dissenting:
When, as here, it is undisputed that a products liability plaintiff knew of the dangers of the allegedly defective product, the trial court must consider three factors before it directs the issue of assumption of the risk in favor of the plaintiff: (1) the age, experience and knowledge of the user, (2) the obviousness of the defect and the danger it poses, and (3) the actions of the user which led to the injury. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305; Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74.) Because, in its discussion of assumption of the risk, the majority ignores the first two factors and makes unwarranted conclusions about the third, I must respectfully dissent, I will discuss these three factors in order.
In many of those cases in Illinois where a court has struck the defense of assumption of the risk, it has often been shown that the plaintiff was generally inexperienced or was unfamiliar with the product in question. For example, in Scott and in Coty v. United States Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 373 N.E.2d 1371, both plaintiffs were teenagers who had operated the machines which injured them for only several months before they were hurt.
The plaintiff in Niffenegger v. Lakeland Construction Co. (1981), 95 Ill. App. 3d 420, 420 N.E.2d 262, worked on a road crew. He was standing in front of a moving asphalt spreader, cleaning its jammed hopper, when an unguarded wheel rolled over his foot. In upholding the trial court’s decision to strike the defense of assumption of the risk, the court stated:
“At the time of the accident plaintiff had never seen anyone clean the machine before, had never cleaned the machine himself, had not seen the wheel on the side he was injured prior to the accident, nor had he received any instructions on how to clean the machine. His normal duties on the job site required him to stay behind or to the side of the machine. There is evidence that plaintiff had been working behind and on the right side of the machine while a dump truck was in front of it, was thus unaware of the absence of a guard, and other employees also did not notice that the guard wasn’t there.” (95 Ill. App. 3d 420, 425, 420 N.E.2d 262, 267.)
The Niffenegger decision is based, in part, on the plaintiff’s unawareness of the defect, a fact not present in this case. However, the above quotation nonetheless illustrates the importance of a plaintiff’s knowledge and experience in the context of assumption of the risk.
In Collins v. Musgrave (1975), 28 Ill. App. 3d 307, 328 N.E.2d 649, the court held that, as a matter of law, a plaintiff who was “generally familiar with the automobile mechanics” did not assume the risks associated with a defective axle assembly unit. But, as that case turned upon the nonobviousness of the defect and. the involuntary nature of the plaintiff’s actions which led to the accident, I will discuss this case under those factors.
The plaintiff here was not a teenager, nor had he been on the job for only several months. It is true that he had had little formal instruction relating to his work, but he had been employed for 10 years as an oiler and for seven months as a greaser. During that time he learned to work on equipment like the WABCO scraper, so that even if this particular scraper had been at the Vandalia site for only a day or so before the incident, the plaintiff had much experience with similar construction machinery with similar engines. Moreover, unlike a mechanic who usually works on nonfunctioning machines, the plaintiff had been assigned to keep the equipment in the field running, which frequently required work near moving parts.
I believe that the plaintiff’s substantial maintenance experience alone raises the issue of assumption of the risk to a jury question. (See Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206, 407 N.E.2d 32). Analysis of the remaining two factors, which follows, only acts to strengthen thát belief.
The courts in Coty and Scott did not label the dangers of the respective machines “obvious” or “nonobvious,” because both plaintiffs were inexperienced and the injuring acts were deemed “involuntary.” The absent wheel guard in Niffenegger was not considered obvious, and rightly so, when the wheels were only eight or nine inches in diameter and far below where the plaintiff worked cleaning the hopper.
The plaintiff in Collins v. Musgrave was travelling in his half-ton truck at 55 miles per hour when he discovered that his accelerator did not work. Instead of slowing to a stop on the highway, he elected to turn into an automobile lot, where he discovered that neither the foot brakes nor the hand brakes worked. He finally stopped by colliding with a garage. The plaintiff suggested at trial that when a sealed bearing in the axle assembly failed, the right rear wheel attached to the assembly moved out of position and impaired the braking system and transmission of power to the rear wheels. We cannot disagree with the court that “the nature of the danger did not become apparent until the accident actually occurred.” 28 Ill. App. 3d 307, 312, 328 N.E.2d 649, 652.
In contrast to the somewhat concealed defects in Niffenegger and Collins, the dangers of the fan on the WABCO scraper were obvious to all. The fan was a full three feet in diameter and it was located at eye level, only four or five inches from the filters upon which the plaintiff worked. It seems to me that the noise and air flow from such a large whirling fan only inches away from the subject of the maintenance should have been given at least some discussion by the majority before it struck the assumption of risk issue.
The third factor to be analyzed, the act which caused the injury, was considered by the majority. It divides the plaintiff’s conduct into two components—his working on the running machine and his “tapping of the fuel filters, and the subsequent contact of his hand with the rotating fan.” I cannot quarrel with the statement that the plaintiff has not assumed any risks merely by virtue of his employment. But the characterization of the plaintiff’s specific conduct which led to this injury as “involuntary” as a matter of law is both illogical and not in accord with precedent.
