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11/20/95 DAVID E. HARDING v. AMSTED INDUSTRIES

November 20, 1995

DAVID E. HARDING, PLAINTIFF-APPELLANT,
v.
AMSTED INDUSTRIES, INC., AND AMERICAN STEEL FOUNDRIES, DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLEES, V. THRALL CAR MANUFACTURING COMPANY, THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable DANIEL J. WHITE, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Buckley delivered the opinion of the court: Campbell, P.j., and Braden, J., concur.

The opinion of the court was delivered by: Buckley

The Honorable Justice BUCKLEY delivered the opinion of the court:

Plaintiff, David Harding, brought a strict liability action against American Steel Foundries, a division of Amsted Industries, Inc. (ASF), for injuries he allegedly sustained while installing a friction casting manufactured by ASF. ASF in turn filed a third-party complaint for contribution against plaintiff's employer, Thrall Car Manufacturing Company (Thrall). Plaintiff also filed a workers' compensation claim against Thrall before the Illinois Industrial Commission. On December 11, 1992, Thrall filed a motion to dismiss. The circuit court granted Thrall's motion, finding that the settlement between the plaintiff and Thrall was a good-faith settlement for purposes of the Joint TortfeasorContribution Act (740 ILCS 100/0.01 et seq. (West 1992)). Following a jury trial, judgment was entered upon the verdict in favor of ASF on March 26, 1993. The circuit court denied plaintiff's post-trial motion and motion for leave to file a second-amended complaint on May 28, 1993. Plaintiff appeals the circuit court's orders dismissing the third-party complaint and denying plaintiff's motions.

BACKGROUND

ASF manufactures railroad car parts. The part relevant to this appeal is the friction casting, which is inserted into the wheel assembly of a railroad car and is part of the shock absorbing system. During the wheel-assembly process, four friction castings, each containing two large springs, are pressed into another part called a bolster. This is done with a "bolster press," which consists of a frame on which to place the bolster and four air cylinders. The air cylinders provide the force and energy needed to press the castings into the bolster. At trial, ASF's expert engineer testified that 4,000 pounds of force and 300 foot-pounds of energy are required to compress the springs into the bolster during the installation of the castings.

ASF provides a repair and maintenance manual to purchasers of its friction castings. The manual depicts ASF's recommended method of installing its friction castings, which includes a detailed drawing with dimensions for the construction of a bolster press. At trial, ASF's sales representative testified that it was reasonably foreseeable that ASF's customers would use the recommended installation method.

The manual also provides instructions and warnings relating to the construction and operation of the bolster press. For example, the manual states:

"WARNING

Because forces of 6,000 pounds potentially can be developed in using this assembly, it is imperative that all 'SAE-ASTM' standards for welding and practice be followed to insure quality workmanship and strength, and that all materials incorporated in the assembly be of quality and strength to maintain its integrity. Frequent inspection of the assembly should be made for the purpose of identifying any weld or material deficiencies which, if present, should be corrected before resuming utilization of the assembly. Sticking may occur when removing the shoes from the pockets due to friction. Care must be exercised to release the air slowly, being sure that the shoe is following the release."

Plaintiff was injured on June 30, 1986, while he was building a railroad car wheel assembly for Thrall. He alleged that while he was operating a bolster press, a steel fragment broke off of one of the castings manufactured by ASF and became lodged in his leg. Specifically, plaintiff had just opened the air valve on an air cylinder and the piston began pushing a friction casting into place. The friction casting started to fit into place, but then "hung up." By the time plaintiff looked down, the casting had popped into place. He then fell towards the bolster because something had hit him in the leg and he was bleeding. Plaintiff was brought to a medical clinic, where X rays showed that a metallic foreign body was embedded above his left knee. He was later taken to a hospital to have the object surgically removed.

Over the following 2 1/2 years, plaintiff underwent three more surgical operations to treat the pain and swelling in his knee and the varicose veins in his leg. Plaintiff was unable to work between June 1986 and March 1992, under his doctors' orders. Ultimately, plaintiff voluntarily resigned his position because he was unable to perform his duties at Thrall due to his pain. Plaintiff trained to be a school bus driver and his salary is approximately half of what he was earning at Thrall.

At trial, plaintiff testified that he did not see from where the metal originated. He explained that at the time he was injured, a variety of work activities were taking place nearby connected to the construction of the railroad cars. Workers in the ...


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