McColgan v. Environmental Control Systems, Inc.

• Decision Date: 05 April 1991
• Docket Number: No. 1-89-1400,1-89-1400
• Citation: 212 Ill.App.3d 696,156 Ill.Dec. 835,571 N.E.2d 815
• Parties: , 156 Ill.Dec. 835, Prod.Liab.Rep. (CCH) P 12,841 James McCOLGAN and Delores McColgan, Plaintiffs-Appellants, v. ENVIRONMENTAL CONTROL SYSTEMS, INC., a foreign corporation, and Shamrock Mine Products, Inc., an Illinois corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 815

571 N.E.2d 815

212 Ill.App.3d 696, 156 Ill.Dec. 835,

Prod.Liab.Rep. (CCH) P 12,841

James McCOLGAN and Delores McColgan, Plaintiffs-Appellants, v. ENVIRONMENTAL CONTROL SYSTEMS, INC., a foreign corporation and Shamrock Mine Products, Inc., an Illinois corporation, Defendants-Appellees.

No. 1-89-1400.

Appellate Court of Illinois First District, Fifth Division.

April 5, 1991.

Leonard M. Ring and Associates, P.C., Chicago (Leonard M. Ring and William J. Jovan, of counsel) for plaintiffs-appellants.

McKenna, Storer, Rowe, White & Farrug, Chicago (James P. DeNard, Richard J. Rettberg and Christine L. Olson, of counsel) for defendant-appellee Environmental Control Systems, Inc.

Williams & Montgomery, Ltd., Chicago (Barry L. Kroll, Lloyd E. Williams, Jr. and Lawrence K. Rynning, of counsel) for Shamrock Mine Products, Inc.

Martha A. Churchill, Chicago, amicus curiae, for Mid-America Legal Foundation in support of appellees.

Justice McNULTY delivered the opinion of the court.

Plaintiff James McColgan appeals from the circuit court's entry of summary judgment in favor of Environmental Control System's Inc. (ECS), a manufacturer of curtains used in underground mines and Shamrock Mines Products Inc. (Shamrock), the distributor of the curtains. The sole issue on appeal is whether the trial court properly entered summary judgment in favor of the defendants.

Plaintiff was employed as an electrician for the Zeigler Coal Company. On November 16, 1977, as plaintiff was repairing a coal drill near a yellow opaque "pull through" curtain, used to control ventilation in underground mining, he was struck by a shuttle car which traveled through the curtain. Plaintiff sustained crippling injuries and brought an action in the circuit court of Cook County alleging strict liability against defendants. Plaintiff alleged that the ventilation curtain was unreasonably dangerous because it blocked the vision of those in the mine and the defendants had a legal duty to warn of the danger. In addition, plaintiff's wife Delores McColgan alleged a loss of consortium action. ¹

Both ECS and Shamrock filed motions for summary judgment alleging that they had no duty to warn plaintiff of the inherent opaque condition of the curtain which was open and obvious. In support of their motions, defendants pointed out that according to plaintiff's own deposition testimony, he was aware of the fact that neither he nor others were able to see through the yellow opaque curtain. In addition, ECS cited to the deposition of John E. Brannon, president of Shamrock, who stated that he met with Zeigler's vice-president of operations in 1971 or 1972, and showed him samples of various curtain material, including a translucent material. According to Brannon, he explained to the vice-president the safety features of the translucent material, such as the fact that light could be detected through the translucent curtain.

Furthermore, Ernest M. Spokes testified as an expert for both defendants. Spokes stated that transparent materials could not have been used for ventilation curtains in the coal mine because no such material had been approved for such use at the time. Regarding the obviousness of the danger to the plaintiff, Spokes stated that plaintiff had no reason to believe that the shuttle car would come through the entry, but as a safe workman, he should have taken some care to make his presence known.

In response to defendants' motions for summary judgment, plaintiff pointed out that he had frequently worked near opaque curtains and that he had never before known a car to tram through a curtain where men were working. Plaintiff also noted that William S. Overton, the president of ECS, admitted that no one employed as a consultant by ECS had knowledge of the mining business and that he was not concerned, nor did he ever express to Zeigler or Shamrock any concern, about the safety or the manner in which the yellow opaque curtains were used.

In addition, plaintiff relied on the deposition testimony of David MacCollum, a safety specialist. In MacCollum's opinion, the opaque curtain was unreasonably dangerous and therefore the defendants should have prevented the occurrence of a dangerous situation by either: (1) displaying the word danger on both sides of the curtain; (2) warning the user that the curtain was not to be used in areas where vehicles could pass through; (3) placing a warning sign on both sides of the curtain stating that nothing should be parked behind a curtain and that vision is obstructed from the other side; (4) including windows of translucent material on the curtain; or (5) including a warning in the training manual explaining the hazards of using an opaque curtain in front of equipment.

Plaintiff also referred to 16 investigative reports of accidents involving opaque curtains, prepared by the Department of Mines of the United States Department of the Interior. None of the reported accidents, however, involved a curtain manufactured by ECS or sold by Shamrock.

After a hearing, the trial court granted defendants' motions for summary judgment, finding that plaintiff's injuries were derived from the inherent properties of the product which were open and obvious to him. Therefore the trial court concluded that the opaque curtain was not unreasonably dangerous and a warning was not necessary. Plaintiff then filed a motion for reconsideration and a motion for leave to file a Second Amended Complaint adding a negligence count against both ECS and Shamrock. The trial court denied the motion for reconsideration but granted plaintiff's motion for leave to file a Second Amended Complaint. The trial court later entered summary judgement in favor of both ECS and Shamrock on the Second Amended Complaint.

Plaintiff contends that the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether the opaque ventilation curtain was unreasonably dangerous and whether a warning was necessary. We affirm.

To recover in strict liability in tort, a plaintiff must prove that his injuries resulted from an unreasonably dangerous or defective condition of the product and that the condition existed at the time the product left the manufacturer's control. (West v. Deere & Co. (1990), 201 Ill.App.3d 891, 147 Ill.Dec. 338, 559 N.E.2d 511, appeal allowed (1990), 135 Ill.2d 568, 151 Ill.Dec. 394, 564 N.E.2d 849.) A product is found to be unreasonably dangerous when it fails to perform in the manner reasonably expected in light of its nature and function. (Hunt v. Blasius (1978), 74 Ill.2d 203, 23 Ill.Dec. 574, 384 N.E.2d 368.) A product may be unreasonably dangerous in one of two ways: because of (1) a design or manufacture defect or (2) a failure to warn of a danger posed by the product which the average consumer would not be aware. Lamkin v. Towner (1990), 138 Ill.2d 510, 150 Ill.Dec. 562, 563 N.E.2d 449.

It is well settled that injuries are not compensable under strict liability law if they are caused by those inherent propensities of a product which are obvious to all who come in contact with the product. See, e.g., Lara v. Thoro-Matic Vacuum Systems (1990), 194 Ill.App.3d 781, 141 Ill.Dec. 397, 551 N.E.2d 390 (vacuum cleaner was not defective as a matter of law where plaintiff...