Appeal from the Circuit Court of Cook County; the Hon. Jacques
F. Heilingoetter, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 1, 1983.
This is an appeal from a judgment on a verdict for plaintiffs in their strict liability action seeking damages for injuries sustained by plaintiff Mario Cortez Soto (Soto) *fn1 while working on an allegedly defective punch press. Defendant contends that (1) either its motions for a directed verdict or its motion for judgment notwithstanding the verdict should have been granted because plaintiffs failed to establish the elements of their action; (2) the sanction imposed for failure to produce a witness was improper; (3) numerous trial errors and improper argument of plaintiffs' counsel deprived it of a fair trial; and (4) the jury was improperly instructed.
It is the position of plaintiffs, as alleged in the pleadings, that defendant manufactured and sold a punch press to Soto's employer which was unreasonably dangerous in that (a) after the stop button was pushed the flywheel continued to rotate while coasting to a stop and, during this coasting period, the press could be tripped, and (b) no warnings of this dangerous characteristic were given. It was further alleged that this unreasonably dangerous condition existed when the press left the control of defendant and was the proximate cause of Soto's injury.
Evidence pertinent to the issues raised on appeal was presented only by plaintiffs. In substance, Soto testified that he began working in May 1974 as a punch press operator on a partial-revolution press. Two months later, he was assigned to a full-revolution punch press which was activated by a foot pedal — differing from the partial-revolution press which would activate only after two palm buttons were pressed. While Soto was given operating instructions by his employer concerning the full-revolution press, he stated that there were no warning signs of any kind on the press. During his second day of work on the machine and in compliance with the instructions he had been given on how to clean the press, Soto said that he pushed the stop button expecting the press would come to a complete stop. He then picked up the guard in front of the press and placed it in its upper ridge and had started cleaning when the guard fell and struck him on the head. He was so startled that he stepped on the foot pedal and the ram came down on his left hand.
Plaintiffs' expert witness testified that on the full-revolution press the stop button disconnects the electrical power to the drive motor, but the flywheel continues to rotate before it finally coasts to a stop. The machine could be tripped by the foot pedal at any time while the flywheel was coasting. The machine did not have a drive motor interlock, costing about $50, which would have prevented the activation of the machine while the flywheel was coasting and which could have been incorporated into the press during its design and manufacture. The installation of such an interlock would not have affected any of the various uses to which the press could be put. Drive motor interlocks were available when the press in question was manufactured and sold, and it was his opinion that the full-revolution press in question was unreasonably dangerous, for several reasons, including (a) after the stop button was pressed the flywheel would continue to rotate while coasting to a stop, and if the foot pedal was depressed during the coasting period the machine could be tripped, and (b) there was no warning of this characteristic on the press or in the manual provided for it.
Peter Bosch, manager of product liability for defendant, in a section 60 examination, testified that when the stop button on a partial-revolution press is pushed, the press will stop and it cannot be activated by contact with the foot pedal because the electric current is cut off from the motor control. However, when the stop button on a full-revolution press such as the one involved here is pushed, the flywheel continues to rotate while coasting to a stop and contact with a foot pedal will activate the press. Defendant was aware prior to the sale of the machine in question that its presses would have to be cleaned and, if a press had a guard, it would have to be lifted to clean the die area. The press in question was sold by Bliss with no warning that the flywheel would continue to rotate after the stop button was pushed or that it could be activated during the coasting period. He also said that neither a drive motor interlock nor any other device was attached to the press to prevent activation during the coasting period.
• 1 Defendant initially contends that the necessary elements of plaintiffs' action were not established and thus that the court should either have directed a verdict or entered judgment notwithstanding the verdict. It is settled that to recover under a strict liability theory, a plaintiff must establish that the injury or damage proximately resulted from an unreasonably dangerous condition of the product which existed at the time it left the manufacturer's control. Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182.
Under the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504), the issue presented by defendant's contention that either a directed verdict or judgment notwithstanding the verdict should have been entered is whether the evidence, when viewed in its aspect most favorable to plaintiffs, so overwhelmingly favors defendant that no contrary verdict based on this evidence could stand under the theory advanced by plaintiffs.
