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Kerns v. Engelke





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. Victor J. Mosele, Judge, presiding.


The plaintiff, Sanford Kerns, was severely injured in the course of his work as an employee of Gustav and Leola Engelke, doing business as Engelke Dairy Farms. In the circuit court of Madison County, jury verdicts, awarding the plaintiff $225,000 in damages, were returned against all the defendants: the Engelkes, on the basis of negligence; and Fox River Tractor Co. (the manufacturer of the forage blower involved in the injury) and Melvin Timmerman (the retailer doing business as Timmerman Implement Co.) on the basis of strict liability in tort. In a counterclaim, Timmerman received a judgment for indemnity "plus a reasonable sum for legal fees, court costs and other expenses of defense" against Fox River. The appellate court affirmed. However, it remanded for a precise determination of the amount owed Timmerman, and found a "loan receipt agreement," entered into between the plaintiff and the Engelkes subsequent to the trial court judgment, void. (54 Ill. App.3d 323.) We allowed (65 Ill.2d R. 315) and consolidated the separate appeals of the plaintiff and Fox River.

The plaintiff lost an eye when struck by a wire, apparently used to hold temporarily in place the power takeoff assembly of a "long-hopper" forage blower while the blower was being moved. The forage blower is used to convey, by means of blowing up a long, tubular pipe, silage into a silo. The blower here, owned by the Engelkes, sold by Timmerman and manufactured by Fox River, consisted of several main parts: a hopper into which the silage is fed, and which carries the silage to the blower and spout; a blower mechanism by means of which the silage is forced up the spout and into the silo or storage bin; the spout; wheels and a tractor hitch for transit; and the power takeoff assembly, an arm-like mechanism which is hooked up to the power takeoff of a tractor and provides the power for the blower. When the forage blower is moved to another location, the power takeoff assembly must be detached from the tractor so the tractor can be connected to the hitching tongue of the blower. The power takeoff assembly is designed in such a way that during movement it must be entirely removed, and placed in the rectangular hopper or carried separately; otherwise it will drag on the ground. Testimony showed that the Engelkes did not remove the power takeoff assembly from the blower but, for convenience, simply tied or wired the unconnected or tractor end to the blower while the blower was in transit. Each end of the power takeoff assembly is equipped with a "quick disconnect" button for attachment and removal. Testimony also showed that the blower was not equipped with any device to carry or cradle the power takeoff assembly while in transit. Plaintiff's injury occurred as he was helping to connect the power takeoff assembly to the tractor. The wire holding the assembly was loosened or removed. While Charles Engelke, son of the farm owners, backed the tractor up to the assembly for connection, the plaintiff held the assembly off the ground. The wire hit him in the eye while he was holding the power takeoff assembly. There was also testimony that no warning, apropos of danger that might result by failing to remove the power takeoff assembly for purposes of moving the blower, was placed on the blower; and that it was common practice, for convenience, to secure by "tying up" the tractor end of the assembly to the blower during transit.

In its appeal, Fox River first contends that the plaintiff failed to state a cause of action and that the jury was improperly instructed because the plaintiff did not allege that the product itself was unreasonably dangerous. Rather, the argument continues, the plaintiff maintained that the forage blower was unreasonably dangerous only because it lacked a device to hold or secure the power takeoff assembly while it was being moved. This necessitates, Fox River concludes, pleading and proving that an "alternative design" was feasible under the state of the art at the time the blower was manufactured, and the plaintiff failed to do so. The parties do not dispute that the plaintiff's injury was due to the product's condition which existed at the time the forage blower left Fox River's control. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623.) The question before us is whether that condition — lack of a device to hold or secure the power takeoff assembly while the blower was being moved — was properly determined to be an unreasonably dangerous defect in design. (Defect in design, like defect in manufacture, is a basis for strict liability in tort. (Wright v. Massey-Harris, Inc. (1966), 68 Ill. App.2d 70, 79; 2 J. Dooley, Modern Tort Law 294 (1977) (hereafter Dooley); W. Prosser, Torts 644 (4th ed. 1971). See also Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 420, 431.))

