*1 of the had under terms insurance Nor need we policy. reach the whether can question damages prove are the of the result breach proximate duty to make a full disclosure the conflict between defend- It ants’ two clients. cannot be determined from this record what if can We decide damages, any, plaintiff prove. only that this record does not that some preclude possibility from have flowed defendants’ damage may to make the failure disclosure. alleged requisite The record does show that there is no genuine as to material fact and issue any judgment ap- court affirmed. pellate
Judgment affirmed. (No. 52507. THOMAS,
RONALD D. v. KAISER AGRICUL- Appellee, et TURAL CHEMICALS al. Corporation, (OPW Appel- lant; Chemicals, Agricultural Appellee Certified and Manufactur- Cross-Appellant; Equipment ing Company, Appellee).
Opinion 1980. filed. June *3 RYAN, J., dissenting. Simhauser, Simhauser,
W. of P.C., of Heckenkamp & J. for Springfield, appellant. Moss, Herrick, of Moss, Clinton, Rudasill & for
Ray Ronald D. Thomas. appellee Stites,
William R. Brandt and Richard E. of Livingston, Brandt, Schroeder, Slater & for Barger, Bloomington, appellee Chemicals, Division of Kaiser Agricultural Aluminum & Chemical Corp. Michael Kehart, Welsh, Shafter, P.C., Kehart & J.
Decatur, for Certified & Manufactur appellee Equipment ing delivered the
MR. MORAN opinion JUSTICE court: this suit in Thomas, Ronald D. brought plaintiff, De
the circuit court of Witt County personal injuries received his when face was with liquid-nitrogen sprayed fertilizer fill a as attempted fertilizer-applicator *4 defend- machine with the The charged liquid. complaint for ants with both and strict liability negligence products defective Defendants are: Kaiser Agricultural design. fertilizer, who,
Chemicals seller of the in connec- (Kaiser), sale, machine; tion and with that supplied applicator Certified and Equipment Manufacturing Company (Certi- the distributor of the defective fied), allegedly component machine. into the part incorporated applicator filed a for Certified indemnity third-party complaint OPW a of Dover division Corporation against Corporation, the manufacturer of the component part alleged (Dover), counterclaimed, be defective. Kaiser to indemnity seeking from both and Dover. Certified trial,
After a court entered on jury judgments in for verdicts favor and Kaiser (1) plaintiff against $50,000, and favor Certified against plaintiff, (2) in favor of and Kaiser for Certified indemnity, (3) against Kaiser and Dover for indem and in favor of against (4) court affirmed the nity. appellate judgment circuit court relative to reversed the verdicts but jury fees, allowance of an issue not before us on attorney’s Dover’s We allowed appeal. App. petition (74 522.) leave to and for Kaiser appeal, cross-appeals.
Kaiser claims that the should plaintiff (1) judgment because, law, be reversed as a matter assumed the risk of the defective component allegedly and because is a in the Certified wholesaler part, (2) distributive chain of the defective allegedly product, is entitled to from Certified as a matter of law. indemnity that, Dover contends absent a functional failure of (1) re- the manufacturer is not component, component an assembler selects and installs who indemnify quired that the in finished component part product, (2) trial court erred in its Dover from prevented ruling evidence it made a to show that introducing companion which, if used with defective part allegedly component have would avoided question, injury plaintiff. farms, and his to fertilize their April brother, Thomas, stated Robert from Kaiser the purchased *5 this sale and without charge fertilizer. In connection with brother, a fertilizer appli- or his to supplied plaintiff mounted a tank The cator. O-gallon-capacity applicator, wheels, the rear of a tractor is made to be attached to on soil while a the over the system applicator pulls into from tank blades fertilizer deposits pressurized the churned ground. is a of the located at the
An applicator, adaptor, top It device, three inches in cylindrical approximately length. end, and at one it to be screwed into is threaded allowing At the outer fastened to the of the tank. top applicator is a circumference the other end of the adaptor specially a hose attaches annular to which supply designed groove is the This entry applicator. adaptor point filling fertilizer, from for the which is into pumped applicator unit called a “nurse The hose a tank.” larger tank-storage the nurse is from tank fitted with specially coupler onto the end of the at the annular clamps upper adaptor and is locked on two attached arm with groove clamps called “kamlocks.” Once the hose is attached to coupler with the kamlocks to adaptor clamped prevent air to the nurse tank to any leakage, applied tank. force the fertilizer to flow into and fill the applicator valve contains check which blocks adaptor threaded lower end of the the fertilizer adaptor prevent from from the The check valve being expelled applicator. attached the check can be a stem opened by depressing inch valve. This stem extends one-eighth approximately of the The check valve also above upper lip adaptor. can be forced of fertilizer flow open pressurized from the nurse-tank hose. valve addition to the an air-pressure-relief adaptor,
and an are located on the of the top air-pressure gauge tank a decal the use of the instructions for alongside listing user, One the listed instructions directs applicator. before to bleed all the to fill the attempting applicator,
air from the tank reads applicator until pressure gauge zero. trial, that,
