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Palmer v. Avco Distributing Corp.

OPINION FILED AUGUST 8, 1979.

BRUCE ALLEN PALMER, A MINOR, BY HIS GUARDIAN AND NEXT BEST FRIEND, WADE PALMER, PLAINTIFF-APPELLEE,

v.

AVCO DISTRIBUTING CORPORATION, DEFENDANT-APPELLANT.



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

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 17, 1979.

This was an action for damages arising from injuries sustained by the 11-year-old plaintiff, Bruce Allen Palmer, when his leg was caught in the agitator mechanism of a fertilizer spreader designed and manufactured by defendant, Avco Distributing Corporation. A jury returned a verdict for plaintiff against Avco in the amount of $492,000. The trial court denied Avco's motion for judgment n.o.v. and entered judgment on the verdict. The trial court also denied Avco's motion for partial satisfaction of the judgment in the amount of $273,000. Avco appeals. Plaintiff cross-appeals from the trial court's denial of his post-trial motion for an additur of $250,000 or, in the alternative, for a new trial on the issue of damages only.

The machinery involved in the injury is known as the Avco Model 114, a fertilizer spreader designed in 1964 and manufactured in 1966. The Model 114 consists of a hopper, 74 inches high, 77 inches long and 93 inches wide, which rests on a two-wheeled frame designed to be pulled by a tractor. The hopper can hold up to 8,000 pounds of fertilizer. Two sides of the hopper are angled at 40 degrees so that the fertilizer will run through the spreader.

An agitator, 5 feet in length, is located at the bottom of the hopper. If engaged, the agitator moves only when the spreader is being pulled forward by a tractor. As the spreader is pulled forward, the agitator guides fertilizer into openings at the bottom of the hopper. It also breaks up lumps of fertilizer caused by dehydration.

Running parallel over the length of the agitator is a baffle which consists of two 4-inch sides joined at a 90 degree angle. The baffle serves to relieve the pressure placed on the agitator by the weight of the fertilizer without restricting the flow. The edges of the baffle are approximately 5 inches from the sides of the hopper. Viewed from above, the placement of the baffle conceals the agitator mechanism.

Running lengthwise across the top of the hopper is a metal bar designed to hold a canvas cover for the hopper. While it is an optional feature, this bar was on the Model 114 involved in the occurrence.

The Avco Model 114 was designed to be operated by one man. From his position in the tractor seat, the operator has all the spreader controls within reach, including a lever which disengages the agitator even when the spreader is being pulled forward.

A warning sign, using the language recommended by the standards of the American Society of Agricultural Engineers, was attached to the front of the hopper. This sign read:

"BE CAREFUL

1. Keep all shields in place.

2. Stop machine to adjust and oil.

3. When mechanism becomes clogged disengage power before cleaning.

4. Keep hands, feet and clothing away from power-driven parts.

5. Keep off implement unless seat or platform is provided. Keep others off."

On April 27, 1973, plaintiff, then 11 years old, and his brother, aged 13, accompanied Allen Miller and his two sons to the Edward Kalvelage farm for the purpose of borrowing Kalvelage's Avco Model 114 spreader. Miller brought the Model 114 back to his farm and proceeded to transfer fertilizer from his spreader to the Model 114. Miller and the four boys shoveled a full load of fertilizer into the Model 114, breaking up chunks of fertilizer as they did so. The Model 114 was then pulled out to the field. Miller was driving the tractor; one of his sons and the two Palmer boys were riding on the top of the spreader. Plaintiff testified he was riding on the spreader just for something to do. After approximately 40 or 50 minutes, Miller stopped the tractor and his son climbed out of the hopper. After Miller started up the tractor again, plaintiff, while holding the bar above the hopper, caught his left leg in the agitator mechanism at the bottom of the hopper. Because of the positioning of the baffle, plaintiff neither saw nor knew of the existence of the agitator beneath. Miller knew about the agitator, but never warned the children. As a result of the accident, plaintiff suffered amputation of his left leg below the hip.

Plaintiff's complaint named Avco and International Minerals & Chemical Corporation, the distributor of the Avco Model 114, in a products liability suit. Plaintiff also filed suit against Miller, Miller Farms, Inc., and Kalvelage. Miller filed a third-party complaint against Avco and International Minerals seeking indemnity in the event that Miller and Miller Farms were found liable to plaintiff.

Prior to the commencement of trial, plaintiff entered into a loan agreement with Miller, Miller Farms, Kalvelage, and their liability insurance carrier, Country Mutual Insurance Company. (We shall set forth the terms of the loan agreement later in this opinion.) Those defendants were thereupon dismissed from the suit. Plaintiff also entered into a loan agreement with International Minerals, and it was dismissed as a defendant.

At trial, both sides presented testimony as to whether plaintiff's use of the fertilizer spreader was reasonably foreseeable and whether the Avco Model 114 was unreasonably dangerous. Three witnesses, Allen Miller, Wilmer Halfeldt and Ron Reichert, testified for plaintiff that they owned farms. Each had ridden on fertilizer spreaders, either for the purpose of breaking up clumps of fertilizer or just to go along for a ride. All three witnesses testified that they had seen farmers, farm personnel, and other persons riding on spreaders.

Gene A. Honn, an adviser with the department of agriculture of the University of Illinois, Dr. Norval Wardle, a retired professor of agricultural and safety engineering at the University of Iowa, and Dr. John Siemens, a professor of agricultural engineering at the University of Illinois, testified as expert witnesses on behalf of plaintiff. Honn testified that while travelling throughout Illinois he had noticed farm personnel riding on fertilizer spreaders. Honn had personally ridden on spreaders of various types.

Dr. Wardle testified that he had seen farmers riding on fertilizer spreaders for the purpose of breaking up clumps of fertilizer. Dr. Wardle expressed an opinion, based upon a review of literature pertaining to the Avco Model 114 and an inspection of the spreader itself on the morning before testifying, that the Avco Model 114 was unreasonably dangerous for the following reasons: fertilizer has a tendency to clog; the baffle gives a false sense of security because it appears to guard the agitator; the agitator is not in fact guarded, but is open 5 inches on each side of the baffle; the operator's manual does not contain instructions informing the ...


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