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09/07/89 Phillip Scoby, v. Art Corporation

September 7, 1989

PHILLIP SCOBY, PLAINTIFF-APPELLANT

v.

VULCAN-HART CORPORATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 106, 188 Ill. App. 3d 89, 135 Ill. Dec. 749 1989.IL.1394

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

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

In this case we are concerned first with the effect of a circuit court's refusal, after request, to follow one of its own rules. At times pertinent, a rule of the Sixth Judicial Circuit stated:

"Summary Judgment. A motion for summary judgment shall not be heard until ten (10) days after service of the notice of motion under Supreme Court Rule 11." (Emphasis added.) (Rules of Practice of the Circuit Court, Sixth Judicial Circuit, Rule 2.1(f), eff. June 1, 1983.)

Over the objection of plaintiff Phillip Scoby, the circuit court of Champaign County heard and allowed a motion for summary judgment filed by defendant Vulcan-Hart Corporation one day after the motion was filed and without any prefiling notice having been given to plaintiff. We recognize the ability of a court to refuse, over request, to follow its own rules is a matter of some uncertainty. However, we hold that reversible error resulted from the failure of the court to do so here.

On October 14, 1986, plaintiff filed a three-count complaint in the circuit court of Champaign County against defendant seeking damages for personal injuries. He alleged that while he was employed in a Champaign restaurant he was injured when his arm became submerged in hot oil contained in a deep fat fryer manufactured by defendant. Count I sounded in the tort of strict liability for a defective product, and count II, subsequently dismissed by plaintiff, was based upon negligence. Plaintiff contended in count I the equipment was unreasonably dangerous because the fryer was not equipped with a restricting guard which would prevent a person's arm from becoming submerged in the fryer and prevent oil from the fryer splattering on the floor.

After issue was drawn, the case was set for trial on January 9, 1989. On the morning of the trial date, defendant filed a motion for summary judgment. Plaintiff objected to proceeding on that motion at that time because of the circuit court rule requiring 10 days' notice. The court gave the plaintiff until the next morning to prepare for hearing on the motion but refused further time. The next day, the plaintiff again objected to the lack of sufficient notice of the motion for summary judgment, but the court proceeded to hear the motion. The court then granted the motion and entered summary judgment for the defendant. Plaintiff subsequently filed a post-hearing motion which was denied. Plaintiff has appealed.

The undisputed evidence before the court at the time it ruled upon the motion for summary judgment generally supported the allegations of the plaintiff as to the occurrence in which plaintiff was injured. His deposition indicated that, when he was near the fryer, he slipped and fell, immersing his arm in the fryer. The theory of the circuit court's grant of summary judgment was that the likelihood of plaintiff being injured if any portion of his body fell into the fryer while it contained hot oil was obvious to all. The circuit court concluded that, under the precedent of Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, the obvious nature of the danger presented by the fryer prevented it, as a matter of law, from being unreasonably dangerous. Plaintiff contended in his request for a rehearing that decisions of the supreme court cited in Lease v. International Harvester Co. (1988), 174 Ill. App. 3d 897, 529 N.E.2d 57, changed the law in regard to whether the obvious nature of a defect in a product prevents the product from being unreasonably dangerous.

Although we do not decide here the complicated substantive questions of tort law involved in the merits of this case, we deem it desirable for us to discuss those substantive matters further because they bear upon the need for plaintiff to have had more time to prepare for the hearing on the motion.

In Hunt, relied upon by the circuit court, the supreme court had stated the criterion for determining whether a product was unreasonably dangerous because of a defect was the consumer-user contemplation test set forth in section 402A of the Restatement (Second) of Torts (Restatement (Second) of Torts § 402A (1965)). (Hunt, 74 Ill. 2d at 211-12, 384 N.E.2d at 372.) As its name implies, the question under this test is whether the danger presented by a product is greater than would be expected by the ordinary consumer or user. Under this test, a danger which is obvious would be contemplated by a consumer or user, and the product would not be unreasonably dangerous. Thus, the circuit court reasoned here, the danger from an open fryer would be contemplated by an ordinary person, and, accordingly, the fryer was not unreasonably dangerous.

Our decision in Lease was rendered shortly before the hearing on the post-hearing motion. There, we pointed out the supreme court had held in several cases that, in determining whether a product is defective, the trier of fact should examine whether a safer alternative would be "'economical, practical and effective.'" (Lease, 174 Ill. App. 3d at 904, 529 N.E.2d at 62.) The supreme court cases cited were Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859, and Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 385 N.E.2d 690. Under an alternate test to the "consumer-user contemplation" test, a test described as the "danger-utility" test has been suggested by an authoritative text on torts. (W. Keeton, Prosser & Keeton on Torts ยง 99(3), at 699-70 (5th ed. 1984).) Under that test the question of whether a product is unreasonably dangerous is determined on the basis of whether (1) the harm from reasonably foreseeable use outweighs the benefits of the product; (2) alternate products are available to give the same benefits without as much risk; or (3) a feasible way exists to ...


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