Calderon v. Echo, Inc.

614 N.E.2d 140, 244 Ill. App. 3d 1085, 185 Ill. Dec. 6, 1993 Ill. App. LEXIS 356
CourtAppellate Court of Illinois
DecidedMarch 19, 1993
Docket1-90-2515
StatusPublished
Cited by2 cases

This text of 614 N.E.2d 140 (Calderon v. Echo, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calderon v. Echo, Inc., 614 N.E.2d 140, 244 Ill. App. 3d 1085, 185 Ill. Dec. 6, 1993 Ill. App. LEXIS 356 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE GORDON

delivered the opinion of the court:

Plaintiff filed this products liability action after being struck in the eye by a flying object while operating a trimmer manufactured by defendant. In his complaint, plaintiff alleged that the safety shield on the trimmer was not adequate to protect the operator against objects thrown back at the operator and that defendant had failed to warn of the lack of protection offered by the safety shield. A jury awarded plaintiff, who lost use of his right eye in the accident, $253,742.70 in damages, but reduced the award 90% finding that plaintiffs failure to wear eye protection when operating the trimmer constituted an assumption of the risk. Plaintiff appeals contending that the jury’s finding that he assumed the risk is against the manifest weight of the evidence.

Facts

Plaintiff was injured on September 21, 1982, while working as a landscaper. He was operating the Echo Trimmer-Brushcutter, SRM 200AE (trimmer) when he was struck in his right eye by an object propelled by the trimmer. Plaintiff filed a products liability action against the trimmer’s manufacturer, Echo, Inc. (Echo), alleging that the weed trimmer was in an unreasonably dangerous condition when put in the stream of commerce because its safety shield was inadequate to protect the user from flying objects, lacked proper warnings on the device itself, and used a material in manufacturing that chipped and cracked easily. Defendant Echo subsequently filed a third-party complaint against plaintiff’s employer, A.R.T. Fleet Service (Fleet), seeking indemnification or, in the alternative, contribution based on Fleet’s alleged failure to properly instruct plaintiff on the use of the trimmer.

In its answer, Echo raised the affirmative defense that plaintiff’s injuries were caused, in whole or in part, by the comparative fault of plaintiff in that he failed to wear eye protection when using the trimmer. A jury trial was held. The trial testimony relevant to this appeal is set forth below.

Plaintiff called Richard VerHalen as an expert witness. Among other things, VerHalen testified that the trimmer’s operator's manual was extremely confusing and did not explain the nature and magnitude of the equipment and the potential dangers in its use. He stated that although the operator’s manual explicitly states that eye protecting glasses should be worn whenever the unit was operated, the warning was not sufficiently emphasized. He also stated that the shield was inadequate and gave the user a false sense of security. On cross-examination, he conceded that the instruction to wear eye protection was on the first page of the operator’s manual and that the trimmer itself contained a caution sticker on the bottom of the handle which says “Always wear eye protection.”

Plaintiff Manuel Calderon testified that he was born in Mexico. He stated that he had a sixth-grade education in Mexico and came to the United States in 1968 when he was 20 years old. Plaintiff testified that his first job in this country was at a tree nursery where he worked for approximately seven years, planting trees and bushes. He then worked at a nut manufacturer for approximately nine years.

Plaintiff stated that he went to work for A.R.T. Fleet, a landscaping service, in 1981. He stated that on September 21, 1982, he was cutting grass in a 7- to 11-foot ditch. He was using the Echo trimmer equipped with a steel blade which he used about once a week to cut big weeds or tall grass. He stated that he had never used a trimmer prior to working for Fleet in 1981 and that a Fleet foreman, Charles Butterfield, taught him its use. He stated that Butterfield did not teach or tell him to use any special equipment when operating the cutter.

He testified that he was using the trimmer in the ditch when he got something in his eye. Butterfield, who was working close by, came over and asked what was wrong and plaintiff told him. Plaintiff denied that he told Butterfield at this time that he forgot to wear his glasses. Plaintiff said that at the time of the accident he was not wearing any safety glasses, that he did not own any safety glasses, and that he did not recognize those safety glasses which were offered as an exhibit at trial. He said that his co-workers did not use eye protection when operating the trimmer and that he had never worn safety glasses when using the trimmer in the two years he worked for Fleet. He wore sunglasses when he started to work for the tree service, but stopped wearing them because it was hot. He stated that no one from Fleet ever provided him with eye protection and that he was never told to wear eye protection when he worked.

Plaintiff testified that he did not know prior to his injury that the safety shield would not protect him from an eye injury; he thought it was to keep pieces of debris from flying backwards at him. He said that he never saw an operator’s manual for the trimmer and that he could not read English at the time of the accident. He never saw the caution labels, indicating that when the machine was used, the area where the labels were located would become oily and covered with grass.

On cross-examination, plaintiff stated that the trimmer would throw out cut grass at about knee level on both sides of the cutter and that the only time he was injured using the machine was when he lost his eye. He admitted that prior to his employment at Fleet, he operated a machine for the nut manufacturer and that he wore safety glasses provided by his employer when operating this machine. He acknowledged that he used the trimmer between 14 and 20 times prior to the accident.

Plaintiff then called Lee Sancken, the head of Fleet, pursuant to section 2 — 1101 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1101.) Sancken admitted that there was no policy that employees read an operator’s manual before using the trimmer, but stated that he instructed plaintiff on how to use the trimmer. Sancken conceded that he did not make sure employees wore their safety glasses, but stated that he did check from time to time to see whether the employees were wearing eye protection. Sancken admitted that when he used the trimmers, he wore no specific equipment, just his regular glasses. He stated that he bought goggles and safety glasses for the men and gave each person a pair and that any lost pairs were replaced immediately. He also testified that the cutter had a label instructing eye protection be worn and that while there might be some dirt on the handle of the trimmer, the handle would not be covered with grease and oil.

On cross-examination, Sancken asserted that he had at least 24 pairs of safety glasses or goggles which were kept in tool boxes, the shop and in the trucks. He also said that the foremen were required to make sure the workers were wearing eye protection and that all of his employees wore eye protection when operating the trimmer. He purchased proper eye protection especially for the trimmers after reading the operator’s manual, which stated that such protection should be worn.

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Bluebook (online)
614 N.E.2d 140, 244 Ill. App. 3d 1085, 185 Ill. Dec. 6, 1993 Ill. App. LEXIS 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calderon-v-echo-inc-illappct-1993.