dissenting:
The majority has affirmed the appellate court on the narrow basis that “there is no evidence which causally connects plaintiff’s injury with the unreasonably dangerous condition of the machine alleged in the complaint.” The complaint in this cause, as indicated in the majority opinion, predicated defendant’s liability upon the fact that the machine was unreasonably dangerous because of the defendant’s failure to install safety devices when it was manufactured. The majority has reasoned, however, that if the machine was unreasonably dangerous at the time it was manufactured, any defect in this regard was fully remedied by Hammond’s use of the Posson safety device even though this mechanism was broken and inoperable at the time of the accident.
Thus it would seem that the overall issue is whether a manufacturer who fails to install any safety device on a machine used in a dangerous operation may escape strict liability in tort when the purchaser attempts but fails to install an adequate safety mechanism for his employees.
The appellate court recognized the dangerous condition of the punch press when used for secondary manual operations without safety devices. (12 Ill. App. 3d at 744.) I am unconvinced that Hammond’s furnishing of a detachable and possibly defective (broken) safety device is sufficient to obviate defendant’s liability. There is no substantive distinction between the present case and those characterized by the majority opinion as holding “that one who markets an unreasonably dangerous product is not entitled to expect that others will make it safe. Even where he had reason to believe that others would make the product safe the manufacturer remains liable if the dangerous condition is not in fact corrected.” This interpretation clearly indicates that there is a nondelegable duty placed upon a manufacturer. Here, it is apparent that the dangerous condition of defendant’s machine was not corrected.
In this case the real inquiry should be directed to whether it was foreseeable that plaintiff’s employer might install an insufficient or defective safety mechanism, thereby requiring the defendant to include an adequate safety device aside from the so-called “nonrepeat feature” of the punch press. In Winnett v. Winnett, 57 Ill.2d 7, an action predicated upon strict tort liability was brought against the manufacturer of a farm implement to recover damages for injuries incurred by a young child when her hand came in contact with the machine while it was in operation. We noted that questions of the product’s condition and foreseeability are usually questions of fact to be resolved by the jury. However, from the facts alleged in the complaint in that case we concluded that no recovery was possible due to the unforeseeability of the accident. In so holding we observed at pages 12-13, “Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur.”
It is reasonable that from the evidence presented the jury may have considered that Hammond’s use of an inoperable safety device and the resulting accident were “objectively reasonable to expect” and that defendant’s failure to supply a suitable safety device rendered it liable to plaintiff. As the record indicates, the type of work being performed by plaintiff at the time of the accident required placing his hand in the area to remove the stamped product. The jury may well have concluded that installation of another safety mechanism, such as the movable guard device described in the majority opinion, might have been proper.
To accept the majority’s rationale will be to insulate a manufacturer from liability on the fortuitous intervention of the purchaser no matter how insufficient the purchaser’s efforts in supplying an adequate safety mechanism for a machine which is designed to be used in a dangerous operation. I believe that, the burden as to the installation of proper safety devices should not depend upon such circumstances. A manufacturer usually possesses greater expertise in the design and installation of safety devices, and it should thereby be required to install these items. If an injury occurs because the purchaser has installed an inoperative safety feature, the manufacturer should bear the burden of proving that it could not have installed a more effective safety device.