*1 (Nos. 51335 cons . RUCKER, Adm’x,
MARCIA Appellee Appellant, J. et NORFOLK & WESTERN RAILWAY COMPANY al. American (General Transportation Company, Ap pellant Appellee).
Opinion Rehearing October 1979. filed denied November *2 Wilson, Robert W. Wilson, Burroughs, Simpson, Broom, Edwardsville, & for Hepler appellant. Pierce, Pratt, Pierce, T. Bradford 8c Jr.,
John Gitchoff, Ltd., Alton, of East for appellee.
Keith L. Davidson, of and Thomas F. Chicago, Patterson, B. of coun- Londrigan, Springfield (Robert for amicus curiae Illinois Trial Association. sel), Lawyers
MR. KLUCZYNSKI delivered the opinion JUSTICE of the court:
Defendant Great American Transportation Company tank manufactures liquified petroleum (LPG) (GATX) gas cars, of which in the Decatur one switchyard exploded Norfolk 8c & Western Railway (N W) Company on G. Rucker was an 1974. Clyde employee July His N & W and was killed as a result the explosion. Marcia, estate, his this widow, administratrix of as brought in the death and injuries action for personal wrongful N 8cW with of Madison circuit court County, charging et Act U.S.C. sec. 1 violations of the Safety (45 Appliance and the Federal Act seq. Liability (1970)) Employers’ et U.S.C. strict sec. seq. (1970)) alleging tort GATX and Petroleum Company Phillips against N 8cW lessor of the tank car. admitted liability (Phillips), Act, under and the claim under the the Safety Appliance Act was withdrawn Employers’ Liability GATX also liable and A found defendant jury plaintiff. $850,000 N W GATX for a verdict 8c returned against N 8cW indemnification from GATX sought damages. *3 but order of this and that matter was severed by Phillips, court, it in the circuit court. and remains pending a trial, N W and entered into loan-
After 8c plaintiff $700,000 W to N Sc advanced whereby receipt agreement from to that amount Plaintiff repay plaintiff. promised to “all recovered and any pursue legal judgment GATX. enforce the reasonable means” to judgment against court, the to On GATX’ findings appeal appellate affirmed, verdict was were and plaintiff’s liability GATX, however, motion to upheld; pursuant void, be and it was was held to loan-receipt agreement $700,000 be off as a “loan” set ordered that partial We allowed satisfaction (64 judgment of GATX and for leave appeal petitions respective issues. on the loan-receipt in is whether the first raised GATX’ issue appeal evidence GATX’ ruled that circuit court properly with Federal standards for the construction compliance LPG tank was Plaintiff cars inadmissible. that the alleged car was due to the absence of a defectively designed “headshield,” so-called a device that would protective shield the car from contact with other cars and damaging The car here was in manufactured in objects. 1971, and at the time Federal a require headshield C.F.R. The car therefore (49 pt. (1971)). met Federal as then existed even requirements they though no headshield was included. GATX was prohibited by circuit court’s from this evidence before the ruling placing and it this as error. jury, assigns
GATX us to test urges adopt whereby balancing risk and of the of the are gravity danger design weighed the burden of to avoid the against precautions necessary Such an it danger. analytical process, argued, assistance in whether a is unreason- determining test, this ably dangerous. undertaking balancing continues, consideration should be argument factors and, manufacturer’s choice influencing this a manufacturer’s with Federal regard, compliance standards should be considered as some that is not unreasonably dangerous. court this appellate rejected argument, primarily in reliance v. MacNeal Memorial upon Cunningham Hospi tal involved a Cunningham transfusion of blood serum and the containing hepatitis, the admission of evidence that sought infectious substance could not detected be under existing medical The court held that to detect knowledge. inability was “of no moment” hepatitis absolutely and the court in this case quoted portion Cunningham opinion ruling *4 evidence offered GATX was also inadmissible Ill. (64 770, 3d In Kerns v. 76 Ill. App. 781). Engelke 2d (1979), 154, 161, we held that a in a defect case plaintiff design 438 defect such a
