*1 Corpor- al., H. Lewis et Plaintiffs-Appellees, Steam-Steel Willie American Defendant-Counter-Claimant-Appellant (General ation, — Counter-Defendant, Intervenor, Appellee.) Transportation Corporation, 53140; (No. 16, 1972.
First District June *3 TRAPP, concurring. J., specially P.
CRAVEN, J., dissenting. Guritz, and of Chicago, (L. Vogel & H. Robert coun- Vogel, Vogel appellant. for sel,) Litwin, Howard, Stuart Chicago, (William Harte and N. E. Philip J. H. for Willie Lewis. counsel,) appellee Ellis, Hodson, Masters, P. Chaffetz &
Kirkland, Chicago, (Caryl Kearns, of for General Ameri- counsel,) appellee and W. Bonotto John Transportation Corporation. can REHEARING AND ON AS MODIFIED SUPPLEMENTED
OPINION of the court: delivered the opinion SMITH Mr. JUSTICE disregard we can appeal, presented by the many questions Of and Company, Pedrick v. Peoria Eastern R.R. the if rule all but one rule, know, is This as we is applicable. 37 Ill.2d n.o.v. entered that simply ought judgments verdicts directed evidence, in its aspect in those cases in which viewed all when only that favorable favors movant opponent, most to the so overwhelmingly stand. contrary no verdict based on the evidence could ever not for the jury’s Whether the presents question a factual or proof consideration, at least state, difficult in easy while application —or be, as is the here. Defendant moved for a directed verdict and case said, judgment for a n.o.v. and As we have from their denial it appeals. raised, it other issues we but we do not reach them if believe all may fairly be said that most favorably evidence viewed so favors defendant verdict overwhelmingly contrary on the based evidence could stand. It is our judgment ever and that trial court error in case defendant’s denying motion for judgment verdict. notwithstanding
This conclusion recital all of evidence. summary mandates injured severely—when Plaintiff some sheets flooring steel — their bundle container struck him in panels slipped like of nailable steel happened back. this. Bundles flooring panels were delivered to plaintiff’s for use the manufacture employer construction of on freight railroad were unloaded and They cars. stored for later removal to premises the erection Each panel flooring site. wide, was about four feet four feet high eight long. seven feet were stacked one on other and They a bundle consisted top fifteen with wooden each Under- strips separators. between as the first x neath of the fifteen were panel three 4" (counting upwards) 4"’s which acted as a so forks lift pallet of a fork truck could Widthwise, bundle the bundle was encircled scoop up. by three steel which were stapled bands the three 4"x4"’s served as them we have seen to make were pallet. There no steel bands running lengthwise. Fifteen panels with wooden interspersed separators ran 5,000 to about four feet. It height weighed or thereabouts. pounds, Since must, evidence, we are viewing as we most light favorable against plaintiff (opponent) movant (defendant) we will assume as proved the fact steel widthwise were bandings loose. This avoids extended discussion as whether wood green was used *4 it separators effecting, argued, so was the loose condition. shrank — Incidentally, defendant did not do the actual but it bundling, rather was done another under its direction and control. Such other party drawings, these, furnished and according was were lengthwise bands to be used if the bundle of were to be panels loaded for shipment cross- wise in railroad car and if the would then extend the panels above sides the car. While that the drawing specified wood separators 146
were of hardwood, to be 3¾" x¾" it was silent as the of wood type will and whether it should be otherwise We painted impregnated. case, as will it in green assume wood shrink and maybe did said, the a “hand enough put we widthwise was loose—loose banding in between”.
