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Dukes v. J.i. Case Co.

OPINION FILED OCTOBER 10, 1985.

STEVEN DUKES, PLAINTIFF-APPELLANT,

v.

J.I. CASE COMPANY, DEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF (ILLINOIS POWER COMPANY ET AL., THIRD-PARTY DEFENDANTS). — STEVEN DUKES, PLAINTIFF,

v.

J.I. CASE COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE (MCCARTIN-MCAULIFFE PLUMBING & HEATING, INC., THIRD-PARTY DEFENDANT-APPELLANT; ILLINOIS POWER COMPANY, THIRD-PARTY DEFENDANT).



Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.

JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 6, 1985.

This consolidated appeal stems from a products liability action filed by Steven Dukes against the J.I. Case Company, and the subsequent third-party contribution claims by J.I. Case against Dukes' employer, McCartin-McAuliffe Plumbing & Heating, Inc. (McCartin), and Illinois Power Company. The appeal raises questions concerning the viability of the theories under which Dukes sought to recover from J.I. Case and the theories under which J.I. Case sought to defend the claims, as well as the theories asserted by J.I. Case in its claim for contribution against McCartin and Illinois Power. In addition to raising fundamental questions concerning the various theories asserted below, the appeal also raises issues concerning trial court rulings on procedural and evidentiary matters.

The facts are prolix, but must be stated in order to support the discussion of the issues. Plaintiff was injured on December 1, 1978. He was employed by third-party defendant, McCartin, who had in turn been contracted to perform the installation of underground gas pipes by Illinois Power Company. The work site was in Danville. The job called for the plaintiff to drill a hole under a sidewalk for a distance of about 20 feet.

The drilling was to be accomplished through the use of a Case Fleetline No. 40 4 trencher, which was equipped with a hydra-borer attachment. The machine was sold to Illinois Power on or about October 13, 1972. The trencher is a multipurpose vehicle with a number of uses which are accomplished through the use of various attachments. The attachment at issue in this suit was the hydra-borer, which is a hydraulically powered device which can bore or auger small diameter holes under obstructions. The holes are drilled by attaching steel rods in 10- and 20-foot lengths to the basic machine while a drill bit is placed on the front of the rods. The hydra-borer provides the rotational force which screws the drill bit into the earth, while the Fleetline trencher itself provides the forward push which forces the rods through the earth under the obstruction. By adding sections of rod, the length of the bore can be extended. In addition to the hydra-borer, the trencher has an attachment which allows an operator to dig narrow tranches no more than one foot in width. The trencher can be used in conjunction with the hydra-borer to dig a trench which may be used to guide the direction of the auger rods in the course of the augering process.

Case also manufactures drill guides (positive level guide anchors). Drill guides are used to control the direction of the auger. If the drill guides are used, it is not necessary for a workman to manually control the direction of the auger. The drill guides are available as optional equipment and are not issued with the standard machine. Illinois Power Company, purchaser of the machine, did not purchase drill guides for this or any other Case trenchers they used. Illinois Power owned 142 Case trenchers with hydra-borer attachments on the date of plaintiff's accident.

Prior to purchasing hydra-borers and Case Fleetline trenchers, the tool which had been primarily used to accomplish similar tasks was the McLaughlin "MIGHTY MOLE" air-powered auger. McLaughlin issued operator's manuals with the Mighty Mole, and the manuals were found in Illinois Power equipment sheds. The operator's manual gave written instructions and warnings on the augering process. The warnings included admonitions against adjusting the auger by hand, wearing loose clothing, and walking near a turning auger. McLaughlin also manufactured a tool which resembled a series of three J-shaped hooks, which was recommended for use in its augering procedures. Use of the J-hooks could also have precluded the necessity of a workman being in the trench with rotating drill rods. Illinois Power had a company-wide policy that the McLaughlin tool guides were to be used to guide augers, no matter whether a McLaughlin product or a Case product was being used in a given operation. Each Illinois Power crew had two McLaughlin tool guides available to it. The guides were also available to McCartin employees.

