Williams v. Brown Mfg. Co.

• Citation: 45 Ill.2d 418,46 A.L.R. 226,261 N.E.2d 305
• Decision Date: 24 March 1970
• Docket Number: No. 41425,41425
• Parties: , 46 A.L.R.3d 226 James WILLIAMS, Appellee, v. BROWN MANUFACTURING COMPANY, Inc., Appellant.
• Court: Supreme Court of Illinois

Page 305

261 N.E.2d 305

45 Ill.2d 418, 46 A.L.R.3d 226

James WILLIAMS, Appellee, v. BROWN MANUFACTURING COMPANY, Inc., Appellant.

No. 41425.

Supreme Court of Illinois.

March 24, 1970.

Rehearing Denied June 25, 1970.

Martin J. Corbell, of Sonnemann & Corbell, Vandalia, and Gordon Burroughs, of Burroughs, Simpson & Burroughs, Edwardsville, for appellant.

Beatty, Schooley & Theis, Granite City, for appellee.

UNDERWOOD, Chief Justice.

James Williams was injured while operating a trenching machine manufactured by defendant, Brown Manufacturing Company, Inc. Williams brought an action against defendant under a theory of strict product liability in tort, essentially alleging an unreasonably dangerous design, and was awarded damages in the amount of $40,000 by a Madison County circuit court jury. The judgment was affirmed by the Appellate Court for the Fifth Judicial District (93 Ill.App.2d 334, 236 N.E.2d 125), and we granted leave to appeal.

While numerous questions are raised here, most were adequately treated by the appellate court. Those upon which we disagree or deem an expression of opinion by this court desirable are:

1. The nature of the conduct by a plaintiff which will bar recovery in an action based upon strict liability in tort in this State, and the related issue: upon whom rests the burden of pleading and proving the absence or existence of that conduct?

2. When does the statute of limitations commence to run in such an action predicated upon defective product design?

3. Should all members of the Appellate Court for the Fifth Judicial District have disqualified themselves in the initial review of this case?

A detailed factual statement is contained in the opinion of the appellate court. (93 Ill.App.2d at 349--357, 236 N.E.2d 125.) An abbreviated statement, therefore, is sufficient to place the first of the above questions in context for the purpose of this opinion.

Plaintiff's recovery was based upon a count alleging that while he was operating the trencher, 'the machine bucked and unexpectedly jumped a number of feet to the rear, knocking the plaintiff to the ground and running over him, thereby causing serious and permanent injuries * * *.' This count enumerated several respects in which the condition of the trencher was 'unreasonably dangerous', alleged that the condition existed when the trencher left defendant's control, and claimed that plaintiff's injuries were a direct and proximate result of the condition. There was no allegation to plaintiff's exercise of due care or his freedom from contributory negligence. Defendant's answer included two affirmative defenses: the action was barred by the statute of limitations, and plaintiff had 'assumed all risk in relation to use and operation' of the trencher. Both defenses were stricken by the trial court on plaintiff's motion because of the court's opinion that the proof was insufficient to support either defense.

Defendant contends that the trial court erred in denying its successive motions to dismiss, for directed verdict, and for post-trial relief, all of which were based on the ground that the plaintiff had failed to state or prove a cause of action because of his failure to allege or prove that he was in the exercise of due care for his own safety. Plaintiff argues that in a strict liability case, contributory negligence, or the failure to exercise due care, is an affirmative defense.

The evidence indicated that, while plaintiff was operating the machine from a position between the handlebars at its rear, the digging teeth of the trencher momentarily caught on an underground pipe; when the teeth suddenly slipped off the pipe, the machine lurched backward. Plaintiff maintained that the power unit should have been equipped with some safety device, such as a 'throw out clutch', to prevent such a build-up of force. Alternatively, he argued that the drive-belt should have been easily adjustable to a tension which would allow satisfactory digging normally, but would allow slippage when an obstruction was encountered. Plaintiff was allowed, at the close of his case, to allege as a further dangerous condition that the machine exhibited no warning that it should not be operated from behind and between the handlebars. Defendant maintained that users normally operated the unit from the side, gripping the handlebars from behind only to guide the machine to the digging site. An instruction booklet had accompanied the machine, and, though it did not advise as to the proper position for an operator, it did state in the two pages concerned with operation and maintenance:

'ADJUSTMENTS AND MAINTENANCE

The engine is bolted stationary to the machine, and when the drive belts become loose enough to slip, adjust them by the threaded shaft on the right hand clutch lever. Caution--do not adjust the belts too tight; they must be able to slip under shock load.

