Johnson v. Equipment Specialists, Inc.

Mr. JUSTICE TRAPP, dissenting:

Upon the law and evidence in this case, the judgment entered in the trial court should be reversed.

The principal opinion quotes section 385 of the Restatement (Second) of Torts. It does not, however, note the comment c to such section which enlarges and explains the application of the rule stated. That comment provides:

“A manufacturer of a chattel who puts it upon the market knowing it to be dangerous and having no reason to expect that those who use it will realize its actual condition is liable for physical harm caused by its use (§394). As the liability of a servant or an independent contractor who erects a structure upon land or otherwise changes its physical condition is determined by the same rules as those which determine the liability of a manufacturer of a chattel, it follows that such a servant or contractor who turns over the land with knowledge that his work has made it dangerous in a manner unlikely to be discovered by the possessor — is subject to liability both to the possessor, and to those who come upon the land with the consent of the possessor or who are likely to be in its vicinity.” (Emphasis supplied.)

As section 385 is correlated with the liability of the manufacturer of chattels (Restatement (Second) Torts §402A (1965)), we note a similar statement of the nature of the liability in comment n that if the user discovers the defect but proceeds to use the product he is barred from recovery for injuries sustained.

Comment g of section 402A states that the manufacturer is liable if he delivered the chattel “in a condition contemplated by the ultimate consumer which will be unreasonably dangerous to him.” Unreasonably dangerous is defined as “dangerous to an extent beyond that which would be contemplated by the ordinary consumer.”

The series of doors, each 4 by 8 feet in dimension situated over the several bins cannot rationally be deemed to be unlikely to be discovered by the defendant, or dangerous to an extent beyond that contemplated by an ordinary user. Such doors had existed and been used for some 4 years prior to the date of the injury incurred here.

Examination of the cases cited in the principal opinion discloses that most foreign jurisdictions and apparently all Illinois cases have recognized and approved the conclusion that an individual cannot claim a breach of duty where the condition alleged to be dangerous is, in fact, open, apparent, and obvious.

In the cited McDonough v. Whalen (1974), 365 Mass. 506 , 313 N.E.2d 435 , the purchaser of a house sued the designer and the builder of a defective septic tank in an action in tort. Likening the action to that against the manufacturer of a chattel, the court said:

“* ° ” and the ordinary person buying such a house is in no better position to discover hidden dangers caused by the negligent construction than is the purchaser of a defective bottle of perfume, Carter v. Yardley & Co., Ltd. supra.” (Emphasis supplied.)

In the cited Hanna v. Fletcher (D.C. Cir. 1956), 231 F.2d 469 , 58 A.L.R.2d 847 , the plaintiff tenants sued for the negligent repair of stair railings. The court referred to section 385 of the Restatement of Torts. Noting the defense of contributory negligence, the court stated:

“[T]he shortcomings of its repairs created an inherently dangerous condition which was not apparent to the untrained and which imperiled the safety of those having occasion to use the railing in reliance upon its strength and security. # (Emphasis supplied.)

In Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28 , 139 N.E.2d 275 , the contractor excavated a buried tank for storage of propane gas. During the excavation defendant broke several sewer lines which were never repaired nor reported and the tank was improperly placed with the result that propane gas escaped and entered certain buildings through the sewer lines and an explosion and fire ensued. The facts disclosed a dangerous defect known to the contractor but concealed, which was the proximate cause of the injury. The opinion cites as authority Laukkanen v. Jewel Tea Co. (1966), 78 Ill. App. 2d 153 , 222 N.E.2d 584 . In that complaint it was specifically alleged that the defects in the design and construction of a pylon attached to a store building were not “capable of discovery by the public.” In the cited Inman v. Binghamton Housing Authority (1957), 3 N.Y.2d 137 , 164 N.Y.S.2d 699 , 143 N.E.2d 895 , upon a certified question the court ordered that the defendant contractor and architect be dismissed from the cause determining that the duties of the latter was to make the structure free from latent defects or concealed dangers. Such opinion was written with specific consideration and reference to section 385 of the Restatement (Second) of Torts (1965), and McPherson v. Buick Motor Co. (1916), 217 N.Y. 382 , 111 N.E. 1050 . A similar determination was reached in DiPerna v. Roman Catholic Diocese (1968), 30 App. Div. 2d 249, 292 N.Y.S.2d 177 , where an infant was injured when pushed against a metal rail protruding from school bleachers. The complaint charged negligence in design and installation. The court held that the complaint should be dismissed for failure to allege a dangerous defect that was hidden or concealed.

