Huff v. Elmhurst-Chicago Stone Co.

• Decision Date: 31 March 1981
• Docket Number: No. 80-1547,ELMHURST-CHICAGO,80-1547
• Citation: 94 Ill.App.3d 1091,419 N.E.2d 561,50 Ill.Dec. 453
• Parties: , 50 Ill.Dec. 453, 15 A.L.R.4th 1175 Thomas HUFF, Plaintiff-Appellant, v.STONE CO., Defendant-Appellee, and Medusa Cement Co., Defendant.
• Court: United States Appellate Court of Illinois

Page 561

419 N.E.2d 561

94 Ill.App.3d 1091, 50 Ill.Dec. 453,

15 A.L.R.4th 1175

Thomas HUFF, Plaintiff-Appellant, v. ELMHURST-CHICAGO STONE CO., Defendant-Appellee and Medusa Cement Co., Defendant.

No. 80-1547.

Appellate Court of Illinois, First District, Second Division.

March 31, 1981.

Richard C. Valentine, Chicago (Richard C. Valentine and Michael W. Rathsack, Chicago, of counsel), for plaintiff-appellant.

Baker & McKenzie, Chicago (Francis D. Morrissey, Thomas F. Tobin and Paul B. O'Flaherty, Jr., Chicago, of counsel), for defendant-appellee.

HARTMAN, Presiding Justice:

Plaintiff Thomas Huff seeks to set aside the trial court's order directing a verdict for defendant Elmhurst-Chicago Stone Company (hereinafter "Elmhurst") at the conclusion of plaintiff's case. Medusa Cement Company, also made a defendant in this case, was dismissed upon stipulation of the parties also at the close of plaintiff's case and is not a party to this appeal. Plaintiff sought damages for personal injuries on the theories of negligence and products liability in tort, claiming that he was burned while spreading liquid concrete manufactured by Elmhurst. The issue raised on appeal is whether plaintiff made a sufficient showing that the product Elmhurst distributed was unreasonably dangerous and whether there was sufficient evidence to demonstrate that defendant failed to furnish sufficient and adequate warning of that condition so as to survive a motion for directed verdict. For the reasons which follow, we affirm.

Plaintiff testified that he had been a concrete crew laborer for eighteen years up until the time of the accident. He spread concrete from a hose attached to pumping machinery with the aid of an assistant. On April 21, 1975, liquid concrete splashed on his clothing and into his protective boots. He noticed nothing unusual about the concrete and had previously had his trousers soaked hundreds of times which had remained wet from seven to eight hours but had never suffered adverse effects from the wet concrete on those occasions. He was wearing the same type of clothes that day as he had on the previous occasions. He worked continuously from 8 a. m. to 2:30 p. m. and at 12:30 p. m. was offered protective rubber pants which he declined. At the end of the work day, when he had returned home and removed his clothing, he discovered that he had sustained burns on both legs. He was hospitalized for forty-five days and required skin grafts. Elmhurst stipulated that the burns were caused by the concrete.

Plaintiff called John Maurus, an analytic chemist and employee of Pan Technic, Inc., a firm of consulting scientists and engineers. He took a fifty gram sample of the concrete that had been obtained from the location of plaintiff's work, pulverized it and mixed it in fifty milliliters of water which he had agitated for seventy-two hours. When he measured the alkalinity of the mixture with a pH meter, he observed a reading of 11.70. He found further calculations necessary because the amount of water added to the sample was an arbitrary measure which did not reflect the amount of water used in the original mixture. He admitted that he did not know in what state of liquidity the concrete was kept at the job site, although this factor would have affected the pH level. Dry concrete has no pH level. Other aspects of his testimony will be set forth later in the opinion. Elmhurst moved to strike Maurus' testimony as being incompetent and based upon improper elements. The trial court took the motion under advisement pending further evidence and made no ultimate ruling with respect to this motion.

Plaintiff next called Charles Fiene, general manager of Elmhurst's Ready-Mix Division, who was familiar with the manufacturing and distribution of concrete products and had been involved with that industry for approximately eighteen years. He described the mixing process of the concrete and quality control procedures employed. Visual dials are utilized in order to permit plant operators to check quantities of concrete components mixed at the plant. A quality control department takes samples of concrete and measures precise volumes and weights of its components in order to establish proper composition. He knew of no complaints received by Elmhurst for concrete produced on the day in question other than that registered by plaintiff. A pH value of between 12 and 13 was reasonable, normal and customary for concrete involved in the accident, in his opinion. He know of the inherent alkalinity of wet concrete which rendered it a caustic substance and expressed the opinion that it can be a dangerous material to handle if proper protective measures are not taken. Based upon his experience, it is common knowledge in the construction industry that wet concrete can cause burns to skin; such knowledge is the reason that concrete workers normally wear protective clothing.

