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Palmer v. Avco Distributing Corp.





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Reginald J. Holzer, Judge, presiding.


Rehearing denied November 26, 1980.

On April 27, 1973, 11-year-old Bruce Allen Palmer and his brother accompanied Allen Miller and his two sons to the Edward Kalvelage residence to borrow a bulk fertilizer spreader. The boys returned with Miller to his farm and helped him shovel fertilizer into the borrowed spreader, defendant Avco Distributing Corporation's (hereafter Avco) Model 114. Miller began fertilizing. Some of the boys rode on top of the fertilizer inside the spreader.

The spreader was towed by a tractor operated by Miller. The spreader measured about 6 1/2 feet long, almost 8 feet wide and more than 6 feet high. At the bottom of the spreader was an agitator, a sharp toothed rotary type instrument which ran the length of the spreader and was designed to chew up fertilizer lumps into granules. The sides of the spreader were V-shaped, so that the fertilizer dropped by force of gravity toward the agitator in the bottom. Below the agitator was an augur which fed the granules into a spinner, located in the rear of the spreader. The spinner distributed the fertilizer. Above the agitator were two pieces of metal, 4 inches wide and 85 inches long, joined lengthwise at a 90-degree angle. Called the baffle, it kept the weight of a full load of fertilizer off of the agitator. The agitator rotated only when the spreader was pulled forward. A metal bar designed to hold a canvas top ran above the hopper.

Bruce Palmer, the plaintiff in this action, received injuries necessitating the amputation of his leg well above the knee when his left leg got caught in the agitator. The facts were extensively detailed in the appellate court opinion (75 Ill. App.3d 598) and will be presented here in more abbreviated form.

Plaintiff initially sued Avco, Miller and Miller Farms, Inc. (hereafter Miller Farms) and Edward Kalvelage. Miller filed a third-party complaint against Avco and International Minerals, Inc. (hereafter International), seeking indemnification if he was found liable to plaintiff. Before trial, however, a platform loan agreement was executed between Country Mutual Insurance Co., representing defendants, Miller, Miller Farms, and Kalvelage, and the plaintiff.

Under the agreement, Country Mutual loaned plaintiff $266,000, to be repaid at the rate of 20% of the amount of the verdict obtained against Avco which exceeded $500,000. Thus a verdict of $1,830,000 against Avco would have resulted in a complete repayment of Country Mutual. Lesser verdicts that exceeded $500,000 would have resulted in partial repayments. In return for the loan, Miller, Miller Farms and Kalvelage were dismissed as defendants. A second agreement, the terms of which were not revealed on the record, resulted in the discharge of International Minerals in return for $7,500. In the suit against the remaining defendant, Avco, a jury in Cook County found that the spreader was unreasonably dangerous and that this condition was a proximate cause of plaintiff's injuries, and it awarded $492,000 in damages. Upon an appropriate motion, the trial judge refused to credit the $273,500 received by the plaintiff pursuant to the agreements toward the verdict of $492,000.

The appellate court affirmed the jury verdict and the trial judge's refusal to credit the money received pursuant to the agreements against the jury verdict. One judge dissented on the latter issue. (75 Ill. App.3d 598, 609.) We granted leave to appeal. Defendant questions the sufficiency of the evidence supporting the jury determination that the fertilizer spreader was unreasonably dangerous due to defective design and inadequate warnings and instructions. Since we affirm the jury's finding on this issue, we must consider defendant's second contention: whether money paid pursuant to the platform loan agreement by the dismissed defendants should have been credited toward the jury verdict rendered against Avco. On this issue we reverse the appellate court.

The evidence amply supports the jury's determination that plaintiff's injuries resulted from a condition of the fertilizer spreader, that its condition was unreasonably dangerous, and that this condition existed at the time it left the manufacturer's control. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623.) If these elements are proved, liability will attach despite the exercise of due care by the seller and regardless of contractual relationships. Restatement (Second) of Torts secs. 402A(2)(a), (b) (1965).

The marriage of tort and contract concepts (see Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 619) has not occasioned complete domestic tranquility in the strict liability household. A product is unreasonably dangerous when it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Restatement (Second) of Torts sec. 402A, comment i (1965); Hunt v. Blasius (1978), 74 Ill.2d 203, 211-12; Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill.2d 339, 342.) This evidences the warranty heritage of strict liability.

Avco challenges the jury verdict on three grounds. First, it contends that the spreader was used in an unforeseeable fashion. Second, it contends that the design of the product was not unreasonably dangerous. Finally, it contends that, in view of a warning placed on the spreader, it was not being used as intended.

Unquestionably there was evidence from which the jury could infer that farm personnel, household members and children customarily rode in fertilizer spreaders, making this use of the spreader foreseeable. Three farmers and one expert witness testified to their personal knowledge of that custom. Defendant maintains that there was no evidence that children like the plaintiff customarily rode in fertilizer spreaders for purposes other than performing farm chores. Defendant itself, however, cross-examined one of plaintiff's witnesses, a full-time farmer, and elicited testimony contrary to its contention:

"Q. Do you think it is a good practice to allow an 11-year-old boy with no farm experience on a spreader?

A. Well, it is not a good practice, but it is done."

At least one other witness testified that in his experience farmers customarily had people ride on their vehicles and specifically that children sometimes accompanied their parents by riding on fertilizer spreaders and other vehicles for both pleasure and work purposes. Defendant did produce farm witnesses who testified that no such custom existed; but the conflict engendered by this evidence and the credibility of plaintiff's witnesses were questions within the province of the jury to resolve. We conclude, therefore, that the jury could have decided reasonably from the evidence that it was objectively foreseeable that children of plaintiff's age might ride inside fertilizer spreaders. Thus distinguished is Winnett v. Winnett (1974), 57 Ill.2d 7, in which there were no allegations that very young children were customarily allowed to roam unattended close to operating farm machinery.

Defendant contends, however, that the foreseeability of a harmful risk alone is not the sole determinant of a manufacturer's duty. And if by this defendant means that a manufacturer is under no duty to sell products incapable of causing injuries, it is of course correct. (Kerns v. Engelke (1979), 76 Ill.2d 154, 166.) But the jury's decision that this spreader was unreasonably dangerous is supported by the evidence.

Dr. Norval Wardle, a retired agricultural engineer in safety at the University of Iowa, testified that, based on his inspection, Avco model 114 was an unreasonably dangerous fertilizer spreader. His opinion was grounded upon (1) the known propensity of fertilizer to clog, interfering with the flow of fertilizer to the spinner (insofar as the lumps were too large to pass under the baffle to the agitator), (2) the false sense of security engendered in one inside the spreader by the placement and appearance of the baffle, (3) insufficient guarding of the agitator to prevent one inside the spreader from getting hands or feet caught in the agitator, (4) the lack of instructions on the machine describing the appropriate procedures to eliminate fertilizer lumps formed in the machine, and (5) inadequate warning of the hazard of the agitator. In explaining his opinion, he noted that unless farmers carried a club-like instrument to break up fertilizer clumps, they would have to climb inside the spreader and crush them with their feet. If another person were available to help, it would be natural for that person to remain inside the spreader as they were fertilizing to avoid having to stop the tractor each time lumps interfered with the flow of fertilizer. The placement of the ...

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