In support of its contention that plaintiffs did not prove the necessary elements of strict liability, defendant makes several arguments. Initially, he states that "the Record contains no testimony that the product was in the same condition at the time it left the manufacturer's control." We see no merit in this argument. While it is correct, as defendant states, that Soto's employer added four or five different clutches, a guard, and also a foot pedal as the means of activation, we note that plaintiffs' expert gave uncontradicted opinions that the press was unreasonably dangerous (1) because it could be activated while the flywheel was coasting after the button was pushed; and (2) because it lacked any warning of this condition. He also gave testimony, which was not contradicted, that the attachment of a drive motor interlock not only would have prevented the activation of the press but also would not have affected any use of the press. Moreover, Bosch, defendant's manager of product liability, admitted that the press could be activated while the flywheel is coasting after the stop button is pressed and that, when defendant sold the press, there was no warning either on the machine or in its manuals that it could be so activated. Thus, we think it clear that this condition of the press with no warning thereof was the same when the press left the control of defendant as it was at the time of Soto's injury.
• 2 Defendant also argues that it had no duty to add the drive motor interlock to the press. While it is clear that a manufacturer has a non-delegable duty to provide a product which is reasonably safe (Anderson v. Hyster Co. (1979), 74 Ill.2d 364, 385 N.E.2d 690), defendant, relying primarily upon Rios v. Niagara Machine & Tool Works (1973), 12 Ill. App.3d 739, 299 N.E.2d 86, aff'd (1974), 59 Ill.2d 79, 319 N.E.2d 232, maintains that it had no duty to provide the drive motor interlock or any other safety device because the press was multifunctional in nature. In Rios, the plaintiff was injured while operating a punch press which he alleged was unreasonably dangerous because it was not equipped with adequate safety devices. This court held that because the machine was multifunctional, different types of safety devices would be required to obtain reasonable safety in performing those various functions and, under such circumstances, no duty should be imposed upon the manufacturer to provide safety devices. The supreme court, however, although it affirmed, stated that the multifunctional nature is only one factor to consider in determining whether a product is unreasonably dangerous and that it would not necessarily be decisive of whether there was a duty to provide safety devices.
It is our view that Rios is not controlling here because it is undisputed that none of the uses to which the press could be put would be affected by the attachment of the drive motor interlock. More persuasive is Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App.3d 971, 326 N.E.2d 74, in which there was also a contention by the defendant that a verdict should have been directed for it. Scott was a strict product liability action involving an injury to the plaintiff while operating a press, the flywheel of which, as in the case before us, would continue to coast after the electric current was cut off, and during this coasting period the press was activated. The evidence disclosed that a simple lock-out device could have been attached to prevent the ram from descending during the coasting period after the current was turned off. The defendant contended that it had no duty to provide such a device because of the press' multifunctional nature. The court disagreed, stating that because the defect (the fact that it could be activated after the electric current was off) was unrelated to the multifunctional aspect of the machine, the no-duty rule of Rios was not applicable.
Under the circumstances in the case before us, we hold that the multifunctional nature of the press did not, as a matter of law, obviate defendant's duty to provide a reasonably safe product.
• 3 We also find no merit in defendant's argument that as a matter of law it had no duty to warn Soto that the press could be activated after the stop button is pushed. A product may be unreasonably dangerous if a manufacturer failed to warn or gave an inadequate warning of a condition which it knew or should have known was dangerous. (Woodill v. Parke Davis & Co. (1980), 79 Ill.2d 26, 402 N.E.2d 194.) However, where an injury results from a condition of a product that is open and obvious, no warning is required (Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465), and the determination as to whether a duty to warn exists is a question of law (Mieher v. Brown (1973), 54 Ill.2d 539, 301 N.E.2d 307).
In support of this position, defendant states "the risks and dangerous propensities of the subject press is [sic] open and obvious; undeniably while the flywheel coasts, the press makes the same noise as when it is activated. Under this circumstance, there can be no duty to warn of the possibility of injury, since such possibility results from the common propensity of the product, a propensity that is open and obvious." Defendant appears to say that because the noise of the flywheel is the same upon activation as when coasting, the dangerous propensity of the press was obvious to plaintiff and thus that it had no duty to warn. However, we find nothing in the record to support defendant's statement as to the noise being the same, nor does defendant inform us how this sameness, if it were so, made the "dangerous propensities" of the press obvious to Soto. To the contrary, it seems to us that if the noises were alike, the danger would be less obvious to plaintiff. In any event, there was a question of fact as to whether the lack of warning rendered the press unreasonably dangerous.
We turn, then, to defendant's argument that the sole proximate cause of Soto's injuries was the conduct of his employer. It is recognized that a manufacturer can avoid all responsibility in a strict product liability action where the evidence establishes that the sole proximate cause of the injury was the conduct of another. ...