Scaccianoce v. Hixon Mfg. & Supply Co.
| Decision Date | 21 July 1995 |
| Docket Number | No. 94-1999,94-1999 |
| Parties | Stephen C. SCACCIANOCE and Kellie L. Scaccianoce, Plaintiffs-Appellants, v. HIXON MANUFACTURING & SUPPLY COMPANY and Commonwealth Edison Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen P. Carponelli (argued), James E. Hussey, Albert M.T. Finch, III, Carponelli & Krug, Chicago, IL, for Stephen C. Scaccianoce, Kellie L. Scaccianoce.
Francis Spina (argued), Thomas R. Pender, Tressler, Soderstrom, Maloney & Priess, Chicago, IL, for Hixon Mfg. & Supply Co.
Robert Guritz (argued), Commonwealth Edison Co., Chicago, IL, for Commonwealth Edison Co.
Before COFFEY and RIPPLE, Circuit Judges, and SKINNER, District Judge. *
The plaintiff Stephen Scaccianoce ("the plaintiff") was working as a surveyor's helper when he was injured. He was using a surveyor's device called a prism pole, manufactured by the defendant Hixon Manufacturing & Supply Company ("Hixon"). A prism pole is used to enable a surveyor to sight lines where there are obstructions, such as underbrush, at ground level. It consisted in this case of a telescoping pole, which extends to 25 feet, with a prism mounted on the top designed to reflect a laser beam to an electronic surveying device, which registers the required angles and distances. The pole is also equipped with a levelling bubble at the height of the operator's chest so that the operator can ensure that the pole is vertical and accurately marks the point on the ground which is being located for the survey.
The particular pole used by the plaintiff was made of aluminum. It bore a label which read While the plaintiff was using the bubble level to adjust the pole, he accidentally struck an uninsulated overhead power line owned by Commonwealth Edison Company ("Edison") and was severely injured by a charge of electrical power which travelled down the pole and into his body.
In this action the plaintiff seeks damages from Hixon on the grounds that there was insufficient warning on the pole of the dangers of its use near overhead power lines, and that the pole was negligently designed by reason of the conductive material used in its manufacture. He originally sought damages from Edison on the grounds that there was no warning at or near the site, that the overhead power lines were uninsulated, and that weatherproofing on the lines deceptively created the appearance that they were in fact insulated. At oral argument, however, counsel narrowed his claim to the deceptive presence of weatherproofing. The claim against Edison is also cast under the rubric of product liability, the alleged "products" being the electricity and the wires. The plaintiff proceeded on the twin theories of negligence and strict liability against both defendants. The plaintiff's wife, Kellie L. Scaccianoce, has brought parallel claims for loss of consortium.
The district court, approving a magistrate judge's recommendation, allowed motions for summary judgment on behalf of both defendants against the plaintiff and his wife, and judgment was entered thereon. The plaintiff and his wife appeal from this judgment.
The bases for the district court's judgment in favor of Edison were the following:
1. Product liability applies to consumer products which have been placed in the stream of commerce. The electricity and the wires remained in the control of the defendant at the time of the accident, and product liability does not attach, citing Genaust v. Illinois Power Co., 62 Ill.2d 456, 343 N.E.2d 465 (1976).
2. The danger inherent in overhead power lines is open and obvious, and no warning is required, again citing Genaust. The "distraction exception" articulated in Ward v. Kmart Corp., 136 Ill.2d 132, 554 N.E.2d 223, 143 Ill.Dec. 288 (1990), only applies to landowners' liability and not to product liability. In the opinion of the district judge, the case of Harnischfeger v. Gleason Crane Rentals, Inc., 223 Ill.App.3d 444, 165 Ill.Dec. 770, 585 N.E.2d 166 (5th Dist.1992), which held to the contrary, would not be followed by the Supreme Court of Illinois.
3. As to the alleged negligent coating of the wires with purportedly deceptive weatherproofing, there was no evidence that the plaintiff's conduct was influenced by the presence of the weatherproofing, since he testified that he thought that all overhead wires were insulated. Furthermore, the plaintiff's witness Feinberg was not qualified to testify on safety matters.