In conducting its augering operations, McCartin normally used a three-man crew, which included a lead man or bottom man, a hook man, and an operator. The lead man was in charge of the crew and had the responsibility of guiding the drill bit at the start of the augering process. The lead man was often in the trench and generally would attempt to control the direction of travel of the tip of the auger rod when it was initially tunnelling through the earth. Because the work crews recognized the danger of being in close proximity to turning drill rods, a plastic sleeve consisting of a three-inch-diameter, two-foot-long section of plastic pipe was often used to control the direction of the auger. McCartin procedures did not call for the use of the McLaughlin tool guide, and during the trial, plaintiff testified that he had never seen such a guide, but had often seen the plastic pipe in use.

The lead man's duty was to stay in the ditch until the direction of travel of the auger was no longer within his control, at which time he would exit the ditch. Witnesses for McCartin testified that the lead man was to signal the operator of the machine to stop the turning drill rods while the lead man climbed out of the ditch. Plaintiff, as well as his brother and cousin, all denied that there was such a rule.

The second member of the three-man crew was called the hook man. His duty was to stand approximately midway between the machine operator and the lead man with a hook with which he could hold the auger rods to attempt to minimize the flopping which the rods did as the length between the machine and the end of the drill bit increased. There was testimony that the hook man is sometimes called the lookout man, and one of his duties was to maintain eye contact at all times with the lead man, in order to relay the lead man's signals to shut down the machine in the event anything went wrong. Plaintiff testified that the hook man was not responsible for relaying signals from the lead man to the operator, although he did agree that constant eye contact was to be kept on the lead man by someone in the crew.

The third member of the three-man crew, the operator, had the responsibility of controlling the turning auger from his position astride the machine. From this position, the operator can look directly down the turning rod. His responsibility is to start and stop the machine, and in doing so he follows the signals of the lead man. The operator is generally able to see both the lead man and the hook man who are in his line of vision. The normal operating procedure was that while the lead man was in the trench the operator would run the machine at a very slow speed. If the operator should see the lead man leaving the ditch without signaling he was to stop the machine. If the hook man were to lose control of the rods, the operator was also to stop the machine. Plaintiff and various other witnesses contradicted this testimony and indicated that there was generally no rule about stopping the rods during various operations.

In addition to direct disputes about the various practices employed by McCartin employees during these operations, there was also contradictory testimony concerning the existence of safety meetings on the job. William Robertson, a foreman of McCartin testified that informal safety meetings were held on the job every morning. He stated he always tried to see to it that safety rules were enforced. Plaintiff, on the other hand, testified that he frequently saw safety rules being violated without comment or reprimand. He did state that Robertson would "raise hell" if he found someone starting the auger without using a plastic sleeve. Plaintiff testified that the plastic sleeve was infrequently used by McCartin employees, himself included. He also testified that to his knowledge, no one had ever been injured while guiding the augers at the start of the boring procedure. Plaintiff, his brother, and cousin, all testified that no one ever stopped the auger to get out of the trench.

There was extensive testimony concerning plaintiff's employment history with McCartin. He first went to work during the spring of 1977, and worked until McCartin shut down in the fall. He worked about half the time on the augering crew as a hook man. He returned to work with McCartin in the spring of 1978, and worked full-time on an augering crew, splitting his time between lead man and hook man about evenly.

Plaintiff testified that he was never given any real instructions as to how to do the job, but learned more or less by observation. He further testified that in his two years on the job, there had never been a safety meeting of any kind. Plaintiff stated that as a lead man he was aware that he was in charge of the crew. He stated that he was aware of only two rules that the lead man was to follow: (1) Use the plastic sleeve to direct the drill rods without coming into contact with them; (2) do not wear gloves as they may catch on the drill rods. Plaintiff testified that he did not use the plastic sleeve with any frequency because in his opinion it was not useful.

