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Augenstine v. Dico Co.

OPINION FILED JULY 17, 1985.

RAYMOND E. AUGENSTINE, PLAINTIFF-APPELLANT,

v.

DICO COMPANY, INC., ET AL., DEFENDANTS-APPELLEES (COMMONWEALTH EDISON COMPANY ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding. PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Plaintiff Raymond Augenstine (Augenstine) brought this action in strict products liability and negligence to recover damages for injuries caused by an unreasonably dangerous truck/crane manufactured by Dico Company, Inc. (Dico), and sold by Midwest Contractors Equipment, Inc. (Midwest). He appeals from the summary judgment entered in favor of defendants Dico and Midwest.

At the time of the accident Augenstine had been employed for seven years as a truck driver by Seberger Construction Company. His duties involved operating a truck with a boom-type crane mounted on the rear for loading and unloading construction material. The record shows that on June 15, 1979, Augenstine drove to a house in Calumet City to deliver a load of sand. At that time, he was aware that there were power lines in the area. Later that day, he drove back to the house through an alley to deliver cement blocks. He inspected the area surrounding the house for electrical wires to determine where to position the truck/crane and to make sure he could swing the boom without coming in close proximity to the wires. In his deposition, Augenstine stated that he was aware from prior experience that trees and shrubbery can camouflage wires in an area, yet he made no specific effort to check for camouflaged wires at the scene of the accident. After his inspection, plaintiff used a remote control unit with a conductive cable to move the boom of the crane through branches of trees. He received an electrical shock when the boom hit a wire concealed in the trees. He sustained numerous injuries, including the loss of his leg.

The record shows that in 1979, Dico manufactured and marketed both conductive and nonconductive remote control cables. The conductive cable conducts electricity, thus exposing the operator to the risk of electrical shock when contact is made with electrical power lines. The nonconductive remote control unit, which does not conduct electricity, was introduced to the market in 1977 to protect against electrical accidents. This cable was available as standard equipment on new machines and as a replacement for conductive cables on machinery already in the field.

Midwest sold the truck/crane unit involved in the incident to Seberger, equipped with a nonconductive remote control cable. Prior to the accident, Seberger replaced the nonconductive remote control unit with Dico's conductive unit. Augenstine was aware that the truck had been modified and that there was no electrical insulation in the cable.

Augenstine alleged in his amended complaint that the crane as modified was in a defective and unreasonably dangerous condition in one or more of the following respects:

(a) Said hoist (of the crane) was not equipped with a remote control unit with a nylon cable to insulate a hoist operator from injury resulting from an energized hoist, control box or load caused by the boom's contact or close proximity with high voltage power lines.

(b) Said hoist was not equipped with an insulating link between the hoist fork and trolly cable to insulate a hoist operator from injury caused by an energized hoist, control box, and load.

(c) Said hoist was not equipped with a nylon stick for use in guiding the hoist fork and lift to insulate a hoist operator from injury caused by an energized hoist or load.

(d) Said hoist was not designed with adequate safeguards to insulate a hoist operator from an energized hoist, load, or control box.

The trial court granted Dico's and Midwest's motion for summary judgment. This appeal followed.

On appeal, Augenstine contends that the record presents genuine issues of material facts as to whether defendants' crane with the conductive, uninsulated remote control cable was in a dangerous and defective condition, thus precluding an award of summary judgment in favor of Dico and Midwest. On the other hand, defendants argue that there was no jury question and that they cannot be held liable as a matter of law because the substitution of the conductive unit for the nonconductive one was an intervening, material change in the condition of the crane and which in fact was the proximate cause of plaintiff's injury.

• 1 To recover against a manufacturer under strict liability, a plaintiff must prove that his injury resulted from an unreasonably dangerous condition of the product and that the condition existed at the time the product left the manufacturer's control. Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill.2d 339, 247 N.E.2d 401; Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182; Gasdiel v. Federal Press Co. (1979), 78 Ill. App.3d 222, 396 N.E.2d 1241.

Illinois has adopted the doctrine of strict liability set forth in section 402A of the Restatement (Second) of Torts. (Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App.3d 974, 382 N.E.2d 36; Restatement (Second) of Torts sec. 402A (1965).) Section 402A(b) imposes strict liability only where the defective product reaches "the user or consumer without substantial change in the condition in which it is sold." (Restatement (Second) of Torts sec. 402A(b) (1965).) Where the intervention of a third party's defective alteration of the product is itself unreasonably dangerous and causes the injury, the original manufacturer is not liable. Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App.3d 974.

• 2 It is undisputed that as originally designed, manufactured and sold by Dico and Midwest, the crane was equipped with a nonconductive remote control unit to insulate operators from electrical shock. As modified, the crane had a conductive remote control cable which consisted of a standard copper wire and had no insulation to protect the operator ...


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