Arellano v. SGL Abrasives

• Decision Date: 03 May 1993
• Docket Number: No. 1-91-0157,1-91-0157
• Citation: 246 Ill.App.3d 1002,617 N.E.2d 130
• Parties: , 186 Ill.Dec. 891, Prod.Liab.Rep. (CCH) P 13,648 Martin ARELLANO, Plaintiff-Appellant/Cross-Appellee, v. SGL ABRASIVES, Defendant-Appellee/Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 130

617 N.E.2d 130

246 Ill.App.3d 1002, 186 Ill.Dec. 891,

Prod.Liab.Rep. (CCH) P 13,648

Martin ARELLANO, Plaintiff-Appellant/Cross-Appellee, v. SGL ABRASIVES, Defendant-Appellee/Cross-Appellant.

No. 1-91-0157.

Appellate Court of Illinois First District, First Division.

May 3, 1993.

Beermann, Swerdlove, Woloshin & Barezky, Chicago (Alvin R. Becker, Timothy M. Kelly, of counsel), for plaintiff-appellant/cross-appellee.

Burditt & Radzius, Chartered, Chicago (Matthew J. Iverson, Joel R. Skinner, of counsel), for defendant-appellee/cross-appellant.

Justice BUCKLEY delivered the opinion of the court:

Plaintiff Martin Arellano filed a one-count, strict products liability action against defendant SGL Abrasives for personal injuries suffered when a grinding wheel which defendant allegedly manufactured broke during use. Defendant responded and admitted that it manufactured grinding wheels which it sold to plaintiff's employer, but denied any defect, and charged plaintiff with assumption of risk and misuse. The jury returned a general verdict in plaintiff's favor for $274,298, but reduced the award by 70% based on product misuse. Pursuant to post-trial motions, the court vacated the jury's misuse finding and entered judgment notwithstanding the verdict (j.n.o.v.) in favor of defendant. Plaintiff appeals the grant of defendant's j.n.o.v. motion. Defendant cross-appeals the vacation of the jury's misuse finding and challenges an instruction given to the jury.

Plaintiff testified at trial that for 12 years he worked in a foundry for National Castings Corporation (Castings) as a welder and grinder. When working as a grinder, plaintiff would grind excess metal off of metal forgings by means of a grinding wheel mounted on a grinding machine. Plaintiff would wear a hard hat, special safety glasses, a leather apron down to his knees, shin guards and steel toed shoes. None of the grinding machines at Castings were equipped with guards. Plaintiff used the same type of grinding wheel and grinder the entire time he worked at Castings.

On September 20, 1978, plaintiff was working the 4 p.m. to midnight shift. At about 7:30 p.m., he was grinding a piece of metal when his grinding wheel "exploded." Plaintiff was not injured.

Plaintiff picked up the pieces of the broken grinding wheel, took them to his foreman and asked for a new wheel. New grinding wheels were kept in a box and packed in protective wrapping.

Plaintiff's foreman gave plaintiff a second wheel from the same box as the prior wheel. Before mounting it himself, plaintiff inspected the grinding machine for damage but found none. Plaintiff mounted the second grinding wheel the same way he had always done. He made sure the wheel was mounted properly before he started grinding. No washer was required for the grinding wheel which plaintiff was using.

After grinding against a work piece for 10 to 15 minutes, the second grinding wheel exploded. A piece of the wheel struck plaintiff above the left knee, piercing his leather apron, and breaking his thigh bone. Plaintiff was taken to the hospital for his injuries and, as of trial, had not returned to work.

Because he was injured, plaintiff does not know what happened to the pieces of the second grinding wheel. Plaintiff never experienced a grinding wheel exploding in his 12 years of work.

Harold Van Orden, a 25-year employee of defendant, was called as an adverse witness and by the defense. On September 26, 1987, Van Orden examined fragments of a wheel sent to defendant by Castings. Defendant had manufactured the wheel, but the wheel may not have been the one which injured plaintiff. The wheel had little wear on it. Van Orden opined that no defect existed in the wheel he examined. Defendant subsequently destroyed the wheel which Castings had sent. No one from Castings indicated to defendant that the shipped wheel was the one which injured plaintiff or that it was involved in an injury-related accident.

When defendant receives a grinding wheel order, a computer generates a card with defendant's specifications, and a mold is assembled. Based on the volume of the mold, a recipe of abrasive grain, powdered bond and viscous liquid is mixed, poured, rotated, compressed, baked, shaped and balanced. After speed testing, detailed below, the wheels are packed in a cardboard box with safety instructions and shipped.