Plaintiff further testified that he never stopped the drill rods when exiting the trench, and claimed he was never told to stop them at this time. He agreed it would be easy to do so and not inconvenient to the drilling process. Plaintiff's testimony was controverted by Robertson and other witnesses, who testified that they had told the plaintiff he was to stop the machine while exiting the ditch. Robertson added that plaintiff was aware of the reason for the rule, since plaintiff was aware that Robertson had been injured when his clothing had gotten tangled up with a drill rod. Plaintiff denied any knowledge of Robertson's injury.

Plaintiff recognized the fact that the degree of side-to-side movement of the rods is greater as one moved away from the front of the trench toward the machine. He testified that he was not aware that by brushing against the turning rods his clothing could become tangled, although this testimony was controverted by Robertson. Plaintiff also testified that he had never been told to tape his pant legs or avoid wearing loose clothing while in the trench.

Plaintiff testified that on the day of the accident his crew was beginning to drill a third hole under a sidewalk. He stated that on the first two occasions he neither used the plastic sleeve nor stopped the machine when leaving the ditch, and yet nothing was said to him about his actions. He further testified that on the first two drillings, William Robertson, his foreman, was directly above him and must have seen that he was not using the plastic sleeve, and did not stop the machine to get out of the trench. Robertson denied this. On cross-examination, plaintiff admitted stating in a previous deposition that he had no idea where Robertson was on the first two attempts, and during trial, admitted that the deposition testimony was correct. Plaintiff testified that he was wearing straight-leg jeans, while Robertson testified he was wearing bell-bottoms.

On the third drilling, Don Moulton, McCartin's equipment operator, was running the Fleetline trencher from its seat. He had his hand on the on/off lever, which allowed him to turn the auger off almost instantaneously. Moulton had an unobstructed view of both plaintiff and the hook man, Rick Hoover, who was midway between Moulton and the plaintiff. Moulton testified that the machine was operating at one-quarter throttle, which would result in about 26 revolutions per minute. Plaintiff was in the ditch with his back to Moulton and was bending over the rod. He did not have the plastic sleeve but used his bare hands to control the rod. He gave a hand signal to start the auger. When the rod had entered the ground for a distance of about six feet, plaintiff straightened up, at which point it was clear that he was no longer guiding the rods. Plaintiff moved backwards several feet, watching his feet as he did so. He stated that he was trying to avoid contact with the rods but indicated he was doing this because he did not want to alter the direction of the auger. Moulton testified that the rods were not to be let go until it was no longer possible to change the direction of penetration. Plaintiff retreated from the front of the ditch for approximately six feet, at which time he put his hands on the sides of the trench and started to climb out. At this time, he was straddling the rod, which was in the center of the ditch. Moulton testified he would have been able to see if plaintiff had straightened up or if he had started to exit the ditch. He also stated that it was his duty to look for the lead man to begin exiting the ditch, and that if he had seen this, he would have stopped the machine immediately.

Plaintiff testified that about one minute elapsed from the time he let loose of the rod at the front of the ditch, and the time he eventually started to get out of the trench. He testified he put his hands and feet on the side of the ditch and started to climb the wall. As he was climbing, the rod began to bounce and caught his pant leg. He described the bounce as being of the type which occurred when a hook man lost control of the rods. Moulton testified he did not believe the hook man lost control, and said he would have stopped the machine if he had. The rods began to gradually pull plaintiff down into the ditch. He testified he began yelling at the top of his lungs, and continued yelling until the machine stopped. Moulton testified he thought he would have been able to hear plaintiff yelling, but that he did not hear anything. Moulton noted that even if he could not have heard plaintiff, the hook man, who was closer to the plaintiff, certainly could have.

The rod pulled plaintiff down into the ditch slowly, and tore off his pants, while tangling up his belt and sweatshirt. It was eventually necessary to use a knife to cut his belt and other clothing free from the auger rods. Plaintiff gave several estimates of the time it took him to be dragged to the bottom of the ditch, but admitted to having no really good idea of the time involved. Moulton testified that the instant he lost sight of the plaintiff, he immediately shut off the machine; however, plaintiff contradicted that, testifying that Moulton later told him he had shut down the machine because he had not seen plaintiff for a couple of minutes.

