The opinion of the court was delivered by: McDADE, District Judge.
The following facts are undisputed.
Spurgeon, an employee of Sunnyland Cabinet & Mill Work,
Incorporated [Sunnyland], caught his left thumb in the drill
of a door hinging machine ["machine"] when he reached "into"
and "under" the machine's motor to adjust an air clamp which
had come loose during drilling.
1. The Machine
The machine was designed and manufactured by Defendant,
Julius Blum Incorporated, and shipped to Sunnyland on December
8, 1986. When shipped, the safety shield covering the drill
was in place.
The machine performs two functions: it drills holes in a
door and inserts a hinge or other mounting hardware. The
machine is operated by a control panel which activates the
drilling and insertion unit. An operator places the
woodstock/door on a working table, which is built on top of
the frame. A ruler runs perpendicular to the frame. Stops are
positioned on the ruler so that the woodstock can be
positioned uniformly for each task.
"The user must position the woodstock underneath the
drilling unit and properly align it against the stops
positioned on the ruler." Pneumatic hold-down clamps (air
clamps) are located on both sides of the frame and are
designed to secure the woodstock underneath the drilling unit.
To the left of the machine is a "swing arm" and an "insertion
ram," designed to mount the hinges into the woodstock.
A clear, plexiglass, safety shield "covers" the drilling
unit's router blades. The shield is designed to keep the
user's hands out of the drilling area and act as a deterrent
to flying wood chips. At the time of the accident, the guard
on the machine was longer than the drill bits, so that when an
operator put his hand on the bottom of the shield, he would
not be able to feel the drill points. The guard (and thus the
drill unit) is not flush with the front of the machine, but
rather is "recessed in" the machine "about 1/4 inch." Although
the guard is "clear," Plaintiff admits that it can be seen
— although there is some inconsistency on this point.
To use the machine as it was designed, an operator turns the
power on and presses a yellow button on the control panel to
activate the drilling unit. The drill then moves down toward
the woodstock to make holes for the hinge. Once the holes have
been drilled into the woodstock, the user is ready to apply
hinges. To apply hinges, the operator mounts the insertion ram
onto the swing arm and then positions the swing arm
horizontally over the drilled holes in the woodstock. To
insert the hinge, the swing arm must be rotated down [beneath
the drill unit with the drill bits turning above] until it
stops. The operator then pushes the yellow button on the
control panel which inserts the hinge (mounted on the
insertion ram) into the woodstock.
There is no dispute that the safety shield was in place when
the machine left the control of Defendant. There is also no
dispute that the machine, as designed, was intended to be used
with the safety shield in place and was reasonably safe when
operated with the shield.
2. The Accident
On the day of the accident, Plaintiff dusted off the machine
and ran scraps of wood to test the depth of the cut. Plaintiff
"assumed" that the safety shield was in place, but never
checked to make sure because, he stated, the machine should
never be operated without the shield, he never took the shield
off, and the only reason for the shield to ever come off the
machine was to sharpen the drill bits — which never happened.
Nevertheless, the shield was not on the machine. Plaintiff
testified that even though he was the only person who used the
machine that day, he did not remove the shield, nor did he see
it missing. Consequently, when the air clamp swung underneath
the drill unit, Plaintiff reached into the machine with his
left hand to pull it back into position, and his left thumb was
"sucked into" the drill unit, wherein he sustained injuries.
The day of the accident was the first time Plaintiff had
operated the machine since Dan Golasz quit six months earlier,
and no one, to Plaintiff's knowledge, had used the machine
during that period.
Plaintiff testified that the accident would not have
happened if the shield had been in place, and/or if he had
turned off the machine before he put his hand in the drill
area. Plaintiff further acknowledged that he knew
the danger associated with use of the machine without the
safety shield in place. Plaintiff admits that there may have
been one warning on the side of the machine [when it arrived],
but could not be sure.
Liability in this case is based on two theories: design
defect and failure to warn. Plaintiff contends that Defendant
is liable for his injury under theories of strict liability
and negligence due to design defect because: (1) the safety
shield covering the router blades could be easily removed; (2)
there is no safety device within easy reach of the normal
operating position of the operator to stop the machine in an
emergency;*fn4 and (3) there were no adequate safeguards or
adequate safety shields to prevent the operator from getting
his hand and fingers cut by the exposed router blades.*fn5
Plaintiff contends that Defendant is liable for failure to
warn because: (1) there are no written instructions or
warnings of the danger from the exposed router blades; and (2)
there are no warnings on the machine of the danger from the
exposed router blades.