could attempt prove introducing alternative feasible designs this result. in Cunningham holding preclude (See Products Liability Note, also Liability —Strict —Elimination the Art” 357, “State 41 Tenn. L. Rev. Defense, we believe that defendant GATX 362 Similarly, (1974).) should be allowed to show that alternative design and that such evidence required by “whether is relevant complained-of determining defect” Ill. was an unreasonably dangerous 154, court have Prior 2d opinions v. reached a similar conclusion in their (Wenzell holdings Products, 293-94; 279, MTD Inc. 3d 32 (1975), App. v. Home Service 16 Ill. Shopping (1973), Jonescue Jewel v. & or in dicta Dreis Krump 339, (Scott 345) App. n.5; 971, Co. 988 26 Manufacturing (1975), App. v. Inc. Pyatt Equipment, Engel (1974), App. 1070, and the from other authority 1073) great weight of the evidence likewise favors admission jurisdictions (see, Simien v. S. S. Co. Cir. 566 F.2d Kresge e.g., (5th 1978), Bruce v. Martin-Marietta Corp. (10th 551, 554; Cir. 1976), Okla. 418 F. 442, 447, 544 affirming (W.D. 1975), F.2d Industries, Inc. v. Husky 835-36; 829, (6th Supp. Johnson 648; Bellotte v. Zayre 645, Corp. (1st Cir. 536 F.2d 1976), Ford 1103; Fincher v. Motor 1100, Cir. 531 F.2d 1976), 106, 114, Co. 399 F. (5th Miss. 1975), Supp. (S.D. aff’d v. Co. La 657; 535 Gorga Kroger (W.D. Cir. F.2d 1976), v. Berkebile 378; Brantly F. Pa. 275 Supp. 1967), 479, 485, Pa. 281 219 Helicopter Corp. Super. (1971), Houston, 710; Boatland Bailey see also A.2d Inc. Civ. 585 S.W.2d (dissent) (Tex. offer evidence of the is allowed to applica (if features, manufacturer should a defendant bility and avail of relative cost be allowed to offer evidence Uniform the feature)). (Under proposed ability drafted Law, 44 Fed. Product Liability Reg.
439 Commerce, the would also of evidence the Department under be admissible circumstances.) specified that, We note our evidence of holding, compliance with Federal standards relevant to the issue of is whether is defective v. S. S. Cir. product (Simien Kresge (5th as well of as the issue whether F.2d 554), a defective condition is as GATX unreasonably dangerous, If contends. the is in with Federal product compliance standards, the of fact finder well conclude that the may defective, not is thus into strict product ending inquiry If a is entered that is liability. finding defective, evidence becomes compliance additionally relevant to the issue of whether the defective is The fact of unreasonably dangerous. compliance may indicate to the finder fact that the defect is not unreasonably dangerous.
Plaintiff contends that admission and use of the evidence in this fashion direct the fact finder’s improperly attention to the manufacturer’s conduct rather than the strict standards with those of replace liability however, traditional We do not that the negligence. agree, focus of the is not as it be inquiry must product, v. MacNeal Memorial (Cunningham Hospital (1970), The evidence which we that approve not conduct, a manufacturer’s product, conforms Federal standards. Any misapprehension negligence the standard of stems from of a liability only injection “reasonableness” element in whether a defec determining tive condition is states, As Prosser unreasonably dangerous. a strict case resembles a action liability design negligence because the reasonableness of the manufacturer’s design choice is a issue Torts sec. at key 644-45 (Prosser, (4th ed. resemblance, however, 1971)). the ele Despite ments of the remain those of an action in plaintiff’s proof strict On this we with liability. point, agree GATX. GATX, however,
doWe with as to the effect agree to be with Federal compliance standards. It Federal argues promulgation cars on the of railroad indicates subject regulations that no intention Federal authorities should liability are attach to manufacturers whose products compliance contention, with to GATX’ we those Contrary regulations. do not believe that on presence tort subject precludes imposition *6 to than State tort law standards more stringent according in the Federal We find no those contained regulations. in the Federal that the indication regulations preemption State tort law was intended. v. Textile of Riegel (Raymond 1027;Hubbard-Hall 1025, Cir. 484 F.2d Corp. 1973), (1st 402, v. 340 Chemical Co. Silverman Cir. F.2d (1st 1965), fact, it conclude that the would be reasonable to 405.) of is to insure and safety purpose greater the basis more that tort on imposition law is with this State consistent purpose (Ray- stringent mond v. Textile Cir. 484 F.2d Corp. 1973), Riegel (1st 1025, LPG tank is The issue of whether car in defective condition therefore an unreasonably dangerous v. Co. remains a of fact. S. S. Kresge (5th (Simien 556-58; v. 551, Cir. 566 Raymond Riegel F.2d 1978), 1025, 1027; Cir. 484 Textile F.2d Corp. (1st 1973), v. La Co. Pa. F. 275 Supp. Gorga Kroger (W.D. 373, 382-83; v. Corp. Berkebile Helicopter Brantly (1971), 707, The finder 710.) Pa. 281 A.2d 219 Super. is in an that a unreasonably of fact conclude may con- its defective notwithstanding dangerous to Federal standards. formity on is GATX raised appeal second issue by The in court erred plaintiff’s circuit admitting whether admitted circuit court accidents. evidence prior of LPG accidents punctures involving 42 prior danger tank cars for showing purpose
