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June 17, 1994


Appeal from the Circuit Court of Cook County. The Honorable Aaron Jaffe, Judge Presiding.

As Corrected December 12, 1994.

Egan, McNAMARA, Giannis

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

While repairing a trim press the plaintiff's fingers were severed when the press was turned on accidentally. The plaintiff, Surrendra Patel, filed a product liability action based on strict liability and negligence against the manufacturer of the trim press, Brown Machine Company (Brown). Brown filed a third party action against the plaintiff's employer (Concord), but settled with the employer for the amount of the worker's compensation lien. The trial Judge granted Brown's motion for summary judgment on the strict liability count and the case went to trial on the negligence count. A jury returned a verdict in favor of the plaintiff and assessed damages in the amount of $2,020,000, but found him 84.6% contributorily negligent. His damages were thus reduced to the sum of $311,080.

Both parties have appealed, and the appeals have been consolidated. The plaintiff contends that the jury verdict that he was contributorily negligent was against the manifest weight of the evidence and that the Judge erred in permitting proof of negligence on the part of the plaintiff's employer. Brown contends that the jury finding of negligence on the part of Brown was against the manifest weight of the evidence, that the action should have been barred by the statute of limitations, and that the Judge erred in permitting certain evidence and instructing the jury on the plaintiff's future lost income.

The press involved in this case was identified as a TP-10E trim press and was used for cutting plastic lids. The allegations of negligence were that Brown (1) failed to provide adequate guarding "to keep the plaintiff's hand from being caught on the trim press"; (2) failed to provide "proper operating instructions on the machine"; (3) failed to provide "proper means with which to align material in the trim press"; (4) failed to provide "adequate warnings as to the unreasonabledangerous condition of the trim press"; and, (5) failed to design proper controls so as to avoid accidental "energization."

Patel worked at Concord Industries, Inc. in Franklin Park from 1972 to 1980 and from 1984 to 1986. On September 4, 1985, Patel worked for Concord Industries as a "set-up" man. His job entailed changing the molds and dies on the thermoforming lines and presses and then adjusting the machine if necessary so that the line would run efficiently. On September 4, Patel changed the dies on the thermoforming line to set up a new job. To "set up" the line, all guards are removed and an overhead crane lifts the old dies out and replaces them with new dies. Then, the dies are bolted in and the set-up man reaches in through the product outlet holes to line up the plastic sheets. Patel was having difficulty obtaining an accurate cut from the trim press, the part of the line that cuts the containers from the plastic sheet. The process began with a roll of plastic, 28 to 32 inches wide (weighing between 1000 and 1800 pounds). The roll was placed on an unwind stand so that a continuous sheet could be fed through the thermoformer. The sheet moved horizontally through the thermoformer over its electric heaters and into a mold area, where platens (moving up and down) used vacuum and air pressure to form the pieces in the plastic sheet. The sheet then passed through the trim press. The sheet travelled downward into the trim press, which consisted of a platen with dies that moved horizontally against a fixed die platen, cutting out the rows of pieces that were formed on the plastic sheet. The cut-out pieces came out of holes in the front of the press onto a work table (for packing) while the scrap came out of the bottom of the press.

During the morning of September 4, Patel found out that the "disconnect switch" on the back of the machine did not work. The power disconnect switch was located on an orange control panel (referred to as the "set-up" switch) on the right side of the machine. On the front of the press, a start-stop button was located on the right side and an emergency stop button on the left side; between the two buttons were exit chutes where the plastic lids were discharged. The electrical energy came from an outlet on the ceiling.

