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Lindsey v. Schick





Appeal from the Circuit Court of Cook County; the Hon. Robert G. Mackey, Judge, presiding.


Rehearing denied July 20, 1984.

Juana Lindsey, successor administrator of the estate of Beverly Powell, deceased, sued defendant Schick, Inc., in a product liability suit for the wrongful death of Beverly Powell, who was electrocuted while using a Schick Facial Sauna in a bathtub. A jury found for defendant. Plaintiff appeals from the judgment entered on the verdict.

Plaintiff contends the sauna was faulty because of the lack of a ground wire and the instructions given the jury were inadequate because the trial court refused plaintiff's instruction on foreseeability.

On September 12, 1975, deceased, who was born in Panama in 1948, was found in the water-filled bathtub in her apartment. In her mouth she had an extension cord from an electrical outlet to which was connected the electrical cord from a facial sauna on a stand next to the bathtub. The electrical cord was in her right hand. There was approximately a one-eighth to a one-quarter inch gap in the connection between the extension cord and the appliance. When she was found, the cord in her mouth was still sparking. The female end of the extension cord, which received the two prongs of the appliance cord, and the male end of the appliance cord with its two prongs were charred. The appliance was not charred. There was charred blackness around her mouth. The burns coincided with the charring on the plugs. It appeared that deceased had been trying to plug the appliance into the extension cord while holding it in her teeth and that moisture in one or both parts of the plugs had caused the electrical current to run through her body and through the water.

Gusto Alamar, a rewirer of electric motors for the Chicago Transit Authority, testified for plaintiff. He had two years of electrical engineering study at the Chicago Technical College and two years at De Vry Technical Institute specializing in electronic courses. He did not have a degree in electrical engineering. On May 25, 1982, he checked the electrical outlets in deceased's building and determined that they were grounded. The voltage was correct and there was no cross-wiring. He testified as to the principle of a third (ground) wire on an extension cord: one prong of the extension wire plug carries the electrical current; one prong carries the return current and the third prong (round in shape) is the grounded prong. It is connected through the internal wiring to the electrical box and directly to the earth. It is a safety device; it provides a path of lowest resistance and grounds the current to the earth and trips the circuit breaker or fuse.

He further testified that saliva between two connected plugs would be dangerous to an individual who held the connection with the teeth. In a bathtub of water such an incident would result in a shock which could be fatal. He said that a cord with a third prong might either avoid the shock or reduce the severity of the shock. It was his opinion that in a hypothetical situation similar to the facts in this case and assuming the use of three wire grounded cord, the result would not be fatal, because the majority of the current would transfer through the third prong and blow the circuit breaker and fuse. However, the presence of a grounding wire would not eliminate the hazard of a shock to an individual who is placed in the circuit. A person in contact with the hot wire and the ground wire of a three-prong plug would get a shock. If a person were in contact with all three prongs, not all the electricity would pass through the body. A human body in a tub of water would act as a conductor of electricity. Although he did not specifically know what amount of amperage would kill a person, he would agree that one ampere would do it.

Plaintiff read into the record the evidence deposition of Harris Kamide, an electrical engineer with 30 years' experience and an instructor at the Illinois Institute of Technology and Harvard. He had examined the facial sauna and found no indication of electrical current leakage from the heating element and there were "no cords connected to the rolls supply voltage." The conduction of the current to the outside source, such as an individual or a path to ground, was inevitable. It is standard practice for companies to include a ground wire or third wire in products such as this. It is also customary for such products to have a warning label if there are any dangers in connection with the use of the product. Assuming the facts of this case and that a ground wire was used in the facial sauna cord, it was his opinion that the grounding plug third wire would have prevented electrocution. The ground plug would have diverted electrical current away from the body.

Plaintiff introduced into evidence a transcript of the coroner's report pursuant to the Evidence Act (Ill. Rev. Stat. 1981, ch. 51, pars. 3.01 through 3.03) for the purposes of showing a prima facie cause of death.

William Hess, senior vice-president of operations of defendant Schick, was called by plaintiff as an adverse witness. He identified the facial sauna as defendant's product. He did not know the difference in cost between a two-prong plug and a three-prong plug. He did not think that the required use of an adapter, if the product had a three-prong plug, would put a damper on sales.

William Hess, testifying for defendant, stated that an exhibit which he identified as an instruction booklet for the sauna was, in the regular course of business, packaged with each sauna. In the booklet under the caption "Important Safeguards," it is stated "Do not use while bathing or in a location where it may fall into water or liquids."

Robert Kmourek, a retired electrical engineer, also testified for the defense. He had worked for Underwriter's Laboratories, Inc. (UL), since 1946. Part of his duties was to test and examine electrical appliances for safety. The facial sauna manufactured by Schick was certified by UL. Its cord contained two wires. He was familiar with the certification process of an appliance: Tests were conducted to determine that a product is constructed so that it is safe. Further, four unannounced checks of the factory assembly line are made by an UL representative during the year.

Assuming the hypothetical facts of this case, he stated that the absence of a third wire in the appliance cord did not render the product unreasonably dangerous and that the presence of a third, ground wire would not have helped prevent a shock or death. It would not matter whether the facial sauna was turned on or off.

He testified that two-tenths of an ampere for one second would kill a human being. The ordinary circuits in residential areas are 15 ...

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