Gelsumino v. E. W. Bliss Co.

• Citation: 10 Ill.App.3d 604,295 N.E.2d 110
• Decision Date: 02 March 1973
• Docket Number: No. 54627,54627
• Parties: Louis GELSUMINO and Ann Gelsumino, Plaintiffs-Appellants, v. E. W. BLISS COMPANY, a foreign corporation, and Allen-Bradley Company, a foreign corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 110

295 N.E.2d 110

10 Ill.App.3d 604

Louis GELSUMINO and Ann Gelsumino, Plaintiffs-Appellants, v. E. W. BLISS COMPANY, a foreign corporation, and Allen-Bradley Company, a foreign corporation Defendants-Appellees.

No. 54627.

Appellate Court of Illinois, First District, Fifth Division.

March 2, 1973.

Kenneth S. Lewis, Chicago, Sidney Z. Karasik, Stuart N. Litwin, Gary E. Dienstag, Chicago, of counsel, for plaintiffs-appellants.

Caryl P. Bonotto, Kirkland & Ellis, John M. O'Connor, Jr., Chicago, for defendants-appellees.

ENGLISH, Justice.

By their amended complaint, founded on theories of negligence and strict liability, plaintiffs sued for the recovery of damages for personal injuries sustained in a punch press accident and for loss of consortium. When plaintiffs refused to settle the case at a pre-trial conference, the pre-trial judge instructed both defendants to file motions for summary judgment which were subsequently filed and granted. Plaintiffs now appeal, contending that the trial court erred when it granted the motions for summary judgment, because the pleadings, motions, supporting affidavits, answers and supporting counter-affidavits, depositions and exhibits disclosed that there were genuine issues of material fact to be resolved by the trier of fact. From those documents the following facts emerge:

In 1962, plaintiff's (Louis') employer, Diebel Manufacturing Company, purchased a punch press from defendant E. W. Bliss Company, its manufacturer. The purchase order specified the inclusion of a foot switch, a standard extra cost item. This switch was supplied by defendant Allen-Bradley Company.

The machine ordered by Diebel was equipped with a two-button safety feature which made it impossible to activate the press cycle without requiring the use of both hands to depress both buttons, thereby keeping the hands of the press operator out of the die area when the press cycle started. However, if the selector switch on the press was set for foot operation, then the hand button safety feature was made inoperative.

The foot pedal consisted of a treadle with a protective metal plate across the top, but open on both sides and in the front. It could be placed anywhere on the floor within a certain radial distance from the press and was connected to the press through a cable.

On October 22, 1965, plaintiff turned on the press punch into which he placed a die. He set the selector switch to foot pedal operation, ran same parts, and took them to be inspected. After he received some advice, he lengthened the stroke of the ram and punched out a few more pieces. As he was taking these latter samples to be inspected, he stepped in some oil and slipped. As he fell, he put his hand in the die, and, at the same time, accidentally triggered the foot pedal from the side with his foot. His injuries included the loss of his right thumb and two fingers, fracture of the other two fingers of his right hand, limitation of motion of his right wrist and shoulder, and skin grafts covering two thirds of the palm of his right hand.

County I of plaintiffs' amended complaint, based on a strict liability theory, alleged that defendant Bliss improperly designed, manufactured and equipped the punch press in that it was equipped with an unsafe foot pedal which was only partially guarded; that it was sole without proper warnings; and that the press thus presented an 'unreasonably dangerous condition' which was the proximate cause of his injuries.

Count II, based on a negligence theory, alleged that defendant Bliss negligently designed, manufactured and equipped the punch press in the manner set forth in Count I; that such negligence wsa the proximate cause of plaintiff's injuries; and that plaintiff exercised ordinary care for his own safety in its operation.

Counts III and IV, based on strict liability and negligence, respectively, were directed toward defendant Allen-Bradley, which was alleged to have improperly or negligently designed and manufactured the foot switch in that the switch was not sufficiently encased to prevent against accidental tripping, thus presenting an unreasonably dangerous condition which was the proximate cause of the injuries to plaintiff.

In all Counts, plaintiff Louis Gelsumino sought damages for his personal injuries, and his wife sought recovery for loss of her husband's consortium.

Both defendants denied all material allegations of the original complaint, but neither filed an answer to the amended complaint.

The cause was set for pre-trial conference with the order that all discovery be completed by that date. At that conference, the judge suggested that plaintiffs accept a settlement since the Bliss press and Allen-Bradley foot pedal were in accordance with the 'state of the art.' When counsel for plaintiffs refused a settlement, the judge directed both defendants to file motions for summary judgment.

Defendants' separate motions and the attached supportive affidavits and exhibits both claimed in similar terms that: (1) the proximate cause of plaintiff's injury was his slipping on the oil on the floor, not any defect in the press or the pedal; (2) the foot pedal was not unreasonably dangerous or defective; and (3) the guard on the foot pedal was within the 'state of the art' for foot pedal guards in 1962.

Plaintiffs filed their answers to the motions, arguing that the cause of plaintiff's injury was not his slipping and falling, but, rather, the unreasonably dangerous condition of the press and foot pedal, and that neither the press nor the pedal conformed to the 'state of the art' as it existed in 1962. Plaintiffs contended that there were genuine issues as to these material facts and asked that defendants' motions for summary judgment be denied. The court, however, found that there were no such issues of fact, and that each defendant was entitled to summary judgment as a matter of law. Both defendants' motions were allowed and this appeal followed.

Under Section 57 of the Civil Practice Act (Ill.Rev.Stat.1967, ch. 110, par. 57), a summary judgment is to be granted only where the documents to be considered show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In American Nat. Bank & Trust Co. v. Lembessis, 116 Ill.App.2d 5, 10, 253 N.E.2d 126, 128, the court stated:

The right to summary judgment is established by statute (Ill.Rev.Stat.1967, ch. 110, sec. 57) and the primary function of the procedure is to enable a court to determine whether there is any issue of fact to be tried by a jury. Craig v. Launer, 346 Ill.App. 234, 104 N.E.2d 830 (1952). If the pleadings, affidavits and exhibits show that there is a...