Patel testified that he customarily turned off the power disconnect switch when he adjusted the plastic or set-up the machine. He was supposed to turn off the power on all types of machines before he worked on them. Between 9 and 10 a.m., he told his supervisor, Don Clark, that the power disconnect switch was not working. Clark told him, "I'll take care of it. Right now don't have any parts." Patel continued to try to realign the plastic for the trim press but the press continued to cut the pieces improperly. After returning from lunch, Clark looked at the machine on which Patel was working. Patel showed Clark where the press was cutting the plastic sheets improperly. Clark then tried to line up the sheet through the locator. To do this, Clark put his hands in the machine. Clark tried to move the steel bars and hammers and then tried to cut a couple of pieces. He tried to cut the pieces three or four times but it still did not cut properly. Patel then described what took place:

"Then, I tried to explain to him that there is nothing wrong in setting up. There is something wrong in the plastics or middle of the die or the plastic laying two, three days. * * * I said I will hold one like to one like that. One doesn't line up exactly in the die, not going to get the particular thing. * * * [Clark] told me one or two times, 'Move this-- move this one.'

A: Kneeling down.

Q: What were you doing with your left hand?

A: With the left I was holding the plastic still on the one locator with the other hand tried to move the plastic showing him [Clark] by turning my hand around the die. I show it doesn't line up.

Q: So where was your right hand?

A: On the last opening.

Q: Mr. Clark was standing behind you to your right?

A: Right shoulder.

Q: Was he kneeling also? Was he standing up?

A: He, bending like that.

Q: What, if anything, happened next?

A: Next, I got my hand cut off. I lose my fingers.

Q: Did you see whether or not Mr. Clark pressed the button?

A: No, I didn't see that.

Q: But is there any other way the machine could have started?

A: No, only one start button in front panel."

On cross-examination, Patel testified that he took the guards off the machine before he began the set-up. Patel never had seen a trim press where one did not need to remove the guards before putting a new die in or a press that could be set up with new dies without reaching into it. He admitted that blocking, i.e., putting wooden blocks in the machine so that it would not run a cycle, would have been a better procedure but that, if he inserted the blocks, he could not move the platen to line up the plastic sheet. He admitted that he could have manually moved the platen with a flywheel mechanism; however, he preferred not to use the flywheel because the timing movement on the platen was not synchronized. He customarily turned off the disconnect switch before he put his hands into the machine; he could not turn it off on September 4, 1985, because theswitch was broken, i.e., the switch and handle were turning, but the mechanism was broken.

Patel stated that, although he could have pulled the plug in the ceiling outlet, "It's hard to reach the plug." He stated that he was not allowed to do it, but the electricians are allowed to remove the 440 volt plug. When asked whether he could have unplugged it or at least asked Bobby, the electrician, to do it, he replied, "Yes." He added that he did not think there was any possible way that the machine could have started aside from Clark pushing the start-stop button on the right side of the machine.

On recross, he was asked whether he was supposed to shut off the power on all the machines before working on them and he responded, "Yes." Patel admitted that he could have asked the electrician to fix the switch instead of climbing up to the ceiling to unplug the press. When he adjusted the plastic in the exit chutes with his hand, he did not use the flywheel mechanism to rotate the platen because it was too heavy. Instead, he ran tests on the machine with the guards off. He ignored the warning on the machine that stated, "Do Not Operate with the Guards Off" because, he explained, that warning was provided for the operators, not for the set-up person.

The evidence deposition of Louis Harkrader, a former mechanic and sales representative for Brown, was introduced. Harkrader examined various photos of presses (the TP-10E and the TP-22) and stated that, when the TP-10E left Brown in 1970, the start-stop buttons were connected to the machine. Based on the photos he was shown, the only differences between the photos and the TP-10E, when manufactured in 1970, were that the start-stop buttons were not connected to the machine and that a discharge table was added. (It is unclear which photos he was shown because all of these photos have not been included in the record; moreover, he referred to photos from his evidence deposition and the photos introduced at trial were identified with different numbers.)

