APPEAL from the Circuit Court of St. Clair County; the Hon.
RICHARD GOLDENHERSH, Judge, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 5, 1982.
Plaintiff-appellee, Terry McCracken, brought this action in strict products liability to recover damages for injuries he suffered allegedly caused by a defect in an earth scraper manufactured by the Westinghouse Air Brake Company, Inc. (WABCO), the defendant-appellant. McCracken alleged that the WABCO machine was unreasonably dangerous in its failure to have a shield on the back of a large cooling fan near the engine or a warning not to work near the fan while the engine was running. WABCO argued that the machine was not unreasonably dangerous and also presented an assumption of the risk defense. The trial court submitted the case to the jury under both theories advanced by the defense, and the jury returned a verdict in favor of WABCO. McCracken moved for a new trial on several grounds, and the trial court granted that motion on the basis that the verdict was against the manifest weight of the evidence. WABCO has perfected an appeal to this court from the order granting a new trial.
Because of the nature of the defense presented at trial, a detailed factual summary is appropriate. On October 4, 1976, McCracken was employed in a construction crew assigned to complete Interstate 70 near Vandalia, Illinois. McCracken worked as a "greaser" and had served in that capacity for approximately seven months. The task of a greaser is to lubricate and maintain construction equipment in the field, often while the equipment is running. During the 10 years prior to his promotion to greaser, McCracken had worked as an "oiler." The basic difference between the duties entailed by the two positions is that the oiler is generally limited to servicing one or two pieces of equipment, while a greaser is usually assigned to many machines. On October 4, 1976, McCracken was directed to service a dozen different machines on the Vandalia jobsite.
One of the pieces of equipment on the job that day was a 1970 model G-74 earth scraper manufactured by WABCO. The scraper was not developing full power, and when McCracken arrived to service it, he was directed by the operator to tap the fuel filters. A common practice is for greasers to tap the fuel filters while the engine is running on machines such as this, based on the theory that this will dislodge dirt trapped in the filters and permit the free flow of fuel.
The two filters which were the subject of this operation were located four or five inches behind a cooling fan which was about three feet in diameter. One of the filters was slightly closer to the fan than the other filter. The fan was circumscribed by a shroud, which served to funnel the air through the fan and thus increase its effectiveness. There was no shield or guard on the back side of the fan, which faced the two filters, and the scraper contained no warnings about the dangers of working in proximity to the fan. At trial, witnesses testified that all WABCO scrapers manufactured after 1970 had a complete shield surrounding the fan. McCracken also testified that the only similar equipment on the jobsite was a newer model which, according to the trial testimony, would have had a complete shield.
To comply with the operator's request to tap the fuel filters, McCracken reached into the open engine compartment and struck the rear fuel filter with his right hand while the operator depressed the accelerator. McCracken moved his hand forward to tap the front filter, but instead he placed it into the cooling fan, mangling it severely.
• 1 The standard of review governing this case is that "[t]he decision of a trial court to grant a new trial is an exercise of discretion which should not be disturbed unless a clear abuse of that discretion is shown." (Ervin v. Sears, Roebuck & Co. (1976), 65 Ill.2d 140, 144, 357 N.E.2d 500.) Additionally, the reasons specified by the trial court in granting a new trial do not limit the scope of appellate consideration. Varacalli v. Russell (1978), 67 Ill. App.3d 988, 994, 385 N.E.2d 753 (Moran, J., dissenting).
• 2, 3 It is well settled in Illinois that contributory negligence is not an available defense in a strict products liability action (Kerns v. Lenox Machine Co. (1979), 74 Ill. App.3d 194, 197, 392 N.E.2d 688), but that assumption of the risk is a defense. (Russo v. The Range, Inc. (1979), 76 Ill. App.3d 236, 238, 395 N.E.2d 10.) Whether a plaintiff has assumed the risk of an activity involves a two-step inquiry, with the burden of proof on the defendant. (Collins v. Musgrave (1975), 28 Ill. App.3d 307, 311, 328 N.E.2d 649; Ruggeri v. Minnesota Mining & Manufacturing Co. (1978), 63 Ill. App.3d 525, 530, 380 N.E.2d 445.) First, the defendant must show that the plaintiff actually knew of the defective condition, with such knowledge determined on the basis of a subjective, rather than an objective, test. (Russo, 76 Ill. App.3d 236, 238.) Second, the defendant must show that, despite awareness of the danger, the plaintiff deliberately and unreasonably exposed himself to the danger. (Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App.3d 971, 990, 326 N.E.2d 74.) If the plaintiff's act was due to "mere inadvertence or momentary inattention," the second part of the test is not satisfied; both appreciation of the danger and a deliberate voluntary act amounting to a "considered choice" must be proved by the defendant to present an assumption of the risk defense. (Niffenegger v. Lakeland Construction Co. (1981), 95 Ill. App.3d 420, 425, 420 N.E.2d 262.) Where the defendant has proved only that the act which triggered the injury was done with full knowledge of the dangers involved, but without "conscious conduct resulting in the injury, not satisfied by mere inadvertence of momentary inattention," assumption of the risk is not available as a defense and should be stricken as a matter of law. Niffenegger, 95 Ill. App.3d 420, 424-25.
