Carrizales v. Rheem Mfg. Co., Inc.

• Decision Date: 27 December 1991
• Docket Number: No. 1-89-1620,1-89-1620
• Parties: , 168 Ill.Dec. 169, Prod.Liab.Rep. (CCH) P 13,154 Antonio CARRIZALES, Jr., Plaintiff-Appellant, v. RHEEM MANUFACTURING COMPANY, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 569

589 N.E.2d 569 226 Ill.App.3d 20, 168 Ill.Dec. 169,
Prod.Liab.Rep. (CCH) P 13,154 Antonio CARRIZALES, Jr., Plaintiff-Appellant,
v.
RHEEM MANUFACTURING COMPANY, INC., Defendant-Appellee. No. 1-89-1620. Appellate Court of Illinois,
First District, Third Division. Dec. 27, 1991.
Rehearing Denied March 26, 1992.

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[168 Ill.Dec. 171] [226 Ill.App.3d 23] James A. Stamos, Robert D. Shearer, Stamos & Rimland, Chicago, for plaintiff-appellant.

Stephen E. Sward, Michael C. Borders, Harry N. Arger, Rooks, Pitts and Poust, Chicago, for defendant-appellee.

Justice GREIMAN delivered the opinion of the court:

Plaintiff Antonio Carrizales filed a negligence action against Rheem Manufacturing Company to recover damages for personal injuries sustained when flammable vapors from his gasoline-soaked clothing were ignited by the flame of a gas-fired hot water

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[168 Ill.Dec. 172] heater manufactured and distributed by defendant.

Plaintiff appeals from the trial court's entry of partial summary judgment for the defendant and dismissal of plaintiff's complaint on a motion pursuant to section 2-615 of the Illinois Code of Civil Procedure. Ill.Rev.Stat.1989, ch. 110, par. 2-615.

Plaintiff raises nine issues for review and argues the trial court erred (i) in taking judicial notice of certain facts upon which summary judgment was predicated; (ii) in determining defendant owed no duty to warn plaintiff that flammable gasoline vapors should not be brought into close contact with its gas-fired heater; (iii) in determining defendant owed no continuing duty to warn plaintiff in that regard; (iv) by improperly granting defendant's section 2-615 motion to dismiss plaintiff's negligent design claim as insufficient at law; (v) in refusing plaintiff leave to amend his complaint by adding a punitive damages count; (vi) by granting defendant's motion in limine to exclude evidence of post-sale, pre-injury remedial measures; (vii) in the exercise of its discretion by allowing defendant to file answers to plaintiff's request to admit facts at the time of trial more than 28-days after request was served; (viii) by excluding evidence of industry standards for installers on the grounds of relevancy; and (ix) in refusing to admit the prior knowledge of one of [226 Ill.App.3d 24] defendant's design employees regarding the danger of allowing flammable vapors in close proximity to a gas-fired heater.

We reverse the trial court in part and determine that the defendant owed a duty to warn plaintiff as to the effect of bringing gasoline vapors in close contact with its product although no continuing duty obtained after the product left its hands; that the application of judicial notice was overly broad; that plaintiff failed to state a cause of action for negligent design; that the court properly excluded evidence of industry standards for installers; that there may be no imputation of knowledge of dangerous propensities by an employee through a personal experience where employee was apparently hired after the manufacture of the product; that post-sale, pre-injury remedial measures are excluded; and that the court erred in allowing defendant to file at time of trial an amended answer to Notice to Admit Facts.

In May 1966, defendant manufactured a type of residential gas-fired water heater called the "Fury" which was distributed by defendant in 1966 and installed by others in a welding shop at 4845 South Western Avenue in Chicago. At that time, the heater was placed in the washroom near a sink. The water heater had a small metal instruction panel located at its base which identified it as gas-fired and gave instructions for lighting the pilot light.

In 1979, Richard Witasek purchased the building and converted it to an automobile repair garage. Witasek hired plaintiff as a helper-apprentice in 1981. On April 16, 1982, plaintiff assisted in the removal of a leaking gas tank from an automobile in the shop. While attempting to pour the remaining gasoline from the tank into a bucket, plaintiff slipped and fell on his hands into the bucket, splashing gasoline into his eyes and on his face, hands, arms, upper torso and clothing. He immediately went into the washroom to rinse his eyes at the sink. Before plaintiff could turn on the water, the flammable vapors from his gasoline-soaked clothes were ignited by the flame in the hot water heater and plaintiff suffered severe burns and disfigurement.

In a negligence action, a plaintiff must present sufficient facts to establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury that proximately resulted from that breach. (Ward v. K Mart Corp. (1990), 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 554 N.E.2d 223; Rowe v. State Bank of Lombard (1988), 125 Ill.2d 203, 215, 126 Ill.Dec. 519, 531 N.E.2d 1358.) The trial court must determine as a matter of law whether the facts in the particular case establish that the defendant owed a duty to plaintiff and that the parties stood in [226 Ill.App.3d 25] such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff. Ward, 136 Ill.2d at 140, 143

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[168 Ill.Dec. 173] Ill.Dec. 288, 554 N.E.2d 223; Pelham v. Griesheimer (1982), 92 Ill.2d 13, 18-19, 64 Ill.Dec. 544, 440 N.E.2d 96; Lutz v. Goodlife Entertainment, Inc. (1990), 208 Ill.App.3d 565, 568, 153 Ill.Dec. 519, 567 N.E.2d 477.