The Court finds that it must grant summary judgment in favor
of Defendant on all Plaintiff's claims except the design
defect claim regarding easy removability of the safety shield.
There are disputed issues of fact regarding not only whether
the shield was easily removable and who removed it, but also
whether it was reasonably foreseeable that the shield would be
removed because it "hindered" use of the machine, and whether
the danger from the absent shield was unreasonable and/or
"open and obvious."
A. Design Defect
In both strict liability*fn6 and negligence*fn7 actions,
liability will be imposed for design defects when a
manufacturer breaches a duty to a product's user.*fn8
Malone v. Bic Corp., 789 F. Supp. 939 (N.D.Ill. 1992); Baltus
v. Weaver Division of Kidde & Co., 199 Ill. App.3d 821, 829,
145 Ill.Dec. 810, 815, 557 N.E.2d 580, 585 (1990).
Determination of a manufacturer's duty is a question of law.
Cozzi v. North Palos Elementary School Dist., 232 Ill. App.3d 379,
383, 173 Ill.Dec. 709, 712, 597 N.E.2d 683, 686 (1st Dist.
1992) citing Genaust v. Illinois Power Co., 62 Ill.2d 456, 466,
343 N.E.2d 465, 471 (1976) and McColgan v. Env. Control Syst.,
Inc., 212 Ill. App.3d 696, 699, 156 Ill.Dec. 835, 837,
571 N.E.2d 815, 817 (1st Dist. 1991); Mason v. Ashland Exploration
Inc., 965 F.2d 1421, 1425 n. 6 (7th Cir. 1992); Malone v. Bic
Corp., 789 F. Supp. 939, 942 (1992). Manufacturers have a duty
to design reasonably safe products. Baltus, 199 Ill. App.3d at
829, 145 Ill.Dec. at 815, 557 N.E.2d at 585; Malone, 789
F. Supp. at 942. This duty is breached and liability is imposed
under strict liability and negligence when a plaintiff proves
that at the time the product left the manufacturer's control
the design in question created an unreasonably dangerous
condition which proximately caused plaintiff's injury, and this
injury was reasonably foreseeable by the manufacturer. Baltus,
199 Ill.App.3d at 829, 145 Ill.Dec. at 816, 557 N.E.2d at
1. Unreasonable Danger
In both strict liability and negligence actions, the
threshold question of unreasonably dangerous design is not
whether the product could have been made safer, but whether it
is dangerous because it fails to perform in a manner
reasonably to be expected in light of its nature and intended
function. McColgan v. Env. Control Syst., Inc., 212 Ill. App.3d 696,
699, 156 Ill.Dec. 835, 837, 571 N.E.2d 815, 817 (1st Dist.
1991), Baltus v. Weaver Division of Kidde & Co., 199 Ill. App.3d 821,
145 Ill.Dec. 810, 557 N.E.2d 580 (1st Dist. 1990). In
Illinois, a product is unreasonably dangerous only if one of
two standards are satisfied: the product must be dangerous to
an extent beyond that contemplated by the ordinary person or
the benefits of the challenged design must outweigh the risk of
danger inherent in such design. The consumer contemplation test
is the traditional standard used to determine whether a product
is unreasonably dangerous, but the risk/benefit analysis "is
now firmly implanted in Illinois products liability law, and a
plaintiff may seek recovery under either theory." Faucett v.
Ingersoll-Rand Mining & Machinery Co., 960 F.2d 653, 655 (7th
Cir. 1992) citing Lamkin v. Towner, 138 Ill.2d 510, 527, 150
Ill.Dec. 562, 570, 563 N.E.2d 449, 457 (1990). See also Malone
v. Bic Corp., 789 F. Supp. 939 (N.D.Ill. 1992).
Plaintiff alleges that the machine was unreasonably
dangerous because the safety shield was easily removed and not
replaced. There is no dispute that the safety shield was not
in place at the time of the accident and that its' absence was
a proximate cause of Plaintiff's injury. Thus, it is axiomatic
that the machine was dangerous when operated without the
The legal question is whether that danger was unreasonable.
Unreasonable danger is measured by one of the two standards
set out above. The Court does not reach the question of
whether the machine was unreasonably dangerous when used
without the safety shield,*fn10 under either standard,
the facts could support a finding that the danger from the
missing shield may have been "open and obvious" to the
If, as Defendant contends, the danger from the exposed
router blades and missing shield were "open and obvious" to
the "ordinary observer" with knowledge common to the
community, then Plaintiff's injuries are not compensable, and
summary judgment should be granted for Defendant. In Illinois,
where the risk of injury is open and obvious as a
matter of common knowledge and perception, the
product cannot be deemed unreasonably dangerous
or defective in the first instance so as to
establish a breach of duty against which any
liability could attach. Injuries are not
compensable . . . if they are caused by those
inherent properties of a product which are
obvious to all who come into contact with them.
