amputation of his right leg when he became entangled in a grain auger located in his grandfather's farm yard. In response to special interrogatories the jury indicated that its verdict was founded upon both theories of the case.

In 1965 the Kewanee Machinery and Conveyor Company designed what became known as the Model 260 Auger to be used, inter alia, to convey grain from a hopper located on the ground to a storage silo. The auger consists of a 41-foot metal tube, or sleeve, within which revolves a screw-like mechanism extending from a 25-foot high storage bin down to a gravity hopper which sits on the ground. Prior to 1965 the defendant had employed a safety guard consisting of longitudinal bars spaced 3 3/8" apart which surrounded the screw portion of the auger. For purposes of clarity this guard design shall be referred to as the "parallel guard" for, as explained at trial, the safety device in this design is parallel to the screw itself. In an effort to enhance sales, the defendant conducted tests of various potential guard designs in 1965 with a goal of approximating the amount of grain intake obtained when no guard was used. Three basic designs were tested: (1) variations of the parallel guard then in use; (2) a vertical or cross-type guard and its variations; and (3) a screen-type guard comprised of 4" x 4" gauge wire. The vertical type guard, consisting of three 3/8" diameter rods spaced 4 5/8" apart, was subsequently adopted and in 1967 manufactured on the Model 260 Auger. The minor plaintiff's grandfather, Arthur Richelman, purchased the Kewanee Model 260 Grain Auger in 1967 from an implement dealer located in Steeleville, Illinois.

In 1972 plaintiff's parents, Donald and Elaine Richelman, were living with their minor son in a mobile home located approximately 30 feet west of the farmhouse where plaintiff's grandparents resided. Donald's father worked on the farm owned and operated by his father, Arthur Richelman. On the day of the accident Arthur Richelman had been shelling corn in a nearby field while Donald Richelman transported the shelled corn to the tractor-powered auger which then conveyed the kernels into the storage bin. Elaine Richelman, her minor son (the plaintiff), and his cousin, aged 3 1/2 years, had gone shopping in a nearby town. They returned about 1 p.m. and Mrs. Richelman put the children down for their customary nap. Upon learning that the children were napping, Donald Richelman started the auger and proceeded to feed some cattle approximately 50 feet away from the operating machinery. As the children were unable to sleep, Mrs. Richelman dressed them and took them to their grandmother's house nearby. This activity went unnoticed by Donald Richelman. While Mrs. Richelman spoke with her mother-in-law in the living room, the children played on an enclosed porch. Less than five minutes later both parents heard Mark's screams and rushed to the grain elevator in time to pull their son from the hopper. The minor plaintiff's right leg had been amputated by the grain auger. However, no one had witnessed precisely how the young child had become entangled in the machinery.

There was a great deal of evidence adduced at trial concerning the methodology employed in testing the various guard designs. James Suhr, who had been instrumental as a design engineer in the employ of Kewanee during the 1965 tests was called as a witness for the plaintiff. He testified that in designing the guards he considered only the safety of the implement operator; the safety of a bystander was not even a factor. He explained that he anticipated that anyone, male or female, of high school age could be an operator of the auger. Nevertheless, in determining the width of the gap between the guard bars, Suhr measured only the width of his own size 12-B shoe and accordingly spaced the bars 4 5/8" apart. This decision was made with full knowledge that men and women of high school age generally have narrower feet than his own. Suhr admitted that he did not contemplate an operator tripping so that another part of the body could become engaged in the auger. Finally, he stated that although the engineers were fully cognizant that augers are generally located in a farmhouse complex where small children often play, their safety was not a consideration in designing the auger guard. In short, the guard was designed for the safety of "the majority of users." The study concluded that the screen-type guard was safest and that the parallel type guard which was replaced in 1967 was safer than the vertical type guard used in the 1967 design involved in this accident.

Under examination by defense counsel, Suhr explained that despite its use as a guard for other types of farm machinery, the screen-type device was not widely used on grain augers in 1967. Redesign having been, in his opinion, motivated by clogging difficulties with the parallel guard, Suhr testified that he felt the added safety features of the screen design would induce a greater occurrence of clogging and thus an increased incidence of dangerous contacts with the machine.

Suhr's study was strongly criticized by Dr. Carl Larson, associate professor and part-time assistant dean in the Engineering College of the University of Illinois. Dr. Larson testified that the wire screen concept, which was in his opinion safer than either of the other two designs under consideration in 1965, was at that time commercially available. In fact, the defendant itself offered for purchase in 1965 a tilting-style hopper with a screen-type guard. Larson estimated that the difference in the cost of producing the screen type guard and the vertical guard ultimately chosen was nominal. In any case, Larson unequivocally stated that the longitudinal or parallel guard previously used would afford greater protection to anyone coming into contact with the auger than the vertical style on the Model 260 Auger. In support of its feasibility, he pointed out that in 1970 Kewanee adopted the preferred screen design on this model auger. Larson stated that the practice of determining the extent of the gap between the guard bars by measuring one's own shoe width was definitely not an accepted method of design engineering. In Larson's opinion the Model 260 Grain Auger was an unreasonably dangerous product when manufactured in 1967, since anyone with a narrower than 4 5/8" shoe could get caught in the auger.

Dr. Virgil Flanigan, associate professor of mechanical engineering at the University of Missouri, testified on behalf of defendant that in his opinion the vertical-type guard device employed on the Model 260 Auger was not unreasonably dangerous in 1965. Dr. Flanigan did acknowledge, however, that the gravity hopper involved in this case was situated as low to the ground as the tilting hopper manufactured in 1967 with a screen-type cover. Although he agreed that the screen-style guard is the safest design, he stated that the parallel and the vertical type guards tested in 1965 were equally safe. Finally, Dr. Flanigan conceded that when designing the machine for safety, persons other than the operator should be considered.

The only issue for review is whether Mark Richelman's injury was foreseeable as a matter of law under the rationale of Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1.

The Winnett case involved an injury to a four-year old child who was, in the court's own language, "permitted to approach an operating farm forage wagon or * * * permitted to place her fingers in or on the holes in its moving screen." (57 Ill.2d 7, 13.) In rejecting the usual categorization of plaintiffs, the court adopted the following test of liability:

"In our judgment the liability of a manufacturer properly encompasses only those individuals to whom injury from a defective product may reasonably be foreseen and only those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable that it may be used." (57 Ill.2d 7, 11.)

The court continued:

"Whether the plaintiff here is an individual who is entitled to the protections afforded by the concepts of strict tort liability depends upon whether it can be fairly said that her conduct in placing her fingers in the moving screen or belt of the forage wagon was reasonably foreseeable. A foreseeability test, however, is not intended to bring within the scope of the defendant's liability every injury that might possibly occur. `In a sense, in retrospect almost nothing is entirely unforeseeable.' (Mieher v. Brown, 54 Ill.2d 539, 544.) Foreseeability ...

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