APPEAL from the Circuit Court of De Witt County; the Hon.
WILLIAM C. CALVIN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 28, 1979.
This appeal involves a tort action brought in the circuit court of De Witt County by plaintiff Ronald D. Thomas to recover for personal injuries he received on April 24, 1974, when he was sprayed in the face with liquid nitrogen fertilizer while filling an applicator which he was using to apply the fertilizer to farm land. He sued defendants Kaiser Agricultural Chemicals (Kaiser), seller of the fertilizer and furnisher of the applicator, and Certified Equipment and Manufacturing Company (Certified), distributor of the part of the applicator alleged to be defective. Plaintiff sought recovery on both negligence and defective product theories. Certified filed a third-party complaint for indemnity against third-party defendant OPW Corporation, a division of Dover Corporation (Dover), manufacturer of the part alleged to be defective. Kaiser counterclaimed for indemnity against both Certified and Dover.
On March 21, 1978, prior to trial, the court entered summary judgment in favor of Certified and against Dover for indemnity in any amount that either plaintiff or Kaiser might recover against Certified. The question of whether Certified was entitled to recover for attorney's fees or costs against Dover was reserved. On March 31, 1978, at the completion of a jury trial, the court entered judgments on verdicts: (1) in favor of plaintiff and against Kaiser for $50,000, (2) in favor of Certified and against plaintiff and Kaiser, and (3) in favor of Kaiser and against Dover for indemnity for Kaiser's liability to plaintiff. On August 7, 1978, after a post-trial hearing, the court awarded judgment in favor of Certified and against Dover for attorney's fees and costs in the total sum of $7079.67, representing fees and expenses incurred after the entry of the summary judgment.
On July 10, 1978, Kaiser filed notice of appeal as to the judgments against it and in favor of plaintiff and Certified. Kaiser contends that plaintiff assumed the risk of the defective product as a matter of law and that it is entitled to indemnity from Certified as a matter of law because it, Kaiser, purchased from Certified the part of the applicator alleged to be defective and, if the product was defective, it was in that condition at the time of that purchase. On July 7, 1978, Dover filed notice of appeal as to Kaiser's judgment against it. Dover asserts that: (1) although it made the part of the fertilizer applicator alleged to be defective, Kaiser selected the part and assembled the applicator and should be responsible, and (2) the court erred in excluding evidence. On September 11, 1978, we granted Dover leave to file late notice of appeal from Certified's judgment awarding it attorney's fees and costs against Dover. Certified cross-appeals from that judgment. Dover argues that no award of fees or expenses was proper. Certified contends that it was entitled to fees and expenses for its entire defense and not merely for those incurred after the summary judgment.
The case arises from a transaction whereby Kaiser sold liquid nitrogen agricultural fertilizer to plaintiff and his brother and in conjunction with the sale, provided them with the equipment to apply the fertilizer to the ground. This was done with an implement called an applicator which was mounted on wheels and pulled by a tractor. The applicator consisted of a tank containing the fertilizer and a system of conduits that carried the liquid fertilizer to blades which plunged into the ground as they deposited the fertilizer therein. The applicator contained a compressor which placed pressure on the liquid in the tank and forced it through the conduits and into the ground. The usual procedure for filling the tank was to do so by pumping the liquid fertilizer through hoses from a "nurse tank" in which the fertilizer had been stored.
At the top of the tank of the applicator furnished by Kaiser to plaintiff and his brother was an adaptor for connecting the hose from the nurse tank to the applicator's tank and through which the liquid fertilizer would flow from the former into the latter tank. This adaptor contained a check valve to prevent the back flow of the liquid fertilizer from being expelled from the applicator tank when that tank was under pressure. The stem of the valve extended one-eighth of an inch above the lip of the adaptor. The following diagram illustrates the makeup of the adaptor in question.
The adaptor was manufactured by Dover and sold by them to Certified who in turn sold the tank and adaptor to Kaiser. Kaiser assembled the applicator, placing the adaptor in the top of the tank. Directions in plain view on the applicator tank advised persons using the applicator to bleed it of all air pressure prior to filling it.
