Walker v. Trico Manufacturing Company, Inc.

• Citation: 487 F.2d 595
• Decision Date: 14 September 1973
• Docket Number: No. 72-1721.,72-1721.
• Parties: Hazel WALKER, Plaintiff-Appellant, v. TRICO MANUFACTURING COMPANY, INC., a foreign corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

487 F.2d 595 (1973)

Hazel WALKER, Plaintiff-Appellant, v. TRICO MANUFACTURING COMPANY, INC., a foreign corporation, Defendant-Appellee.

No. 72-1721.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1973.

Decided September 14, 1973.

Rehearing Denied October 30, 1973.

Certiorari Denied March 18, 1974.

COPYRIGHT MATERIAL OMITTED

Joseph A. Rosin, Chicago, Ill., for plaintiff-appellant.

Howard T. Brinton, Harold W. Huff, Chicago, Ill., for defendant-appellee.

Before SWYGERT, Chief Judge, FAIRCHILD and STEVENS, Circuit Judges.

Certiorari Denied March 18, 1974. See 94 S.Ct. 1564.

SWYGERT, Chief Judge.

Plaintiff-appellant, Hazel Walker, appeals from a jury verdict for the defendant in her action to recover damages for an injury she sustained when her left hand was crushed in a blow-mold machine that was manufactured by the defendant. Plaintiff's action was brought in federal court under diversity jurisdiction, making the law of Illinois applicable.

Plaintiff's complaint was based upon a products strict liability theory, specifically, that the defendant's machine was not reasonably safe for operators because the safety device was improperly designed and that the improper design was the sole proximate cause of plaintiff's injury. To understand this theory, it is necessary to attempt an explanation of the operation of this rather complicated machine.

Defendant's blow-mold machine is designed to produce plastic products by extruding a hot cylinder of plastic between two die faces, each of which is shaped like a half of the product to be produced. The dies are set in a mold which closes upon the cylinder of plastic. Air is then forced into the cavity between the die faces and the plastic is literally blown into the shape of the die. When the cycle is completed, the mold automatically opens and the machine operator reaches between the then separated die faces and removes the finished product.

The cycle begins by the activation of a switch referred to as the "limit" switch. The limit switch is not usually touched by the operator. Rather, the machine is designed with a large sliding glass safety shield which slides horizontally in front of the open die press area. When the glass shield is slid into the closed position, the area in which the die faces come together is completely shielded so that the operator cannot have his hands in the machine when the die faces close. Sliding the glass shield into the closed position also automatically activates the machine by causing the limit switch to be tripped by a metal finger which projects from the upper right hand side of the sliding glass panel. The machine is "dead" when the glass safety shield is in the open position and will close only when the limit switch is tripped. Theoretically, the switch can only be tripped by sliding the safety shield in front of the die face area to its closed position. In actual fact, however, the limit switch was placed in such a position on the machine that it could be depressed by the operator. The evidence demonstrated that it was within easy reach of the operator and could be activated either intentionally or unintentionally.

It was plaintiff's theory that she accidentally depressed the limit switch while she was attempting to dislodge a piece of plastic which had become stuck on one of the die faces. Specifically, plaintiff asked the jury to infer, though she did not actually know how the machine was activated when the safety shield was open, that her right hand accidentally depressed the limit switch while her left hand was between the die faces trying to free the stuck plastic. No one actually saw the accident. The foreman testified that when he found the plaintiff she was unconscious but that her right hand was on the frame of the safety shield in close proximity to the limit switch.

Defendant's liability was predicated upon two interlocking factors: (1) that the machine was unreasonably dangerous because the limit switch was placed within reach of the operator where it could be accidentally activated, and, (2) that the machine was unreasonably dangerous because the designer failed to cover the switch in a manner which would prevent accidental activation.

Evidence adduced at trial consisted, in part, of testimony by defendant's president and an engineering expert for each party. Plaintiff extracted from the president an admission that he had actually foreseen the possibility that an operator might accidentally activate the limit switch and that he had even considered placing a cover over the switch to obviate this danger, but decided not to do so. Plaintiff's expert testified that in his opinion the placement of the limit switch within reach of the operator without some form of safety shield rendered the machine unreasonably dangerous. He further stated that other blowmold machines produced by different companies placed a shield over the switch. Defendant's expert and its president, the machine's designer, both testified that in their opinion the machine was not unreasonably dangerous. They further stated, over plaintiff's objection, that it was the practice in the trade not to shield limit switches.

In addition to asserting that the machine was not unreasonably dangerous, defendant sought to prove that plaintiff was misusing the machine at the time of the accident and, in the alternative or in addition, that she had assumed the risk of her actions. The trial court gave instructions on both defenses.

I

The plaintiff contends that the trial court erred in submitting to the jury an instruction on the affirmative defenses of misuse of the product and assumption of the risk. Her point is well taken, for neither defense has any...