Salerno v. Innovative Surveillance Tech. Inc.

• Decision Date: 30 June 2010
• Docket Number: No. 1-09-1402.,1-09-1402.
• Citation: 932 N.E.2d 101,342 Ill.Dec. 210,402 Ill.App.3d 490
• Parties: Charles J. SALERNO, Plaintiff-Appellant, v. INNOVATIVE SURVEILLANCE TECHNOLOGY, INC., a Florida Corporation, Defendant and Third-Party Plaintiff-Appellee (All Star Machine, Inc., Third-Party Defendant).
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 490

932 N.E.2d 101

342 Ill.Dec. 210

Charles J. SALERNO, Plaintiff-Appellant,

v.INNOVATIVE SURVEILLANCE TECHNOLOGY, INC., a Florida Corporation, Defendant and Third-Party Plaintiff-Appellee (All Star Machine, Inc., Third-Party Defendant).

No. 1-09-1402.

Appellate Court of Illinois,First District, Second Division.

June 30, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Brian T. Nash, Robert P. Sheridan, of counsel, Clifford Law Offices, Chicago, IL, for Plaintiff-Appellant.

Charles P. Rantis, Garrett L. Boehm, Jr., Cecilio L. Franco, Johnson & Bell, Ltd., Chicago, IL, for Defendant and Third-Party Plaintiff-Appellee.

Justice THEIS delivered the opinion of the court:

This case arises out of injuries sustained by plaintiff Charles J. Salerno after he struck his head on a periscope mounted on the ceiling of a surveillance van procured by his employer from defendant Innovative Surveillance Technology (IST). Plaintiff sued IST asserting, inter alia, claims of strict products liability and negligence. On IST's motion, the trial court found that the periscope was an open and obvious danger and granted summary judgment in IST's favor. Plaintiff argues on appeal that the “distraction” and “deliberate encounter” exceptions preclude such a finding. He further argues that summary judgment was inappropriate on other grounds raised by IST because questions of material fact exist. For the following reasons, we affirm the circuit court's judgment and order.

Plaintiff worked as an investigator in what is now known as the narcotics technical field operations unit of the Cook County State's Attorney's office. The unit was responsible for gathering evidence from undercover drug transactions. The State's Attorney's office purchased the IST-6000 surveillance van from IST to assist in that function. The van's cargo area contained most of the surveillance equipment, including video cameras, television monitors, a VCR, radio receivers, and audio recorders. The equipment was oriented around a “command chair” from which a single operator could control all of the devices. The capacity of the cargo area was approximately 275 cubic feet and the distance from the floor to the ceiling measured approximately 48 to 50 inches.

The van also contained a video periscope system beside the command chair, which was comprised of three parts. The periscope itself was bolted to the ceiling and was secured with a steel plate. It descended into the cargo area approximately 12 inches from the ceiling. The periscope could rotate 360 degrees in either direction. The operator could turn to use the periscope while seated in the command chair, but would not otherwise make contact with the periscope in that location. The periscope system also had a video camera and zoom lenses that protruded upward from the ceiling through the roof of the van to permit outside observation.

In October of 2003, plaintiff was injured when he attempted to stand up inside the cargo area and struck his head on the unpadded metal portion of the periscope. He suffered severe head trauma and seizures as a result of his injury. He then filed suit against IST. In count I of his complaint, plaintiff alleged a “strict liability” claim in which he asserted that the IST-6000 was unreasonably dangerous and defective. Specifically, he alleged the following:

“a. Failure to include sufficient and adequate instructions and warnings;

b. Inadequate design of unpadded and exposed metal surveillance periscope for purposes of protecting passengers from head injury or other injury;

c. An inherently defective design that would result in an unreasonably high propensity to cause head injury or other injury in the course of foreseeable use; [and]

d. Failure to provide adequate warning to consumers or users of the dangers or hazards inherent in the use of the IST-6000.”

In count II, plaintiff alleged a “negligence” claim. He asserted that IST:

“a. Negligently and carelessly designed the IST-6000 such that there was an unpadded and exposed metal surveillance periscope which protruded into the area of the van where users of the IST-6000 equipment were intended to be while the van was in use, including during times of travel, such that there was an unreasonably high propensity to cause head injury or other injury in the course of foreseeable use; b. Negligently and carelessly failed to adequately and sufficiently warn and instruct [plaintiff] of the nature and type of the aforesaid dangerous condition; [and]

c. Otherwise carelessly and negligently and carelessly [ sic ] designed the IST-6000.”

