Pierce v. Hobart Corp.

• Decision Date: 23 July 1987
• Docket Number: Nos. 85-3067,86-0992,s. 85-3067
• Citation: 159 Ill.App.3d 31,512 N.E.2d 14,111 Ill.Dec. 110
• Parties: , 111 Ill.Dec. 110, Prod.Liab.Rep. (CCH) P 11,561 Morrell PIERCE, a minor, by his mother and next friend, Bertha Pierce, Plaintiff-Appellant, v. HOBART CORPORATION, incorrectly sued as Hobart Manufacturing Company, Defendant-Appellee. Morrell PIERCE, a minor, by his mother and next friend, Bertha Pierce, Plaintiff, v. John GATTUSO, d/b/a Tony & Frank's Restaurant, Defendant-Third Party Plaintiff- Appellant (Hobart Corporation, Third Party Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 14

512 N.E.2d 14

159 Ill.App.3d 31, 111 Ill.Dec. 110,

Prod.Liab.Rep. (CCH) P 11,561

Morrell PIERCE, a minor, by his mother and next friend, Bertha Pierce, Plaintiff-Appellant, v. HOBART CORPORATION, incorrectly sued as Hobart Manufacturing

Company, Defendant-Appellee.

Morrell PIERCE, a minor, by his mother and next friend, Bertha Pierce, Plaintiff, v. John GATTUSO, d/b/a Tony & Frank's Restaurant,

Defendant-Third Party Plaintiff- Appellant (Hobart

Corporation, Third Party Defendant-Appellee).

Nos. 85-3067, 86-0992.

Appellate Court of Illinois,

First District,

Fourth Division.

July 23, 1987.

Rehearing Denied Sept. 2, 1987.

[111 Ill.Dec. 111] Sidney Z. Karasik, Chicago (Frank J. Mackey, Jr., of counsel), for appellants.

Clausen Miller, Gorman Caffrey & Witous, P.C., Chicago (William J. Hacker, Anne V. Swanson, of counsel), for defendant-third party plaintiff-appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Dan L. Boho, Daniel W. McGrath, Lynn D. Dowd, of counsel), for defendant-third party defendant-appellee.

Justice LINN delivered the opinion of the court:

On behalf of the minor plaintiff, Morrell Pierce, an action was brought against Hobart Corporation (sued as Hobart Manufacturing Company) on a theory of strict product liability to recover for permanent injuries that he suffered when his hand was caught in a food grinding machine manufactured by Hobart. In a separate suit sounding in negligence, Pierce sued John Gattuso d/b/a Tony & Frank's Restaurant ("Tony & Frank's"), the owner of the restaurant in which Pierce was injured while operating the food grinder. Tony & Frank's filed a third party complaint against Hobart seeking contribution.

Hobart successfully moved for summary judgment in both lawsuits, on the ground that Hobart could not "reasonably foresee" that a ten-year-old child would operate the commercial food grinding machine and that Hobart could not therefore be held liable for the child's injuries. Both Pierce and Tony & Frank's brought timely appeals, which have been consolidated in this court.

Central to both appeals is the question of whether there is a genuine issue of material fact concerning the foreseeability of Pierce's injury from operation of the food grinder. Pierce contends that summary judgment was inappropriate because of the following disputed factual matters: (1) it was reasonably foreseeable that a ten-year-old could have access to and use of the commercial grinding machine, particularly in light of Hobart's patent application of 1923, which recognized that hands of minors had been injured in the use of food grinding machines similar to Hobart's; (2) Hobart could reasonably have foreseen that any person, child or adult, whose hands were of a certain size could be injured while using the machine because the intake aperture was large enough to permit entry by small hands; and (3) Hobart's machine was unreasonably dangerous in its design and lack of safety guards.

For the reasons that follow, we reverse the motion court's orders granting summary judgment in favor of Hobart and remand both causes for trial.

BACKGROUND

According to the deposition testimony of Pierce and one of Tony & Frank's employees, Rey Poindexter, Pierce and his brother often performed odd jobs and errands for On October 29, 1981, Poindexter asked Pierce to help him grind cheese for pizzas. He took him to a work area in the basement to demonstrate how to operate the commercial meat grinder. Although the grinder was equipped with a metal stomper, Poindexter did not use the stomper or mention its use to Pierce. Instead, he put the cheese into the grinder with his hand. Poindexter then left the area to answer the telephone, admonishing Pierce to be careful. He left the machine on.