We agree with the district court that Genaust is the controlling authority in this case with respect to the proposition that neither the electricity nor the wires were "products" subject to product liability law. We leave to the discussion of the case against Hixon the more perplexing issue of the impact of the "distraction exception" on the rules regarding open and obvious defects. We further agree that the causal connection between the weatherproof coating of the wires and the accident was not established. We would go further and declare that there is no credible evidence that applying a weatherproof coating to the wires was negligent, if we had authority to do so, but we do not.
Despite our agreement with the substance of the district court's rulings, we must nevertheless vacate its judgment. Neither the district court nor this court acquired subject matter jurisdiction over the claims against Edison. Originally the plaintiff and his wife brought this action in state court against Hixon only. Hixon removed the case to the United States District Court on the basis of diversity of citizenship (28 U.S.C. Sec. 1332). Thereafter the plaintiff moved to amend the complaint by adding Edison as a defendant (Counts IV, V and VI), and the amendment was allowed without opposition. Since the plaintiff and Edison are both citizens of Illinois, the requisite diversity was destroyed. Supplementary jurisdiction under 28 U.S.C. Sec. 1367 does not apply to parties added in diversity cases in contravention of 28 U.S.C. Sec. 1332. 28 U.S.C. Sec. 1367(b). It is well settled that subject matter jurisdiction can not be conferred by agreement of the parties. The motion to amend should not have been allowed. It is not necessary to dismiss the entire action, however, since Edison is not an indispensable party, but only to dismiss Edison out of the case. Fed.R.Civ.P. 19(b) and 21. This we are obliged to do on our own motion even after judgment. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Krueger v. Cartwright, 996 F.2d 928 (7th Cir.1993). Accordingly, the judgment in favor of Edison must be vacated and the case remanded with instructions to dismiss the case against Edison for lack of subject matter jurisdiction.
The bases for the district court's judgment in favor of Hixon were the following:
1. There was no duty on Hixon's part to warn of the danger of overhead electric transmission lines, because it is an open and obvious danger, again citing Genaust, supra, and declining to follow Harnischfeger, supra. The court noted, in disagreement with the magistrate, that the adequacy of a warning is a question for the jury, but, since there was no duty to warn, there was no need to discuss the adequacy of the warning.
2. Even if the "distraction exception" were to apply, the plaintiff was not in fact distracted.
3. Furthermore, the plaintiff testified on deposition that he had read the warning on the pole and that he was aware of the danger of contact with electric current. Overhead electric power wires are an open and obvious danger as a matter of Illinois law, notwithstanding the plaintiff's subjective understanding that all such lines are insulated and the testimony of plaintiff's witness Feinberg to the contrary.
4. The plaintiff's witness Feinberg was not qualified to give expert testimony on safety standards. The testimony of the plaintiff's witness Dobson, proffered in the form of an answer to expert interrogatories, would not be considered, the plaintiff having failed to take his deposition or offer his affidavit.
5. The pole was not defectively designed because, as a metal pole, its inherent propensity to transmit electricity was obvious. Furthermore, it was capable of being safely used for the purpose for which it was intended. The plaintiff's injury was caused by his "misuse" of the pole. The plaintiff failed to satisfy his burden of proof that the design was defective.
We do not share the district court's certainty that the "distraction exception" announced in Ward, supra, would not be extended to product liability cases by the Supreme Court of Illinois. The district panels of the Appellate Court of Illinois are divided on the question. In McColgan v. Environmental Control Systems, Inc., 212 Ill.App.3d 696, 156 Ill.Dec. 835, 571 N.E.2d 815 (1st Dist.1991), it was held that the "distraction exception" applies only to premises liability and not to product liability. In Harnischfeger, supra, the exception was applied to hold the seller of a crane liable for failing to apply decals supplied by the manufacturer which warned of the danger of using the crane in the vicinity of overhead electric wires. Even though the operator was injured when the crane came into contact with "open and obvious" overhead wires, the seller could not escape liability where it should have foreseen the likelihood that the operator would be distracted by workmen, other equipment and "other elements." The distinction between premises liability and product liability is certainly not compelling, and may even be perceived as arbitrary, and we can not say with any confidence that the Supreme Court of Illinois...
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