On April 24, 1974, the day of plaintiff's injury, he and his brother had been fertilizing fields with the applicator. Plaintiff's brother testified that prior to the attempt to fill the tank which led to plaintiff's injury, he bled air from the tank but did not check the pressure gauge on the top of the tank to see if the air pressure had been lowered to zero. According to the brother's testimony, the hose from the nurse tank had been handed to plaintiff who started to place the end of the hose over the adaptor when suddenly plaintiff's face was sprayed with liquid nitrogen. Plaintiff's testimony was similar to that of his brother except that he said he, plaintiff, bled the tank.
Plaintiff's theory of recovery was that the 1/8-inch extension of the valve core stem above the lip of the adaptor made the design of the adaptor defective because the stem was thus vulnerable to being bumped in a manner that would open the valve. If air pressure then existed in the tank and the cup of the adaptor contained a residue of liquid nitrogen, the latter would be blown out and onto a person standing nearby. Professor Loren Body, an expert in agricultural engineering, testified that in his opinion, this was exactly what happened. Body thought the lip of the coupler on the feeder hose bumped the valve stem causing it to open and let air out of the tank. He concluded that some liquid nitrogen had remained in the adaptor cup since the last filling and this substance was blown into plaintiff's face by the escaping air. In the expert's opinion, the protrusion of the valve core stem created an unreasonably dangerous condition.
We first consider Kaiser's claim that plaintiff, as a matter of law, assumed the risk of the allegedly defective product. That defense was first defined in Illinois in the case of Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305. There, the supreme court set aside a judgment for damages for injuries resulting from an allegedly defective product. The trial court had stricken allegations in the defendant's answer that plaintiff had assumed the risk. The supreme court, however, held assumption of the risk to be a valid defense to a charge of defective product and cited with approval comment (n) of section 402A of the Restatement (Second) of Torts (1965), which distinguishes the doctrine of assumption of risk from the ordinary doctrine of contributory negligence. The court described the test of whether a defective product risk had been assumed by the injured person as a subjective one, based upon that person's understanding and appreciation of the risk and not upon the understanding and appreciation of a reasonably prudent person. The court also stated that the trier of fact was not bound by the injured party's testimony as to his state of mind but might also consider the surrounding circumstances. The court emphasized that ordinarily, the issue would be one for the trier of fact.
Kaiser asserts that plaintiff's knowledge, understanding, and appreciation of the danger he faced are undisputedly shown by the evidence that plaintiff had (1) farmed for 18 years, during 16 of which he used liquid nitrogen fertilizer, (2) knowledge of the instructions not to fill the tank unless the air pressure inside had been fully discharged, and (3) seen the stem of the check valve and knew how it operated. Kaiser relies on Sweeney v. Max A.R. Matthews & Co. (1970), 46 Ill.2d 64, 264 N.E.2d 170. There a young, inexperienced carpenter had proceeded to pound in several special-purpose concrete nails. As he hit the head of the first 4 or 5 of them, the head broke off and sailed across the room. When he hit the head of the next nail, it shattered and a piece of it hit his eye, causing a serious injury. In a suit against the seller of the nails for defective product, the carpenter obtained a judgment for damages. The supreme court upheld the judgment stating that if the carpenter had been more experienced he might have been held to have assumed the risk as a matter of law, but that the court would not so rule under the circumstances presented.
Kaiser argues that plaintiff was an experienced farmer with complete knowledge of the circumstance and dangers involved. We can assume that plaintiff knew he was dealing with a dangerous substance and should not have started to fill the tank without making sure that its air pressure had been released. In Sweeney the carpenter, who might have been held to have assumed the risk had he been more experienced, had actually seen the nails break. Similarly, in Prince v. Galis Manufacturing Co. (1978), 58 Ill. App.3d 1056, 374 N.E.2d 1318, where the plaintiff was held to have assumed the risk as a matter of law, the plaintiff was aware of the particular defect which caused the injury.
On the other hand, in Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill.2d 356, 303 N.E.2d 382, a wrongful death suit based on a defective product was brought when a man standing beneath a suspended clam-shell basket while directing hoisting operation was hit by the bucket when it fell. The plaintiff's theory was that a defect in the crane caused the bucket to fall. In affirming a judgment for the decedent's representative, the supreme court held that no question of decedent's assumption of the risk was presented ...