On the moved question, one of these was morning being bundles within the carried plant the lift the Initially, operator fork truck. it to bundle about a half the then raised foot and a above but ground, the bundle get over The bottom of some machines. the top welding view, was some his for as now four feet above floor. obscured the This feet, earlier, recited thus assum- the of the bundle about four height was bundle, he the his ing that could see from under nothing very little vision so obscured the to a feet. While height eight was from floor and, the truck the front into hole moving, tipping left wheel dropped course, bundle, of the panels which fell off. One fork might avoided the struck the No issue is made he have plaintiff. suffered, The facts are he was in at fault. injuries any or that he the bundle and the coming, falling, that he did not even see truck came to rest panels towards About half of panels him. cascading into half of the fork lift the other went against prong plaintiff’s one out panels sliding work area. One of the witnesses described of the plain- cards” in the direction on other “like a deck of top down gradually the stairs tiff—“the load down just going whole not broken and remained bands were one another”. The steel three the truck. As we have leaning against around the width of the panels seen, bands. lengthwise there were we sum is a evidence have summary
We think this fair most favorable to Since light plaintiff. marized it we feel far Indiana, though its so as we governs, law accident occurred Products, there, Metal see, Seargeant (Cornette rules applicable Co., here, Motor Inc. v. White 652), (Indiana) (Suvada the same. action was based N.E.2d Plaintiff’s 182), Ill.2d is, result that the proximate in tort and negligence, on strict liability condition unreasonably dangerous of his occasioned injuries was defendant in the design negligence or the of defendant’s case: action is products put, plaintiff’s Simply bundle. dan dangerous, that such unreasonably That the bundle of fault, his caused condition defendant’s and defective gerous under either the there is sufficient evidence here that says He injuries. tort verdict. support or strict theory negligence cause proximate plain- other hand on the argues Defendant
147 bundle— product or of its mishandling the misuse was injuries tiffs —the its part. tort on mishandling negates liability that and others by defendant —of misuse as characterized here —or Was use duty matter of law—for a foreseeable it—as a reasonably its product mishandling— more accurately that “misuse” —here said to arise. is well, because such defect causation as of a and the existence negates is itself responsible rather than the condition of mishandling v. Clark Co. 237 Equipment DC injuries. (Greeno (1965, Ind.), is a said that a defective condition condition There it was F.Supp. 427.) handler, unreasonably which is the user or and contemplated by him, is, than would be dangerous contemplated to more dangerous ordinary knowledge community user with ordinary is, uses, misuse, that a use different and but that a to its characteristics to be safe users— contemplated by ordinary or more strenuous than refute condition causation”. a misuse —“would either a defective or is: the misuse here foreseeable? Or does this Again the Was question or “misuse” be “mishandling” really ever beg question —for is Regardless, foreseeable as a matter of law! the test— foreseeability to the to foresee duty the defendant here owe perceive did could, to. If it its the use its did or then put (or misuse) be defective or a condition which unreasonably would and other elements of strict dangerous present, if here Foreseeability encompasses angle could ensue. part aspects and An sufficient and a angle force. to cause force sideways slipping, sufficient to falling. cause a movement —a the question another could not it be
Putting way, reasonably this bundle of steel panels, its contemplated considering weight breadth, and its its built-in height, length its widthwise band pallet, be carried ing, always would on a level to forestall sideways slippage. foreseeable that this unreasonably Was it of steel bundle plates, weigh tons, two one-half would be on ing dropped its its end with upper Greeno, In most some feet? falling eight words of in our different or use more strenuous than that happenstance opinion have been reasonably contemplated which could by defendant. It was the bundle! If certainly “misuse”, an unsafe handle so this it can said, in refutes the existence be effect condition in Evans v. General Motors Corp. As therefore causation. was said 822 with “A regard 359 F.2d automobiles: manufacturer (1966), make his not under a automobile duty accident-proof fool-proof; more’ safe he render where the danger nor must vehicle be Evans holds, duty, to all.” The which a avoided obvious manufacturer for the court. owes to the users its issue of law product presents A manufacturer is not an insurer and he is not bound anticipate hence To Schemel mishandling product. foresee its paraphrase General Motors attendant on Corp. (1967), dangers F.2d height two and one-half tons of steel from a dropping panels sideways Schemel, it feet is neither latent nor concealed. In was held eight foresee that a vehicle could while an automobile manufacturer can limit, it was “not bound to speed anticipate excess operated reckless careless misuse of his guard against grossly product by drivers”. i.e.,
In
of defendant to foresee
use
duty,
determining
*6
flow, we must
injuries
weigh
difficulty
to
had from which plaintiff’s
be
use,
of
from the
injury
against
risk
foreseeing
eliminating
and
magnitude,
and in
of the risk of
user’s
probability
both
gravity,
and
defects. As
prevent
reliance on the defendant’s
to discover
ability
Co.,
v.
