APPEAL from the Circuit Court of Peoria County; the Hon.
ALBERT PUCCI, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Peoria County which granted a motion for summary judgment filed by the Galis Manufacturing Company in a products liability suit filed by the plaintiff, Gary Prince.
The plaintiff, an underground or deep mine coal miner, was injured while engaged in his employment duties at the Consolidation Coal Company's mine located at Girard, Illinois. At the time of his injury the plaintiff was operating a twin boom, or "roofbolter machine" manufactured by the defendant. The purpose of the machine was to implant metal roof bolts in the ceiling of an underground mine in order to prevent the collapse of the ceiling. To operate the machine referred to as a "roofbolter" it is necessary that the operator place a drill bit into the chuck of a hydraulic boom. The boom would then force the drill bit in an upward position and a hole would be drilled into the ceiling of the underground mine. A roof bolt is then pushed into the hole and tightened by means of a metal wrench which is inserted into the chuck of the machine.
The plaintiff was operating a Galis type machine manufactured by the defendant on March 20, 1975, when he was injured during the bolt tightening process as the result of a wrench being used to tighten the bolt flying out of the chuck on the machine. The wrench struck the plaintiff in the face and among the injuries received was the loss of his left eye.
It is undisputed that the "roofbolter" used by the plaintiff had no wrench or auger retainer on it at the time of the plaintiff's action; however, another type of machine known as the "Manson" bolter did have a wrench retainer installed on it and the plaintiff was aware of the use and purpose of the device.
From a discovery deposition taken of the plaintiff we find that he had 3 1/2 years of coal mining experience and from December, 1974, until the date of his accident he worked steadily as a roofbolter on a "Galis" machine. He had been warned by fellow employees as to the possible risk of the wrenches used on the machine flying out of the chuck and injuring him. The plaintiff further admitted that he had probably made complaints to other individuals concerning the danger posed by the lack of a wrench retainer on the "Galis" machine.
The plaintiff's amended complaint sounding in strict liability in tort alleged that the roofbolter was unreasonably dangerous for its intended use in that it was defectively designed and manufactured so that no lock was installed or provided on the chuck of the roofbolter to prevent the wrench from spinning out of the chuck while it was in use.
The defendant manufacturer denied that the machine was in any manner unreasonably dangerous and further filed an affirmative defense alleging that the plaintiff assumed the risk of the alleged unreasonably dangerous condition.
As we have previously stated, the trial court based upon facts disclosed by various depositions granted the defendant's motion for summary judgment, said motion having been predicated upon the theory that the plaintiff had assumed the risk of injury from the absence of a wrench or auger retainer on the defendant's roofbolter.
The plaintiff raises two issues in this appeal, first, did the trial court err in allowing the defendant's motion for summary judgment, and, secondly, was the plaintiff guilty of assuming the risk of an inherently dangerous product by proceeding to use the same when he knows that it is dangerous?
1 Addressing our attention to the first issue, we are well aware of the rule of law that summary judgments should be allowed only if there is no genuine issue as to any material fact and that the moving party is entitled to the judgment as a matter of law. (Greenwood v. Leu (1973), 14 Ill. App.3d 11, 302 N.E.2d 359.) Further when ruling on a motion for summary judgment, the court must construe the pleadings, exhibits, and affidavits included therein strictly against the moving party and liberally in favor of the opponent. Decatur Construction, Inc. v. Central Illinois Public Service Co. (1974), 16 Ill. App.3d 1056, 307 N.E.2d 431.
2 Though motions for summary judgment must be viewed most carefully and strictly construed against the movant, the reviewing courts> of this State have affirmed or ordered the granting of a summary judgment when it has been determined that plaintiffs have assumed the risk of their injuries as a matter of law. Kirby v. General Motors Corp. (1973), 10 Ill. App.3d 92, 293 N.E.2d 345; Ralston v. Illinois Power Co. (1973), 13 Ill. App.3d 95, 299 N.E.2d 497; Denton v. Bachtold Brothers Inc. (1972), 8 Ill. App.3d 1038, 291 N.E.2d 229; Fore v. Vermeer Manufacturing Co. (1972), 7 Ill. App.3d 346, 287 N.E.2d 526.
In examining a previous opinion issued by this court in a products liability case where summary judgment was granted to the defendant on the grounds that the plaintiff had assumed the risk of his injuries, we direct our attention to Fore v. Vermeer Manufacturing Co. (1972), 7 Ill. App.3d 346, 287 N.E.2d 526. In Vermeer this court stated:
"It appears to be clear that the plaintiff had actual knowledge of the danger; that he understood and appreciated the risk, and that he deliberately exposed himself to such risk, all while he was of full age, well experienced, with complete knowledge and understanding, of an obvious defect, and an obvious danger. Under such circumstances the court may declare as a matter of law that he assumed the risk. (57 Am.Jur.2d, Negligence, Sec. 287.) Assumption of the risk is a matter of law where the facts are undisputed and present a situation so plain that different ...