In Totten v. Gruzen (1968), 52 N.J. 202 , 245 A.2d 1 , the opinion discussed the liability of an independent contractor whose work had been accepted and concluded that a finding of negligence will be precluded “if the obviousness to the claimant justified the conclusion that the condition is not unreasonably dangerous.” In that instance an infant was burned on an exposed system of hot water pipes attached to a radiator. Such condition would not be apparent to an infant.

In addition to Paul Harris Furniture Co., plaintiffs have cited Colbert v. Holland Furnace Co. (1928), 333 Ill. 78 , 164 N.E. 162 , Rodgers v. Meyers & Smith, Inc. (1965), 57 Ill. App. 2d 200 , 206 N.E.2d 845 , McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345 , 272 N.E.2d 369 , and Kahn v. James Burton Co. (1955), 5 Ill. 2d 614 , 126 N.E.2d 836 .

In Colbert, a cold air register which was insecurely set in the floor collapsed. Although the work had been accepted by the owner, the contractor was held to be liable for the reason that the defect or condition was hidden from ordinary observation and the owner was not chargeable with knowledge of the defect. In Rodgers, the contractor reset a sewer cover which did not fit a manhole with the result that the cover tilted when the plaintiff stepped upon it. As defendant admitted, the characteristic of the cover was that the condition that caused it to tilt was unobservable to the eye of a person walking on the premises. McDonald does not concern the duty of an independent contractor, but rather the liability of a utility company installing its own pipe upon city property. The Kahn opinion is within the framework of a nuisance attractive to children. There was, however, a factor of hidden defect in the circumstance that heavier pieces of lumber were placed upon the top of the pile creating a latent instability.

This record clearly shows that the conditions resulting from the design and construction were obvious and clearly apparent to any person who had occasion to be on the premises when the doors were open. Upon such authority the evidence in this record does not disclose that the defendant owed or breached a duty to the plaintiffs, and the judgment should be reversed.

I would further note that the trial court erred in giving plaintiff’s Instruction No. 25, stating that the jury could find defendants negligent if they believed that defendants practiced as an architect without a certificate of registration in violation of the Illinois Architectural Act (Ill. Rev. Stat. 1973, ch. 10½, par. 1 et seq.). Appropriate objections were made that any drawings by defendants were for their own use. The statute expressly provides (ch. 10½, par. 4), that nothing in the Act prevents persons, mechanics, or builders from making plans, specifications for or supervising the erection of buildings for their own use. In People v. Lower (1911), 251 Ill. 527 , 96 N.E. 346 , the court discussed the issue of the constitutionality of the statute noting that it defined the persons who shall be regarded as architects. The opinion states:

“It provides that any person who shall be engaged in the planning or supervision of the erection, enlargment, or alteration of buildings for others and to be constructed by other persons than himself shall be regarded as an architect; but nothing contained in the act shall be construed to prevent any person, mechanic or builder from making plans and specifications for or supervising the erection, enlargement or alteration of any building that is to be constructed by himself or his employees. * * * [B]ut a builder is one whose occupation is to build or erect buildings and structures, and he is not in the same class as an architect, who makes plans and specifications for others. * * 9 Any person erecting a building may employ an architect if he sees fit or make his own plans and specifications, and he does not become an architect by planning the building which he erects.” ( 251 Ill. 527, 530-31 , 96 N.E. 346, 347 .)

The instruction misstates the law. It is the duty of the trial judge to determine the meaning of the statute. The instruction is particularly prejudicial in the light of the fact that the principle of the argument of the plaintiff is directed to the design of the system of trap doors and the instruction specifically applies the statute to defendants’ construction of a grain bin. It substantially directs a verdict.

Similar error arises in the giving of plaintiff’s Instruction No. 26, that the jury could find defendants negligent if they found that defendants practiced structural engineering without a certificate of registration in violation of the Illinois Structural Engineering Act (Ill. Rev. Stat. 1973, ch. 131½, par. 1 et seq.). The defendants made appropriate objections that they did not come within the statute in the construction of the building. We note initially that the pleadings do not allege, and the evidence does not suggest, that there was any structural fault or failure in the grain bins which were the proximate cause of the injury. Section 3(c) expressly exempts from the requirements of a certificate any person, mechanic, or builder making plans or specifications for the construction of a building which is to be constructed by himself or his employes. The instruction was highly prejudicial in that in the form given it would require a structural engineer for the design or construction of a grain dryer. The instruction given misstated the law and had the effect of making defendants liable if they constructed a grain dryer without having a certificate of registration.

In the context of the instruction alone, the judgment should be reversed and the cause remanded for a new trial.