The majority notes that “[i]n the case at bar, McCracken was attempting to tap a filter when his hand made contact with the fan blade. There is nothing in the record which suggests that McCracken’s action was due to anything but momentary inattention to the task at hand.” (Emphasis added.) (103 Ill. App. 3d 26, 29-30.) If one looks only at McCracken’s insertion of his hand into the path of the fan, then that conclusion would follow. But, if the “action” which produced the injury is to be construed as the last act prior to injury, as the majority implies, then it would be virtually impossible to invoke the defense of assumption of the risk, except in cases of self-inflicted injury.
A more logical reading of the “action” which produced the injury would include the plaintiff’s conduct in reaching into the motor compartment with his bare hand to tap both filters. In fact, it is this conduct which the majority purports to analyze, although the language quoted above indicates that its focus was much more narrow. A broader definition of “action” is employed by the relevant cases, and, under this definition, there is an important factual question concerning whether the plaintiff acted “voluntary” to assume the dangers of the fan blade.
In Scott, mentioned by the majority, the plaintiff operated an electric punch press. When he stopped for a coffee break, he turned off the electricity and proceeded to remove the material from the bed of the press. The ram came down on his right hand while he was in the midst of this process. The plaintiff surmised that he must have activated the foot pedal, and the court held that action involuntary.
On its facts, the Scott decision was doubtless correct. There were two separate actions involved—the plaintiffs voluntary insertion of his hand into the bed of the press and his involuntary contact with the foot pedal. But for the action of the plaintiffs foot, he would not have been injured. Since it was that action, and not the entirely separate action of the plaintiff in placing his hand into the bed of the press, which caused the injury, the Scott court correctly examined the depression of the foot pedal to determine whether it was voluntary.
The plaintiff in Coty operated a meat slicing machine with a stationary rotating blade and a moving meat tray. To prevent the splashing of juices from the meat being sliced, she covered the meat with paper towels. When she saw that the towels were being sliced along with the meat, she reached into the tray, without turning off the machine, to remove the paper towels. Her hand moved with the meat and was lacerated by the blade.
According to the majority’s analysis, the court should have concluded that the plaintiff’s placement of her hand in front of the blade was “involuntary” and therefore she did not assume the risk of injury as a matter of law. However, the Coty court inquired into the nature of “plaintiff’s conduct in removing the paper towels without switching off the power.” (58 Ill. App. 3d 237, 246, 373 N.E.2d 1371, 1378.) It concluded that, given the plaintiff’s age and experience, and the nature of the defect, her split-second decision to remove the paper was involuntary as a matter of law.
Also instructive is Collins v. Musgrave. The court in that case did not narrow its scope of inquiry to the plaintiff’s last action before he hit the wall of the garage. The plaintiff’s “split-second decision to turn into [defendant’s] lot rather than to stop on the highway upon discovering the loss of acceleration” (28 Ill. App. 3d 307, 313, 328 N.E.2d 649, 653) was deemed involuntary, in part due to the concealed nature of the defective axle. Collins represents a much more sensible reading of the term “action” than that employed by the majority.
The defense of assumption of the risk was held to be a jury question in Martinet v. International Harvester Co. (1977), 53 Ill. App. 3d 213, 368 N.E.2d 496. There, the plaintiff left a bulldozer in low reverse gear and dismounted it to fasten an attachment to it. As he remounted the machine, he slipped, and his right hand hit the clutch lever and engaged the transmission. The reverse motion of the machine’s track pulled the plaintiff into it and injured his left leg.
Under the majority opinion, the plaintiff would not have assumed the risk of injury because there would be “nothing in the record which suggests that [the plaintiff’s striking of the clutch lever] was due to anything but momentary inattention to the task at hand.” But, again, the court’s inquiry was not so narrow. It held that the plaintiff’s decision to leave the transmission in gear presented a jury question on assumption of the risk.
In this case, the plaintiff was successful in tapping the first filter, but was injured in his attempt to tap the second filter. As a logical matter, and, according to the authority of cases such as Coty and Martinet, the “action” which led to the injury was the plaintiff’s decision to reach into the engine compartment and tap the filters with his hand. It was not only the movement which brought his hand into the path of the blade instead of into contact with the second filter.
Unlike the majority, I believe that McCracken’s action in reaching into the engine compartment to work on the filters was not due to “momentary inattention to the task at hand” as a matter of law. The plaintiff’s substantial experience with working machinery and the obvious character of the dangers of the fan show that assumption of the risk was precisely the sort of question which was for the jury to decide.
If my discussion has seemed to focus on only a few cases, it is because those cases which have directed the issue of assumption of the risk in favor of either party are very exceptional, and I have not considered those cases which were decided solely on the plaintiff’s unawareness of the defect, because this plaintiff admitted that he knew the fan was unshielded. (Compare Sipari v. Villa Olivia Country Club (1978), 63 Ill. App. 3d 985, 380 N.E.2d 819, and L. D. Brinkman & Co.-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 394 N.E.2d 1221.) I realize that both Niffenegger and Collins discuss the unawareness of the respective plaintiffs of the defects involved, but these cases were relevant authority for their discussion of the other pertinent factors.
Assumption of the risk in a products liability case is normally a question for the jury (Thomas v. Kaiser Agricultural Chemicals), and there are many significant differences between this case and those few cases which have directed that issue in favor of the plaintiff. Those differences are so great that I am compelled to dissent from the majority’s departure from the general trend of products liability cases in this State. I would let the jury’s verdict stand.