At testified he had although been for 18 he had used the Kaiser farming years, appli- cator once before—in 1966. Plaintiff stated that he only had used fertilizer and was generally anhydrous-ammonia not, user, aas familiar with the harmful properties fertilizer. He stated that both he and his liquid-nitrogen brother had read the decal instructions to the pertaining 24, 1974, before the filling accident applicator April date, On occurred. and his brother worked *6 in the fertilizer to together their land. Plaintiff applying that, testified in for preparation refilling applicator tank, he bled off the tank’s air and heard the hiss- sound of released air. He did not check ing air-pressure to see if it read zero. gauge Plaintiff took the hose leading from the nurse tank and to attach the hose attempted to the in for coupler He testi- adaptor preparation filling. fied that he did not know that the stem on the check valve above the of protruded where the hose lip adaptor was to be attached. coupler Plaintiff stated: approached “As I adaptor coupler with the I didn’t get it on there correctly and in a second or less than that I *** got sprayed in the face liquid with the fertilizer. I apparently bumped the check valve.” of brother testimony was plaintiff’s substantially same, that he claimed except to have bled the air pressure from the before the applicator accident oc- immediately curred.
Plaintiff’s witness, Professor Loren expert of the Body of Illinois University department agricultural engineer- that, in his be- testified occurred ing, opinion, injury cause a fertilizer quantity was liquid-nitrogen trapped the check valve and by remained above it in the of the cup after the adaptor When, in prior an filling operation. to attach the hose attempt coupling, plaintiff accidentally valve, the check the check stem of the protruding bumped be released from valve allowing pressure opened, the fertilizer adaptor. trapped tank ejecting inch the one-eighth protrusion Professor Body’s opinion, an valve-core stem created unreasonably dangerous of the condition. revealed that at trial appli-
The evidence presented assembled Kaiser. The including cator was parts, Kaiser from Certi- were purchased adaptor question, manufacturer, for the fied, the distributor which was made that Certified evidence to show Dover. There was no com- advised Kaiser as to what recommendation or any to purchase. ponent parts testified that
Dover’s manager engineering used aware that some of Dover’s customers liquid-nitrogen used in the ferti- and that the had been fertilizer adaptor lizer business for over years. that the
We first address Kaiser’s contention plaintiff, defec- law, the risk of the as matter assumed allegedly tive adaptor.
In Williams v. Brown Manufacturing this court established the rule that plaintiff’s defense in a strict is not a contributory pro negligence however, If, ducts tort action. liability plaintiff’s risk, to an recovery action amounts assumption *7 incurred be barred. A assumes will any injury plaintiff he aware of risk a defective if only actually product un its the defective nature of the product appreciates character, but chooses voluntarily reasonably dangerous such Williams v. Brown act in known disregard danger. 430; 418, 426, Court 45 Ill. Co. 2d Manufacturing (1970), 149; 141, Restatement Ill. v. Grzelinski 72 2d (1978), Torts, sec. 496D (1965). (Second) Williams, risk, in established The test for assumption to consider is a one which allows the jury subjective and back- individual experience plaintiff’s knowledge, whether he has assumed risk of ground determining de- known him to be This product using dangerous. termination is that, Kaiser claims normally jury question. since this had been for 18 and had years farming used fertilizer on his farm and on the farms of machinery his he should held be as a matter of law to have neighbors, assumed the risk in this case. testified, however,
Plaintiff that he had used Kaiser’s before, once machinery only eight years prior instant accident. His had been with previous experience fertilizer which has mark- anhydrous-ammonia properties different from those of the edly nitrogen liquid caused his He stated was not aware that injuries. stem of the check valve or that it was adaptor’s protruded Moreover, the he had released dangerous. plaintiff thought the air within the and that, conse- applicator it was safe to quently, to fill the proceed applicator. Although have been may in not negligent for a “zero his checking air-pressure gauge reading,” do actions indicate a decision to face a voluntary known Under circumstances, danger. was free jury to find that actions did not amount to an plaintiff’s of risk. assumption
Kaiser also that it was entitled to a argues judgment Certified as a matter indemnity against of law because Certified was the distributor who sold the defec- allegedly tive to Kaiser. adaptor
It is true action, that in a all products liability persons in the distributive chain are liable for injuries resulting from a defective This includes distribu product. suppliers, tors and retailers. v. & Bushnell Manu (Dunham Vaughan 339, Co. Ill. facturing 344. See Suvada v. (1969), 2d White Motor However, 617.) case, instruction, tendered present following Kaiser, was submitted to the jury: you
“If find that Agricultural Chemicals is entitled *8 Equipment and one of from Certified to reimbursement Corp., Corp., A of Dover Manufacturing and OPW division both, verdict you the form of then should use but not says: ‘We, Agricultural for Chemicals Jury, Kaiser find against following defendant__________. and against further find for___________and We ” Agricultural Chemicals. Kaiser Where, here, as the record shows that a defendant’s tendered instruction and that an was to jury given within that instruction verdict form option provided which the find one of defendants could for by jury another, but has defendant waived against tendering error when the exercises that any v. jury option. (Tweedy Sales, 570, Ford Inc. 64 Ill. Wright 2d (1976), 575.) Kaiser cannot now claim error because the Accordingly, used the verdict form find jury Kaiser to for by supplied Certified and Kaiser issue on 'the of indemnifica against tion.