Smith v. American Motors Sales Corp., 215 Ill.App.3d 951, 955,
159 Ill.Dec. 477, 481, 576 N.E.2d 146, 150 (1st Dist. 1991).
See also Mason v. Ashland Exploration, Inc., 965 F.2d 1421,
1425 n. 6 (7th Cir. 1992). Defendant cannot prevail on this
theory for two reasons.
First, the inadequacy of the evidence submitted by the
parties creates a dispute of fact concerning whether danger
from the missing shield was "open and obvious" to the
"ordinary observer."*fn11 Plaintiff testified that the shield
was "difficult to see through," but so clear that one could
"see right through it." He further testified that the shield
was visible if you stood a few feet away from the machine and
looked straight at it, or if you looked on a "downward slope"
or at an "angle," but if a person stood directly above it, the
shield could not be seen because it was positioned "about 1/4"
inch under the machine's motor. Plaintiff's expert supports
this contention.*fn12 Conversely, Defendant's witness, Dan
Golasz, testified that "the shield was right in front of you in
there." Defendant's expert approaches the problem by simply
concluding that the machine is not unreasonably dangerous,
without bothering to tell the Court why he thinks so.*fn13
Furthermore, the parties' attempt to describe what this machine
looks like and how it works is sketchy at best. The xerox
photographs are unreasonably dark and the instruction manual is
better described as a parts manual.
Second, Defendant's position on this point ignores the fact
that Plaintiff's "personal awareness of the risk has no
bearing in determining whether a danger is open and obvious as
a matter of common knowledge and perception." E.g., Smith, 215
Ill.App.3d at 955, 159 Ill.Dec. at 481, 576 N.E.2d at
150.*fn14 The "open and obvious" doctrine is ruled by an
objective standard and applies only when "injuries are caused
by those inherent properties of a product which are obvious to
all who come in contact with them." Id. at 955, 159 Ill.Dec. at
481, 576 N.E.2d at 150.
2. Reasonably Foreseeable Use
If a manufacturer's duty were established merely by
determining that a product was unreasonably dangerous, the
Court would deny summary judgment for both parties based on
the disputed issues discussed above. However, liability cannot
be imposed on Defendant
under either strict liability or negligence, unless the danger
created by the shield's "easy removability" is both
"unreasonable" and "reasonably foreseeable."
As a matter of law, a manufacturer is liable for all
intended use and any reasonably foreseeable misuse of the
machine. Dukes v. J.I. Case Co., 137 Ill.App.3d 562, 91
Ill.Dec. 710, 483 N.E.2d 1345 (1985), Judgment Aff'd in Part,
Rev'd in Part (not relevant here), 118 Ill.2d 447, 459, 114
Ill.Dec. 105, 111, 516 N.E.2d 260, 266 (1987);*fn15 Kerns v.
Engelke, 76 Ill.2d 154, 28 Ill.Dec. 500, 390 N.E.2d 859 (1979).
"Foreseeability is that which is objectively reasonable to
expect." E.g., Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1
(1974). Generally, where a safety shield is easily removable
and hinders use of the product, a jury is entitled to determine
whether its removal was reasonably foreseeable. Foster v.
Devilbiss Co., 174 Ill.App.3d 359, 124 Ill.Dec. 600,
529 N.E.2d 581 (1st Dist. 1988) citing Consolidated Alum. Corp. v. D.F.
Bean Corp., 833 F.2d 65, 66-7 (5th Cir. 1987); see also Davis
v. FMC Corp, 771 F.2d 224, 231, 234 (7th Cir. 1985).
Conversely, a manufacturer will not be held liable for injury
due to an unforeseeable alteration to its product. Id. 124
Ill.Dec. at 603, 529 N.E.2d at 584; see also Woods v. Graham
Engineering Corp., 183 Ill.App.3d 337, 340, 132 Ill.Dec. 6, 8,
539 N.E.2d 316, 318 (2nd Dist. 1989), citing Augenstine v. Dico
Co., 135 Ill.App.3d 273, 276, 90 Ill.Dec. 314, 316,
481 N.E.2d 1225, 1227, app. den. 111 Ill.2d 553 (1985). For instance, when
a safety shield is difficult to remove and cannot be removed by
the operator, summary judgment should be granted for the
manufacturer because its removal would not be reasonably
foreseeable. Woods v. Graham Engineering Corp., 183 Ill. App.3d 337,
132 Ill.Dec. 6, 539 N.E.2d 316 (2nd Dist. 1989) citing
Dearmond v. Hoover Ball & Bearing, 86 Ill.App.3d 1066, 1071, 42
Ill.Dec. 193, 196, 408 N.E.2d 771, 774 (1980) (holding that
issue is not whether guards are easily removable, but rather,
whether they are easily removable by an operator).
