Whether a welding mask was designed so that it channeled hot slag to a wearer’s ear was an issue for a jury to decide, an Illinois court has ruled.
On Jan. 31, 1988, George Jarke, a mechanic for a tool and die manufacturer, was removing a metal plate called a “keeper” from a furnace car. The keeper was welded to the wheelbase of the furnace car, and in order to remove it, Jarke used an arc welder to melt the old weld head.
While he was cutting the keeper off the car, hot sparks and bits of molten metal flew. Jarke was wearing a welding mask manufactured by Jackson Welding helmets. Nevertheless, one particle of hot slag rolled down the mask and fell into Jarke’s ear, perforating his eardrum. Despite skin grafts and surgery, Jarke still suffers from a hearing loss.
The only point from which he could cut the plate was beneath the car, a position that gave him very little headroom. In order to fit under the car, Jarke was forced to turn his head at an angle away from the spot he was welding.
Jarke sued Jackson Products, claiming that the welding mask was unreasonably dangerous because it offered no protection to his ears. He also alleged that the design of the mask was dangerous, because the design channeled molten metal along the rim and to the wearer’s ears, thus increasing the likelihood of injury.
Jackson asked the Illinois trial court to grant judgment for it before trial, asserting that the fact the mask offered no protection to the wearer’s ears was an “open and obvious” property of the mask, and something the manufacturer had no duty to warn against.
When the court did rule for Jackson, Jarke appealed to the Illinois Appellate Court. That court agreed that the manufacturer had no duty to warn Jarke that the mask gave no protection to his ears.
However, the court ruled that Jarke was entitled to a retrial of his claim that the design of the mask was dangerous because the outer ridge of the mask created a channel that funneled slag to his ear when his head was turned to the side, as it was when he welded the keeper.
The court stated: “While it would be eminently foreseeable to the normal consumer that [Jarke's] welding mask would not protect his or her ear, we cannot agree that as a matter of law, the average individual would immediately comprehend that when used as it was here, the mask’s design would actually better enable the welding slag to fall into the ear.”
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