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La Bree v. Schrieber Co.

OPINION FILED JUNE 13, 1983.

JON R. LA BREE, PLAINTIFF-APPELLANT,

v.

SCHRIEBER COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Brian L. Crowe, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 25, 1983.

Jon R. La Bree (plaintiff) brought this action for strict product liability against Schrieber Company (defendant) for injuries sustained by plaintiff while working with a product manufactured by defendant. After trial the jury returned a general verdict for defendant and against the plaintiff. The jury also answered a special interrogatory finding "plaintiff guilty of assumption of risk." The jury left blank a special interrogatory requesting an answer as to the percentage of total fault to be ascribed to each plaintiff and defendant. Plaintiff has appealed.

Under the view we take of this case, we need not address all the issues presented for review, or provide a detailed statement of the evidence. According to plaintiff's amended complaint, defendant manufactured a certain "continuous collating machine" which plaintiff used in the course of his employment. Plaintiff alleged the product was unreasonably dangerous in that it had inadequate safety guards. As a proximate cause of that allegedly dangerous condition, plaintiff claims to have suffered severe injuries to his arm and hand.

Defendant made a motion in limine to apply the theory of comparative negligence. (Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886.) The trial court granted defendant's motion. In announcing his ruling, with reference to the issue of assumption of risk, the trial judge stated:

"This Court will therefore hold that to the extent that the defendant is able to plead and prove assumption of risk, he will be allowed to do that and instead of it being stylized as assumption of risk and totally barring the plaintiff's recovery, it will be called a form of comparative fault which will mitigate the damages."

The trial court gave the jury this instruction on assumption of risk:

"The defendant has asserted the affirmative defense that the plaintiff assumed the risk of injury. To establish that defense, the defendant has the burden of proving each of the following propositions:

First, that the plaintiff knew of the condition which the plaintiff claims made the collator unreasonably dangerous;

Second, that the plaintiff understood and appreciated the risk of injury from that condition and continued to use the collator.

Third, that the known condition was a proximate cause of plaintiff's injuries.

If you find from your consideration of all the evidence that each of the propositions required of the defendant has been proved, then your answer on the special verdict as to assumption of risk should be `yes.'

If, on the other hand, you find from your consideration of all the evidence that any one of the propositions required of the defendant has not been proved, then your answer on the special verdict as to assumption of risk should be `no.'"

The trial court also tendered two special interrogatories to the jury. One interrogatory asked "Was the plaintiff guilty of assumption of risk?" to which the jury answered "yes." The second ...


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