• 4, 5 In applying this standard to an analysis of plaintiff's conduct, we must distinguish between plaintiff's actions in repairing the machine while running and in bringing his hand in contact with the fan. Testimony at trial indicated that it was common practice to work on the machines while they were running and that this was a part of plaintiff's job. "In situations where the nature of plaintiff's employment requires exposure to certain hazards, it would be a non sequitur of the policy considerations of strict tort liability to say that plaintiff has voluntarily and unreasonably assumed such hazards by the mere acceptance of his employment." (Scott v. Dreiss & Krump Manufacturing Co. (1975), 26 Ill. App.3d 971, 990.) We conclude that McCracken's working on the machine while running does not constitute evidence of assumption of the risk. This leads us to McCracken's tapping of the fuel filters, and the subsequent contact of his hand with the rotating fan. The Scott court noted:
"There must, we think, be an element of conscious conduct resulting in the injury which is not satisfied by mere inadvertence or momentary inattention. [Citation.] The testimony in the instant case stands uncontradicted that plaintiff's contact with the foot treadle was inadvertent. Defendant does not point out, nor does our search of the record reveal, any facts from which a contrary inference may reasonably be drawn. Therefore, assuming arguendo that plaintiff did have knowledge of one of the `defects,' his conduct was not voluntary and unreasonable within the meaning of assumption of risk. Accordingly, we concur with the trial court's conclusion that the evidence as a whole so overwhelmingly favors plaintiff that a jury finding for defendant on that issue could never stand." (Scott, 26 Ill. App.3d 971, 990-91.)
The Scott case governs our disposition of this issue. In Scott, the plaintiff was a punch press operator who inadvertently activated the ram on the press while his hand was on the targeted area. In the case at bar, McCracken was attempting to tap a fuel filter when his hand made contact with the fan blade. There is nothing in the record which suggests that McCracken's action was due to anything but momentary inattention to the task at hand. "[B]efore the defense [of assumption of the risk] is properly submitted to the jury, there must be some evidence which will permit a finding that the one charged with assuming the risk had knowledge of the particular risk, and comprehending and appreciating such risk, voluntarily took his chances of harm therefrom." (Scott, 26 Ill. App.3d 971, 990.) Neither McCracken's working on the machine while it was running, nor inadvertently thrusting his hand into the fan blade constitutes evidence of assumption of the risk. McCracken's conduct is, at most, evidence of contributory negligence which, as noted above, is no defense in this action. Because the issue of assumption of the risk was not supported by any evidence, it should not have been submitted to the jury. The erroneous presentation of the defense to the jury warranted the ordering of a new trial by the trial court. Consequently, the trial court did not abuse its discretion. (See Kerns v. Lenox Machine Co. (1979), 74 Ill. App.3d 194, 199.) On retrial, the issue of assumption of the risk should not be submitted to the jury. Collins v. Musgrave (1975), 28 Ill. App.3d 307, 314.
• 6 Appellant contends that the jury verdict could have represented a finding for it on the unreasonably dangerous product issue. While this may be true, submitting the assumption of the risk issue to the jury where no evidence supporting that issue has been adduced during trial is reversible error. (Collins, 28 Ill. App.3d 307.) Hence, this ground alone warranted the trial court's grant of a new trial.
• 7 Appellant asserts that the evidence that the earth scraper was not unreasonably dangerous was so overwhelming that a verdict should have been directed for WABCO. We disagree. The standard for determining whether a defect giving rise to injury breaches a strict liability duty is whether the defect "subjects those exposed to the product to an unreasonable risk of harm. The Restatement (Second) of Torts concludes that strict liability applies only when the product is `dangerous to an extent beyond that which would be contemplated by the ordinary [person] * * *, with the ordinary knowledge common to the community as to its characteristics.' (Emphasis added.) Restatement (Second) of Torts sec. 402A, Comment i (1965)." (Hunt v. Blasius (1978), 74 Ill.2d 203, 211-12, 384 N.E.2d 368.) There is no shield or guard on the back side of the fan, which faces the two filters, and the scraper contains no warnings about the dangers of working in proximity to the fan. McCracken testified that "[w]ith the shroud there, I thought it was protected," even though "I knew there was [no guard] on the back." Also, the misleading appearance of safety allegedly engendered by the partial shroud may have been exacerbated by the placement of a shield around the fans of ...