[111 Ill.Dec. 112] the restaurant after school. In return, they were paid in cash or food.

Pierce, then ten years old, had never operated a meat grinding machine. He placed a piece of cheese into the grinder and pressed it down with the palm of his hand. The second time that Pierce put cheese into the machine it "jumped" and his fingers were caught inside. He lost part of his thumb and part or all of each finger of his right hand except for the small finger.

Hobart moved for summary judgment in Pierce's lawsuit as well as in the contribution lawsuit that Tony & Frank's had filed. In both cases, Hobart argued that as a manufacturer of commercial food processing equipment it could not reasonably foresee the use of its product by a ten-year-old child in a commercial restaurant. It also argued that Pierce encountered a known danger by placing his hand into the blades of the grinder.

At the hearing Pierce tendered to the court a two-page report on the machine in question, prepared by Marvin A. Salzenstein, a Professional Engineer. His report asserted that the Hobart grinder violated certain safety standards and noted certain physical characteristics of the grinder that made it possible for children's hands and even small adults' hands to fit through the opening. Pierce also submitted a 1923 patent application prepared by Hobart concerning a meat grinder. The application acknowledged that many injuries had occurred to operators of meat grinders and that some children had lost hands to the machine. This patent application was not admitted into evidence at the hearing, although a certified copy of the application was later admitted upon Pierce's motion to reconsider.

The court granted Hobart's motion for summary judgment against Pierce, finding that "it is not foreseeable that a ten-year-old child would be operating a grinding machine such as the grinding machine involved."

During the hearing on Pierce's motion for reconsideration Pierce's attorney tendered an affidavit of David P. Litchtenstein, M.D. The affidavit, which the court struck on Hobart's motion, offered the doctor's opinion that "it is reasonably common for a 10-year-old male to have a hand size similar or greater than the hand size of a 16-year-old male and/or female child." The court denied Pierce's motion to reconsider.

Hobart also moved for summary judgment against Tony & Frank's in the contribution action. Essentially the same product liability issue and same evidence was considered, with the same result.

Both Pierce and Tony & Frank's filed timely notices of appeal.

OPINION

To prove an action in strict tort liability, the plaintiff must establish the following elements: (1) plaintiff's injury resulted from a condition of the product; (2) the condition of the product was unreasonably dangerous; (3) the condition existed when it left the seller's control; and (4) the condition was the proximate cause of the plaintiff's injury. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182.) An unreasonably dangerous condition is one which is unsafe with respect to a forseeable use, or one which is "objectively reasonable" to expect, a determination generally left to the jury. Winnett v. Winnett (1974), 57 Ill.2d 7, 310 N.E.2d 1.

In the pending case, the trial court held that Pierce's use of the commercial meat grinder was not reasonably foreseeable by Hobart as a matter of law; accordingly, the product was not unreasonably dangerous. Hobart argued, and the court found persuasive, that commercial food grinders are not intended to be operated by children rather than adults. According to Hobart, the effect of allowing Pierce and Tony & Frank's to maintain their suits against it would be to require that commercial machinery be "childproofed."

Pierce and Tony & Frank's, on the other hand, assert that the key consideration regarding foreseeability is not Pierce's age but rather his physicial characteristics and those of the machine. There was evidence offered to the effect that the opening of the meat grinder was slightly greater than 2 1/2 inches in diameter and thereby exceeded certain recommended safety standards of Underwriters' Laboratories, Inc.; that the hands of ten-year-old children could be the same size as those of some females and adult males; and that a 1923 patent application for a meat grinder indicated Hobart's awareness of the potential danger to users of grinders. The application noted that "many injuries" had occurred to operators of meat grinders and that it was "not an uncommon occurrence in stores, restaurants, * * * for operators to have one or more fingers cut off during operation through accidentally getting the fingers into the worm as the meat is being fed into the device for grinding. And a number of very deplorable accidents have happened in which children, whose hands are naturally small, have lost a whole hand * * *."

The sole question that we must resolve on this appeal is whether or not the foreseeability question poses a bona fide issue of material fact sufficient to survive the motion...