dissenting:
The majority suggests that Illinois bystanders have no right of action against a manufacturer in strict products liability. Even though I believe the plaintiff is more than a mere bystander, as a statement of law the majority’s conclusion is less than accurate. Although some writers suggest that recent Illinois Supreme Court decisions have reversed the trend of expanding the strict liability of manufacturers (M. Pope and D. Pope, Design Defect Cases: The Present State of Illinois Products Liability Law, 8 J. Mar. J. Prac. & Proc. 351 (1975)), I believe the existing law of Illinois would allow the defendant-manufacturer to be held strictly liable for injuries to the plaintiff if the jury so found. As a result, the majority is wrongly taking the case from the jury.
In Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 311 N.E.2d 128, the Illinois Supreme Court, while admitting that Indiana law governed the case, recognized that the law was the same in both jurisdictions. Our supreme court held a defendant manufacturer responsible to a bystander where its product, which was being transported on a fork lift truck by a purchaser’s employee on the purchaser’s premises, fell and struck the plaintiff, also a purchaser’s employee, because the wheel of the fork lift went into a hole in the floor. The supreme court’s rationale was that whether the alleged misuse on the part of the purchaser was reasonably foreseeable by the manufacturer was a question for the jury. Therefore, the circuit court’s judgments were affirmed.
Very recently, the Illinois Supreme Court has allowed the recovery by an automobile passenger against the manufacturer of the automobile for injuries received in an automobile collision. The manufacturer was held strictly liable because the manufacturer has a duty to exercise reasonable care in the design and manufacture of its product, “bearing in mind that the intended and actual use of automobiles results in collisions.” Buehler v. Whalen (1977), 70 Ill. 2d 51, 61, 374 N.E.2d 460, 464.
The majority opinion relies heavily on Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1. In short, that case held that the presence of a four-year-old child in the vicinity of the machinery was not reasonably foreseeable to the manufacturer. The Winnett case turns not on whether the plaintiff was a bystander, but whether the plaintiff was a foreseeable plaintiff to the manufacturer at the time the instrumentality was designed and produced. Here, however, the plaintiff was an employee working on the road. The plaintiff had been operating the shoulder spreader before it broke down. However, after the conveyor belt was broken, the plaintiff was to “walk” the machine to the next intersection to be repaired. This procedure was not to occur until 12 or 13 trucks had dumped their loads of stone and cleared a path for the shoulder spreader and grader. While waiting for the trucks to dump their loads, the injury occurred. In effect, the plaintiff continued to have responsibility for the machine and was to direct its propulsion to the next intersection, about a quarter of a mile down the road. Therefore, I believe the majority wrongly stuffs the plaintiff into the pigeonhole they conveniently label “bystander.”
Even if we assume the plaintiff was a “bystander” or nonuser, because of the nature of the work this machine was designed to do, it is reasonable that the manufacturer should have foreseen the presence of other employees in the vicinity of the machine. Furthermore, because this machine is designed to be propelled the manufacturer should have reasonably foreseen that the machine would collide with something or someone in its operation. In short the plaintiff was a foreseeable plaintiff to the manufacturer, and Winnett is not controlling.
The most recent additions to the Illinois Pattern Jury Instructions also suggest that a cause of action against a manufacturer in strict, product liability is available to a bystander. IPI Civil No. 400.01(1) (2d ed. 1977 Supp.) states that a plaintiff may claim that he was injured while he was using the instrumentality or as a result of the use of the instrumentality. The second circumstance implies that a plaintiff may claim to be.injured as a result of the use of the product, even though the plaintiff was not using the product. Otherwise the differentiation between the two is illogical and useless.
Allowing bystanders a cause of action in strict products liability is a logical extension of the principles set forth in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, which formed the foundation to erect the tort of products liability in the State of Illinois. In deciding Suvada, the Illinois Supreme Court relied on three basic concepts, each an expression of public policy. Because of the public interest in preserving human life and protecting health, because of the invitations and solicitations to purchase products, and because of the justice of imposing the loss on the one creating the risk and reaping the profit, the responsibility and the liability should be placed upon the party best able to shoulder it; the manufacturer. The underlying philosophy is no less applicable where a nonuser, nonpurchaser bystander is injured and where the manufacturer should have foreseen that bystanders would be in the vicinity of the instrumentality when that instrumentality was being used.
The District Court for the Eastern District of Illinois, relying on the reasoning in Suvada, absent an Illinois Supreme Court opinion directly deciding the right of a bystander to sue a manufacturer, denied the manufacturer’s motion for summary judgment. (White v. Jeffrey Galion, Inc. (E.D. Ill. 1971), 326 F. Supp. 751.) In White, the plaintiff, a mine employee, was standing in a passageway and was injured when a ram car, owned by his employer, struck an air line which in turn struck the plaintiff. The plaintiff sued the manufacturer of the ram car because the ram car struck the air line as a result of a defective steering valve. The court in White, reasoned as follows:
“It seems somewhat incongruous to say that a user or consumer of a product has a right of action against the manufacturer of a defective product, but to withhold protection from an innocent bystander who has suffered injuries through no fault of his own, which injuries were caused by the defective product solely because at the time he received his injury he was not using or consuming the product, but was merely standing by innocently minding his own business when he was suddenly injured by another’s use of the defective product.
