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Bates v. Richland Sales Corp.

January 21, 2004

[5] DORIS BATES, INDIVIDUALLY AND AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF EDWARD T. BATES, DECEASED, PLAINTIFF-APPELLANT,
v.
RICHLAND SALES CORPORATION, A CORPORATION, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE,
v.
GRAND PRAIRIE COOP COMPANY, INC., A CORPORATION, THIRD-PARTY DEFENDANT.



[6] Appeal from Circuit Court of Champaign County No. 99L67 Honorable Heidi Ladd, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Appleton

[8]  Grand Prairie Coop Company, Inc. (Grand Prairie), deals in fertilizer and grain and has several branches or facilities, including the Apex facility, a mile west of Tolono. On March 4, 1997, at the Apex facility, an employee of Grand Prairie, Edward T. Bates (Bates), was fatally injured on a Wrangler front-end loader, from which employees of Grand Prairie had removed the roll bar. If the roll bar had been in place, Bates would have been unharmed. Richland Sales Corporation (Richland) had sold the loader to Grand Prairie, with the roll bar installed, some five years earlier.

[9]  Individually and as special administratrix of Bates's estate, plaintiff, Doris Bates, sued Richland under theories of negligence and strict products liability, alleging the loader was dangerously defective in its design. The trial court dismissed the negligence counts in successive versions of her complaint because of failure to state a cause of action. She moved for leave to file a third-amended complaint, consisting of counts I and II, sounding in strict products liability, and counts III and IV, sounding in negligence. The court granted the motion only as to the first two counts, refusing to allow her to replead negligence in counts III and IV. Afterward, the court granted summary judgment in Richland's favor on counts I and II.

[10]   Plaintiff appeals, arguing the trial court erred in denying her motion to replead negligence and in granting Richland's motion for summary judgment on her claim of strict products liability. Because counts III and IV, on their face, were legally insufficient and a claim of negligence would be untenable in light of the record, we find no abuse of discretion in the trial court's disallowance of those counts. Because the danger that caused Bates's death would have been obvious to an ordinary person driving a loader without a roll bar, we agree with the summary judgment. Therefore, we affirm the trial court's judgment.

[11]   I. BACKGROUND

[12]   Bates was using the loader to move steel pipes into a building called the "Tolono South Flat." He had attached the pipes to the bucket of the loader with a chain and was dragging them backward into the building. Grand Prairie stored grain in the building, and to keep the grain from bellying out the walls, they were reinforced with thick steel rods, a pair of rods at each end wall, extending diagonally from the floor to the side walls and forming an X. At the east end of the building, a rod slanted on either side of the door. Bates backed up against one of these rods, which sprung over the driver's seat and struck him in the back, crushing him against the steering wheel.

[13]   Grand Prairie had bought the loader from Richland in 1992, after making sure it would fit into the bins at the Ivesdale facility. Don Van Lyssel was Richland's sales manager at that time. In his deposition on February 3, 2003, he admitted never telling the salespeople under him to ask potential buyers if they had buildings with low clearances. He testified, however, that Richland had a policy of "demonstrating" a loader before selling it. "I would say, [']***[L]et's take it to where you are going to run it *** and be sure that it fits in the bins and maneuvers around the corners *** and that you have got adequate clearance ***.[']" Because the Ivesdale facility had bins and the Apex facility had no "bins[] per se" but, rather, "huge flat storage building[s]," Van Lyssel demonstrated the loader at the Ivesdale facility, where, he assumed, any problems with low clearances or insufficient space would most likely manifest themselves. "If it wouldn't fit, we would not sell it," he said. He "turned down, on average, two to five sales per season, because [the loader] would not fit in the building, and there is no way [he] wanted them to take the [roll bar] off."

[14]   Plaintiff's attorney asked Van Lyssel:

[15]   "Q. *** You were familiar with all of the buildings [at the Apex facility]?

[16]   A. Yes, I was.

[17]   Q. At least as far as getting inside the building?

[18]   THE DEPONENT: Yes."

