Wortel v. SOMERSET INDUSTRIES INC.

• Decision Date: 24 May 2002
• Docket Number: No. 1-00-3983.,1-00-3983.
• Citation: 770 N.E.2d 1211,264 Ill.Dec. 515,331 Ill. App.3d 895
• Parties: Lisa WORTEL, Plaintiff-Appellant, v. SOMERSET INDUSTRIES, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

770 N.E.2d 1211

331 Ill. App.3d 895

264 Ill.Dec. 515

Lisa WORTEL, Plaintiff-Appellant, v. SOMERSET INDUSTRIES, INC., Defendant-Appellee.

No. 1-00-3983.

Appellate Court of Illinois, First District, Sixth Division.

May 24, 2002.

Rehearing Denied June 12, 2002.

Kralovec & Marquard, Chartered, Chicago (William E. Spizzirri, Michael T. Sprengnether, of counsel), for Appellant.

Jack T. Riley, Johnson & Bell, Ltd., Chicago (Thomas H. Fegan, Kelly N. Warnick, of counsel), for Appellee.

Presiding Justice GALLAGHER delivered the opinion of the court:

Plaintiff, Lisa Wortel, appeals from the trial court's order granting summary judgment entered against her in favor of defendant, Somerset Industries. We reverse and remand. In this opinion, we clarify that the existence of an open and obvious danger is not a per se bar to finding that a product is unreasonably dangerous because of defective design so as to subject a manufacturer to liability.

Facts

On May 13, 1996, plaintiff was injured at work when her left hand became caught in the rollers of a pizza dough rolling machine designed and manufactured by the defendant. On June 6, 1997, plaintiff filed a two-count complaint against defendant.

In count I of her complaint, plaintiff alleged that defendant was negligent in one or more of the following ways:

"a. Carelessly and negligently failed to provide a proper and adequate safety system on said machine;

b. Carelessly and negligently failed to provide proper and adequate warnings to notify users of various dangers associated with the machine; and,

c. Carelessly and negligently designed said machine in a manner so as to allow a machine user to cause her hand to come into contact with the machine's rollers while the machine is in operation."

In count II of her complaint, plaintiff alleged strict liability against defendant, claiming that the following conditions rendered the pizza dough rolling machine unreasonably dangerous:

"a. It was designed, manufactured, sold or otherwise placed in the stream of commerce with an inadequate safety system b. It was designed, manufactured, sold or otherwise placed in the stream of commerce with inadequate warnings concerning the safe operation of the machine; and,

c. It was designed, manufactured,. sold or otherwise placed in the stream of commerce in a manner which allowed the user of said machine to expose the user's limb to the roller portions,of the machine while the machine remained in operation."

In moving for summary judgment, defendant argued that any claimed danger regarding its pizza dough rolling machine was open and obvious and, therefore, could not be deemed unreasonably dangerous or defective and there also was no need to warn of such an open and obvious danger. After full briefing by the parties, the trial court granted defendant's motion for summary judgment.

Standard of Review

Because the trial court, when deciding a motion for summary judgment, makes a determination as a matter of law, the trial court's decision is entitled to no deference. Jarke v. Jackson Products, 258 Ill.App.3d 718, 721, 197 Ill.Dec. 230, 631 N.E.2d 233, 236 (1994). Our review of the summary judgment granted to defendant is de novo. Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill.2d 17, 30, 241 Ill.Dec. 627, 719 N.E.2d 756, 764 (1999)

. Although summary judgment can aid in the expeditious disposition of a lawsuit, it is a drastic measure that should be allowed only "when the right of the moving party is clear and free from doubt." Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). Summary judgment is properly granted where the pleadings, depositions, admissions, affidavits and exhibits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998); Petrovich, 188 Ill.2d at 30-31,

241 Ill.Dec. 627,

719 N.E.2d at 764. A triable issue of fact exists where there is a dispute as to a material fact or where, although the facts are not in dispute, reasonable minds might differ in drawing inferences from those undisputed facts. Petrovich, 188 Ill.2d at 31,

241 Ill.Dec. 627,

719 N.E.2d at 764. At the summary judgment stage, a plaintiff is not required to establish his case as he would at trial, but he must present some factual basis that would arguably entitle him to a judgment. West v. Deere & Co., 145 Ill.2d 177, 182, 164 Ill.Dec. 122, 582 N.E.2d 685, 687 (1991).

"A defendant who moves for summary judgment may meet its initial burden of production in at least two ways: (1) by affirmatively disproving the plaintiff's case by introducing evidence that, if uncontroverted, would entitle the movant to judgment as a matter of law (traditional test) [citation], or (2) by establishing that the nonmovant lacks sufficient evidence to prove an essential element of the cause of action (Celotex test) [citations]." Williams v. Covenant Medical Center, 316 Ill.App.3d 682, 688-89, 250 Ill.Dec. 40, 737 N.E.2d 662 (2000).

