Schulenburg v. Rexnord, Inc.

627 N.E.2d 16, 254 Ill. App. 3d 445, 193 Ill. Dec. 857, 1993 Ill. App. LEXIS 1023
CourtAppellate Court of Illinois
DecidedJune 30, 1993
DocketNo. 1—91—3328
StatusPublished
Cited by8 cases

This text of 627 N.E.2d 16 (Schulenburg v. Rexnord, 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
Schulenburg v. Rexnord, Inc., 627 N.E.2d 16, 254 Ill. App. 3d 445, 193 Ill. Dec. 857, 1993 Ill. App. LEXIS 1023 (Ill. Ct. App. 1993).

Opinion

JUSTICE COUSINS

delivered the opinion of the court:

Plaintiff, John Schulenburg, appeals from the order of the circuit court granting summary judgment in favor of the defendant, Rexnord, Inc. (Rexnord), pursuant to section 2 — 1005 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005.) On November 7, 1986, plaintiff was injured while operating a cement finishing machine manufactured by Rexnord. Plaintiff brought suit against Rexnord, Plote, Inc., Higgins Asphalt Company, Inc., and the Village of Schaumburg on November 6, 1987. Defendant Rexnord moved for summary judgment on the basis that plaintiff’s injury was proximately caused by the alteration of the Rexnord finishing machine by plaintiff’s employer. On October 23, 1990, the initial circuit court judge granted summary judgment, holding that as a matter of law plaintiff’s injury was caused by his employer’s addition of a “zerk” to the finishing machine. On September 6, 1991, a subsequent circuit court judge denied plaintiff’s motion for reconsideration and found that there was no just reason to delay the enforcement or appeal of the order.

We reverse and remand.

Background

On November 7, 1986, Schulenburg was operating a Rexnord FAR 306 concrete finishing machine owned by his employer, Milburn Brothers Construction Company. A finishing machine is used to smooth out the concrete previously laid on the road by a machine called a spreader. The finishing machine is composed of three units: a central unit which contains the operator’s deck, and two units called screeds which are attached to the front and rear of the central unit.

Prior to the accident, plaintiff left the operator’s deck and stepped onto the front screed. The finishing machine was still moving forward at this time, albeit at a creeping pace. The accident occurred when plaintiff was sitting or kneeling on top of the front screed and was reaching back, over the front wall of the central unit, into the open area circumscribed by the central unit’s sides. Plaintiff was in this position so that he could brush aside the loose stones which the front screed had passed over. If plaintiff did not brush the stones away, the concrete surface of the roadway would be uneven. Normally, a laborer performed this function, but plaintiff was unable to locate a laborer at the time of the accident.

The open area that plaintiff was reaching into contained an unguarded rotating shaft. While plaintiff was clearing the stones away, his coat sleeve began to wrap around the rotating shaft, pulling plaintiff toward the shaft and tearing off his arm from above the elbow.

The shaft involved in Schulenburg’s accident controls the movements of the machine’s front wheels and is located in the front of the machine between the operator’s deck and the front screed below the level of the screed. The shaft consists of two metal cylinders that rotate in a circular fashion. One cylinder fits inside the other, and the smaller cylinder can be moved in and out of the larger cylinder in order to accommodate screeds with different widths.

As originally designed, manufactured, and sold, the shaft on the finishing machine was to be lubricated manually by spreading grease on the outside of the smaller of the two cylinders that make up the shaft. Plaintiff stated that he personally greased the cylinders in this fashion for many years. Around 1981, plaintiff’s employer added two zerk grease fittings to the shaft in order to simplify the lubrication process.

A zerk fitting is a small piece of metal that has a hole through the middle of it into which grease is inserted. The zerk fitting was installed by cutting a hole in the larger of the two cylinders and by then placing the zerk in the hole of the larger cylinder. The zerk fitting protrudes from the outer surface of the larger cylinder.

Plaintiff initially filed suit on November 6, 1987. This appeal concerns plaintiff’s sixth amended complaint, filed on or about December 23, 1989. In count III of his sixth amended complaint, plaintiff alleged that Rexnord negligently manufactured a concrete finishing machine that caused plaintiff’s injury.

Plaintiff’s deposition was taken on May 1, 1989, and in his deposition, plaintiff gave contradictory accounts of how his coat became caught in the rotating shaft. At one point plaintiff unequivocally stated that he did not specifically know what caught his arm. At other points, he answered affirmatively when asked if it was the zerk which protruded from the rotating shaft which caught his arm.

On March 14, 1990, Rexnord filed a motion for summary judgment. Rexnord argued that it was not a proximate cause of plaintiff’s injury because Rexnord did not design, manufacture or sell the machine with the part (a zerk grease fitting) that caused plaintiff’s injury, and that plaintiff had admitted that the zerk grease fitting had caused his injury. In support of its motion, Rexnord attached the deposition transcript of the plaintiff. Defendant also attached the affidavit of Earl Thayer, Rexnord’s product compliance manager, who testified that the zerk fitting was not part of the concrete finishing machine as sold by Rexnord.

In response to the motion, plaintiff attached the affidavit of Robert Ackert, an employee of Milburn Brothers Construction Company. Mr. Ackert testified that he came to the aid of Schulenburg immediately after the accident and that he was the person who actually removed plaintiff’s severed arm from the drive shaft. He testified that he observed that the plaintiff’s arm was located at a point on the shaft away from the zerk and that no part of plaintiff’s arm or jacket was engaged on the zerk fitting when he removed the arm from the shaft. He also testified that he had observed that there were areas of concrete build-up on the shaft and that in some places the level of build-up was equal to or greater than the height of the zerk fitting.

Plaintiff also cited the discovery deposition of Rexnord’s expert, Earl Thayer. In his deposition, Thayer admitted that it was foreseeable that clothing could become caught on an unguarded power transmission shaft, including a smooth shaft. Thayer admitted that Rexnord knew that the power transmission shaft on its machine would accumulate" concrete everywhere, including the shaft. He further stated that concrete is an adhesive, and once it lands on something, it tends to accumulate more concrete or other debris. Thayer conceded that as a practical matter, the shafts are cleaned infrequently, only when the operator wished to adjust the size and length of the rotating shaft.

In its reply, Rexnord attached additional materials tending to support its theory that the zerk caused the plaintiff’s injury. For example, Rexnord attached the deposition testimony of plaintiff’s supervisor, Guy Kowalski, who was one of the first persons on the scene at the time of the accident. Kowalski testified that it was the zerk fitting which caught plaintiff’s jacket. However, Kowalski did not actually observe the accident and, therefore, has no personal knowledge of how plaintiff’s arm became caught on the rotating shaft.

On October 23, 1990, the circuit court granted defendant’s motion for summary judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
627 N.E.2d 16, 254 Ill. App. 3d 445, 193 Ill. Dec. 857, 1993 Ill. App. LEXIS 1023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schulenburg-v-rexnord-inc-illappct-1993.