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09/01/87 Chester King, v. American Food Equipment

September 1, 1987

CHESTER KING, PLAINTIFF-APPELLEE

v.

AMERICAN FOOD EQUIPMENT COMPANY, DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLANT (DANIELSON FOOD



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Products, Inc., Third-Party Defendant-Appellee)

513 N.E.2d 958, 160 Ill. App. 3d 898, 112 Ill. Dec. 349 1987.IL.1271

Appeal from the Circuit Court of Cook County; the Hon. Dean M. Trafelet, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff, Chester King (King), filed this strict products liability action against defendant, American Food Equipment Co. (defendant), following an accident involving defendant's machine which amputated four of King's fingers. Defendant filed a third-party complaint against King's employer, Danielson Food Products, Inc. (Danielson Food).

After trial commenced, the trial court dismissed the third-party complaint against Danielson Food pursuant to Illinois Supreme Court Rule 219(c) as a sanction for discovery violations. (87 Ill. 2d R. 219(c).) The jury returned a verdict in King's favor and against defendant in the amount of $865,000. Defendant appeals.

The machine in question is a meat mixing and blending machine. The machine contains metal blades which cut the meat and then blend the cut meat with other ingredients. As there is no cover on the top of the machine, when looking into the machine the blades are observable to the operator. Two discharge chutes are located at the front of the machine toward the bottom. Warning signs placed over the chutes state: "DANGER -- DO NOT PUT HANDS IN DOOR OPENINGS." When the meat is mixing, the discharge doors are closed. When mixing is completed, the operator opens the doors while the machine is still in operation. The blades discharge the meat through the discharge chutes into tubs placed beneath the door openings.

King was not a full-time operator of this mixer/blender. He was employed by Danielson Food as a delivery man outside of the plant but occasionally worked the machines in the plant after completing his deliveries. King testified that he had worked the mixer/blender a couple of times prior to the accident.

King testified that on March 20, 1978, the day of the accident, he was helping Jim Crance, full-time operator of the mixer/blender, discharge the meat from the chutes. He testified that he took an empty tub and placed it under the discharge door. Because the tub did not fit properly under the door, it was necessary to slant the tub and position himself bent over so as to secure the tub. King stated that his attention was focused on the front of the machine and that he could not see over the top into the machine.

King testified that when the tub was full and no more meat was discharging, Crance indicated the machine was empty and that he would turn it off. Crance then moved his tub away, walked to the electrical controls and placed his hand on the control box. King testified: "I assumed that he had turned it off." King then saw a piece of meat hanging from the chute. When he reached in to pull it out, he felt a sharp pain, resulting in the amputation of four of his fingers.

King testified that he would not have put his hand there had he known the machine was still in operation. He stated that he was aware the machine could cause injury if he placed his hand there while the blades were in motion. However, since he could not hear the machine, feel any vibration, or see the blades rotating within the machine, he assumed it was safe.

Crance testified at trial that he did not recall telling King that he was going to shut the machine off. He stated that at the time of the accident, his back was to the control panel. However, Crance was then shown a statement he gave approximately five years earlier in which he stated that he thought he had his hand on the controls. He testified that he thought his memory was better then than at the time of trial.

King's expert, a consulting engineer, testified that the machine was unreasonably dangerous in seven respects: (1) it failed to provide a visual indicator that the machine was being powered; (2) it was not equipped with a guard in front of the discharge doors; (3) there is no reference in the instruction manual to guards; (4) if a guard were present, it should be interlocked to the power of the machine; (5) the guard, had it come with the machine, was difficult to mount as it was stainless steel; (6) it violated ANSI standards which require a guard with an interlocking device; and (7) the electrical control system did not contain any visual indication that power was being supplied to the machine. He further described the machine as relatively quiet and that one would have to go up to the machine to feel a vibration.

Valerio Baccetti, president of defendant corporation, testified that Danielson Food purchased the machine in late November 1977. He stated that in 1977, defendant was not selling the machine without a guard and that it should have been sent with the machine. He assumed the machine was sent with the guard and four mounting pins because he inspected the machine the day before shipment and at that time it was complete. There was no witness to testify as to the condition of the machine immediately prior to shipment.

Rex Wharton, the salesman who sold the machine to Danielson Food, also testified. He was employed by T. W. Equipment, which had earlier successfully moved for summary judgment. He stated that when he sold the machine a guard was not mentioned. He testified that he was unaware that the machine had a guard and that there was no way for Danielson Food to know of this guard.

Danielson, Sr., president of Danielson Food, testified that no guard or mounting pins were received when the machine was shipped. He further testified that no operation or installation instructions were received. Seven to ten days after the accident, Danielson, Sr., apprised Wharton of King's injury and inquired whether there existed "some kind of safety measure" that would prevent a subsequent similar occurrence. Wharton and Danielson, Sr., telephoned the seller of defendant's machine and were informed that a guard could be manufactured.

Defendant subsequently shipped a guard to Danielson Food which arrived on April 17, 1978. However, no mounting pins were then received. After further inquiry to defendant regarding the proper mounting of the guard, Danielson Food received four steel mounting pins along with a letter dated July 7, 1978.

Proceedings in the case commenced on May 12, 1986. During the eighth day of testimony, the trial Judge dismissed with prejudice the defendant's third-party action against Danielson Food as a sanction pursuant to Illinois Supreme Court Rule 219(c). (87 Ill 2d R. 219(c).) This sanction was entered against defendant for what the court described as defendant's "gross violation of the discovery rules." Defendant later filed a motion to vacate the trial court's dismissal of its third-party complaint against Danielson Food. After extensive oral argument, the trial court denied defendant's motion to vacate. The court also denied defendant's subsequent motion for a mistrial as a result of the Danielson Food dismissal and entered a final order dismissing defendant's third-party action.

Relevant to the dismissal is a notice and subpoena for record production which was served upon Danielson Food in August 1979, prior to its becoming a third-party defendant. The notice stated: "This deposition is for records only. There will be no oral interrogation." Rather than submitting the documents and a notarized affidavit by mail, Danielson Food responded to the subpoena by having its president, Danielson, Sr., appear at the offices of defendant's attorneys on August 20, 1979. Counsel for King did not attend because the subpoena explicitly stated on its face that only production of records was involved and no oral testimony would be taken. However, Danielson, Sr., was questioned without the benefit of counsel despite that representation embodied in the subpoena and was asked to sign the statement elicited and transcribed.

As reflected by that statement, Danielson, Sr., in response to the subpoena, produced "three time record cards, one stainless steel stud, one letter dated 7/7/78, one purchase order dated 11/11/77 and one blueprint dated 12/21/77." Danielson, Sr., stated that the "stainless steel stud" (hereinafter referred to as the "mounting pin") produced was one of the four mounting pins first shipped by defendant to Danielson Food on July 7, 1978, subsequent to King's injury. Danielson, Sr., did produce the mounting pin for inspection by defendant's attorneys but retained possession of the mounting pin because it was needed to mount the guard on the machine.

Meanwhile, King's counsel had requested defendant to furnish all documents produced by Danielson Food. On December 12, 1979, defendant responded with an invoice for copying charges, itemizing 14 pages of records. The 14 pages ultimately provided to King's counsel did not include the five-page handwritten statement that had been elicited from ...


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