&
in Dunham
Bushnell
Vaughan
Mfg.
Ill.App.2d
we said
is
unconventional and the cost
extremely
So here defendant truck been misuse of its fork lift drivers whose vision has product” and falls into a hole its to tilt and causing obscured whose truck load A ton steel 4'x4'x8' is to be handled package, fall. two and one-half extrinsic, which are warning dangers with care. It needs no sign intrinsic, exoteric as to latent and Its opposed and esoteric. patent, condition when tilted at a is so that an height apparent dangerous Evans negligence omission to discern such would itself. Paraphrasing be to above, here is not under a make its bundle steel duty defendant render its nor must it bundle more fool-proof” panels “accident-proof avoided is obvious to Section 402A safe to all”. As danger “when be Torts, 2d, of the Law comment provides (g): the Restatement not liable when he delivers the a safe con product “The seller is make dition, other causes it harmful subsequent mishandling * *." * it is the time consumed section of the Restatement in like of the same vein states: (h) Comment it is not in a defective condition when is safe for “A product If the results from abnormal consumption. injury normal handling is knocked a radiator to beverage against as where bottled handling, use, preparation or from abnormal for as where too remove cap, food, much salt added to or from abnormal as where consumption, ill, is not seller a child eats much and is made too candy * * *." liable us as The of defendant’s here —the bundle—strikes it In our anything opinion but normal rather it is handling, abnormal. harm, only was the mishandling, not the which caused product, “mis- if such be can be it ceases to foreseen (at point reasonably now a does a what is handling”) duty rectify arise to do something out, is obliged As defendant if a manufacturer points condition. to foresee that a consumer its and one-half ton product, will two drop then any such hence defective ipso dangerous, would be facto and hence liable—in above effect insurer. Under the criteria set forth from Dunham we perceive duty anyone prevent happen- stance is used in the falling. only when be foreseen that a arises. The fact that it be fore- duty reasonably could seen that a fork lift truck be to move the bundle is not would used the same as that defendant saying reasonably could have foreseen (and therefore under a duty to would attempt prevent same) truck fall into a hole its load tilting causing to cascade out.
To
it another
there
put
way,
liability,
must
more than an
injury
plaintiff. (Fanning
LeMay, 38 Ill.2d
reasonably the for the danger, orbit of is the danger orbit so perceived. Because cannot say we here that defendant should have so perceived, so, find no if duty, we action must plaintiff’s fail. That *7 two and one-half tons of steel is a hazard falling cannot be but gainsaid, this is different from that a manufacturer saying who bundles such must guard against such happening. however,
Plaintiff argues,
lengthwise
that
if
bands had been
or
present,
the widthwise bands
tighter,
hazard
here could
present
have been
He
avoided.
points
defendant’s
that
shipping requirements
if
bundle
is to be carried crosswise in a railroad car and extend
above the
lengthwise
sides
But
strapping
required.
is
the nonforesee
ability what did happen
defendant
heavily outweighs any duty upon
bundle,
the ends of the
strap
and in saying
assuming
such we are
that lengthwise bands would have held the
in. Whether such
inis
fact
is
true
The
pure speculation.
same can be
for the
said
widthwise
here,
At
banding.
