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02/01/94 GEORGE JARKE v. JACKSON PRODUCTS

February 1, 1994

GEORGE JARKE, PLAINTIFF-APPELLANT,
v.
JACKSON PRODUCTS, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE KATHY M. FLANAGAN, JUDGE PRESIDING.

As Modified on Denial of Rehearing March 16, 1994. Released for Publication April 19, 1994.

Scariano, McCORMICK, Hartman

The opinion of the court was delivered by: Scariano

MODIFIED ON DENIAL OF REHEARING

JUSTICE SCARIANO delivered the opinion of the court:

On January 31, 1988, plaintiff George Jarke, who was employed as a mechanic for a tool and die manufacturer, was removing a metal plate called a "keeper" from a furnace car. According to his estimate, he had performed this task approximately 10 times before. The keeper was welded to the wheelbase of the furnace car, and in order to remove it, plaintiff used an arc welder to melt the old weld bead. The only vantage point from which he could cut the plate was beneath the car while sitting in a shallow pit, a position which afforded him very little headroom; and in order to fit under the car, he was forced to turn his head at an angle away from the spot he was welding. He guessed that while in that position, his head was tiltedat an angle of between 45 and 90 degrees, leaning toward his right shoulder.

While he was cutting the keeper off the car, hot sparks and bits of molten metal, called slag or spatter, flew from the area being cut. He was wearing a welding mask designed, manufactured and sold by defendant Jackson Products, one of the purposes of which was to shield his face from the sparks. One particle of hot slag allegedly rolled down the mask to its side rim and fell into plaintiff's ear canal and perforated his ear drum, causing him intense pain. After two failed attempts to use a skin graft to repair the ear drum, a specialist in Florida was able to rebuild his auditory organs. Despite this surgery, plaintiff sustained permanent hearing loss as a result of the injury.

Plaintiff filed suit in the circuit court alleging that defendant was strictly liable for his injuries under the tort theory of products liability. He maintained that the welding mask was unreasonably dangerous because it offered no protection to his ears; that defendant failed to warn of its deficiencies in this regard; and that by its design, which he maintained channelled molten metal toward the ear, it actually served to increase the likelihood of a piece of slag falling into the user's ear when welding in the reasonably foreseeable way in which plaintiff was working. He also pleaded another count against defendant sounding in negligence, but he appears to have abandoned that action on appeal. See 134 Ill. 2d R. 341(e)(7); Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 519 N.E.2d 708, 116 Ill. Dec. 640.

Defendant moved for summary judgment, maintaining that the fact that the mask afforded no protection to the wearer's ears was an "open and obvious" property of the mask, a risk against which it was under no duty to warn or to guard. In support of its motion it attached plaintiff's deposition and the affidavit of an expert who attested that the fact that the welding mask did not protect the ears was clear and comprehensible to anyone who would use it. He opined that it would be plain to all that spatter would run down the face of the mask and slide over its edge and that the unpredictable flight path of the spatter would be a particularly obvious risk when the mask was used in an area as confined as that in which plaintiff welded.

In response to defendant's motion, plaintiff offered the affidavit of his own expert who stated that the mask at issue was unreasonably dangerous in that it left the ear exposed and formed a canal which increased the risk that the hot slag would run into the ear. He also stated that the average welder would not appreciate that the mask did not protect the user's ear. He added that the mask produced bydefendant did not comply with the industry-accepted standards promulgated by the American National Standards Institute, which state that a welding helmet should be designed so as to protect the eyes, face, ears and neck of a welder against radiation and spatter. Plaintiff also appended to his response the deposition of defendant's quality control manager who testified that the design met all applicable industry standards. Finally, plaintiff offered photographs of himself wearing the mask alleged to be defective, the close-ups of which showed that the mask, when in the down position, did not cover plaintiff's ear, terminating near the hairline of his sideburns.

The trial court granted defendant's motion for summary judgment, finding that the lack of ear protection was open and obvious; thus the mask posed no unreasonable danger to its user. The trial Judge did not expressly address plaintiff's alternate theory of liability that the mask's design affirmatively contributed to his injuries. Plaintiff filed a timely notice of appeal.

The sole issue in this appeal is whether the circuit court erred when it determined, pursuant to defendant's motion for summary judgment, that as a matter of law, defendant was not liable to plaintiff for the injuries he suffered. Summary judgment motions permit the trial court to determine whether any genuine issue of material fact exists in an action, and if not, to provide an expedient means for its resolution. ( Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871, 95 Ill. Dec. 305.) When deciding the motion, the trial court, after considering "the pleadings, depositions, and admissions on file, together with the affidavits, if any" (Ill. Rev. Stat. 1991, ch. 110, par. 2-1005(c)), should construe all such evidence strictly against the movant. (Reed v. Bascon (1988), 124 111. 2d 386, 393, 530 N.E.2d 417, 420; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Our supreme court has warned that while summary judgments are to be encouraged in the interest of prompt Disposition of lawsuits, they are a drastic measure. ( Bascon, 124 Ill. 2d at 393, 530 N.E.2d at 420; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Consequently, trial courts should grant summary judgments only where the movant's right to judgment is so clear as to be free from doubt. ( Bascon, 124 Ill. 2d at 393, 530 N.E.2d at 420; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Since the trial court passing on a motion for summary judgment makes a determination as a matter of law, it is entitled to no deference and this court reviews its grant of summary judgment de novo. Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497, 167 Ill. Dec. 225.

Plaintiff maintains that the circuit court erred when it granted summary judgment against him on his claims arising from an alleged defect in defendant's product. To warrant recovery under thetheory of product liability, our supreme court, following the approach advanced in section 402A of the Restatement (Second) of Torts (2 Restatement (Second) of Torts § 402A (1965)), has held that a plaintiff must establish three elements: (1) the injury he suffered proximately resulted from a "condition" of a product; (2) the injurious condition was unreasonably dangerous; (3) and the condition existed when the product left the control of the defendant. Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 111, 454 N.E.2d 197, 200, 73 Ill. Dec. 337; Hunt v. Blasius (1978), 74 Ill. 2d 203, 210, 384 N.E.2d 368, 372, 23 Ill. Dec. 574; see also Walker v. Maxwell City, Inc. (1983), 117 Ill. App. 3d 571, 575, 453 N.E.2d 917, 921, 73 Ill. Dec. 92.

Generally, a product may be found to be unreasonably dangerous either because of a design or manufacturing defect or because an intrinsic property of the product poses a threat to the safety of its user. ( Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449, 150 Ill. Dec. 562.) For the latter condition to be actionable, the threat posed by the inherent property of an otherwise nondefective product must not be so conspicuous that its risk would be immediately appreciated by the average consumer. Hunt, 74 Ill. 2d at 211, 384 N.E.2d at 372 ("Injuries are not compensable in ...


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