It might be argued that the innocent bystander would under such circumstances have a cause of action against the user and the user in turn could then shift his liability back to the guilty manufacturer. This argument is unsound since a jury, if presented with such a factual situation, could find the user not guilty of negligence and therefore grant to the plaintiff nothing for his injuries. Under these circumstances the guilty manufacturer would go away scot-free, and the plaintiff would be required to suffer the burden of his injuries without recompense. In the situation presented here the injured employee would undoubtedly have a cause of action under the Workmen’s Compensation Act of the State of Illinois against the employer, but by virtue of that same act would have no cause of action against the employer. The employer in turn would have no right of action against the manufacturer for the defective product, except to the extent of the Workmen’s Compensation claim. Thus, again the manufacturer is permitted to, at least to some degree, escape the burden which he, having reaped the profit, should bear.
An even more compelling reason why the innocent bystander should be protected appears when we view the situation where a purchaser, consumer or user may see fit to purchase an inferior product in order to reduce costs. Under such circumstances if the burden is to be borne by any one, it should be the manufacturer and the less-than-prudent purchaser and user. Certainly it should not be borne by the innocent bystander. Unless the doctrine is extended to encompass the innocent bystander as well as the user and consumer, very incongruous results will obtain.
If, as in food cases and in product liability cases where the user and consumer are concerned, the public policy requires protection, to an even greater measure that same public policy should require protection of the innocent bystander.” White v. Jeffrey Galion, Inc. (E.D. Ill. 1971), 326 F. Supp. 751, 754.
This reason equally applies to the case at bar. And the Illinois Supreme Court has recognized a remedy in the manufacturer over against the employer of the injured plaintiff. (Skinner v. Reed-Prentice Division Package Machinery Co. (1978), 70 Ill. 2d 1, 374 N.E.2d 437). Since the manufacturer has the ability to shift some of the responsibility to the employer, there is even less reason to deny an employee a right of action against the manufacturer of the product causing injury.
In addition to denying bystanders a right of action in strict products liability, the majority states that assumption of the risk may not be asserted as an affirmative defense against a non-user of the product. To support this proposition, the majority relies on IPI Civil No. 400.03 (2d ed. 1977 Supp.). Although the 400 series of IPI instructions were published after the date of the trial, those instructions merely restate the law as it existed at the time of the trial. IPI Civil No. 400.03 (2d ed. 1977 Supp.) states that a defendant asserting the affirmative defense of assumption of risk must prove that the plaintiff understood and appreciated the risk of injury from the condition of the product and proceeded or continued to use the product. This reasoning by the majority ignores the comment to IPI Civil No. 400.03 (2d ed. 1977 Supp.). In the comment it is pointed out that the fact that a user of the product assumes the risk will not operate as a defense in an action for injuries to a bystander who has not been proven to have assumed the risk. This principle is derived from Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 311 N.E.2d 128, wherein it was stated that the purchaser’s assumption of risk was not imputable to the plaintiff, purchaser’s employee.
Of course the majority would be correct in stating that assumption of risk may not be asserted against this type of defendant if they are also correct in saying that this type of defendant, a bystander, has no cause of action in strict products liability. However, Lewis and the comment to IPI Civil No. 400.03 (2d ed. 1977 Supp.) imply that a bystander may assume the risk and such may be asserted as an affirmative defense by a defendant manufacturer. Therefore, the majority’s reasoning on both points must be incorrect.
A bystander-plaintiff may assume the risk if he knew of the condition which he alleges made the product unreasonable, if the plaintiff understood and appreciated the risk of injury from the condition and voluntarily remained in or proceeded into the area in which the product was being used and if the known condition was a proximate cause of the plaintiff’s injuries. Therefore, whether the plaintiff assumed the risk should have been left to the jury.
But to decide the issue, the jury must have been properly instructed. I believe in this case the jury was not properly instructed as to the issue of assumption of risk. In giving defendant’s instruction No. 3A, the court failed to inform the jury that, to assume the risk, the plaintiff must voluntarily proceed in the face of a known and appreciated dangerous condition, which condition proximately caused the plaintiffs injury.
The majority never gets to this point, having removed the function of the jury from this case in spite of jury questions, such as whether there was a dangerous condition, whether the dangerous condition proximately caused the plaintiff’s injury and whether the manufacturer could reasonably foresee an injury to this type of plaintiff. (See Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 311 N.E.2d 128.) The Illinois courts have been criticized for reversing the trend in products liability decisions by deciding, as a matter of law, issues which are arguably questions of fact for the jury. M. Pope and D. Pope, Design Defect Cases: The Present State of Illinois Products Liability, 8 J. Mar. J. Prac. & Proc. 351 (1975).
The majority has improperly concluded as a matter of law that this fact situation presents a pure vehicle-pedestrian collision, not a products liability case. Ignored are the facts that the shoulder spreader was moving at only one mile per hom- and that the tire of the spreader pulled the plaintiff’s leg under the machine because of the coefficient of friction. A jury of reasonable persons could find that a guard or bumper would have prevented the injury.
Accordingly, I would reverse this judgment of the Circuit Court of Peoria County and remand the cause for a redetermination before a properly instructed jury.