least it
because there was no
they
evidence
would. Rather it seems
of the steel bands
purpose
lengthwise
was for
of rail
purpose
shipment. As was said
v. Barber-Col
Day
man
494,
Company, 10 Ill.App.2d
150
“* « # design of itself to use a negligence particular is not [I]t a doing or product or method in the manufacture or a handling industry, in the customary safe and in use job which reasonably not, or industry other use in the although designs, whether possible * * fact that an safer *. The conceived which would be might be was, avoidable, have might conceivably, conceivably, accident that there was finding been a jury does not warrant prevented in not and providing or the defendant negligence by anticipating fault it.” against mishandled only
The hazard into existence when bundle came its in such a that it contents. tipped spilled The to make its duty product defendant was devolving upon and for a lift truck only safe for normal fork reasonably handling by foreseeably foreseeable or ways reasonably in other were then, is what a reasonable manufacturer should probable. The standard or If the be used handled. might likely as to how its anticipate product hardly all the circumstances is likelihood of a under dangerous handling not of fact and a of law and duty question lack of becomes probable, here. Again, is the situation the Pedrick rule This applicable. becomes said in as we Dunham: the Court Hardman the determination of
“We persuaded 681, 42, Inc., Industries, Ill.App.2d v. Helene Curtis ordinary of what constitutes an it is said that the question where of careless foreseeability of fact and that question use is a clearly fact, was, in a the use of product is matter for a unless jury, use be taken from case should so unintended unforeseeable the jury” to the
Thus far we discussed the of the defendant have from a of a misuse another standpoint product by party —in instance fellow whether or not that such misuse employee—and manufacturer. we have noted reasonably foreseeable Earlier in this case is less character accurately the conduct of the user perhaps is, “mishandling”, ized as a misuse as it is a mishandling of an condi knowledge existing dangerous with the present apparent mishandled). We think it is clear from tion when so handled (or Co., N.E.2d Williams v. Brown 45 Ill.2d Mfg. careful reading the tort of fore concept that there difference between is a marked the con mishandling based on a misuse seeability results from a mishandling risk which cept assumption an existing dangerous knowledge present apparent with Foreseeability handled or mishandled. part condition when so *8 is, the seedbed from which a to foresee duty tort that liability, parcel and parcel act. This is reasonably part the of one’s own consequences such duty observe no based tort and we liability case on plaintiffs here. an defense. hand,
On risk is affirmative assumption the other case, In in other instances lift that he had operator the testified bundle and was that loose on the observed the bands were restraining It is obtained. aware that circumstance frequently generally such aware have been not was or should unreasonable to conclude he feet, coupled fact four raising the these additional with cause con slippage with the on his would visibility part, obscured true, there to others. This sequent being to himself and possible danger is the user or consumer liability under where theory products to him. The a owed manufacturer product benefit from duty circumstances from manufacturer is insulated under such him where the user reason very cogent that no rests duty upon of its con knowledge dangerous mishandles or misuses the with result proximate dition when handled so and where so or misused foreseeability such action is an to or injury assump himself. Whether used, risk is tion of there is no here the user-consumer. duty context, at who, given in was a bystander merely our What at a time. It the facts here place given is under that the patent unaware his work for merely engaged employer his not assume himself. It that he could and did not danger to is any patent mishap occurring determined that here We have already risk. is bystander manufacturer. So far as con- was not foreseeable in its foreseeability here we deal with solely question cerned absence, bystander. there can be no
The line between the bystander user-consumer dividing tenuous, is is but is A to recover not bystander’s right narrow it there. per right to and neither se user-consumer’s recover dependent upon the fact, is from the other. In it right sense derived any perhaps might entitled to greater protection is than bystander innocent said acquaint who has the himself with opportunity user-consumer either of instruction through reading defects in the manuals any course, mean, does not or This manufacturer observation. bystander may not inconceivable that a assume the risk an insurer. It is danger product. of a known presence himself by positioning fact, If, however, is defective and injures as a matter of a product himself, not without positioned intervening has so bystander any who hand, On the other upon manufacturer. imposed agency, mishandles the with the here, the user-consumer knowl where mishandling apparent likely actual edge others, cause injury himself it is fact the tort of the user and *9 of the manufacturer that The non- the So it here. produces injury. the in this liability of manufacturer to the facts bystander under the case is not of predicated upon any active-passive theory negligence the upon any conception of risk. It is nonassumption predicated upon that there is no under circumstances proposition bystander to a the here shown so far as ini the manufacturer is To so hold is concerned. our and! context to make the this manufacturer an insurer plaintiff go beyond perimeter any proper concept products case, so far should have accepted by being courts. Such court entered a judgment n.o.v.
