Thomas v. Kaiser Agricultural Chemicals

MR. JUSTICE RYAN, dissenting:

I disagree with my colleagues’ treatment of the defense of assumption of risk. The opinion fails to focus on what I consider to be the controlling issue in the case — the disregard of an express warning concerning the manner of using the fertilizer applicator.

It was plainly established by the evidence that the plaintiff and his brother were farmers experienced in the application of fertilizer and had, in fact, been in the fertilizer-application business from 1960 through 1972, during which time they had applied anhydrous ammonia using applicators similar to the one used on the day of the accident, and the plaintiff had used the same type of equipment as that involved in this accident once before. Also, because of his experience, we can conclude that plaintiff knew of the dangerous propensities of both anhydrous ammonia fertilizer and of liquid nitrogen.

The evidence is also undisputed that on top of the fertilizer-applicator tank involved in this case, near the alleged defective adapter, was an air-pressure-relief valve, an air-pressure gauge, and a decal on which was plainly printed instructions that the user should bleed off all air pressure from the tank by opening the valve until the pressure gauge reads zero. The plaintiff had read and understood these instructions.

Although plaintiff stated that he opened the valve to release the pressure, it is undisputed that he did not check the air pressure gauge to see if it read zero before he attempted to attach the coupler to the adapter. In fact, plaintiff’s brother testified that when he handed the coupler to the plaintiff, “there was possibly two or three pounds of pressure” showing on the gauge. A witness called by plaintiff testified that if all the air pressure were released, there could be no injury from any liquid in the adapter; however, it would not be safe to attempt to fill an applicator tank without bleeding off all the pressure.

The majority opinion excuses the plaintiff’s conduct by saying that he thought he had released the air pressure within the applicator. That excuse is about as valid as the proverbial “I didn’t know the gun was loaded.” It is no excuse at all, in view of the directions not only to release the air pressure but also to do so until the air pressure on the gauge reads zero. In complete disregard of these directions, the plaintiff did not look at the air gauge or ascertain that the air pressure on the gauge read zero before attempting to attach a coupler to the adapter. Plaintiff’s injury can only be attributed to his direct violation of the directions plainly printed on the decal and with which he was familiar.

Comment j of section 402A of the Restatement (Second) of Torts (1965) states in part:

“Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

The facts in this case are quite similar to those found in Walk v. J. I. Case Co. (1971), 36 App. Div. 2d 60, 318 N.Y.S.2d 598 . In that case it was held that recovery was barred as a matter of law where the operator of a corn-picking machine was injured while removing com husks from the snapping rollers of the machine, contrary to the instructions printed on a warning plate placed on the machine cautioning against cleaning the machine while it was in operation. Another case in point is Kay v. Cessna Aircraft Co. (9th Cir. 1977), 548 F.2d 1370 . In that case the court, applying California law, held the manufacturer of a push-pull twin-engine aircraft was not liable on the theory of strict liability for the death of the pilot resulting from a crash on takeoff caused by the failure of the rear engine, which was obscured from the pilot’s view. The court held that compliance with the pretakeoff procedures outlined in the owner’s manual would have alerted the pilot to the fact that the rear engine had failed and the accompanying danger. The court upheld the trial court’s order for judgment for the defendant notwithstanding the plaintiff’s verdict.

A similar result was reached in Stewart v. Von Solbrig Hospital, Inc. (1974), 24 Ill. App. 3d 599 , where the appellate court affirmed the order of the trial court which entered judgment for the defendant notwithstanding the plaintiff’s verdict in a strict liability case. The evidence disclosed that a surgical pin failed when the plaintiff walked on his leg following removal of the cast. He had been instructed by the doctor not to put any weight on the leg after the cast was removed. See also 2 R. Hursh & H. Bailey, American Law of Products Liability sec. 8:25, at 212-13 (1974).

In Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418 , this court recognized that failure to heed the warnings in an instruction manual may constitute an affirmative defense of assumption of risk in a strict liability case. Under the facts of the case now before us I would hold, as a matter of law, that this affirmative defense bars recovery. Whether or not the plaintiff thought the air pressure had all been bled from the tank, the fact remains that he violated the specific instructions on the decal by attempting to attach the coupler to the adapter without ascertaining that the pressure gauge read zero. It was established by the evidence that if there would have been no air pressure in the tank, the fertilizer would not have been blown from the adapter into the plaintiff’s face. These warnings were placed on the equipment for the protection of those who use it. The law is well established that by failing to heed the warning the plaintiff assumed the risk of injury resulting therefrom. I must therefore dissent.