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07/23/87 Morrell Pierce, A Minor By v. Hobart Corporation

July 23, 1987

MORRELL PIERCE, A MINOR BY HIS MOTHER AND NEXT FRIEND, BERTHA PIERCE, PLAINTIFF-APPELLANT

v.

HOBART CORPORATION, INCORRECTLY SUED AS HOBART MANUFACTURING COMPANY, DEFENDANT-APPELLEE. -- MORRELL

PIERCE, A MINOR BY HIS MOTHER AND NEXT FRIEND, BERTHA PIERCE, PLAINTIFF

v.

JOHN GATTUSO, D/B/A TONY & FRANK'S



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Restaurant, Defendant and

Third-Party, Plaintiff-Appellant (Hobart Corporation, Third-Party, Defendant-Appellee)

Nos. 85-3067, 86-0992 cons.

512 N.E.2d 14, 159 Ill. App. 3d 31, 111 Ill. Dec. 110 1987.IL.1043

Appeal from the Circuit Court of Cook County; the Hon. James E. Murphy, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JIGANTI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

On behalf of the minor plaintiff, Morrell Pierce, an action was brought against Hobart Corporation (sued as Hobart Manufacturing Company) on a theory of strict product liability to recover for permanent injuries that he suffered when his hand was caught in a food grinding machine manufactured by Hobart. In a separate suit sounding in negligence, Pierce sued John Gattuso, d/b/a Tony & Frank's Restaurant (Tony & Frank's), the owner of the restaurant in which Pierce was injured while operating the food grinder. Tony & Frank's filed a third-party complaint against Hobart seeking contribution.

Hobart successfully moved for summary judgment in both lawsuits, on the ground that Hobart could not "reasonably foresee" that a 10-year-old child would operate the commercial food grinding machine and that Hobart could not therefore be held liable for the child's injuries. Both Pierce and Tony & Frank's brought timely appeals, which have been consolidated in this court.

Central to both appeals is the question of whether there is a genuine issue of material fact concerning the foreseeability of Pierce's injury from operation of the food grinder. Pierce contends that summary judgment was inappropriate because of the following disputed factual matters: (1) it was reasonably foreseeable that a 10-year-old could have access to and use of the commercial grinding machine, particularly in light of Hobart's patent application of 1923, which recognized that hands of minors had been injured in the use of food grinding machines similar to Hobart's; (2) Hobart could reasonably have foreseen that any person, child or adult, whose hands were of a certain size could be injured while using the machine because the intake aperture was large enough to permit entry by small hands; and (3) Hobart's machine was unreasonably dangerous in its design and lack of safety guards.

For the reasons that follow, we reverse the motion court's orders granting summary judgment in favor of Hobart and remand both causes for trial.

BACKGROUND

According to the deposition testimony of Pierce and one of Tony & Frank's employees, Rey Poindexter, Pierce and his brother often performed odd jobs and errands for the restaurant after ...


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