The appellate court rightly points out that, in cases of strict liability, "focus is on the product," not the conduct. (54 Ill. App.3d 323, 329.) In holding that Fox River's argument and the "state of the art" defense have no place in the instant case, the appellate court relied on Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill.2d 443. We believe that reliance is not quite correct. In Cunningham, a patient contracted serum hepatitis from defective blood. This court decided the hospital was liable, even though medical science could not determine the presence of the serum hepatitis virus in the blood, because such a defense would weaken the doctrine of strict liability. The case is distinguishable since there the product itself was unreasonably dangerous. Here the allegation is that the lack of a securing device for the power takeoff assembly made the product not reasonably safe, and that is a factual issue that must be determined by the fact finder. (Our reasoning may not be interpreted as limiting Cunningham, nor as "signal[ing] a return to a negligence theory." (47 Ill.2d 443, 453.)) On the other hand, we do not adopt Fox River's argument. Fox River maintains that our law for cases of defective design is that a plaintiff must plead and prove alternative design and its feasibility, which the plaintiff failed to do here. Fox River cites Lolie v. Ohio Brass Co. (7th Cir. 1974), 502 F.2d 741, 744, which held that "the plaintiff must establish that the `product in question has [not] lived up to the required standard of safety.' [Citations.] This, of course, requires proof that, inter alia: 1) the product as designed is incapable of preventing the injury complained of; 2) there existed an alternative design which would have prevented the injury; and 3) in terms of cost, practicality and technological possibility, the alternative design was feasible. Evidence of post-occurrence change which tended to satisfy plaintiff's burden on any of these issues would, therefore, be relevant." Lolie so held on the basis of two cases from our appellate court. In the first case, Wright v. Massey-Harris, Inc. (1966), 68 Ill. App.2d 70, the plaintiff, a farm employee, was injured while manually trying to extract an ear of corn which was jammed in the shucking rollers of a self-propelled corn picker. He alleged that the lack of a shield over the rollers was dangerously defective. While Wright was pending in the appellate court, this court decided Suvada (32 Ill.2d 612), so the Wright court held:

"The present case involves a claimed defect in design rather than a defect in manufacture and we interpret Suvada to mean that the strict liability imposed upon a manufacturer includes injuries which arise from defects in design as well as defects in manufacture.

Whether the design defect in the present case is of a nature upon which liability can be imposed involves the factual question of whether it creates an unreasonably dangerous condition, or, in other words, whether the product in question has lived up to the required standard of safety.

We believe that the complaint in the present case states a good cause of action in negligence and also a good cause of action in strict liability if we treat all of the allegations in excess of those required by Suvada as surplusage." (68 Ill. App.2d 70, 79.)

Wright demonstrates that the plaintiff must present pertinent evidence, such as an alternative design which is economical, practical and effective, to the fact finder, who determines whether the complained-of condition was an unreasonably dangerous defect. This, we believe, is what Sutkowski v. Universal Marion Corp (1972), 5 Ill. App.3d 313, 319, also stands for:

"In the development of product's liability principles design alternatives are appropriately considered whether reasonable care is the basis of liability or where liability is predicated upon strict tort liability. [Citation.] In both cases it appears that policy considerations are involved which shift the emphasis from the defendant manfacturer's conduct to the character of the product. Such change in emphasis furnishes additional reasons for permitting evidence of alternative designs in a strict tort liability case.

The possible existence of alternative designs introduces the feature of feasibility since a manufacturer's product can hardly be faulted if safer alternatives are not feasible. In this connection feasibility includes not only the elements of economy, effectiveness and practicality but also the technological possibilities viewed in the present state of the art. If the feasibility of alternative designs may be shown by the opinions of experts or by the existence of safety devices on other products or in the design thereof we conclude that evidence of a post occurrence change is equally relevant and material in determining that a design alternative is feasible."

Neither Lolie, Wright nor Sutkowski holds that a plaintiff must plead alternative design, as Fox River argues. Whether Lolie, which holds that a plaintiff must prove alternative design, correctly states our law is a question which does not have to be answered here. The plaintiff proved, as he must, to the satisfaction of the fact finder, the unreasonably dangerous nature of the defect in design; and here he did so by presenting pertinent evidence such as feasible alternative design. See Anderson v. Hyster Co. (1979), 74 Ill.2d 364, 368.

The plaintiff's pleading and proof, and the court's instruction here, were sufficient for the jury to find for the plaintiff. His complaint alleged "faulty engineering design for the disconnection" mechanism of the power takeoff assembly, and an amendment to his first amended complaint alleged the forage blower "was not equipped with any type of mechanism to hold the power take-off shaft off the ground when the machine was being moved." The complaint sufficiently alleged a cause of action on the basis of defective design. Evidence, in the form of testimony by Dr. Norval Wardle, an agricultural safety engineer who is retired from Iowa State University and does full-time consulting work, supports the view that economical, practical and effective alternate designs for holding or securing the power takeoff assembly were feasible at the time the forage blower was purchased. He described several simple, possible devices. A review of the record — that is, of the evidence of alternate designs and of the given ...

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