There is no dispute that the machine was operated without
the guard on the day of the accident.*fn16 This "manner" of
operation may be characterized as a "misuse" since the parties
do not dispute that the machine was intended to be used with
the shield in place.*fn17 Merely alleging the condition
permitting misuse, however, is not enough. The particular
misuse alleged must also be foreseeable. In Foster v. Devilbiss
Co., 174 Ill.App.3d 359, 124 Ill.Dec. 600, 529 N.E.2d 581 (1st
Dist. 1988), the appellate court held that a reasonable jury
could find it reasonably foreseeable that a guard would be
removed, if the presence of the shield "hinder[ed] use of the
product." Id. at 361, 124 Ill.Dec. at 603, 529 N.E.2d at 584.
Plaintiff's poorly drafted Complaint alleges that the presence
of the shield hindered use of the machine because it slowed
down production.*fn18 The Court has found no evidence to
support this theory. In fact, Plaintiff testified that
removal of the shield actually slowed down the work.*fn19
Further, Plaintiff specifically denied that the shield would
be removed to "speed up production."*fn20
However, the evidence could support a finding, for either
party, that the shield was removed because it prevented some
operators from doing their best work. For instance, Plaintiff
testified that prior to the accident, the guard had been taken
off several times by Dan Golasz, the only other employee of
Sunnyland to operate the machine. Plaintiff stated that he
believed Golasz removed the guard so that he could measure the
drilling points by hand, rather than setting the automatic
"stops" provided with the machine. Plaintiff said Golasz
removed the guard because it was "difficult to look through
that clear plastic" and see behind the drill bits to make a
precise measurement. Plaintiff's expert, Robert Schoof,
agreed.*fn21 Plaintiff also explained that Golasz' method
"takes time" — more time than setting the stops.*fn22
The evidence also could support a finding that removal of
the safety shield was not reasonably foreseeable. If Plaintiff
assumed that the shield was on the machine at the time of the
accident because it "would never come off," then, conceivably,
a reasonable jury could find that Defendant had this
impression as well. Thus, the Court will submit this issue to
B. Duty to Warn
The "failure to warn" issue can be disposed of quickly. A
manufacturer's failure to warn can also make a product
unreasonably dangerous if a duty is owed to Plaintiff.
Generally, a duty to warn exists when there is
unequal knowledge and the defendant possessed
with such knowledge, knows or should know that
harm might occur if no warning is given. The
purpose of a warning is to apprise a party of a
danger of which he has no knowledge and thereby
enable him to take appropriate measures to
protect himself. However, when a danger is
obvious and generally appreciated, nothing of
value is gained by a warning and none is
McColgan v. Env. Control Syst., Inc.,
, 817 (1st Dist. 1991);
Collins v. Hyster Co., 174 Ill.App.3d 972, 124 Ill.Dec. 483,
529 N.E.2d 303 (3d Dist. 1988). Plaintiff alleges that (1)
there was no warning on the machine of the danger from the
exposed router blade; and (2) no written warnings of the danger
from the exposed router blade were supplied with the machine.
In this case, Defendant did not have a duty to warn Plaintiff
of the danger associated with operating the machine without a
safety shield because Plaintiff admitted that this danger was
obvious and fully known to him.
IT IS THEREFORE ORDERED that Defendant's Motion for Summary
Judgment is GRANTED [Doc. # 39-1] with respect to the failure
to warn claims in Counts I, II, and III.*fn23 IT IS FURTHER
Defendant's Motion for Summary Judgment [Doc. # 39-1] is
DENIED in part with respect to the design defect claims in
Counts I, II, and III*fn24 with two exceptions: Defendant's
Motion for Summary Judgment [Doc. # 39-1] is GRANTED in part
with respect to Count I, paragraphs 6D and 6E; Count II,
paragraph 8B; and Count III, paragraphs 6D, and 6E. IT IS
FURTHER ORDERED that Plaintiff's Motion for Summary Judgment
[Doc. # 50-1] is DENIED. This case is REFERRED TO THE
MAGISTRATE for further proceedings and a final pretrial