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Thomas v. Kaiser Agricultural Chemicals





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of De Witt County, the Hon. William C. Calvin, Judge, presiding.


The plaintiff, Ronald D. Thomas, brought this suit in the circuit court of De Witt County for personal injuries received when his face was sprayed with liquid-nitrogen fertilizer as he attempted to fill a fertilizer-applicator machine with the liquid. The complaint charged defendants with both negligence and strict products liability for defective design. Defendants are: Kaiser Agricultural Chemicals (Kaiser), seller of the fertilizer, who, in connection with that sale, supplied the applicator machine; and Certified Equipment and Manufacturing Company (Certified), the distributor of the allegedly defective component part that was incorporated into the applicator machine. Certified filed a third-party complaint for indemnity against OPW Corporation, a division of Dover Corporation (Dover), the manufacturer of the component part alleged to be defective. Kaiser counterclaimed, seeking indemnity from both Certified and Dover.

After a jury trial, the court entered judgments on the verdicts (1) in favor of plaintiff and against Kaiser for $50,000, (2) in favor of Certified and against plaintiff, (3) in favor of Certified and against Kaiser for indemnity, and (4) in favor of Kaiser and against Dover for indemnity. The appellate court affirmed the judgment of the circuit court relative to the jury verdicts but reversed the allowance of attorney's fees, an issue not before us on appeal. (74 Ill. App.3d 522.) We allowed Dover's petition for leave to appeal, and Kaiser cross-appeals.

Kaiser claims (1) that the judgment for plaintiff should be reversed because, as a matter of law, the plaintiff assumed the risk of the allegedly defective component part, and (2) that because Certified is a wholesaler in the distributive chain of the allegedly defective product, Kaiser is entitled to indemnity from Certified as a matter of law. Dover contends (1) that, absent a functional failure of a component, the manufacturer of the component is not required to indemnify an assembler who selects and installs the component part in a finished product, and (2) that the trial court erred in its ruling which prevented Dover from introducing evidence to show that it made a companion part which, if used with the allegedly defective component in question, would have avoided the injury to plaintiff.

In April 1974, to fertilize their farms, plaintiff and his brother, Robert Thomas, purchased from Kaiser the stated fertilizer. In connection with this sale and without charge to plaintiff or his brother, Kaiser supplied a fertilizer applicator. The applicator, a 300-gallon-capacity tank mounted on wheels, is made to be attached to the rear of a tractor that pulls the applicator over the soil while a system of blades deposits the pressurized fertilizer from the tank into the churned ground.

An adaptor, located at the top of the applicator, is a cylindrical device, approximately three inches in length. It is threaded at one end, allowing it to be screwed into and fastened to the top of the applicator tank. At the outer circumference of the other end of the adaptor is a specially designed annular groove to which a supply hose attaches for filling the applicator. This adaptor is the entry point for the fertilizer, which is pumped into the applicator from a larger tank-storage unit called a "nurse tank." The hose from the nurse tank is specially fitted with a coupler which clamps onto the upper end of the adaptor at the annular groove and is locked on with two attached arm clamps called "kamlocks." Once the hose coupler is attached to the adaptor and clamped with the kamlocks to prevent any leakage, air pressure is applied to the nurse tank to force the fertilizer to flow into and fill the applicator tank.

The adaptor contains a check valve which blocks the threaded lower end of the adaptor to prevent the fertilizer from being expelled from the applicator. The check valve can be opened by depressing a stem attached to the check valve. This stem extends approximately one-eighth inch above the upper lip of the adaptor. The check valve also can be forced open by the pressurized flow of fertilizer from the nurse-tank hose.

In addition to the adaptor, an air-pressure-relief valve and an air-pressure gauge are located on the top of the tank alongside a decal listing instructions for the use of the applicator. One of the listed instructions directs the user, before attempting to fill the applicator, to bleed all the air from the applicator tank until the pressure gauge reads zero.

At trial, the plaintiff testified that, although he had been farming for 18 years, he had used the Kaiser applicator only once before — in 1966. Plaintiff stated that he had generally used anhydrous-ammonia fertilizer and was not, as a user, familiar with the harmful properties of liquid-nitrogen fertilizer. He stated that both he and his brother had read the decal instructions pertaining to the filling of the applicator before the April 24, 1974, accident occurred. On that date, plaintiff and his brother worked together in applying the fertilizer to their land. Plaintiff testified that, in preparation for refilling the applicator tank, he bled off the tank's air pressure and heard the hissing sound of released air. He did not check the air-pressure gauge to see if it read zero. Plaintiff took the hose leading from the nurse tank and attempted to attach the hose coupler to the adaptor in preparation for filling. He testified that he did not know that the stem on the check valve protruded above the lip of the adaptor where the hose coupler was to be attached. Plaintiff stated:

"As I approached the adaptor with the coupler I didn't get it on there correctly and in a second or less than that I got sprayed in the face with the liquid fertilizer. * * * I apparently bumped the check valve."

The testimony of plaintiff's brother was substantially the same, except that he claimed to have bled the air pressure from the applicator immediately before the accident occurred.

Plaintiff's expert witness, Professor Loren Body of the University of Illinois department of agricultural engineering, testified that, in his opinion, the injury occurred because a quantity of liquid-nitrogen fertilizer was trapped by the check valve and remained above it in the cup of the adaptor after the prior filling operation. When, in an attempt to attach the hose coupling, plaintiff accidentally bumped the protruding stem of the check valve, the check valve opened, allowing pressure to be released from the tank and ejecting the fertilizer trapped in the adaptor. In Professor Body's opinion, the one-eighth inch protrusion of the valve-core stem created an unreasonably dangerous condition.

The evidence presented at trial revealed that the applicator was assembled by Kaiser. The parts, including the adaptor in question, were purchased by Kaiser from Certified, which was the distributor for the manufacturer, Dover. There was no evidence to show that Certified made any ...

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