Plaintiff also asserted a claim for breach of express and implied warranties of merchantability.

During the course of discovery, the parties took relevant deposition testimony from the following witnesses: plaintiff; Kenneth Maicke and Maurice Macklin, both supervisors in the narcotics technical field operations unit who were present at the time of plaintiff's accident; Thomas Calnan, former president of IST; and Donald DiFrisco, current president and chief executive officer of IST's successor company. Plaintiff did not disclose any expert witnesses to testify about the design of the IST-6000 or any other surveillance van.

Plaintiff testified that on the day of the accident, he was preparing the IST-6000 for use in a surveillance operation. He testified that just before he hit his head, he was squatting down inside of the cargo area of the van moving some equipment. He stated that when he attempted to stand up from the squatting position, he hit his head on what he believed was the exposed metal portion of the periscope.

Maicke and Macklin were present at the time of plaintiff's accident, although neither of them saw plaintiff's injury. Both Maicke and Macklin testified that they had just finished a conversation with plaintiff and were standing outside of the van facing away from it while plaintiff was inside the van preparing the equipment. Maicke stated that shortly thereafter, he heard a “bang.” Macklin testified that he heard a “loud thud that shook the van.” Plaintiff then exited the van holding his head and said that he hit his head on the periscope. Maicke stated that plaintiff had an open wound on his head about one-half inch long. He advised plaintiff to seek medical attention. Maicke learned that plaintiff later went to the hospital after suffering a seizure.

Calnan testified that he was the founder and president of IST in 1999 at the time that the State's Attorney's office acquired the IST-6000 surveillance van that is the subject of this case. Generally, he stated that clients chose the surveillance equipment they wanted and Calnan configured the placement of that equipment inside the van. IST's engineers then installed the devices and Calnan and his employees trained clients to use them. Calnan testified that he designed the interior of all of the IST-6000 vans the same way, in part because there was so little space inside the cargo area in which to fit all of the equipment. Specifically, he always installed the video periscope system in the same place because it provided the optimal view for conducting surveillance. He also testified that IST's competitors in the surveillance van industry installed the equipment in the same place in the cargo area of the van because of limited space and configuration options.

Calnan also testified that he purchased all of the periscopes for the IST-6000 vans from All Star Machines, which designed and manufactured the periscopes. Calnan testified that All Star affixed yellow and black warning tape and foam padding to the base of its periscopes. According to Calnan, although other companies also manufactured periscopes, All Star was the only one that put warning tape and padding on its periscopes. Calnan testified that IST installed the periscopes in the same condition as it received them from All Star and did not modify the equipment or remove the warning tape or padding.

Calnan also testified that when IST delivered vans to its clients, it provided them with an operation manual and extensive training on the use of the equipment. The operation manual described the video periscope as follows:

“[I]t does not take up inordinate amounts of interior space. But, and this you will learn from experience, [it] protrudes down from the ceiling of the surveillance platform, especially when you are entering and exiting the vehicle through the side doors. We have installed a wide yellow adhesive stripe all around the base of the unit to minimize head damage (your head, not the scopes), but you must remember to use your own level of precautions.”

Calnan also testified that IST conducted a program called “Train the Trainers,” in which IST employees trained representatives of their law-enforcement clients to use the van and its equipment. According to Calnan, the representatives would then be responsible for training their own investigators. The representatives operated every piece of equipment under IST's supervision and conducted a mock surveillance exercise during the training, which lasted one to three days. IST then had the representatives make a training video that they could use to train their investigators. Additionally, IST required the representatives to sign a statement attesting that they received all of the equipment they ordered; both IST and the client received a copy of that statement.

DiFrisco testified that he joined the named defendant company, IST (Innovative Surveillance Technology), in August of 2004. IST ceased operations in September of 2006. DiFrisco then formed International Surveillance Technology in October of 2006 and acquired assets and personnel from the predecessor company. He testified that he responded to document discovery requests related to this case, but he had little direct knowledge of the features or design of the van provided to the State's Attorney's office because he joined IST after the van was...