Left undecided as seemingly passe original opinion our appeal by defendant from the court’s motion for a trial denial of its new trial and also the dismissal of its counterclaim against plaintiff’s employer for under the indemnity liability. doctrine of “active-passive” Defendant now a requests Section 68.1 ruling points (6) Civil Practice (Ill. Act. Stat. This sec Rev. ch. par. 68.1(6).) tion, in part reads that the trial must rule relief sought court all upon in a post-trial motion even on one un though ruling point renders necessary on ruling other relief and that “conditional sought such become rulings effective in the event the unconditional are re rulings versed, set aside or vacated”. The section then that an say on goes from the appeal here, final judgment, as for the condi brings up review tional rulings, should, and that we if we the unconditional determine rulings erroneous, were then review and rul determine conditional i.e., the ings, refusal to trial grant a new and dismissal of the counter claim. the section Specifically, reads that “The court must rule [trial] all relief in all upon sought trial motions” and with to a post regard court, shall, reviewing “The court if it reviewing determines that the unconditional rulings erroneous, were review determine the condi tional rulings.” as,
We defendant’s appreciate request course, there is a possibility of further from us—which under appeal conjectural various situations might necessitate a remand to this court and otherwise en gender However, further we not think vexations. do this section man dates that a court should make conditional reviewing rulings —which precisely what requests defendant of us. We distinguish between review ing conditional rulings them. If determining rendering we had affirmed the trial court on the that a motion n.o.v. point judgment for course, then, properly denied, we should review denial of and the motion for a trial dismissal of the new counterclaim. But court the motion reversing, we direct that the for judgment allow us, Therefore, it seems to for defendant. n.o.v. and enter judgment the alternative on unnecessary ruling renders such action on our part rule True, court “must nevertheless the trial raised appeal. points For court. reviewing but not a relief sought”, on the other conditionally effect mean the determination us stance would to take different then be do for would matters, moot we should we think in a most case”, rendered precedent the “rule even —and in vacueo from shy Courts of review should setting. away imperfect that comes persuasiveness renditions lack renderings, as such real Accord- disputes. dispositive “fish and cut decisions that are bait” rulings for the denied. of defendant ingly, request remanded with direc- from is reversed and The judgment appealed and judg- be set aside and vacated judgment tions do, hold as question Because we ment defendant. we entered for to defendant becomes moot. employer over of plaintiff’s directions. and remanded with Reversed *10 Mr. PRESIDING TRAPP specially concurring: JUSTICE I concur in the result reached reasons not considered in either the dissent, the and which I have not principal opinion or found discussed in either cases or the voluminous literature reported subject upon of products liability.
It is suggested that within the definitions of the statement of products sometimes called manufacturer’s and of the liability, liability, several statement, in terms used has to make prima failed plaintiff facie case. 612,
In Suvada v. White Motor Company, 182, 32 Ill.2d the court said:
“The must that their plaintiffs injury damage or resulted from prove a condition of the that the condition anwas product, unreasonably one and that the condition existed at the dangerous time it left the manufacturer’s control.” language Torts,
This of the Restatement of the essentially Law of 2d, 402A. par.