Plaintiff was taken to the hospital immediately following the accident and lost one testicle as a result of traumatic amputation. He also lost his scrotum, and some skin at the base of his penis.

At the hospital, he was treated by Dr. Randolph Hunter, a urologist from Danville. During treatment at the hospital, plastic surgery was used to replace the skin which had been taken from the base of his penis, and a small pouch was placed in his leg as a receptacle for the remaining testicle.

The plaintiff was released from the hospital at the end of December, and by mid-January, upon the advice of his doctor, engaged in sexual intercourse. He noticed pain in the area of the skin graft. Dr. Hunter testified that plaintiff's condition had improved considerably by May, and that should have made it easier to have intercourse. By May of the following year, the condition had improved to the point where Hunter was of the opinion that plaintiff's injuries should not have been causing him significant problems.

Tests made subsequent to the injury showed plaintiff's remaining testicle was no longer producing sperm, and that plaintiff was therefore sterile. Subsequent testing showed that the testicle was producing testosterone at an adequate level to place plaintiff in the midrange of young adult males. Testosterone is the hormone which produces the ability to obtain and maintain an erection, and to engage in sexual activity, as well as being responsible for the presence of secondary sexual characteristics such as voice level and hair growth.

During trial plaintiff testified that his sex life was inadequate as far as he was concerned. The main problem was that he was having difficulty in maintaining long-term relationships with women because of the fact that he could no longer father children, and because of his perceived diminished sexual capacities.

Plaintiff put on the following proof of his monetary damages. Although his injury came toward the end of the work season, plaintiff had been previously employed by McCartin, and had long-term employment prospects with them. Due to his injuries, McCartin replaced plaintiff. His pay rate at the time of his injury was $10.40 per hour, plus fringe benefits. As a direct result of his injuries, plaintiff was unable to work 127 days. Plaintiff further testified that the psychological injuries were such that he did not work for an even greater period of time. Plaintiff sought compensation in the amount of lost wages of between $10,000 to $20,000. His total medical bills amounted to $11,676.47.

Two expert witnesses testified at trial. Plaintiff's expert was Carl Larson, a professor of mechanical engineering and the associate dean of the College of Engineering at the University of Illinois. He testified that the dangers of rotating shafts such as drill rods, as well as the necessity to guard against injuries from the shafts are well known in the engineering community. In one treatise, the following passage is found: "The design engineer cannot assume the hazard posed by a mechanical mechanism will be obvious to the user, operator or observer of machine simply because it is obvious to its designer or a manufacturer." The same exhibit notes that a rotating shaft is almost always used to transmit power and that, if unguarded, the device frequently produces the traumatic amputation of the male genital organs. Larson testified that where a hazard is present, a designer's first obligation is to eliminate it. If it is not possible to eliminate the danger by design changes, the designer should construct a guard around the danger. Only where one cannot eliminate the hazard or guard against the hazard is it sufficient to merely warn of the hazard's existence.

Larson testified that in his opinion, the designer of a piece of machinery may not delegate to the purchaser or ultimate user, the requirement that they further equip or modify the machine to correct an unreasonably dangerous condition. He testified that where a 40 4 trencher was sold with a hydra-boring unit but without guide anchors, his opinion was that to a reasonably degree of engineering certainty, the machine was unreasonably dangerous for its reasonably foreseeable uses.

Larson also prepared a chart which demonstrated the relative cost of guide anchors compared to the cost of the 40 4 trencher. The exhibit shows the cost of furnishing two guide anchors with each machine would be in the range of .02% of the total sales price. He demonstrated designs for two types of guards which in his opinion were feasible and necessary to make a machine not unreasonably dangerous. The cost of the guards would have been in the vicinity of $50. Larson had no opinion as to whether other equipment, such as the McLaughlin tool guide which was available to plaintiff, made it possible to guide the auger rods without going into the trench. He finally testified that employees should not be permitted to work around moving mechanical equipment wearing loose-fitting clothing.