Patel called Bernard Downing, who was a quality assurance manager, engineering inspector, and product integrity engineer for Brown. He visited Concord in 1984 and inspected its thermoformers and trim presses. He determined that Concord needed "guards, interlocks, safety blocks, lock pins, and safety tags" on its trim presses (TP-10E). Specifically, he determined that the press needed side, front and rear guards. The press needed a tunnel guard above the discharge tube and over the exit chutes. He stated that Brown added an interlocked tunnel guard in the late 1970's. He recommended left and right side guards which would be hinged with electrical interlocks to stop the machine when the guards wereopened. He also recommended safety blocks, but failed to put it in his memorandum to Concord. Downing saw the machine that caused Patel's injury, a TP-10E, serial number 4314. He formed an opinion that one or more of the devices that he recommended in 1984 would have prevented Patel's injury: a lock pin, a safety block, or a main electrical disconnect.

On examination by Brown, he stated that when the TP-10E left Brown, it was fully guarded on the sides, front and rear; however, it had no tunnel guard at the exit chutes. The condition of the equipment at Concord was "very, very poor." In order to move the flywheel by hand and the platens, the set-up man cannot use blocks or a flywheel pin; they would not permit the flywheel or platen to move. To ensure safety, the set-up man should shut off the power at the main electric disconnect and lock the switch.

Daniel Pacheco was Patel's expert. He worked 17 years at Allis Chalmers; the last position he held there was chief engineer for systems design. His design experience included various aspects of engineering, safety design and guarding. At the time of trial, he was president of Polytechnic, a mechanical engineering firm for accident investigation work focusing on the safety and design aspects of products. To investigate this accident, he visited Concord in July 1986 and viewed a machine similar to the one involved (a TP-22). One of his associate engineers from Polytechnic, Doug Morita, visited Concord in 1989 and viewed the exact machine that was involved, a TP-10E. Pacheco reviewed drawings, engineering specifications, design documents and photos of the machine. He also reviewed the depositions of Pat Hosel, Concord's personnel manager, and Don Clark, Patel's supervisor, and OSHA inspection records on the plant. He also viewed photographs of the TP-10E on which Patel was injured; photographs of this press were taken weeks after the accident by William Wildman, a Brown employee. Wildman's photos indicated that neither the TP-22 nor the TP-10E had guards at the point of operation. The photos taken in 1989 indicated that the press had been altered; it was equipped with a guard that was interlocked; when the guard was removed the machine would not operate.

In Pacheco's opinion the TP-10E was not adequately guarded when sold in 1970 based on four reasons: First, "there were no guards on the machine in the hazardous area where these components come together * * * you want that guard to be interlocked with the machine so that if the guard is taken off or swung aside there is a switch * * * that will not allow the machine to operate." This would protect the set-up man because when he opened the machine, the interlock would automatically cut the power so the machine could not start inadvertently. Pacheco explained an interlock as "the same idea as a refrigerator door, when you open the door the light comes on. That's an interlock. It is a switch that opens and turns the lights on when you open the door. In this case when you swing the guard away the switch would operate to prevent the machine from starting." If a set-up man wanted to run a test piece, he would have to close the guard and then run the piece through it. He testified that interlock guards were feasible in 1970 because similar trim presses manufactured in that year were in fact equipped with interlocking guards.

Second, he opined that safety blocks should have been available to prevent the platens and dies from moving when a set-up man was inside the machine. Third, he testified that the press' start/stop buttons should have been ring-guarded or designed as pull-out buttons. Fourth, he recommended that the set-up man should have been provided tools so that he could hold pieces in position inside the machine without having to manually reach into the press.

Pacheco also testified that the machine should have had warnings or instructions printed on the machine: "It should have had instructions to utilize whatever safety devices that were provided in the design of the machine, should have advised of the hazardous areas and what kind of operations you could create a hazard with, and it should tell the person that's going to use the machine how to avoid those hazards." The only warning on the press was "Do not operate without guards in place."

Pacheco criticized the power-disconnect switch on the press. He stated that Brown should have anticipated that the disconnect switch could have been inadvertently turned on or could have been broken. He also stated that the plug's location was not an alternative safety device because of its ceiling location. Finally, he testified that a machine was not considered safe in 1970 ...

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