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Noll v. Snap-on-tools Corp.





APPEAL from the Circuit Court of Peoria County; the Hon. STEPHEN J. COVEY, Judge, presiding.


Rehearing denied December 11, 1980.

This case is a products liability action premised on a theory of strict liability in tort. A Peoria County jury returned a verdict in favor of the defendant. Plaintiff filed a post-trial motion, and the court below ordered a new trial. Defendant was granted leave to appeal pursuant to Supreme Court Rule 306(a)(1) (Ill. Rev. Stat. 1979, ch. 110A, par. 306(a)(1)).

Nineteen-year-old Randall W. Noll had been employed by Bill Clasen Ford, Inc., for about four weeks when he borrowed a spiral twist wire brush from a co-worker, Ken Todd. Although Noll had never used a brush of this kind before, he proceeded to use the brush and the air hand tool on which it was mounted to remove gasket material from an automotive valve cover. While using the brush, a wire broke off and injured Noll's eye.

Noll filed suit against the distributor of the brush, Snap-On-Tools Corporation, alleging theories of strict liability in tort and breach of an implied warranty. The warranty theory was voluntarily dismissed from the case, and we are concerned on appeal only with the strict liability theory. The essential thrust of Noll's strict liability theory is that the brush in question is unsafe unless used with protective eyewear, that Snap-On had a duty to warn users of the necessity for protective eyewear, and that the warning which Snap-On had provided was inadequate. The following warning was stamped into the metal cup of the brush: "Wear Eye Protection, Max. 20,000 R.P.M." A warning to wear eye protection was also given in a leaflet which was inserted into the box in which the brush was distributed.

Snap-On responded to Noll's complaint with an answer which denied that the lack of adequate warning was the proximate cause of Noll's injury and which affirmatively alleged that Noll assumed the risk of injury when he failed to wear protective eyewear and that Noll misused the product. During the trial of the cause the plaintiff conceded that he had worn safety glasses while operating a drill press at the place of his previous employment, Caterpillar Tractor Company. Also there was testimony that signs urging the use of protective eyewear were posted throughout the Bill Clasen Ford automotive shop, and that goggles or safety glasses were available at several locations within the shop.

At the conclusion of all the evidence Noll moved for a directed verdict on defendant Snap-On's affirmative defense of assumption of the risk. The trial court granted Noll's motion after finding that there was no evidence the plaintiff knew of any condition of the brush at the time of his injury which made it unreasonably dangerous. The plaintiff also moved to preclude the defendant from mentioning during closing argument the plaintiff's failure to wear eye protection. The trial court denied this motion and ruled that such evidence could be argued in the context of proximate cause.

In the closing argument which followed, defendant's counsel, consistent with the court's ruling, made the following remarks:

"Mr. Noll knew about it from his experience at Caterpillar that you are supposed to wear eye glasses around moving machinery.

The evidence is clear that the circumstances surrounding this man's, the Plaintiff's, experience, as well as the work area in which he was working, that eye protection when you are moving or working around machinery, and particularly around the grinder or anything that throws objects away from it.

He knew he should wear it and Caterpillar told him. Clasen Ford had signs all over the place. Wear eye protection. He still knew that it was around moving machinery that he should have had eye protection. He didn't wear it."

Defendant's counsel concluded that it was not the alleged inadequacy of the warning that was the proximate cause of Noll's injury, but rather plaintiff's conscious decision to use the brush without eye protection when he was fully aware of the dangers involved. After the jury returned a verdict for Snap-On, the plaintiff filed a motion for a new trial, arguing that defense counsel's closing statements improperly introduced the defenses of contributory negligence and assumption of the risk. The trial court agreed and granted a new trial. We granted leave to appeal.

• 1-3 It is now well established in this State's jurisprudence that contributory negligence is not a defense to an action based on strict product liability in tort. (Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305.) The similar yet distinct doctrine known under law as assumption of the risk is, when proven, a bar to recovery under the strict liability theory. (Williams v. Brown Manufacturing Co.) In the instant case the trial court directed a verdict for the plaintiff on the issue of assumption of the risk. The propriety of that trial court decision has not been raised in the appeal before us. With regard to issues not raised, the Committee Comments to Supreme Court Rule 366(b)(2)(v) have been cited approvingly by Turner v. Commonwealth Edison Co. (1978), 63 Ill. App.3d 693, 698-99, 380 N.E.2d 477, 482:

"`Once the appeal is allowed [under Rule 306], the whole case is before the reviewing court, and efficient judicial administration is advanced by disposing of all questions presented by the record.' (Ill. Ann. Stat., ch. 110A, par. ...

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