Case's expert witness, Joseph Lesher, testified that it was generally a dangerous practice for a workman to be in a two-foot-wide trench with a turning drill rod. His opinion was that it would be marginally dangerous if the trench was three feet wide. Lesher agreed that while drill guides were a feasible way to keep individuals out of the trench, he did not agree that it was foreseeable that without the drill guides, individuals would be in the trench. Lesher contradicted Larson's testimony to the effect that use of the hydra-borer contemplated a man being found in a ditch with a turning auger, because it was his opinion that had the trench been dug by a trencher, which could dig a ditch no more than one foot wide, a man would not fit in the ditch, and therefore would not have been in close proximity to the turning rods. He noted, however, that there were no specifications for either a minimum or a maximum width of a ditch.

In the course of his testimony, Lesher also testified as to his opinion about the use of the two- to three-foot section of plastic pipe as a drill guide. He stated that in his opinion the pipe was not adequate and testified that Case made no equivalent device. In Larson's opinion the use of the short plastic sleeve would not render the machine no longer unreasonably dangerous but rather necessitated a workman being in the immediate vicinity of the rotating drill rod, and therefore exposed to danger.

John Ireland, director of gas operations for Illinois Power, testified that the plastic sleeve had been approved by Illinois Power in 1978. Prior to this time the McLaughlin drill guide had been the only tool which augering crews were to use in directing the turning drill rods. Use of the McLaughlin tool guide precluded the necessity of having employees in the trench while an auger was turning. This was true even if the trench was two feet wide. Until Illinois Power changed its rules to allow use of the plastic sleeve, it was a violation of safety rules to be in a trench with a turning auger. A similar rule was in effect when Case boring equipment was being used.

Jack Divan, an inspector for Illinois Power assigned to the McCartin job, described a method of adjusting the start of an auger while keeping clear of the auger by placing a spade in the ground between the workman and the rod, and adjusting the rods with some type of hook. The procedure called for stopping the auger while climbing in and out of the trench, taping one's pant legs, avoiding loose clothing, and never adjusting a turning auger by hand. Divan testified that this had been the procedure used by McCartin crews prior to the introduction of the plastic sleeve. In Divan's opinion, this procedure could be used by a person in the ditch while assuring comparative safety.

Both parties made numerous attempts to introduce evidence of other accidents involving use of the hydra-borer. William Robertson testified that he had been injured during an augering operation, although it was not established whether the injury occurred while Robertson was using a hydra-borer or some predecessor equipment. There was no evidence that the accident was ever brought to the attention of Case. Plaintiff sought to additionally prove that Ernest Ralston had been injured while using a Case hydra-borer, but the court refused to allow evidence of this matter, since an action filed by Ralston after his injury had resulted in summary judgment being granted to Case. Plaintiff additionally sought to offer evidence of injury to various other employees, but the court refused to consider evidence on these matters.

At the close of all the evidence, the court directed a verdict in Case's favor on count II of plaintiff's amended complaint, which count alleged wilful and wanton misconduct, and sought punitive damages. Following jury deliberations, a verdict for the plaintiff and against the defendant, Case, in the amount of $148,750 was returned. The jury, in a split verdict form, found that plaintiff's total damages for which Case was responsible regardless of any comparative fault on plaintiff's part was $175,000. The jury additionally found that the plaintiff was 15% responsible for his injuries, based either on his assumption of risk of his injury or his misuse of the product. The jury additionally returned a verdict for Case and against McCartin on Case's claim for contribution, which found Case to be 47.05% responsible for plaintiff's accident while McCartin was 52.95% responsible.

While the posture of the parties in this appeal calls for the resolution of some similar matters, it is clear that the underlying issues are distinct. For this reason the various issues are set forth in two subsections. The first subsection relates to Dukes' claim against J.I. Case, and Case's affirmative defenses to these ...


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