441 but no more than accidents involved design, here, the same situation as that exactly present puncture of the tank GATX contends that plaintiffs coupler. failed show that 16 accidents were remaining similar to the With this we accident. substantially present to be made disagree. point sought plaintiff the evidence is that the car is susceptible introducing without a headshield. Whether the was puncture puncture court, or other is means irrelevant. The circuit by coupler discretion, in its have therefore could determined that all were 42 accidents similar and relevant to the sufficiently issue of whether need be car was It dangerous. shown that the accidents in an occurred identical manner. Substantial is all that is Moore v. similarity required. Decatur & R.R. Co. Bloomington, Champaign (1920), The issue raised in is whether the plaintiff’s appeal court erred loan-receipt ruling trial, executed Nand & W after agreement, by plaintiff void. In Kerns 154, 169-70, Engelke we reviewed this area law extensively pointed out loan between and one agreements defendant are invalid if executed before the circuit court’s secret; it we also held judgment kept conclusively *7 the of “that use loan is where agreements only proper has not been reached.” Plaintiff’s is judgment argument therefore foreclosed our decision in Kerns. The $700,000 advanced to would be treated properly as a satisfaction partial of future any judgment.
The and circuit courts are judgments appellate reversed, and the cause is remanded to the circuit court of Madison for a new trial not County inconsistent with the views herein. expressed
Reversed and remanded. MR. CHIEF GOLDENHERSH, with whom JUSTICE MR. WARD MR. MORAN and join, JUSTICE JUSTICE dissenting: Ward,
Mr. Mr. Moran and I dissent and Justice Justice the court. would affirm of In judgment that “defendant GATX should be allowed to show holding a alternative is not required by is and that such evidence relevant in determin was an ‘whether the unreason ing complained-of ” at defect’ majority ably dangerous has the basic tenet product completely ignored law, has and law question applied negligence. defective, whether was not whether defect product resulted from defendant’s fault.
In v. Anderson Co. Hyster we (1979), is held to the a manufacturer degree held that and skill of under knowledge experts nondelegable to make a which is duty safe. Proof reasonably is not safe be shown reasonably may of alternate feasibility availability Plaintiff’s expert manufacture. time of its at the designs 1971, when car in witness testified that September economic, built, from an was it was feasible head- to install and technological viewpoint practical to contrary. testified Defendant’s experts shields. were the to introduce which sought standards the manufacturer below which might bare minimum avail into fall, failed take recognition obviously manufacture, and certainly methods ability improved safety the installation serve to bar improved event, be irrelevant would, wholly devices. They any feasibility. of technological the question do not relies which majority The authorities upon Products, Inc. Wenzell MTD its position. support an struck circuit court of a safety of a violation in the complaint allegation *8 The court held that a viola only specification. appellate tion of the vest standards would not itself a cause of action in the Home plaintiff. Jewel Jonescue 339, Service 3d there is no Shopping App. indication that there was to a objection conclusion any in contained that a was nontoxic report orally. court’s involve appellate holding evidence; it held that admissibility “Although with a relevant scheme statutory compliance declaring whether defendant must warn of the of its dangers is some evidence that the cleaner is not or harmful Jeteo toxic, such is not conclusive or compliance controlling defendant’s common law for defining failure warn.” 16 Ill. 345. App. for error another majority reason. yet
Defendant GATX was manufacturer only car in it was also the lessor to question; Petroleum Phillips that, the lessee. The record shows as noted Company, court, “at accident, the time the Decatur appellate for the necessary headshields- and technology the AAR for their installation on tank approval procedure cars” was in existence. Under App. 781.) these circumstances the court held that correctly “a ‘state of the art’ defense based on GATX’s compliance with mandated tank car federally design specifications would been have irrelevant.” 64