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Cavazos v. E.w. Bliss Co.





APPEAL from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding.


Rehearing denied September 17, 1979.

Leticia Cavazos (plaintiff) brought this action to recover damages for injuries she sustained while operating a punch press owned by her employer, Service Stampings of Illinois, Inc. (employer), and manufactured by E.W. Bliss Company (defendant). Plaintiff sought recovery upon a theory of strict liability. Plaintiff appeals from judgment entered on the jury verdict in favor of defendant.

On appeal plaintiff contends that the trial court erroneously: (1) denied plaintiff's motion to strike the affirmative defense of assumption of risk; (2) instructed the jury on the law of assumption of risk; (3) refused to enter an order on plaintiff's motion in limine and allowed the defendant to establish that the duty to install safety devices rested with the employer; (4) allowed improper impeachment of plaintiff; (5) refused to allow plaintiff to introduce evidence of post-occurrence modification of the punch press; and (6) during voir dire refused to question prospective jurors concerning their interest in a corporation which allegedly was the sole shareholder of defendant.

In September of 1964 plaintiff's employer purchased a 22-ton punch press from defendant. The employer had several punch presses on its premises and was familiar with the presses manufactured and sold by defendant. The press was multifunctional, capable of performing a variety of operations. It was an open back inclinable press with a full revolution clutch. The press was sold without a means of activation and was therefore nonfunctional and inoperable when it left defendant's control. After the purchase, the employer installed a Schrader two-hand control, dies, a bolster plate and a light. The press could then be activated only by depressing both hand levers simultaneously. The employer specifically chose not to install an anti-tie-down device on the Schrader control system because of the many one-handed operations which occurred at its plant.

A tie-down device holds down one hand lever so that only the other lever need be pushed to activate the press. An anti-tie-down device precludes the operation of the press without both levers being simultaneously depressed for each revolution.

In April or May of 1969 plaintiff was hired by the employer as a punch press operator. Plaintiff is from Mexico and at all relevant times neither spoke nor read English. All of her testimony referred to here was given through an interpreter. She was 15 years old, although she gave her age as 18 to gain employment. She had never previously operated a punch press, but she was specifically hired as a punch press operator. She performed these operations for 40 hours a week.

Plaintiff testified that she was instructed on the use of a punch press by a Spanish-speaking foreman, Ivan Borriga. She was aware that certain co-workers tied down one of the hand levers to permit faster work. Ivan Borriga had warned plaintiff not to insert a rod to tie down one of the levers. She remembered Borriga telling her, "If you put a piece of rod in there, you would get into an accident."

During the morning of July 31, 1969, plaintiff operated the press in question without trouble. George Cardenas, a co-worker, requested plaintiff to switch presses with him. Cardenas had a bandage on his right hand and was therefore finding it difficult to operate his press. Cardenas had been operating his press with the right-hand lever tied down for about a month. He did this by insertion of a metal rod "shaped like a pencil" into the right-hand lever of his machine. His press could then be activated simply by depressing the left-hand lever. Plaintiff was familiar with this method used by Cardenas.

After lunch plaintiff changed presses with Cardenas. She testified that before she sat down at the machine she did not know that the right-hand lever had been "tied down" by insertion of the metal rod. She stated that she saw the rod as soon as the accident happened. Plaintiff also testified she could not state how often she had used the press upon which the mishap occurred because the employees were constantly rotating their use of machines.

Plaintiff further testified that when she commenced work her right hand was under the ram and the left hand pushed the left lever down. This caused the ram immediately to descend on her right hand. Plaintiff also testified that this accident occurred between 2 and 3 p.m. However, in her discovery deposition she stated she had been working at the machine approximately 2 hours before the accident occurred.

Plaintiff's expert engineer, Irving Hazard, testified he had viewed the punch press in question in 1977. The press had separate right- and left-hand controls. This required that both levers be depressed simultaneously to operate the machine. Hazard testified that there are two safety methods which are generally used with this type of punch press. One is a point of operation guard which involves a barrier between the operator and the descending ram. The other is a point of operation device which is a two-hand control requiring the operator simultaneously to have one hand on each control to operate the press.

Hazard further testified that a point of operation device is a safety device, but only if the levers or one of them cannot be tied down. When the punch press was sold in 1964, anti-tie-down devices were available. Hazard stated further in his opinion the punch press involved herein was unreasonably dangerous at the time of manufacture and when introduced into the stream of commerce.

Ralph Barnett testified as an expert for the defendant. Barnett stated that upon examining this press in 1975 he found it to be a full-revolution clutch equipped with a custom-modified Schrader control system. It did not have an anti-tie-down device, but one could have been incorporated into the system. Barnett further testified there is no universal guard for this punch press because the multifunctional nature of the press makes it impossible to invent one single safety device. He stated that the two-hand Schrader control installed on this press qualified as a point of operation device because the speed of the press precluded the operator ...

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