dissenting:
Plaintiff lost his hand in a punch press after his employer altered it by removing protective safety devices which the manufacturer had placed on the press. Plaintiff would have had a cause of action against the manufacturer under the strict product liability doctrine established by Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, had it failed to provide these safeguards. The manufacturer, a stranger to both the plaintiff and his employer, acted to insulate itself from such liability by equipping the press with the safety devices.
The rationale of the strict product liability doctrine is that users of products must be protected against defective and dangerous conditions which might attend their use even though the injured person may have no privity of contract with the producer of the product. Plaintiff s employer, by altering the press, deprived plaintiff of safeguards which the law required the manufacturer to provide for the safety of the plaintiff as a potential user. The issue in this case is, thus, whether the exclusive remedy provision of section 5(a) of the Workmen’s Compensation Act immunizes an employer from a common law action for removing equipment a manufacturer incorporated in his product to make it safer and to satisfy the obligations imposed by the strict product liability doctrine. The majority refers to a “ long line of Illinois Supreme Court cases holding the Workmen’s Compensation Act to be the exclusive remedy against the employer for work-related injuries.” However, none of them dealt with the precise issue raised by this appeal. Dintelman v. Granite City Steel Co. (1976), 35 Ill. App. 3d 509, 341 N.E.2d 425, the most recent Illinois case discussing the exclusive remedy provision of the Workmen’s Compensation Act, did not resolve this issue. It adhered to Gannon v. Chicago, Milwaukee, St Paul & Pacific Ry. Co. (1958), 13 Ill. 2d 460,150 N.E.2d 141, by holding that an employee covered by workmen’s compensation could not recover against his employer under the Structural Work Act for injuries suffered while working on the employer’s premises. The employer was not charged in either Dintelman or Gannon with affirmative conduct in removing a safeguard that a third person, in order to avoid strict product liability, had placed on a machine for the user’s protection.
The Workmen’s Compensation Act was adopted long before the Suvada doctrine was generally recognized by the law. I therefore find no justification for imputing to the legislature an intent to adopt a workmen’s compensation scheme which permits an employer to withhold from his employee the protection the Suvada doctrine requires a manufacturer to provide.
An employee is entitled to protection beyond workmen’s compensation against his employer who to increase profits endangers him by reconstructing equipment manufactured by others. The law can provide a remedy for this reprehensible conduct by regarding the employer as acting in this setting as a “quasi-manufacturer” rather than an employer. When sued in that capacity, he is not protected by the exclusive remedy provision of section 5(a) of the Act which applies only to those acting in the capacity of an employer. I disagree with the majority in that I do not regard as an incident of the employment relationship conduct of an employer which intervenes to deprive an employee of protection the law obligates the manufacturer of a product to provide. Nor would I regard the employer as acting any the less in the role of a “quasi-manufacturer” because after removing protective devices from machinery manufactured by others, the employer furnishes the unsafe machine only to his own employee rather than to the public generally. Finally, making the employer amenable to a common law action notwithstanding the exclusive remedy provision of section 5(a) by treating the employer as having acted in this case in a dual capacity, does not, as the majority asserts, apply to all tools furnished by an employer for an employee’s use. The characterization of an employer as acting in the capacity of a “quasi-manufacturer” can be limited to instances when his own alteration of tools or machines manufactured by others removes equipment designed to protect users against injury. In these situations the employer should be held responsible to his employees if his conduct makes the machine more dangerous than when it was manufactured. I would not extend the quid pro quo justification for the exclusive remedy provision explained in the majority opinion to deprive an employee as a condition of an employment relationship of the protection afforded him by the strict product liability doctrine.
Our Supreme Court has viewed the Workmen’s Compensation Act as a humane law of a remedial nature which is to be liberally construed, whenever permissible, to effect the purposes of the Act. (Shell Oil Co. v. Industrial Com. (1954), 2 Ill. 2d 590, 596,119 N.E.2d 224; B. W. Sales Co. v. Industrial Com. (1966), 35 Ill. 2d 418,423,220 N.E.2d 405.) It strikes me as inconsistent with this view of the Act to interpret it in a way which permits an employer to exploit his employees by removing from the machinery he requires them to use safety devices which the law imposes a duty on the manufacturer of the machinery to provide. Conduct of this type should not be shielded by a humane law, particularly where, as in this case, the employee claims the employer altered the press to increase its profits. I would reverse the order of dismissal by characterizing the defendant’s conduct complained of in this action as that of a “quasi-manufacturer” rather than an employer, and actionable notwithstanding the exclusive remedy provision of section 5(a). Anything less, unnecessarily and improperly deprives an employee of the full protection of the strict product liability doctrine. To preserve that protection, I would depart from the conclusion reached in Santiago v. Brill Monfort Co. (1960), 11 App. Div. 2d 1041, 205 N.Y.S.2d 919, the opinion cited by the majority with facts most similar to those in this case, and I would not inflexibly apply to the facts of this case the conventional principle that the workmen’s compensation scheme provides an exclusive remedy. Moreover, affording an employee additional protection in the special circumstances of this case will not diminish the continued effectiveness of workmen’s compensation. The workmen’s compensation system has survived the holding in Miller v. DeWitt (1967), 37 Ill. 2d 273,226 N.E.2d 630, which permits a third party sued by an employee to seek indemnity from the employer whose active negligence caused the injury, thereby in effect providing for an indirect recovery by the employee against the employer. I do not believe that a system which withstood that holding will be crippled by the deviation from the exclusive remedy rule proposed by this dissent.