Appeal from the Circuit Court of Cook County; the Hon. Brian
B. Duff, Judge, presiding.
PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 7, 1983.
This appeal arises out of an action brought to recover damages for injuries plaintiff Shirley Boddie suffered as a result of her exposure to a conveyor system furnished by defendants. The trial court granted summary judgment on counts sounding in strict liability, wilful and wanton conduct and breach of warranty and also granted a motion to dismiss counts sounding in negligence.
Plaintiff was an employee of the United States Post Office, working in the bulk mail center in Forest Park, Illinois. On August 17, 1976, plaintiff's hand was caught in a partially exposed chain and gear drive mechanism which was part of the conveyor resulting in amputation of two fingers and injury to a third finger. The instant action was subsequently filed against defendants Orr & Associates (Orr), the general contractor, and Litton Unit Handling Systems (Litton), the subcontractor who designed and built the conveyor system.
The record reveals that Kaiser Engineers and A.T. Kearney, Inc., provided the postal service with the initial plans and specifications for the Forest Park postal facility. The plans submitted by Kaiser gave general specifications for the conveyors and guards but did not provide an actual design for the chain guard. Rather, the specifications included only a general description of the type of guards to be used, and provided:
"(a) 10.2.12.1 — All chain drives shall be totally enclosed in drip tight steel chain casings * * *.
(b) 10.1 — All equipment items and accessories shall be designed and fabricated in accordance with industrial safety practices to eliminate hazards to employees, including entanglement of clothing * * *.
(c) 10.12.1 — Protective Enclosures and Guards. For inclined conveyor, protective enclosures shall be provided * * * to provide safety guarding against contact by personnel with moving belts, pulleys or rollers."
Subsequently, these plans were let out for bid and Orr, the successful bidder, entered into a contract with the Corps of Engineers. Thereafter, Orr entered into a subcontract with Litton under which Litton agreed to design and manufacture the conveyor system involved in this accident. The sections of the conveyor were to be built at Litton's plant and shipped in a completed state for assembly at the job site. During the process of assembling the conveyor, it was determined that the completely enclosed guard would not fit the telescoping conveyor section involved in this accident. Litton subsequently equipped the conveyor with an open back three sided guard which ultimately resulted in plaintiff's injuries and the filing of the instant action to recover damages.
In granting defendants' motions for summary judgment on the strict liability counts, the court below made the following findings: (1) there was no genuine issue of material fact as to whether the change to the open back guard was authorized; (2) the doctrine of strict liability was inapplicable because the conveyor was not a product but rather a fixture which had become merged with the realty; and (3) the doctrine of strict liability did not apply because the conveyor never entered the stream of commerce. With respect to the warranty counts filed pursuant to the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1981, ch. 26, par. 2-101 et seq.), the court found (1) the contracts involved were not for the sale of goods and therefore did not come under the purview of article 2 of the UCC; (2) the plaintiff did not qualify as a third-party beneficiary under section 2-318 of the UCC (Ill. Rev. Stat. 1981, ch. 26, par. 2-318); and (3) there was no material issue of fact on the issue of contract compliance by defendants. The court had previously granted summary judgment on counts asking for punitive damages based on a determination that there was contract compliance and the change to the open back guard was authorized.
Plaintiff was then given leave to amend her complaint to include counts sounding in negligence. Defendants filed motions to dismiss, arguing that the court had already determined that the open back guard eventually installed on the conveyor was authorized by the Corps of Engineers and, therefore, under Hunt v. Blasius (1978), 74 Ill.2d 203, 384 N.E.2d 368, plaintiff was precluded from recovering on a negligence theory. On June 23, 1982, the court granted defendants' motions.
Plaintiff appeals from the trial court's rulings dismissing the negligence counts and granting summary judgment on the strict liability, warranty and punitive damages counts.
We will first address plaintiff's arguments raised in connection with the dismissal of the negligence counts.
• 1 The standard by which contractors and subcontractors are to be judged in determining if they are liable for injuries caused by their negligence in carrying out another's design specifications is set out in Hunt v. Blasius (1978), 74 Ill.2d 203, 384 N.E.2d 368. There, the court held that an independent contractor owes no duty to third persons to judge the plans, specifications or instructions he has merely contracted to follow. If the contractor carries out the specifications provided him, he is justified in relying upon their adequacy unless they are so obviously dangerous that no competent contractor would follow them. Accordingly, to recover against a contractor on a negligence theory, a plaintiff must demonstrate either noncompliance with contract specifications proximately resulting in injury or that the contract specifications are so defective a builder of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury. 74 Ill.2d 203, 209-10.
• 2 In the case at bar, the trial court's dismissal of the negligence counts against the contractor Orr and the subcontractor Litton was predicated on previous findings in the court's rulings on motions for summary judgment with respect to the strict liability, warranty and punitive damages counts. There, the court found that there was no material issue of fact as to whether the change to the open back guard was authorized and approved and, therefore, Orr and Litton had complied with all contract specifications. Plaintiff contends the court erred in dismissing the negligence counts since the pleadings, exhibits, and depositions filed by the parties in connection with the motions for summary judgment clearly revealed the existence of a significant factual dispute on this issue. We agree.
Since the trial court's granting the dismissal was based on a prior finding that there was no material issue of fact to be tried with respect to contract compliance, the motion was in reality one for summary judgment and will be treated as such on review. Summary judgment is appropriate if there is no genuine issue as to any material fact such that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2-1005(c).) In ruling on a motion for summary judgment, the trial court should construe the pleadings, affidavits, exhibits and depositions most strictly against the moving party and most liberally in favor of the opponent (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App.3d 89, 93-94, 392 N.E.2d 675) and should grant the motion only where the right of the movant is clear and free from doubt (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App.3d 569, 442 N.E.2d 648).
In the present case, it is clear that the open back chain guard provided by Litton did not comply with the original specifications which called for a totally enclosed guard. In order to demonstrate contract compliance, Litton relied solely on an oral modification of the original contract specifications approved by Robert Schmeiser, a Corps of Engineers inspector. However, after reviewing the record, we find that a material issue of fact exists as to whether Schmeiser had authority to approve changes in contract specifications.
In the deposition of William Wyner, Orr's project manager, testimony was elicited to the effect that Robert Schmeiser had no authority to approve contract changes in specifications. Wyner further testified that only Howard Gregory, the authorized representative of the contracting officer, had such authority.
Of greater import is Robert Schmeiser's own testimony. When questioned specifically about his authority, he stated in his evidence deposition:
"Q. I understand that, sir. Howard Gregory had to authorize the change. He was the one that was the ...