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March 10, 1994


Appeal from the Circuit Court of White County. No. 86-L-39. Honorable Leo T. Desmond, Judge Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Goldenhersh, Welch, Chapman

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiff, Clifford Bell, administrator of the estate of Bradley Scott Bell, deceased, filed this strict liability action against defendant, The Lincoln Electric Company, in the circuit court of White County, seeking damages for the electrocution death of Bradley Scott Bell. The jury returned a verdict for defendant, and the trial court entered judgment accordingly. Plaintiff appeals that judgment, contending: (1) that the evidence established, as a matter of law, that defendant had a duty to warn of the danger of electric shock posed by the welding unit's energized handle screw; (2) that evidence establishes the existence of a duty to warn the user of the unit of the hazards of using the unit under wet conditions; (3) that the evidence establishes, as a matter of law, that the warnings provided by defendant were inadequate; and (4) that the trial court should have directed a verdict in favor of plaintiff. We reverse and remand.

On November 26, 1985, decedent was electrocuted while holding an electric welder manufactured by defendant. At the time of his death, decedent was employed as a tank-truck driver by Otho Wilson, Jr., owner of the Double D Tank Service. On the morning of November 26, 1985, decedent hauled salt water for his employer. It was raining heavily, and his clothing was wet from the salt water and the rain. Decedent returned to the Double D building atapproximately 11:30 a.m. and ate lunch. After he finished eating, decedent told coworker Carl Knight that he was going to do some welding on his pickup truck. Decedent went inside a metal building with a dirt floor. The floor was muddy, and there were areas of standing water from the rain. Knight went outside and heard decedent yell. Knight ran into the building and found decedent lying on the floor, holding the electrode holder handle of a Lincoln Model AC-225-S arc welder. Otho Wilson owned the welder, and it was manufactured by defendant.

Someone called an ambulance, but no one was able to resuscitate decedent. Carl McVey, White County Coroner, examined the scene and determined that the cause of death was an electrical current transversing decedent's heart, causing ventricular fibrillation and immediate death. McVey also noticed that decedent's gloves were wet and that the left glove had a hole in the palm area near the thumb. Examination of the scene indicated that a welding arc had not been struck but the welder had been turned on and was still on when Knight found decedent's body. The parties stipulated that the electrical current entered decedent's body from an exposed metal screw head protruding through the insulated electrode holder handle. The screw held the handle in place and had not been altered since original purchase.

At trial, evidence was presented that defendant manufactured the welder in April 1979. Otho Wilson bought the unit several years prior to decedent's death and did not assemble or alter the electrode holder handle. Wilson was not able to locate any pamphlets or literature which may have accompanied the unit when he purchased it.

Plaintiff presented a video deposition of Raymond Cebul, who stated that he designed the Lincoln AC-225-S welder in 1963 or 1964. It was designed for use by amateurs who do only occasional welding. In 1976, defendant incorporated the Lenco electrode holder handle into the AC-225-S unit. Lenco provided the holder pursuant to specifications by Cebul for defendant. Prior to adopting the Lenco holder, Cebul had it evaluated and tested for performance.

The electrode holder handle was fastened to the electrode by a metal screw that screwed into a part of the unit carrying electricity. The hole through which the screw passed was larger than the head of the screw. Between 1976 and 1980, the electrode holder and handle underwent several design changes. In September 1977, the screw hole was made smaller because there was a perceived potential for electric shock in having the hole larger than the screw's head. The purpose of the change was to attempt to prevent the user fromremoving the screw and putting it back in from the outside. Such an assembly could cause electric shock.

When defendant requested alternatives to the larger hole, Lenco suggested three options: use of a nylon insulated screw, use of a smaller hole, or use of a "pan head" screw instead of a regular screw. Defendant chose the option of making the hole smaller. The hole size was decreased, and the assembly instructions changed, so the head of the screw would be completely inside the hole.

The written material provided with the model used by decedent consisted of a "weldor's [sic ] guide." The guide instructs how the electrode cable should be attached to the holder of the AC-225-S unit. Page 3, paragraph 6, of the welder's guide states, "the locking screw of the handle should be screwed in until tight," and "the head of the screw will be completely inside the handle." (Emphasis in original.)

Beginning July 21, 1980, the following warning was affixed to the electrode holder handle adjacent to the electrode holder screw:

"Warning - electric shock can be fatal; before turning on welder check the electrode holder to be sure that there are no protruding screw ...

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