¶1Supplemental Opinion on Petition For Rehearing
¶2In his petition for rehearing the defendant argues that the trial court’s refusal to give his instruction on assumption of risk was prejudicial error for two reasons: first, because the jury could have found the plaintiff guilty of contributory negligence under the negligence theory of the case but found the defendant liable under the strict liability theory; second, since this was a borderline case which the jury could have decided either way, it was imperative for the jury to have been properly instructed.
¶3The first argument is unsound. If the jury found that the plaintiff was guilty of contributory negligence it could not, under the instructions of the court, have found the defendant liable under either theory.
¶4The second argument presumes that the tendered instruction was an accurate statement of the law. We refrained from commenting on the instruction in our opinion because its accuracy was not in controversy; as we said: “No objection was made to the content of the instruction.” We stated that the defendant was entitled to a proper instruction on assumption of risk; we also spoke of an appropriately worded instruction on the same subject. The qualifying words were employed because the submitted instruction was neither correctly adapted to the facts of the case nor correctly related to strict tort liability.
¶5The instruction was offered as a modified version of IPI 13.02 but, even though modified, it retained features applicable to the employer-employee relationship. It spoke of the dangers ordinarily accompanying the activities undertaken by the plaintiff. The danger in this case arose because of a defect in the particular nails sold by the defendant — not because the plaintiff assumed the general risk of hammering nails as a carpenter working for Hartman-Sanders. The instruction permitted the defendant to be exonerated if he proved, together with two other propositions, that the plaintiff “in the exercise of ordinary care would have known the dangers existed and realized the possibility of injury from them.” As our opinion pointed out, this defense is unavailable in a strict liability case. Furthermore, the instruction did not distinguish between the exercise of ordinary care (or the freedom from contributory negligence) arising from the possible misuse of the product, and that arising from failing to discover the defect in the product or from failing to guard against the possibility of its existence.
¶6 Although an objection directed to these deficiencies might have brought forth a corrected instruction, this consideration is of no significance since the plaintiff’s objection was to the giving of any instruction on the assumption of risk, not just to this particular instruction. It was the defendant’s obligation to tender a proper instruction on the applicable law and since he did not he cannot complain that his instruction was refused. The fact that the court rejected the instruction for other reasons is inconsequential. The reason the court may give for its decision is immaterial if the decision is correct. Cady v. Hartford Fire Ins. Co., 56 Ill App2d 429, 206 NE2d 535 (1965).
¶7The petition for rehearing is denied.