[19]   Richland delivered the loader to Grand Prairie with a rollover protection system (roll bar) installed. The roll bar was a steel structure consisting of two roughly vertical columns mounted behind, and on either side of, the driver's seat, and a square frame or canopy extending, from the top of these columns, over the driver's head. Van Lyssel testified the loader was 94 inches tall from the bottom of the tires to the top of the standard roll bar (the type of roll bar Grand Prairie had on its loader). The manual that came with the loader said it was 96 inches tall. He testified: "I had some guys over the years"--but never Grand Prairie--"say to me, ['W]ell, we could take that [roll bar] off[.']" He told them, "[']That is not an option. If you take that [roll bar] off, huh-uh, I am not going to be any part of that.[']" To Van Lyssel, it was "totally inconceivable" that anyone would remove the roll bar; it offended common sense, like removing a seatbelt. Other than this case, he had never heard of anyone's actually removing the roll bar from a loader.

[20]   Plaintiff theorized that companies in the fertilizer industry had an incentive to remove the roll bar and knowing that incentive, Richland had failed to recommend to Grand Prairie an optional roll bar, which had a lower clearance. In the fertilizer business, many buildings dating from the 1960s had entrances that were less than 96 inches tall--not enough clearance for the standard roll bar. For those older buildings, the manufacturer had designed an optional roll bar with a canopy that swung back. According to the manual, swinging back the canopy took six inches off the height of the loader, enabling it to enter those older buildings. Van Lyssel claimed, however, to have measured a loader equipped with the optional roll bar and found no difference at all in height. For that reason and also because he was concerned that a sack of fertilizer might fall on the driver while the top was open, he refused to sell or even recommend the optional roll bar.

[21]   With the standard roll bar installed, Grand Prairie's Wrangler loader could enter the South Tolono Flat, although, obviously, one had to maneuver around the diagonal wall-rods. Building No. 20 in the Apex facility, however, had internal structures, horizontal wall-rods, that were too low for the loader--unless one removed the roll bar. Sometime between March 1992 and March 1997, employees of Grand Prairie did so and never put it back, believing the sole purpose of a roll bar was (as its name suggested) to protect the driver in a rollover--not much of a threat, apparently, on the flat ground of the Apex facility. The manual warned, in conspicuous capital letters, never to operate the loader with the roll bar removed, but the manual was filed away in the office of the Apex facility and was seldom, if ever, read.

[22]   Removing the roll bar took less than 30 minutes and required a hoist, wrench, and wire cutters. All employees had access to the shop and its tools. Each of the two columns of the roll bar was mounted on the loader with four bolts. The roll bar weighed over 300 pounds, and while unbolting it, one had to hold onto it with a hoist, or else it would fall backward because of the slightly backward tilt of the columns. After loosening the nuts and bolts and cutting the electrical wires of the canopy lights, one had to lift the roll bar off with the hoist.

[23]   Unfortunately, the roll bar had not been reinstalled when Bates used the loader in the Tolono South Flat. If the roll bar had been in place, the diagonal wall-rods would have pressed against the vertical columns of the roll bar, behind the driver's seat, instead of against Bates's back, and he would have escaped injury. Six months after the accident, Grand Prairie bought the optional roll bar, which, when the canopy was swung back, allowed the loader to clear the horizontal wall-rods in building No. 20.

[24]   Plaintiff's expert opined in his deposition that the loader was defective and unreasonably dangerous because (1) the roll bar was bolted, rather than welded, to the body of the loader, making it removable; and (2) the loader lacked a warning sticker stating not to use the loader without the roll bar installed.

[25]   On September 20, 1999, plaintiff filed a second-amended complaint, the first two counts sounding in negligence and the remaining two counts sounding in products liability. In counts I and II, plaintiff alleged Richland was negligent in that it sold the loader (1) "without adequate protective devices on the rear of the machine to protect the head and body of the machine operator who may be operating the machine in reverse"; (2) "with a roll[]bar that provided inadequate protection for the machine operator, in that the roll[]bar was able to be removed, with no warning to the consumer about the dangers associated with operation of the machine without the roll[]bar"; and (3) "with a roll[]bar ...


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