Service and Maintenance Tips on Bus Brown Trenchers.

Short Belt Life: Belts that are adjusted too tight may turn sideways, also not be able to slip under shcok load.

Shearing Woodruff Keys * * * Possible Cause and Remedy.

Generally the drive belts are adjusted too tight, especially on the model 468R, the drive belts must be adjusted so they do not slip under normal trenching, but should be loose enough to slip when some object gets caught in the digging chain, if the belts cannot slip, there is no protection against sudden shock.'

On cross-examination, plaintiff acknowledged having read the manual prior to his injury, although it is unclear how completely he read it. He did admit to reading at least a portion of the maintenance section, in which section the quoted language appeared.

In resolving the case before us the appellate court relied upon § 402A of the Restatement (Second) of Torts, comment (n), which reads as follows: 'n. Contributory negligence. Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consist merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.'

The appellate court construed our decision in People ex rel. General Motor Corp. v. Bua, 37 Ill.2d 180, 226 N.E.2d 6, as holding that contributory negligence is properly an issue in a strict liability case, but it was not felt decisive of the specific type of conduct included within this 'contributory negligence', nor upon whom fell the pleading-and-proof burden. Therefore, the appellate court adopted the Restatement view as to the type of plaintiff conduct barring recovery and defined contributory negligence in an action based on strict liability as 'voluntarily and unreasonably proceeding to encounter a known danger or proceeding unreasonably to make use of a product after discovery of a defect and becoming aware of the danger.' (93 Ill.App.2d at 347, 236 N.E.2d at 133.) That test is substantially narrower than the concept of contributory negligence presently a part of negligence law in this State, where plaintiff must plead and prove that he was in the exercise of due care, as measured by the objective reasonable-man standard, for his own safety. Swenson v. City of Rockford, 9 Ill.2d 127, 136 N.E.2d 777; Austin v. Public Service Co. of Northern Illinois, 299 Ill. 112, 120, 132 N.E. 458.

The question as to the type of plaintiff conduct which will bar recovery has received considerable attention since we imposed strict tort liability in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182. Federal courts applying Illinois law have considered it in Dazenko v. James Hunter Mach. Co. (7th Cir. 1968), 393 F.2d 287, 290--291, and in Ragain v. Chainbelt, Inc., No. 66--C--1563 (N.D.E.D.Ill.1967), and our appellate courts have done so in Adams v. Ford Motor Co. (1968), 103 Ill.App.2d 356, 243 N.E.2d 843; Vlahovich v. Betts Machine Co. (1968), 101 Ill.App.2d 123, 242 N.E.2d 17, petition for leave to appeal allowed, 40 Ill.App.2d 580; Sweeney v. Matthews (1968), 94 Ill.App.2d 6, 16--26, 236 N.E.2d 439; Dunhan v. Vaughan & Bushnell Mfg. Co. (1968), 86 Ill.App.2d 315, 331--332, 229 N.E.2d 684, affirmed without discussion of this issue, 42 Ill.2d 339, 247 N.E.2d 401 (1969); Brandenburg v. Weaver Manufacturing Co. (1967), 77 Ill.App.2d 374, 222 N.E.2d 348.

There has been much said about the apparent divergence of judicial opinion regarding the impact of contributory negligence in strict product liability actions in tort. Those differences, however, seem to us more semantical than substantial. Indeed, prior to this modification of our opinion on rehearing, our earlier opinion in this case apparently was throught to imply that every plaintiff in a strict product liability action in Illinois was under a 'duty to inspect' all products for potential defects, and that failure to plead and prove such an inspection would constitute a bar to recovery under the doctrine of contributory negligence. This implication was not intended by the court, and we are persuaded that it is necessary to review our position and adopt a more appropriate and workable framework for treatment of plaintiffs' recovery-barring conduct in strict product liability cases.

All authorities agree that plaintiffs in tort actions may so conduct themselves as to bar recovery for injuries suffered by them. This recovery-barring conduct, while given different...