Within such statement of the doctrine rule of strict it is liability, words, meaning to note of the important condition was “[T]hat one” dangerous as such is stated in unreasonably 402A of the par. defines Restatement. Comment and discusses (i) the denotation of the with this “unreasonably dangerous” words sentence: Section only “The rule stated applies where the defective it unreasonably condition of makes dangerous to the user * * *. The article sold must be dangerous or consumer to an extent 154 that which would be consumer
beyond contemplated by ordinary the com- ordinary knowledge it with the common to who purchases as to its characteristics.” munity (Emphasis supplied.) 402A, in the language: Section a “defective condition” par. g, described is, the product “The rule stated this Section where applies only contem- hands, at the time it the seller’s in a condition leaves dan- consumer, unreasonably the ultimate which would be plated by to him.” gerous un- a latent arising through
Products of law theory in the oft-cited hazard the user is not aware is stated of which expected 57, 897, Products, Inc., P.2d Greenman v. Yuba Power 59 Cal.2d 377 1049, in the language: 13 A.L.R.3d plain-
“To establish the manufacturer’s it was sufficient a way that he injured using Shopsmith tiff while proved design in any it to be used as a result of a defect was intended the Shop- was not aware that made manufacture of intended supplied.) smith unsafe for its use.” (Emphasis In which have extended to non-users recovery cases reported under the the factual circum- theory products liability, bystanders condition unreasonably dangerous stances show that reported not, fact, v. to the In Elmore American operator. known user Motors, 84, 578, P.2d an almost new its 70 Cal.2d 451 car dropped bystanders. Nothing it to out of control and strike causing drive shaft go was aware of the condition. suggests operator in the opinion Arms, 129, Mich. a shot- Remington In v. 133 N.W.2d Piercefield injure bystander. weapon explode shell caused the gun shotgun would not be exploding reasonable to conclude that seems in White shell. The purchaser opinion contemplated Gallion, Inc., facts suggests showing Jeffrey F.Supp. In valve at issue had been observed to defective. steering car fact, there was no ram suggests operator opinion *11 concerned. 142, 694, Miller, an v. 26 Conn. 214 A.2d automobile Supp.
In Mitchell hill The injured allegation rolled down a another. gear left in “park” admitted demurrer transmission was of defective manufacture no factual aspects reported. Co., 418, Brown in Williams v. 45 Ill.2d 261 N.E.2d The opinion Mfg. of risk” a user does not “assumption discussion in its definition the terms used to or diminish the state enlarge modify, and in does not the statement modify liability particular products dangerous”. state of Such being “unreasonably opin meaning and in defining products liability restates actually principles ion 402A in particular “unreasonably dangerous” plead- the context par. ing and burden proof.
The record this case lift was clearly shows that user of the fork aware the bundles that were aware that such loosely strapped found, condition was to but regularly be such user nevertheless drove bundles in a blind fashion area known con- working into workmen, tain other as well as equipment tools.
We suggest is a defined products closely having liability concept as a condition, an keystone definition of unreasonably dangerous i.e., that there is a latent hazard causing unexpected during mishap the intended use of the product.
It is said usually that the rule as stated in par. 402A the Restatement does not make the manufacturer an insurer of his product. (Suvada White Motor Company, Ill.2d 182.) We suggest the rule or doctrine creating a manufacturer liability is not properly employed create manufacturer to a bystander where user, fact, acts or uses the with of a known knowledge condition, obvious and such acts are negligent or even wilful and wanton in their The performance. manufacturer should become an insurer of the conduct of the through user because of imposed sale of his product.
Within the definition of product or manufacturers liability, plaintiff has not prima made a case. facie CRAVEN
Mr. dissenting: JUSTICE In this case the plaintiff presented virtually uncontradicted evidence to establish the existence of a condition; in a was defective at the time it left control; the seller’s of a causal existence relationship between the defect and the plaintiff’s injuries.
There is no but controversy that the steel bands around this bundle of nailable steel loose. flooring were Whether they were loose because were on that they put because of the subsequent drying out green wood is immaterial. were They loose and the looseness is a defect.