Factors that a court considers in determining the existence of a duty are (i) the foreseeability of the injury, (ii) the likelihood of injury, (iii) the magnitude of the burden of guarding against the injury, and (iv) the consequences of placing that burden upon the defendant. Lamkin v. Towner (1990), 138 Ill.2d 510, 522, 150 Ill.Dec. 562, 563 N.E.2d 449; Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617; Duncavage v. Allen (1986), 147 Ill.App.3d 88, 100 Ill.Dec. 455, 497 N.E.2d 433; Nelson v. Commonwealth Edison Co. (1984), 124 Ill.App.3d 655, 80 Ill.Dec. 401, 465 N.E.2d 513; Zimmermann v. Netemeyer (1984), 122 Ill.App.3d 1042, 78 Ill.Dec. 383, 462 N.E.2d 502.

Plaintiff asserts that the trial court erred in ruling that defendant had no duty to warn plaintiff of the danger in allowing flammable gasoline vapors to come into close proximity to the gas-fired heater. We agree.

A duty to warn of a particular hazard will be imposed only where there is unequal knowledge, either actual or constructive, and the defendant knows or should know that injury may occur if no warning is given. (Collins v. Hyster Co. (1988), 174 Ill.App.3d 972, 977, 124 Ill.Dec. 483, 529 N.E.2d 303.) If a danger is obvious and generally appreciated then there is no duty to warn because the purpose of a warning is to apprise the party of danger unknown to him so that he may protect himself from that danger. Mazikoske v. Firestone Tire & Rubber Co. (1986), 149 Ill.App.3d 166, 102 Ill.Dec. 729, 500 N.E.2d 622; Huff v. Elmhurst-Chicago Stone Co. (1981), 94 Ill.App.3d 1091, 1099, 50 Ill.Dec. 453, 419 N.E.2d 561.

In support of his contention that defendant owes a duty to warn, plaintiff argues that (1) the trial court erred judicially noticing certain facts that would lead to the conclusion that the danger of ignition is patently obvious when gasoline fumes are in close proximity to a gas-fired water heater; (2) that the defendant manufacturer should be required to warn of patent dangers in its products as a matter of public policy; (3) that plaintiff in this case did not have actual subjective knowledge of the danger sufficient to negate defendant's duty to warn.

We first address plaintiff's argument that the court took improper judicial notice of certain facts. A trial court may allow some facts to be admitted as evidence without formal proof because the [226 Ill.App.3d 26] court deems them to be of common and general knowledge, well established and known within the trial court's jurisdiction. Murdy v. Edgar (1984), 103 Ill.2d 384, 394, 83 Ill.Dec. 151, 469 N.E.2d 1085 (judicial notice may be taken of matters commonly known or readily verifiable from sources of indisputable accuracy); People v. Tassone (1968), 41 Ill.2d 7, 12, 241 N.E.2d 419 (judicial notice may be taken of matters which "everyone knows to be true.")

The trial court took judicial notice of these facts:

(1) It is the vapors given off by gasoline that ignite;

(2) Fire uses oxygen in the air to burn;

(3) Gasoline vapors are flammable and explode on ignition;

(4) Gasoline vapors travel on air;

(5) Fuel-energized devices are using this air to sustain themselves.

Plaintiff contends that these facts are not matters of common and general knowledge (Cook County Department of Environmental Control v. Tomar Industries, Div. of Polk Bros. (1st Dist.1975), 29 Ill.App.3d 751, 754, 331 N.E.2d 196) nor are they generally known to well-informed persons in the community. Motion Picture Appeal Bd. v. S.K. Films (1st Dist.1978), 65 Ill.App.3d 217, 21 Ill.Dec. 809, 382 N.E.2d 103.

In rebuttal, defendant cites Bellomy v. Bruce (3rd Dist.1939), 303 Ill.App. 349, 25 N.E.2d 428, where the court found it a matter of common knowledge that an open

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[168 Ill.Dec. 174] flame should not be allowed in an area where gasoline is being used or exposed to air because the gasoline vapors, when mixed with the higher proportion of oxygen in the air, become highly flammable and explode. (Bellomy, 303 Ill.App. at 358, 25 N.E.2d 428.) In that case, plaintiff and defendant's assistant transferred gasoline from one tank to another via buckets by the light of a lantern 20 feet away. When the gasoline vapors reached the lantern, there was an explosion and plaintiff was severely burned.

The Bellomy court's conclusions are inapplicable to the facts of the case at bar. There the parties were transferring large bulk quantities of gasoline by bucket. The possibilities of ignition are not equally cognizable between a bulk transfer of...