Dover that it should not be liable Kaiser argues indemnification as a matter of Dover’s law. that theory the manufacturer of a into a component part, incorporated assembler, machine an would be liable to user of if machine was not the result of func- injury tional failure of that Dover asserts that component part. aware was character- applicator’s design istics chosen Kaiser was component part unsuitable for the Dover used. concludes that purpose Kaiser should therefore bear the sole burden of liability.
Section Torts, the Restatement 402A (Second) comment states: q, expected “It is no doubt to be is no that where there itself, change component in the part merely but it is incor-
porated into something larger, liability strict be will carry found through to the ultimate user or consumer.” (Restatement 402A, q (Second) Torts section comment (1965).) v. White in this State Suvada
This adopted position court found wherein the Motor Co. *9 held be the of a may manufacturer component part that in substantial assembler made no change liable where the attributable and the is directly the injury component part White v. Motor a defect in such Suvada to part. component 612, Ill. Co. 623. 32 2d (1965), be relieved that it should Dover’s argument, was not in that liability, adaptor question presumes However, left Dover. defective at the time it plaintiff’s his testified that in Professor opinion Body, expert, condition an itself created unreasonably dangerous adaptor stem valve’s ease which the of the with protruding because a resultant pressurized could be with expulsion bumped was that no evidence to show any change There was liquid. attached Kaiser. made to the by simply adaptor no merit therefore find to the of its tank. We top adaptor burden of that Kaiser should bear the Dover’s to argument entitled was jury liability plaintiff’s injuries. led to condition which find that the plaintiff’s dangerous manufactured was existed at the time the adaptor injuries a distinction reason to make Dover. We find no by manufacturers between component-part liability regard and those manufacturers malfunctions whose project defect. is because of a whose faulty design product use that Kaiser’s of the Dover further adaptor argues It to misuse of amounted product. on its applicator use to unsuitable for the that such was claims adaptor and that Kaiser was aware of it was design put Kaiser selected it. characteristics at the time adaptor defeat a will the misuse of a Generally, by supplier product How of indemnification from the manufacturer. his right ever, foreseeable if such misuse is reasonably manufacturer, bar the it will not act to reasonably prudent 76 of the manufacturer. v. Engelke (1979), liability (Kerns Ill. 165; 154, Ill. Anderson v. Co. 2d Hyster (1979), 2d 369; 364, Mutual Co. v. Williams Insurance Liberty 77, & there Machine Tool When Co. 2d (1975), 83.) as use is to whether was conflicting testimony particular foreseeable, for the it Ander reasonably jury. question son 74 Ill. 369. Hyster v. case, Dover’s present manager engineering
stated was of Dover’s customers aware that some used fertilizer had and that adaptor liquid-nitrogen been in the used fertilizer business for 20 years. Although Dover that it of Kaiser’s use its was aware argues adduced at trial sufficient to testimony adaptor, that the use of Dover’s jury’s support finding adaptor manner described here was foreseeable. reasonably Dover also the trial erred in court argues excluding evidence that would show the could been have adaptor used in with another manufactured conjunction part *10 Dover. Dover claims that if Kaiser had selected a different hose to use in with the it coupler conjunction adaptor, have would the accumulation prevented of ferti- liquid lizer the and, thus, in avoided have the instant adapter cup accident.
Dover made an offer of that the which showed proof hose used the and coupler the actually by plaintiff coupler to be introduced Dover were of a line of sought part to be used products specially designed interchangeably with Dover’s various models of one the adaptors, including in here. Since the focus of issue in this case question is the of itself, evidence of other design adaptor pro- ducts which could have offset the of defective design is irrelevant. Dover could be held to have adaptor foreseen that the would be used with adaptor various types and it had a so that it couplers duty design adaptor Further, would function with each. if this safely particular could not have been used adaptor coupler safely to that effect should have been together, warning pro- We, therefore, vided. hold that the trial court did not err this evidence. by excluding above,
For the reasons stated of the judgment court is affirmed. appellate
Judgment affirmed. RYAN, MR. dissenting: JUSTICE I treatment of the defense with disagree my colleagues’ of risk. The fails to focus on what assumption opinion I to be the consider issue in the case—the dis- controlling of an the manner of regard express warning concerning the fertilizer using applicator.
