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08/01/88 Lee A. Foster, v. Devilbiss Company

August 1, 1988

LEE A. FOSTER, PLAINTIFF-APPELLANT

v.

DEVILBISS COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

529 N.E.2d 581, 174 Ill. App. 3d 359, 124 Ill. Dec. 600 1988.IL.1177

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

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This products liability case was brought by plaintiff Lee Foster against defendant Devilbiss Company to recover for injuries allegedly caused by an airless spray gun manufactured by Devilbiss. After a jury trial, judgment was entered for Foster, which Devilbiss appeals. For the reasons below, we affirm in part, and reverse and remand in part.

The Devilbiss Model JGN 501 or JGN 502 airless spray gun is a hand-held device that sprays paint under very high pressure. At close range, the pressure is sufficient to inject the paint into one's body. To prevent such mishaps, three safety features are incorporated into the design of the spray gun. A nozzle guard prevents getting close enough to the nozzle to cause injury. A trigger guard that covers the trigger from the gun barrel to the bottom of the grip prevents inadvertent triggering. The trigger guard is held on by three screws and may be replaced if damaged. Finally, the spray gun has a safety lock, a mechanism that screws in to block the trigger, making it impossible to activate the spray gun. The Model 501s had been shipped without nozzle guards, which were later supplied through a retrofitting program undertaken by Devilbiss. The Model 502s were shipped with the nozzle guard. The spray gun that injured Foster was manufactured by Devilbiss, either Model JGN 501 or JGN 502.

Lee Foster was a painter employed at the General Motors Foundry in Danville, Illinois. While at work on February 15, 1979, another worker handed the spray gun to Foster for cleaning. While cleaning the spray gun, Foster fumbled it and hit the trigger, causing the gun to inject paint into his right hand. Foster brought a strict products liability suit against Devilbiss, alleging that the spray gun was defectively designed and unreasonably dangerous.

After the suit was filed, General Motors, Foster's employer, pursuant to section 5(b) of the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)), obtained a workers' compensation lien of $40,464.27 on any judgment Foster received from Devilbiss. Devilbiss named General Motors as a third-party defendant and settled the third-party action before trial. As part of the settlement, GM assigned its workers' compensation lien to Devilbiss.

At trial, Foster testified that the spray gun that caused the injury had neither the nozzle guard nor the trigger guard at the time of the injury. Further evidence showed that the trigger guard had been forcibly ripped off the gun. Foster's expert testified that the gun was unreasonably dangerous without the nozzle guard and that the safety lock could become inoperative when paint accumulated on its threads. Devilbiss contended that removal of the guards, by design or force, constituted substantial and unforeseeable alterations of the spray gun after it left Devilbiss' control, relieving Devilbiss of liability as a matter of law. Devilbiss further contended that the safety lock mechanism was not of defective design.

The jury returned a verdict in favor of Foster, finding Foster 1% at fault for his injuries. The trial court entered judgment accordingly. In a post-trial motion to reduce the workers' compensation lien, Foster argued that Devilbiss had failed to provide Foster with records establishing $7,524.33 in medical expenses. The court granted Foster's motion and reduced the lien by $7,524.33. The court also reduced the lien by $3,975.94 in expenses and $8,233.74 in attorney fees. Subsequently, Devilbiss brought the instant appeal.

Devilbiss first argues that the verdict of liability was contrary to the manifest weight of the evidence because Devilbiss was relieved of liability as a matter of law. Devilbiss bases its argument on two contentions: first, that the spray gun was substantially altered in an unforeseeable manner after it left Devilbiss' control, and second, that Foster failed to exclude other causes of injury. Both contentions are without merit.

A manufacturer will not be held liable for injury due to unforeseeable alterations to its product (Augenstine v. Dico Co. (1985), 135 Ill. App. 3d 273, 276, 481 N.E.2d 1225, appeal denied (1985), 111 Ill. 2d 553), but it is reasonably foreseeable that where parts are removed with relative ease, and hinder the use of the product, they may be removed and not replaced. (See Winnett v. Winnett (1974), 57 Ill. 2d 7, 12, 310 N.E.2d 1 ("Foreseeability [is] that which is objectively reasonable to expect"); Consolidated Aluminum Corp. v. C. F. Bean Corp. (5th Cir. 1987), 833 F.2d 65, 66-67.) In the instant case, the trigger guard was removed by loosening three screws, and there was testimony that the trigger guard was removed because the guard left insufficient room to operate the trigger while wearing gloves. There also was testimony that the nozzle guards were removed because paint build-up in the guard clogged the nozzle, and workers perceived operation of the guns without the guards safer than frequent cleaning of the nozzle, because it was necessary to place one's hands in front of the nozzle to clean it. The jury was entitled to determine whether removal of the trigger and nozzle guards was reasonably foreseeable. That the guards may have been removed by force does not take the determination of foreseeability from the province of the jury. Evidence was presented which supports the jury's finding of liability, and Devilbiss was not relieved of liability as a matter of law merely because a different Conclusion might have been reached.

Devilbiss also argues that it was relieved of liability as a matter of law because Foster failed to rule out other causes of injury. Devilbiss asserts that a manufacturer is relieved of liability where a proximate cause besides the defective product is present. Devilbiss, however, incorrectly relies on Vuletich v. Alivotvodic (1979), 73 Ill. App. 3d 927, 392 N.E.2d 663, in which summary judgment was granted in favor of the defendant not because the plaintiff failed to exclude all other causes, but because the evidence relied on by plaintiff to establish her case was too circumstantial and speculative. Further, where alteration by a third party was found to be a superseding cause, as Devilbiss claims here, the alteration had changed the manner in which an operator used the machine. See Rios v. Niagara Machine ...


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