Puckett v. Empire Stove Co.

JUSTICE HARRISON, specially concurring:

. I agree with the result reached by the majority, but write separately because I cannot accept its analysis on the question of foreseeability.

As the majority indicates, a central issue in plaintiff’s claim against Empire for breach of its duty to warn is “whether Empire knew or should have known that someone would replace its original gas valve with a different gas valve containing a jumper.” 183 Ill. App. 3d at 187.) Empire contends that it was not objectively reasonably foreseeable that such a replacement would be made, but I believe that the record contains considerable evidence which would support a contrary conclusion.

The evidence shows, for example, that ITT, the manufacturer of the valve which should have been used on the furnace here, also marketed other valves of similar design and configuration which could be installed on the furnace and which did contain jumpers. Indeed, before it began installing limit switches on its furnaces, Empire used such valves. The particular valve here was an ITT product. Although certain modifications had to be made in order for it to fit, there was evidence that these modifications were not complex and could be easily made without affecting the valve’s safety or performance. The record makes clear that the problem with the valve had nothing to do with the modifications, only with the fact that it contained a jumper.

Moreover, the installer’s guide published by Empire for use with its furnace, a copy of which was admitted into evidence, recommended in the troubleshooting section that if one found that the register temperature controls had no effect on the furnace, one should “[cjheck combination valve terminals for shorts, or a jumper between the two inside terminals (see 14) — jumper should not be there when temperature limit controls are used.” In my view, this indicates not merely that use of valves with jumpers was objectively reasonably foreseeable, but that Empire had actual knowledge that such valves could and would be installed in the unit.

Empire was well aware of what could happen if a jumper was present on the valve in its furnace. The limit switch could not perform its function, the unit would overheat, and fire might result. That is precisely what happened here. Given this evidence, I would conclude that it was objectively reasonably foreseeable that the valve would be replaced as it was and that someone could sustain the type of injury suffered by plaintiff.

For similar reasons, I would hold that an injury such as plaintiff’s was foreseeable by ITT. Although the ITT valve which was on the furnace at the time of the fire differed from the model normally installed by Empire, it was, as previously noted, capable of being fitted to the furnace without substantial modification. The valve was distributed by ITT with a jumper affixed to it. That ITT knew that it might be installed on furnaces containing limit switches is reflected in its installation and service brochure, which indicates that the jumper should be removed if an auxiliary control, such as a limit switch, is used. In addition, representatives from ITT testified that they were aware that if a jumper were used in a furnace containing a limit switch, the limit switch would not operate properly.

Although I believe that the type of injury sustained by plaintiff was objectively reasonably foreseeable by both Empire and ITT, I nevertheless agree that the circuit court acted correctly in directing a verdict in favor of Empire and against plaintiff and in favor of ITT and against the third-party plaintiffs, the Ghibaudys, on the duty to warn claims. Generally, a duty to warn exists where there is unequal knowledge between the manufacturer and user. (In re Estate of Dickens (1987), 161 Ill. App. 3d 565, 570 , 515 N.E.2d 208, 211 .) In this case, both plaintiff and the Ghibaudys qualify as users, but Mr. Ghibaudy, who installed the furnace in his house, indicated that he had experience as an electrician and plumber and knew about jumpers and their effects on limit switches. In other words, Ghibaudy had equal knowledge. Because he already knew what would happen if a jumper were present on the gas valve, Ghibaudy cannot now complain that an additional warning was not given to him.

The only other user was plaintiff. Plaintiff certainly cannot be said to have equal knowledge. Indeed, the evidence indicates that he knew nothing at all about the furnace. There is, however, a more basic impediment to plaintiff’s claim: proximate cause. In a products liability action, a plaintiff must prove that the claimed defect in the product was a proximate cause of his injury. (Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 232 , 450 N.E.2d 756, 759 ; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85 , 508 N.E.2d 1201, 1207 .) Here, the defect complained of is, of course, the inadequate warning. Plaintiff has failed to establish, however, how more extensive warnings might have helped avoid the accident in which he was injured. Plaintiff certainly never attempted to change or modify the gas valve in the furnace himself, and there is no indication that he had anyone attempt to do it for him. In fact, plaintiff did nothing to the furnace except block the grate. A warning against using a jumper on the gas valve would scarcely have deterred him from doing that.

The jury may have concluded that Ghibaudy was the one who replaced the valve, but as we have just discussed, he had equal knowledge of the jumper/limit switch problem. He therefore did not need additional warnings. The jury evidently rejected the claim that the furnace had a jumper on it at the time it left the factory. Based on the record before us, the only other way the valve with the jumper might have gotten on the furnace is if it had been installed by the company which first installed the furnace in a different residence before the furnace was acquired by Mr. Ghibaudy. As with Ghibaudy, however, the record indicates that the installer from that company had equal knowledge of the jumper/limit switch problem. Additional warnings were therefore not required for him either. Given this, I fail to see, and plaintiff has not explained, how the absence of more complete warnings as to the presence of jumpers on the valves contributed in anyway to his injuries. I therefore concur.