dislikes such torture of the English language, the court will adopt Moore's interpretation of subparagraph (b) for purposes of this motion, and additionally consider whether Stanwich had a duty to provide a blade guard on its saw.
There is one last preliminary before the court may address the substance of Stanwich's arguments: the applicable law. While the parties have not argued which state's law governs this dispute,
they have focused their contentions on Illinois law. The court will treat this as a stipulation as to what law governs this motion. See City of Clinton, Ill. v. Moffitt, 812 F.2d 341, 342 (7th Cir. 1987) (parties may stipulate to applicable substantive law, within broad limits).
Now to Stanwich's duty to warn Moore of the hazards posed by its saw: the parties agree that the question of whether a duty exists in a particular case -- including a duty to warn -- is one of law, not fact, under Illinois law. The decision to impose a duty of reasonable care should take into account the foreseeability of the accident, "the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant." Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill. 2d 507, 524-26, 513 N.E.2d 387, 396, 111 Ill. Dec 944(1987). See also Leesley v. West, 165 Ill. App. 3d 135, 141, 518 N.E.2d 758, 762, 116 Ill. Dec. 136 (1988) (employing Kirk test to ascertain pharmacist's duty to warn consumer of side effects of drug).
In determining whether a person should take reasonable care to warn another, however, the most decisive factor for the Illinois courts has been the foreseeability of the accident. This is partly the result of the courts' reliance on § 388 of the Restatement (Second) of Torts (1965), which the Illinois courts often invoke as stating a manufacturer and supplier's negligence duty to warn. See Weiss v. Rockwell Mfg. Co., 9 Ill. App. 3d 906, 915-917, 293 N.E.2d 375, 382 (1973); Baylie v. Swift & Co., 27 Ill. App. 3d 1031, 1042-43, 327 N.E.2d 438, 447 (1975); Riordan v. International Armament Corp., 132 Ill. App. 3d 642, 647-48, 477 N.E.2d 1293, 1296, 87 Ill. Dec. 765 (1985); Leesley, 165 Ill. App. 3d at 139, 518 N.E.2d 758, 116 Ill.Dec 136. Another reason is that a warning is information. The central question in a negligent failure to warn case is whether the law required the defendant to give the plaintiff more information. The court's inquiry into the "foreseeability" of an accident is actually an assessment of how informed reasonable persons in the positions of the parties would have been prior to the accident. Little would be gained by requiring a manufacturer or supplier to duplicate information already in the possession of a reasonable persons, and hence the gauging of pre-accident knowledge is critically important. See also Restatement (Second) of Torts § 388, comment k (suppliers having "special" knowledge of the dangers of a chattel and "no reason to believe that those who use it will have such special experience as will enable them to perceive the danger" is required to inform users of the risk); Riordan, 132 Ill. App. 3d 642 at 648, 477 N.E.2d 1293, 87 Ill. Dec. 765.
The court rules that reasonable persons in Moore's position would have perceived the dangers posed by a table saw without having been told that there was greater risk to the operator were someone to remove the saw's blade guard. Reasonable persons know that a commercial table saw is a cutting device. They also can surmise that the saw cuts with its blade. The more one exposes the blade, the greater its chances of cutting something, whether it be wood or flesh. The increased risk is obvious.
The court cannot say the same thing about a warning that the design of the Powermatic saw enabled the hands of the operator to come into contact with the blade as a result of "kick-back" from materials which the operator was cutting. Stanwich refers the court to Weiss, where the court held that a manufacturer of a woodworking device had no duty to warn the operator of a risk of "kick-back" from boards which the operator manually fed into the device. The facts in Weiss were much more developed than those here, however. In Weiss, the court noted that the plaintiff Weiss and the manufacturer shared "equally" in the knowledge of practical physics, and thus both should have known that care had to be taken in placing "a piece of three-quarter-inch plywood . . . against heat treated steel knives fixed on a stationary spindle rotating at a speed of 10,000 revolutions per minute" to avoid kick-back. Moreover, Weiss testified to his knowledge of this tendency. Weiss, 9 Ill.App.3d at 912-13, 293 N.E.2d 375. By contrast, while this court could surmise that Stanwich's power saw had some force, Moore's complaint does not state how great that force was. Moore also does not allege the extent of his knowledge of saws and their capacities. If the design of the saw was such that it was peculiarly susceptible to kick-back, and if Stanwich was in the better position to foresee this, then Stanwich could have had a duty to warn operators of the saw of this risk.
Stanwich offers one additional argument in this vein. The company contends that even if it had a duty to warn Moore of kick-back, its breach of this duty did not cause Moore's injury: the unguarded blade did. While it is possible to construe Moore's complaint in the manner Stanwich suggests, it is also possible to construe the complaint as alleging kick-back as a cause of Moore's injury. For purposes of the present motion, the court must accept the latter possibility. The court thus will not dismiss Moore's claim in par. 8(a).
This leaves the court with Stanwich's duty to provide a guard for the blade of its saw, which Stanwich has not contested. As the court pointed out above, all reasonable users and manufacturers of saws would recognize that a power saw's blade poses risks, and injuries are likely. A guard would seem to be a simple way to reduce those risks, and a saw's manufacturer is in the best position to supply guards appropriate for its product. The manufacturer also seems to be in a better position to produce guards cost-efficiently. As Stanwich has not contested its duty to provide blade guards, the court will not dismiss Moore's claim for breach of this duty in para. 8(b).
The court grants Stanwich's motion to dismiss Moore's claims of failure to warn in paragraphs 8(b)-(c). Stanwich's other motions are denied.
DATE: June 6, 1990