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HARMS v. BELL HELICOPTER TEXTRON

December 16, 1982

RICHARD F. HARMS, PLAINTIFF,
v.
BELL HELICOPTER TEXTRON, A DIVISION OF TEXTRON, INC., A FOREIGN CORPORATION; TEXTRON, INC., A FOREIGN CORPORATION; AVCO LYCOMING, A DIVISION OF AVCO CORPORATION; AND AVCO CORPORATION, A FOREIGN CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Kocoras, District Judge:

MEMORANDUM OPINION

On September 10, 1976, the plaintiff, Richard F. Harms, was injured in an accident while working as a civilian employee of the United States Army at Fort Sheridan, Illinois. The plaintiff had been a mechanic since the 1940's and had been employed by the army in a related capacity since 1960. At the time of the accident, the plaintiff was a Senior Mobile Heavy Equipment Inspector. The accident occurred as the plaintiff was load testing an aircraft clevis assembly which was designed, manufactured, and distributed by the defendants.

A clevis assembly of the type involved in this case is a device that is attached to inoperative helicopters in order to facilitate lifting of the aircraft. The clevis assembly involved here had a "weight capacity" of 10,000 pounds and was "proof loaded" to 25,000 pounds. The purpose of load testing the clevis assembly is to ensure that it will actually support in a safe manner the load which the specifications say it will support. To do this, it is necessary to apply a load of 10,000 pounds on the clevis assembly.

In his position as a senior inspector, the plaintiff developed what he thought was an appropriate method of exerting a 10,000 pound load on the clevis assembly. The plaintiff's method worked as follows. The clevis assembly was positioned between a dynamometer and a pneumatic jack. The clevis assembly was then fastened to the dynamometer at one end and the jack at the other end by coupling devices called "shackles." Then, as the jack pulled on one end of the clevis assembly, the dynamometer measured the amount of force being exerted.

On the day of the accident, the plaintiff selected a number of shackles to use in his testing procedure. He did not know the load capacity which these shackles were designed to withstand, and he made no effort to determine their capacity before performing the test. As the test progressed to the point where the jack was applying 9,000 pounds of force on the clevis assembly, one of the shackles between the clevis and the dynamometer failed. This sudden release of force apparently caused the jack to rebound in such a way that it struck the plaintiff, knocking him against a workbench and to the floor.

The clevis assembly itself did not break or fail in any way. The only part which broke under 9,000 pounds of force was the shackle which the plaintiff himself had selected for use in his testing procedure. A subsequent investigation by the army revealed that the shackle which had failed when the plaintiff subjected it to 9,000 pounds of force was designed to withstand a load of only 2,000 pounds. The shackle was not made or supplied by the defendants. It had nothing at all to do with the clevis assembly. It was simply a device which the plaintiff decided to use in his effort to apply 10,000 pounds of force on the clevis assembly.

In this lawsuit, the plaintiff seeks to recover for his injuries from the companies that designed, manufactured, and distributed the clevis assembly. These companies are Bell Helicopter Textron and its parent company, Textron Incorporated — makers of the helicopter for which the clevis assembly was used — and Avco Lycoming and its parent company, Avco Corporation — makers of the turbine engine used in the helicopter made by the Textron defendants. The lawsuit was originally brought in the Circuit Court of Cook County, Illinois and was removed to this court by the defendants on the basis of diversity jurisdiction.

The case against the defendant companies is grounded on strict products liability. According to the plaintiff's theory, the clevis assembly was in a defective condition unreasonably dangerous to him and this defective condition caused his injuries. The clevis assembly is said to be unreasonably dangerous in essentially two respects. First, it is alleged that the assembly was defectively designed and manufactured in such a way that it could not safely be load tested. Second, it is alleged that the assembly was unreasonably dangerous because the manufacturer failed to give users of the device adequate warnings or instructions regarding the dangers which might arise in connection with load testing it.

The matter now before the court is the motion of Bell Helicopter Textron and Textron Incorporated for summary judgment. Judge McGarr denied a similar motion by these defendants almost three years ago, on February 28, 1980, and these defendants have now renewed their motion, in effect asking this court to reconsider Judge McGarr's earlier order.

In Suvada v. White Motor Company, 32 Ill.2d 612, 210 N.E.2d 182 (1965), the Illinois Supreme Court adopted the doctrine of strict liability in tort which coincided with the view expressed in section 402A of the Restatement (Second) of Torts. Under these principles of strict liability, the plaintiff has first alleged that the clevis assembly was unreasonably dangerous in that its design and manufacture precluded safe load testing.

The evidence presented by the parties on this motion, however, in no way supports this allegation. In his deposition testimony, the plaintiff himself admitted that he had safely tested the clevis assembly on at least one, and perhaps two, occasions prior to the date of the accident. The defendants' expert witness testified that various methods existed for safely applying the requisite test load on the clevis assembly. Even the plaintiff's own expert testified that the clevis assembly, as it was designed, could be load tested with an appropriate "yoke type fixture" that would be compatible with a "standard tensile testing machine." This expert also said that if he did not happen to possess such a fixture, he could design and make one in no more than half a day. In addition, J.C. Sanders, the plaintiff's immediate supervisor at Fort Sheridan, explained in his deposition testimony that such a fixture was in fact fabricated out of strong steel after the plaintiff's accident, which permitted load testing of the clevis assembly as it was designed.

In the face of all of this evidence indicating that it is entirely possible to test the clevis assembly with safety if proper testing equipment is used, the plaintiff has offered nothing which supports a contrary conclusion. Thus, there is no genuine issue of material fact regarding the design of the clevis assembly as it relates to safe load testing. The plaintiff's expert suggested that there may be different designs which could be load tested more easily, but the evidence is uncontradicted that the existing design, which is at issue in this case, can be load tested in a completely safe manner with appropriate equipment. Accordingly, summary judgment for the defendants is proper on plaintiff's claim insofar as it is based on an allegation that the clevis assembly was defectively designed and manufactured.

The plaintiff also asserts that the clevis assembly was unreasonably dangerous because the manufacturer failed to give adequate warnings and instructions regarding the correct method of load testing the device. The Illinois Supreme Court has recognized that in some circumstances a failure to warn of a product's dangerous propensities may serve as the basis for holding a manufacturer or seller strictly liable in tort. In such cases, the product is in a defective condition unreasonably dangerous not because of some defect inherent in the product itself, but because of the absence of an adequate warning accompanying the product. E.g., Woodill v. Parke Davis & Company, 79 Ill.2d 26, 37 Ill.Dec. 304, 402 N.E.2d 194 (1980).

The determination of whether a duty to warn exists is a question of law and not of fact. Genaust v. Illinois Power Company, 62 Ill.2d 456, 466, 343 N.E.2d 465, 471 (1976). Underlying such a determination is necessarily the question of foreseeability, which, in the context of determining the existence of a duty, is for the court to resolve. Id. A foreseeability test, however, is not intended to bring within the scope of the defendant's liability every injury that might possibly occur. In a sense, in retrospect, almost nothing is entirely ...


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