It was established evidence plainly and his brother were farmers plaintiff experienced fact, had, of fertilizer and been in the application business from 1960 fertilizer-application through time had ammonia they during applied anhydrous similar to the used one on the of the using applicators day accident, and the used had the same plaintiff type as that involved in this accident once before. equipment Also, because his we can conclude that experience, knew of the of both dangerous propensities ammonia fertilizer and of anhydrous liquid nitrogen. The evidence is also that on undisputed top tank case, involved in fertilizer-applicator this near the valve, defective was an alleged adapter, air-pressure-relief an and a decal on which was gauge, plainly air-pressure all air instructions that the user should bleed off printed valve until from the tank by opening read and reads zero. The had pressure gauge understood these instructions. *11 he the valve stated that
Although opened that he did not to release the it is pressure, undisputed before check the air to see it read zero pressure gauge if he In to attach the to adapter. attempted coupler fact, brother that when he handed testified plaintiff’s to two or three “there was plaintiff, possibly coupler A witness on the gauge. showing pressure” pounds all the air if testified pressure called by plaintiff from released, no any there could be injury liquid were to however, not be safe it would attempt in the adapter; off all the tank without to fill an bleeding applicator pressure. excuses conduct opinion plaintiff’s majority the air that he he had released pressure thought saying as valid excuse is about as That
within the applicator. is loaded.” It no “I was didn’t know gun proverbial to release all, in view of the directions excuse at only the air on also to do so until pressure the air but pressure of these zero. In reads complete disregard gauge directions, the look at the air or did not gauge read zero air on the ascertain that gauge before attach the adapter. attempting coupler his Plaintiff’s can be attributed to direct injury only of the directions on the decal violation plainly printed and which was familiar. with Restatement Comment section 402A j of Torts states in (Second) (1965) part: may reasonably warning given, “Where is the seller heeded; product assume that be and a it will read bearing warning, is it is such a safe use if followed, condition, nor unreason- is not is it defective dangerous.” ably similar to those found
The facts this case are quite Div. in Walk v. Case I. Co. App. J. held that re- case it was 598. N.Y.S.2d barred as a matter law where opera- covery while tor of a machine was injured corn-picking com husks from the rollers snapping removing machine, on a to the instructions printed contrary on the machine warning plate placed cautioning the machine while it was in against operation. cleaning case in Another v. Cessna Kay point Aircraft *12 220 Cir. court, 548 case 1370. that the 1977), F.2d
(9th law, California held the manufacturer of a applying push- aircraft was not on liable the pull twin-engine theory of strict for the death of the liability from pilot resulting crash a on takeoff caused the failure of the rear by engine, which was obscured from the view. The court pilot’s held that with the compliance pretakeoff procedures the outlined in owner’s manual would have the alerted to the fact the rear had failed and the pilot engine The court the trial accompanying court’s danger. upheld order for for the defendant judgment notwithstanding the verdict. plaintiff’s
A similar result v. was reached in Stewart Von Solbrig 599, Inc. Hospital, Ill. the 3d where App. (1974), court affirmed the order the trial court which appellate entered for the defendant judgment notwithstanding the verdict in plaintiff’s strict case. evidence liability disclosed that failed when surgical pin on his walked removal of the cast. He had leg following been instructed the doctor not to on any put weight after cast was removed. See Hursh & leg also R.2 American Law 8:25, H. of Products Bailey, sec. Liability at 212-13 (1974).
In Williams v. Brown Manufacturing this court that failure heed recognized in an instruction manual constitute warnings may an affirmative defense of of risk in a strict assumption case. Under the liability facts of the case now us before hold, law, I as a would matter of that this affirmative defense bars not the Whether or recovery. plaintiff thought air tank, had all been bled from the the fact pressure remains that violated the instructions on specific decal to attach the to the by attempting coupler adapter without read zero. ascertaining pressure gauge It established the evidence that if there would been air tank, have no in the the fertilizer would into from plaintiff’s have been blown adapter on the equipment face. These were placed warnings law well use it. The who of those the protection to heed warning established that by failing I therefrom. must risk of assumed the injury resulting dissent. therefore
(No. 53079. CO., v. PECKAT THE REGIONAL WALTER Appellant, al., et AUTHORITY TRANSPORTATION Appellees. 30, Rehearing Opinion May filed 1980. July denied 1980.