The defendant knew should clearly have known nature of the required would with reference to its The product. evi dence does not establish that it was handled unusual, in any and certainly in no unreasonable, manner. Richard Brosky, operator of the fork truck, in his lift testimony described movement of the bundles in and through area, work congested over tracks, railroad and he described the fact that the left front fork wheel went into a hole—a hole located right under or the tracks and the hole was only two or three inches
156 of the The driving twelve or inches across.
deep eighteen some tilt to wheel into a minor caused bundle relatively depression steel of this totally the sheets of to slide out. The unaware plaintiff, it, feet thirty injuries and located from sustained operation twenty as described the ma when the of steel out is in flooring spilled sheets * * a cards.” This use jority deck of opinion * like and at most did of the foreseeable certainly present not a misuse certainly by plaintiff’s factual issue for is jury. from liability. the defendant co-worker so as insulate lack is liability The state that the defendant’s predicated majority by to a shown that there no as bystander upon proposition far as is concerned. evidence so the manufacturer strict as of the doctrine of application liability bystanders The Law Chicago article in the extensively University discussed in an Record, 38, relevant to issue (1971). Volume at 625 The cases page Corp., there Elmore v. American Motors collected. In discussing 84, 578, the author states: 70 Calif.2d 451 P.2d four together “The then stated constitute points court recov- judicial analysis bystander clearest and most comprehensive tort The rationale strict public policy underlying to date: ery (1) equally in Greenman is applicable bystander as announced cases; at- tort even the fact of liability applies since strict (2) disclaimer, not be limited on the may theory the doctrine tempted bystander; is made to to a safety (3) injury representation foreseeable the manufacturer and restriction on is often bystander of the re- recovery vestige disappearing is but a bystander privity receive greater should than (4) bystanders protection quirement; users, for defects and selec- may who inspect purchase consumers and tively.” a condition concept
Upon
disappearance
privity
prece-
been
innocent
why
dent to
no valid reason has
recovery,
suggested
in the defendant’s
recover.
defect
cannot
bystander injured
Brown,
802,
869,
Ill.App.3d
(leave
appeal
In Mieher
3
23,
Simkins,
for
unanimous
1972),
speaking
allowed
Mr.
May
Justice
Court,
relating
Fifth
collects and discusses
cases
District Appellate
bystander
to an innocent
for
to a manufacturer’s
observations,
and rationale
holdings,
I
agree
much
with
product. very
that a
determines
opinion
specifically
bystander
in the Mieher
status,
re-
not,
reason of that
barred
simply
seeking
non-user
a product.
from the manufacturer
covery
here,
the misuse
as a
further suggests
The majority opinion
Such determination is difficult
law,
was unforeseeable.
matter
157
& Bushnell
Vaughn
in Dunham v.
understand
view of
holding
our
339, 247
Co.,
315,
affd. 42
The thrust of the seems to be that special concurring opinion condition; subsequent user had of the knowledge defective constitutes, as knowledge apparently with law, that such matter risk assumption assumption risk is innocent seems imputed bystander. somehow another to the to me that such theory rejected. should As observed the court Gallion, Inc., White v. Jeffrey F.Supp. quoted with approval Mieher, it seems a user or incongruous say that consumer has of action right against manufacturer of a but an innocent bystander who from injuries has suffered no fault of his own it, Thus, has no I right action. see the special concurring resurrects the opinion doctrine of so privity doing retreats in Suvada philosophy v. White Motor found Company, Ill.2d 182, and, seemingly, interposes assumption of the risk by as an user absolute bar a non-user recovery as a bystander of law. matter complex other many
There issues case third to the relating party complaint, the issue of active and In- negligence under passive law, diana all of which were resolved the trial court in a comprehen- sive and scholarly There is no in this opinion. error record warranting appellate judgment interference. The upon entered the verdict should be affirmed.