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Dearmond v. Hoover Ball & Bearing

OPINION FILED AUGUST 4, 1980.

UDORA DEARMOND, PLAINTIFF,

v.

HOOVER BALL AND BEARING, UNILOY DIVISION, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT. — (ABSOPURE/PLASTIPAK DIVISION OF BEATRICE FOODS CO., THIRD-PARTY DEFENDANT-APPELLEE.) — UDORA DEARMOND, PLAINTIFF-APPELLANT,

v.

HOOVER BALL AND BEARING, UNILOY DIVISION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Champaign County; the Hon. JOHN R. DeLAMAR and the Hon. HAROLD L. JENSEN, Judges, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Udora DeArmond, injured her left hand while working on a machine (which molded and trimmed plastic bottles) manufactured by Hoover Ball and Bearing, Uniloy Division (Manufacturer). Plaintiff filed a two-count complaint against the Manufacturer. Count I alleged that the Manufacturer was strictly liable for the plaintiff's injury. Count II alleged that the Manufacturer's negligence caused the plaintiff's injury. Manufacturer, by a third-party complaint, sued Absopure/Plastipak Division of Beatrice Foods (Employer), the plaintiff's employer at the time the plaintiff was injured. The Manufacturer asked for indemnification from Employer alleging that the plaintiff's injury was caused solely by Employer's conduct.

The trial court granted the Employer's motion to strike and dismiss the Manufacturer's third-party complaint and entered judgment. The trial court also made a Supreme Court Rule 304 finding (73 Ill.2d R. 304). In cause No. 15770, Manufacturer, as third-party plaintiff, appeals the above order.

The trial court entered judgment granting the Manufacturer's motion for summary judgment against the plaintiff. In cause No. 16135, plaintiff appeals the trial court's order granting summary judgment in favor of the Manufacturer. We have consolidated these causes for this appeal.

We affirm the order for summary judgment in favor of the Manufacturer and against the plaintiff. Manufacturer's appeal from the trial court order dismissing its third-party complaint against the Employer is thus moot, and need not be discussed.

Manufacturer's motion for summary judgment stated that the evidence deposition of John Knueve establishes that it was the Employer's conduct which caused the plaintiff's injury, and, therefore, the Manufacturer is not liable as a matter of law. Knueve's deposition established: He is employed by the Employer but not now at the Champaign plant where the accident occurred. However, when the plaintiff was injured, he was employed there. He was the plant manager. His duties were to oversee the overall operation of the plant.

He was aware that plaintiff was involved in an accident on September 10, 1976. He did not see the occurrence, but was told of the incident. He said that the trimmer was in operation, and that the bottles jammed inside the trimmer. The plaintiff reached into the machine to unjam the trimmer, or to pull one of the jammed bottles out of the trimmer. The trimmer started up and her hand was injured.

Knueve stated that he was in the Employer's employment when the subject trimmer was delivered to the plant. He observed the trimmer being uncrated. The Employer's employees set up the machine. At the time that the machine was set up (and when it was started in operation) it had a complete set of clear plastic guards or safety doors installed on it. However, at the time of the injury, the safety doors were not on the machine. The safety doors had been removed to allow easier access to the bottles that frequently jammed inside the machine. Knueve said that he, or one of his own men, may have taken off the safety doors. He stated that no one from the Manufacturer knew that the doors had been removed, and that the doors were replaced shortly after the accident happened. He testified that the Manufacturer did not in any way whatsoever have anything to do with the removal of the doors.

Knueve testified that if the guard doors had been on the machine, Udora DeArmond, plaintiff, would not have been injured. He went on to say that there were warning signs on the doors and that they were equipped with a safety shutoff switch that automatically stopped the machine when the doors were lifted.

On cross-examination he was asked: "How was it held on, or fastened in position?" He responded, "A rod — like about a half-inch rod went through there, and then there were about eight quarter-inch bolts that bolt this piece of plastic right to this rod. Of course, then it could hinge up, and down." The door was removed by taking off the quarter-inch bolts and then taking the rod out. The quarter-inch bolts were threaded screws. They were removed with a 7/16 wrench. He said that the doors were easily removed. Knueve went on to state that he knew that the door guarded a pinch-point, and that he had not studied the regulations under the Federal Occupation Safety and Health Act (OSHA) with regard to guarding pinch-points.

When the guard door was removed, Knueve or one of his employees circumvented the protective micro-switch by wrapping the switch with a piece of tape. Normally to unjam the trimmer, someone would have had to raise the plastic guard door, which would be hinged, and then reach in. When the door was open the machine would automatically shut off. The machine would not automatically restart. It had to be restarted manually with the door closed. He stated that his action in removing the safety doors was not consistent with company policy and that it was a deliberate act on his part. Also attached to the Manufacturer's motion for summary judgment against the plaintiff was an affidavit by Calvin Mitchell, an employee of the Manufacturer, which, in part, corroborated Knueve's evidence deposition.

• 1 The plaintiff in opposition to the Manufacturer's motion for summary judgment stated that the machine was owned by the Manufacturer, and only leased to Employer. It is argued that the Manufacturer "ought not be permitted to raise the intervening conduct of the Plaintiff's employer as a totally superseding cause of the injury" because of certain provisions of the lease. The plaintiff did not orally argue this issue, and in her brief she does not cite any authorities supporting her proposition that the lease should somehow prevent the Manufacturer from raising the conduct of the plaintiff's Employer. We find that it does not.

The objections to the motion for summary judgment further set out the OSHA statute referred to in Knueve's deposition. The referred-to OSHA statute (29 C.F.R. 1910.217(b)(14)(c)(2) (1979)) reads:

"(2) Point of Operation guards. (i) Every point of operation guard should meet the following design, construction, ...


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