The Williams court further explained that it is the movant who bears the burden of persuasion and the initial burden of production. Williams v. Covenant Medical Center, 316 Ill.App.3d 682, 250 Ill.Dec. 40, 737 N.E.2d 662 (2000). Thus, where a defendant is the movant, it is only when the defendant satisfies its initial burden of production that the burden shifts to the plaintiff to present some factual basis that would arguably entitle her to a judgment under the applicable law. Williams, 316 Ill.App.3d at 689, 250 Ill. Dec. 40, 737 N.E.2d at 668. Here, because defendant failed to satisfy its initial burden, it was not entitled to summary judgment. Contrary to the dissent's view, no burden shifted to the plaintiff. Moreover, contrary to the dissent's statements, plaintiff here did present a factual basis that would arguably entitle her to a judgment. West v. Deere & Co., 145 Ill.2d 177, 182, 164 Ill.Dec. 122, 582 N.E.2d 685, 687 (1991); Williams v. Covenant Medical Center, 316 Ill.App.3d 682, 250 Ill.Dec. 40, 737 N.E.2d 662 (2000).

Strict Liability

The Illinois Supreme Court set forth the elements of an action sounding in strict liability in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). A plaintiff in a strict liability case must prove that a product was in an unreasonably dangerous condition, that the condition existed at the time it left the manufacturer's control, and that the condition was a proximate cause of the plaintiffs injury. Suvada, 32 Ill.2d at 623, 210 N.E.2d at 188.¹ Ordinarily, the determination of whether a product is defective, and therefore unreasonably dangerous, is a question of fact for the jury. Korando v. Uniroyal Goodrich Tire Co., 159 Ill.2d 335, 344, 202 Ill.Dec. 284, 637 N.E.2d 1020, 1024 (1994); see also Doser v. Savage Manufacturing & Sales, Inc., 142 Ill.2d 176, 196, 154 Ill.Dec. 593, 568 N.E.2d 814, 823 (1990) (noting that whether product is unreasonably dangerous for failure to incorporate safety devices is question of fact that jury should resolve).

Consumer Expectation Test

In Hunt v. Blasius, 74 Ill.2d 203, 212, 23 Ill.Dec. 574, 384 N.E.2d 368, 372 (1978), the Illinois Supreme Court determined that an exit sign post without a "breakaway" design contained no legally cognizable defect, as there were no facts indicateing that the post subjected motorists to any unexpected risks. In so doing, the court relied on section 402A of the Restatement (Second) of Torts and pronounced that strict liability applies only when a product is"`dangerous to an extent beyond that which would be contemplated by the ordinary [person] * * *, with the ordinary knowledge common to the community as to its characteristics.'" (Emphasis omitted.) Hunt v. Blasius, 74 Ill.2d at 211-12, 23 Ill.Dec. 574, 384 N.E.2d at 372, quoting Restatement (Second) of Torts § 402A, Comment i (1965). This simple test has come to be known as the consumer contemplation test or the consumer expectation test. See W. Keeton, Prosser 99, at 698-99 (5th ed.1984). Defendant, in its motion for summary judgment, citing Hunt v. Blasius and two other cases, relied exclusively on the consumer expectation test.

Under the consumer expectation test, "[i]njuries are not compensable * * * if they derive merely from those inherent properties of a product which are obvious to all who come in contact with the product." Hunt v. Blasius, 74 Ill.2d at 211, 23 Ill.Dec. 574, 384 N.E.2d at 372, citing Genaust v. Illinois Power Co., 62 Ill.2d 456, 467, 343 N.E.2d 465 (1976). Moreover, courts have decided that no warning is required when a danger is obvious. McColgan v. Environmental Control Systems, Inc., 212 Ill.App.3d 696, 701, 156 Ill.Dec. 835, 571 N.E.2d 815, 818 (1991). The rationale for this rule is that nothing of value is gained by a warning where a danger is open and obvious and generally appreciated. McColgan, 212 Ill.App.3d at 701,156 Ill.Dec. 835,571 N.E.2d at 818.

Plaintiff argues that the specific danger here was not open and obvious. Although it would appear that plaintiffs injury derived from the inherent property of the product, which was obvious to all, namely, to "pull" items "forward toward the rollers," whether the items were pieces of dough, long sleeves, hair or, in the instant case, fingers, plaintiff argues that she did not expect, nor would any user, that a slight nudge of the dough would result in her fingers being dragged with, the dough into the rollers because the combination of speed and rotational force upon viscous dough is not readily apparent. Plaintiff contends that the open and obvious risk described by the defendant is not the risk which precipitated plaintiffs injuries. Plaintiff distinguishes the general risk of the rollers when placing one's hand deep enough into the machine so as to put it into "the depths of the location of the rollers," from the specific...