Dukes v. J.I. Case Co.
| Decision Date | 10 October 1985 |
| Docket Number | Nos. 4-84-0557,CARTIN-M,4-84-0584,s. 4-84-0557 |
| Citation | 483 N.E.2d 1345,91 Ill.Dec. 710,137 Ill.App.3d 562 |
| Court | United States Appellate Court of Illinois |
| Parties | , 91 Ill.Dec. 710, Prod.Liab.Rep. (CCH) P 10,851 Steven DUKES, Plaintiff-Appellant, v. J.I. CASE COMPANY, Defendant-Appellee. J.I. CASE COMPANY, Third-Party Plaintiff, v. ILLINOIS POWER COMPANY, an Illinois corporation and McCartin-McAuliffe Plumbing & Heating, Inc., a corporation, Third-Party Defendants. Steven DUKES, Plaintiff, v. J.I. CASE COMPANY, Defendant. J.I. CASE COMPANY, Third-Party Plaintiff-Appellee, v. MccAULIFFE PLUMBING & HEATING, INC., Third-Party Defendant-Appellant, and Illinois Power Company, Third-Party Defendant. |
Phebus, Tummelson, Bryan & Knox, Urbana, Craig J. Causeman, Thomas, Mamer & Haughey, Champaign, for appellants; Joseph W. Phebus, Jeffrey W. Tock, Urbana, of counsel.
Heyl, Royster, Voelker & Allen, Urbana, for appellees. James C. Kearns, Urbana, of counsel.
This consolidated appeal stems from a products liability action filed by Steven Dukes against the J.I. Case Company, and the subsequent third-party contribution claims by J.I. Case against Dukes' employer, McCartin-McAuliffe Plumbing & Heating, Inc. (McCartin), and Illinois Power Company. The appeal raises questions concerning the viability of the theories under which Dukes sought to recover from J.I. Case, and the theories under which J.I. Case sought to defend the claims; as well as the theories asserted by J.I. Case in its claim for contribution against McCartin and Illinois Power. In addition to raising fundamental questions concerning the various theories asserted below, the appeal also raises issues concerning trial court rulings on procedural and evidentiary matters.
The facts are prolix, but must be stated in order to support the discussion of the issues. Plaintiff was injured on December 1, 1978. He was employed by third-party defendant, McCartin, who had in turn been contracted to perform the installation of underground gas pipes by Illinois Power Company. The work site was in Danville, Illinois. The job called for the plaintiff to drill a hole under a sidewalk for a distance of about 20 feet.
The drilling was to be accomplished through the use of a Case Fleetline No. 40 + 4 trencher, which was equipped with a hydra-borer attachment. The machine was sold to Illinois Power on or about October 13, 1972. The trencher is a multi-purpose vehicle with a number of uses which are accomplished through the use of various attachments. The attachment at issue in this suit was the hydra-borer, which is a hydraulically powered device which can bore or auger small diameter holes under obstructions. The holes are drilled by attaching steel rods in 10- and 20-foot lengths to the basic machine while a drill bit is placed on the front of the rods. The hydra-borer provides the rotational force which screws the drill bit into the earth while the Fleetline trencher itself provides the forward push which forces the rods through the earth under the obstruction. By adding sections of rod, the length of the bore can be extended. In addition to the hydra-borer, the trencher has an attachment which allows an operator to dig narrow trenches no more than one foot in width. The trencher can be used in conjunction with the hydra-borer to dig a trench which may be used to guide the direction of the auger rods in the course of the augering process.
Case also manufactures drill guides ("positive level guide anchors"). Drill guides are used, to control the direction of the auger. If the drill guides are used it is not necessary for a workman to manually control the direction of the auger. The drill guides are available as optional equipment and are not issued with the standard machine. Illinois Power Company, purchaser of the machine, did not purchase drill guides for this or any other Case trenchers they used. Illinois Power owned 142 Case trenchers with hydra-borer attachments on the date of plaintiff's accident.
Prior to purchasing hydra-borers and Case Fleetline trenchers, the tool which had been primarily used to accomplish similar tasks was the McLaughlin "MIGHTY MOLE" air-powered auger. McLaughlin issued operator's manuals with the Mighty Mole, and the manuals were found in Illinois Power equipment sheds. The operator's manual gave written instructions and warnings on the augering process. The warnings included admonitions against adjusting the augerby hand, wearing loose clothing, and walking near a turning auger. McLaughlin also manufactured a tool which resembled a series of three J-shaped hooks, which was recommended for use in its augering procedures. Use of the J-hooks could also have precluded the necessity of a workman being in the trench with rotating drill rods. Illinois Power had a company-wide policy that the McLaughlin tool guides were to be used to guide augers, no matter whether a McLaughlin product or a Case product was being used in a given operation. Each Illinois Power crew had two McLaughlin tool guides available to it. The guides were also available to McCartin employees.
