dissenting:
I respectfully dissent from the majority opinion for several reasons. First, I believe summary judgment was improperly granted in favor of Deere because there exists a question of material fact as to whether the cultivator, while being transported on the highway, was unreasonably dangerous. To maintain successfully a strict liability action against the manufacturer of an allegedly defective product, a plaintiff must prove that the injury or damage resulted from the condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer’s control. (Corny v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 111.) A product may be found unreasonably dangerous by virtue of a physical flaw or imperfection in the product, a design defect, or a failure of the manufacturer to warn of the danger or to instruct in the proper use of the product. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 155.) The question of whether a product is defective under any of these criteria, and therefore unreasonably dangerous, is ordinarily one of fact for the jury. Renfro, 155 Ill. App. 3d at 155.
Here, plaintiff has sought to demonstrate that the cultivator was unreasonably dangerous by alleging that the design was defective and also that the manufacturer failed to provide adequate warnings. The evidence introduced by Deere in its summary judgment motion demonstrates that the cultivator, without the harrow, was a width of 16 feet when folded up in its transportation mode and that some roadways in Illinois are of such a width that the cultivator would necessarily protrude into the oncoming lane of traffic when transported on those more narrow roadways. Such facts, at the very least, raise a material question as to whether the cultivator, as designed, was unreasonably dangerous for at least one of its intended functions, transportation from one field to another over public roadways.
While it may very well be that the fact that the cultivator was designed at a width which would necessarily result in its protruding into the oncoming lane of traffic under certain circumstances would not necessarily result in its being unreasonably dangerous if such danger were open and obvious or if adequate warnings were affixed to it, both questions raise material issues of fact which would also preclude summary judgment in this case. Arguably, in some circumstances the cultivator, while protruding into the oncoming lane of traffic, would be visible to oncoming traffic such that it would not necessarily be an unreasonably dangerous product. On the other hand, were it being transported around a sharp curve in the road, or at night, or over an overpass, as in this case, where an oncoming driver’s opportunity to observe it would be substantially limited, it may pose a substantially greater risk to those oncoming drivers exposed to it. Because there are a variety of material questions of fact relevant to the issue of whether the cultivator’s protrusion into an oncoming lane of traffic is open and obvious, it cannot be properly concluded as a matter of law that the cultivator was not unreasonably dangerous, and therefore summary judgment was improper.
Additionally, the question of the adequacy of any warnings is also one for the jury in this case. It simply cannot be said, as a matter of law, that there were adequate warnings affixed to the cultivator which would have rendered it a reasonably safe product.
I would also note at this point that neither plaintiff nor the majority raise or discuss whether summary judgment in favor of Deere as to plaintiff’s negligence counts was proper. As the issue has not been developed, I will not address it.
I also disagree with the majority’s acceptance of Deere’s argument that the allegedly defective condition of the cultivator did no more than furnish a condition by which the injury was made possible. The crucial question in this case is whether the alleged defect in the cultivator, its 16-foot transport width, proximately caused the injury to plaintiff’s decedent. The issue of proximate cause is ordinarily a question of fact for the jury. (Renfro, 155 Ill. App. 3d at 157.) Here, the cause of the accident is uncertain, and material fact issues exist in this regard. For the foregoing reasons, summary judgment for Deere was inappropriate.