Fiene further testified that the concrete delivery trucks bore no warning signs or labels and the only warning given by Elmhurst was contained on the delivery ticket, copies of which went to Elmhurst's office, the driver, the deliverer, the engineer and the customer. The warning, set in standard type near the bottom of the ticket, stated: "Avoid Contact of Skin with Wet Cement in Concrete.''

Plaintiff also called Dr. Arthur Krawetz, a consulting chemist with twenty-one years experience. He had conducted chemical analyses of concrete at least one dozen times prior to this case. He had specifically tested concrete samples for their alkalinity on two or three previous occasions. In his opinion, the normal pH factor of wet concrete was in the approximate range of 12 to 13.

At the close of plaintiff's case, both defendants moved for directed verdicts. It was at this point that Medusa Cement Company was dismissed from the case by agreement and the trial court granted Elmhurst's motion for a directed verdict.

I.

Plaintiff contends that the evidence adduced at trial established directly and by inference that the concrete supplied by Elmhurst was abnormally caustic and contained an inordinate amount of sodium oxide in the sample taken from the construction site. He argues that the danger of a material with a pH of 12.77, as shown by plaintiff's expert Maurus, is evident from testimony that pH is measured on a scale of from 1 (acid) to 14 (alkaline), with 7 reflecting a neutral element like tap water. A reading of 12.77 is exceptionally high, plaintiff claims, because the normal pH of concrete, according to Maurus, is 8 to 10. The pH measurement scale is logarithm based which means that a pH of 9 is ten times more alkaline and thus ten times more caustic then a pH of 8 and concrete with a pH of 12.77 is five thousand times more caustic than concrete with a pH of 9. The subject concrete, therefore, was defective because of its abnormally high pH and did not "perform" in the manner reasonably expected by plaintiff, citing Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill.2d 339, 342, 343, 247 N.E.2d 401, 403.

Elmhurst observes that a product is not unreasonably dangerous merely because it is capable of causing harm since there are some products which are incapable of being made safe for their intended and ordinary use, citing 2 Restatement Second of Torts Section 402A, Comment k at 353 (1965). Accordingly, Elmhurst maintains, strict liability cannot and does not impose a duty upon manufacturers to produce products incapable of causing injury nor does a manufacturer become an insurer of all accidents involving his products, citing Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465, and Hunt v. Blasius (1978), 74 Ill.2d 203, 23 Ill.Dec. 574, 384 N.E.2d 368.

As Elmhurst notes, Illinois has no recorded decision considering whether concrete is unreasonably dangerous by virtue of its capacity for causing burns while in its liquid state. The question has been considered in cases decided by other jurisdictions. In Simmons v. Rhodes & Jamieson, Ltd. (1956), 46 Cal.2d 190, 293 P.2d 26, plaintiff, a welder by trade, was constructing his own home, and suffered severe burns as a consequence of using ready-mixed cement purchased from defendant. He sued for breach of warranty and for negligence. The trial court granted a nonsuit (dismissal) at the close of plaintiff's case, which was affirmed on appeal. The supreme court of California observed that the injury occurred in the handling of a standard and common commodity, quicklime, a caustic element that caused the burns. The court recognized that quicklime was a necessary ingredient of concrete and that plaintiff there was familiar with the caustic quality of wet concrete. In Katz v. Arundel-Brooks Concrete Corp. (1959), 220 Md. 200, 151 A.2d 731, plaintiff, an unemployed mechanic, sustained third-degree burns while working with wet concrete that had been mixed and sold by defendant. Plaintiff brought an action for negligence and breach of warranty based upon the proposition that concrete was an excessively dangerous product. The Maryland Court of Appeals rejected plaintiff's theory, noting that concrete is a common product that has been in use for many years. Its hazards were well known; yet, it was perfectly safe to use when normal precautions are taken against prolonged application to the skin. In Baker v. Stewart Sand & Material Co. (Mo.App.1961), 353 S.W.2d 108, plaintiff, a real estate salesman, sought damages for burns and contact dermatitis sustained in the use of ready-mix concrete manufactured by defendant. The court there also acknowledged decisions from other states and observed that it was common knowledge that cement contains lime and that lime is caustic. A jury verdict for plaintiff there was set aside by the trial court and affirmed on appeal. In Dalton v. Pioneer Sand & Gravel Co. (1951), 37 Wash.2d 946, 227 P.2d 173, the plaintiff sustained third-degree chemical burns on both knees necessitating skin...