In conducting its augering operations, McCartin normally used a three-man crew, which included a lead man or bottom man, a hook man, and an operator. The lead man was in charge of the crew and had the responsibility of guiding the drill bit at the start of the augering process. The lead man was often in the trench and generally would attempt to control the direction of travel of the tip of the auger rod when it was initially tunnelling through the earth. Because the work crews recognized the danger of being in close proximity to turning drill rods, a plastic sleeve consisting of a three-inch diameter, two-foot-long section of plastic pipe was often used to control the direction of the auger. McCartin procedures did not call for the use of the McLaughlin tool guide, and during the trial, plaintiff testified that he had never seen such a guide, but had often seen the plastic pipe in use.
The lead man's duty was to stay in the ditch until the direction of travel of the auger was no longer within his control, at which time he would exit the ditch. Witnesses for McCartin testified that the lead man was to signal the operator of the machine to stop the turning drill rods while the lead man climbed out of the ditch. Plaintiff, as well as his brother and cousin, all denied that there was such a rule.
The second member of the three-man crew was called the hook man. His duty was to stand approximately mid-way between the machine operator and the lead man with a hook with which he could hold the auger rods to attempt to minimize the flopping which the rods did as the length between the machine and the end of the drill bit increased. There was testimony that the hook man is sometimes called the lookout man, and one of his duties was to maintain eye contact at all times with the lead man, in order to relay the lead man's signals to shut down the machine in the event anything went wrong. Plaintiff testified that the hook man was not responsible for relaying signals from the lead man to the operator, although he did agree that constant eye contact was to be kept on the lead man by someone in the crew.
The third member of the three-man crew, the operator, had the responsibility of controlling the turning auger from his position astride the machine. From this position, the operator can look directly down the turning rod. His responsibility is to start and stop the machine, and in doing so he follows the signals of the lead man. The operator is generally able to see both the lead man and the hook man who are in his line of vision. The normal operating procedure was that while the lead man was in the trench the operator would run the machine at a very slow speed. If the operator should see the lead man leaving the ditch without signaling he was to stop the machine. If the hook man were to lose control of the rods, the operator was also to stop the machine. Plaintiff and various other witnesses contradicted this testimony and indicated that there was generally no rule about stopping the rods during various operations.
In addition to direct disputes about the various practices employed by McCartin employees during these operations, there was also contradictory testimony concerning the existence of safety meetings on the job. William Robertson, a foreman of McCartin testified that informal safety meetings were held on the job every morning. He stated he always tried to see to it that safety rules were enforced. Plaintiff, on the other hand, testified that he frequently saw safety rules being violated without comment or reprimand. He did state that Robertson would "raise hell" if he found someone starting the auger without using a plastic sleeve. Plaintiff testified that the plastic sleeve was infrequently used by McCartin employees, himself included. He also testified that to his knowledge, no one had ever been injured while guiding the augers at the start of the boring procedure. Plaintiff, his brother, and cousin, all testified that no one ever stopped the auger to get out of the trench.
There was extensive testimony concerning plaintiff's employment history with McCartin. He first went to work during the spring of 1977, and worked until McCartin shut down in the fall. He worked about half the time on the augering crew as a hook man. He returned to work with McCartin in the spring of 1978, and worked full-time on an augering crew, splitting his time between lead man and hook man about evenly.
Plaintiff testified that he was never given any real instructions as to how to do the job, but learned more or less by observation. He further testified that in his two years on the job, there had never been a safety meeting of any kind. Plaintiff stated that as a lead man he was aware that he was in charge of the crew. He stated that he was aware of only two rules that...
To continue reading
Request your trial
-
Wheeler v. Sunbelt Tool Co., Inc.
...factor which may be raised by defendant. Simpson, 108 Ill.2d 146, 90 Ill.Dec. 854, 483 N.E.2d 1; Dukes v. J.I. Case Co. (1985), 137 Ill.App.3d 562, 91 Ill.Dec. 710, 483 N.E.2d 1345. In drafting proposed jury instructions after Coney, the Illinois Supreme Court Committee on Jury Instructions......
-
Suich v. H & B Printing Machinery, Inc.
...purpose neither intended nor foreseeable, rather than in a manner neither intended nor foreseeable. (Dukes v. J.I. Case Co. (1985), 137 Ill.App.3d 562, 580, 91 Ill.Dec. 710, 483 N.E.2d 1345, aff'd, but consolidated case rev'd sub nom. J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, ......
-
Spurgeon v. Julius Blum, Inc.
...a manufacturer is liable for all intended use and any reasonably foreseeable misuse of the machine. Dukes v. J.I. Case Co., 137 Ill.App.3d 562, 91 Ill.Dec. 710, 483 N.E.2d 1345 (1985), Judgment Aff'd in Part, Rev'd in Part (not relevant here), 118 Ill.2d 447, 459, 114 Ill.Dec. 105, 111, 516......
-
Cleveringa v. J.I. Case Co.
...issue had already been fully litigated and decided in a prior action brought by another plaintiff (Dukes v. J.I. Case Co. (1985), 137 Ill.App.3d 562, 91 Ill.Dec. 710, 483 N.E.2d 1345, aff'd in part sub nom J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill.2d 447, ......