During speed testing, each wheel is spun at one and one-half times the maximum speed marked on the wheel. The entire test takes five to six seconds. According to Van Orden, if a defect existed in a wheel, it would not survive the speed test. The speed testing would reveal a defect even though no pressure is applied to the grinding wheel during the test; actual grinding adds little stress to a rotating wheel. Despite speed testing, about 200 wheels had been returned to defendant between 1978 and 1990.

Van Orden testified that Castings was defendant's customer in 1978. In September 1978, defendant sent Castings 209 new grinding wheels. Defendant's records showed that the 209 wheels it sent to Castings were speed tested on September 6 and September 11, 1978.

Defendant does not know what happened to the wheel which injured plaintiff. Defendant did not learn that plaintiff was injured until defendant received plaintiff's complaint, some two years following the accident.

The defense called John Gradowski, the director of human resources for Castings. In 1978, Gradowski was Castings safety director. Gradowski examined what he "believed" to be the grinder which plaintiff was using at the time of injury. Gradowski personally observed a washer on the spindle of the grinding machine. The spindle is the device which goes through the hole in the center of the grinding wheel, holding it in place. Gradowski did not know whether the grinding machine he observed had been altered in any way following plaintiff's injury.

George Reitmeier, defendant's liability expert, testified that grinding machine guards were available and the industry standard at the time of injury. He opined that plaintiff would not have been injured by the wheel when it broke if the required guard had been in place.

Reitmeier further opined that any defect in defendant's wheels would be discovered during speed testing or when the machine was started. A wheel breaking after 10 or 15 minutes of use without incident indicated the occurrence of damage to the wheel after manufacturing or operator misuse. Reitmeier believed that is what happened to the broken grinding wheel which Castings had sent back to defendant for examination following plaintiff's injury. The wheel fragments so returned yielded no sign of a manufacturing defect.

Reitmeier testified that it would be a violation of industry standards to utilize a washer when installing a grinding wheel. Such a washer would overstress the center mounting hole, increasing the tendency of the wheel to break. The wheel returned to defendant revealed a break pattern similar to the type produced when a wheel breaks with a washer improperly mounted.

Plaintiff offered no rebuttal evidence and no expert testimony whatsoever.

On appeal, we are first asked to address whether the trial court properly entered j.n.o.v. in favor of defendant. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) Apart from arguing that j.n.o.v. was properly entered, defendant makes the further argument that j.n.o.v. was properly entered where plaintiff failed to make a prima facie case. We address this latter argument first.

To recover under strict liability in tort, "plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control." (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182, 188.) A prima facie case that a product was defective and that the defect existed when it left the manufacturer's control is made by proof that in the absence of abnormal use or secondary causes, the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. (Tweedy v. Wright Ford Sales, Inc. (1974), 64 Ill.2d 570, 574, 2 Ill.Dec. 282, 285, 357 N.E.2d 449, 452; Varady v. Guardian Co. (1987), 153 Ill.App.3d 1062, 1066, 106 Ill.Dec. 908, 911, 506 N.E.2d 708, 711.) These matters may be proved inferentially by either direct or circumstantial evidence. (Bejda v. SGL Industries, Inc. (1980), 82 Ill.2d 322, 330, 45 Ill.Dec. 113, 117, 412 N.E.2d 464, 468.) It is not necessary for plaintiff to present proof that the product contained a specific defect. (Bejda, 82 Ill.2d at 330, 45 Ill.Dec. at 117, 412 N.E.2d at 468; Varady, 153 Ill.App.3d at 1066-67, 106 Ill.Dec. at 911, 506 N.E.2d at 711.) While strict liability cannot be based on mere speculation, guess, or conjecture, circumstantial evidence is sufficient to make out a prima facie case if it tends to negate other reasonable causes and justifies an inference of probability as distinguished from mere possibility. Varady, 153 Ill.App.3d at 1067, 106 Ill.Dec. at 911, 506 N.E.2d at 711.

Initially, we believe that plaintiff prima facie established that defendant, not some third party, manufactured the grinding wheel which caused his injury. Plaintiff introduced evidence of defendant's shipment of grinding wheels to Castings just prior to the time when plaintiff was injured. Further, Harold Van Orden was questioned during plaintiff's case in chief about an interrogatory answer in which he admitted that defendant manufactured the grinding wheel referred to in plaintiff's complaint. Finally, no evidence existed that Castings received grinding wheels from other manufacturers. This evidence, we believe, allowed for the necessary inference that defendant manufactured the wheel which injured plaintiff.

Addressing the remainder of plaintiff's prima facie...