Crisman v. Peoria & Pekin Union Ry. Co., 92-1164.

• Decision Date: 16 March 1994
• Docket Number: No. 92-1164.,92-1164.
• Citation: 846 F. Supp. 716
• Parties: James CRISMAN, Plaintiff, v. PEORIA & PEKIN UNION RAILWAY COMPANY, a corporation, Defendant. PEORIA & PEKIN UNION RAILWAY COMPANY, a corporation, Third-Party Plaintiff, v. PLM INTERNATIONAL, INC., a corporation, and Westinghouse Air Brake Company, a corporation, and General Electric Railcar Services Corporation, Third-Party Defendants.
• Court: U.S. District Court — Central District of Illinois

846 F. Supp. 716

James CRISMAN, Plaintiff, v. PEORIA & PEKIN UNION RAILWAY COMPANY, a corporation, Defendant.

PEORIA & PEKIN UNION RAILWAY COMPANY, a corporation, Third-Party Plaintiff, v. PLM INTERNATIONAL, INC., a corporation, and Westinghouse Air Brake Company, a corporation, and General Electric Railcar Services Corporation, Third-Party Defendants.

No. 92-1164.

United States District Court, C.D. Illinois.

March 16, 1994.

James L. Farina, Chicago, IL, for plaintiff.

James R. Morrison, Peoria, IL, for P & PU.

Timothy J. Forman, Chicago, IL, for PLM.

Robert V. Dewey, Jr., Peoria, IL, for Westinghouse.

Frederick J. Bates, Chicago, IL, for GE Railcar.

ORDER

MIHM, Chief Judge.

This matter is before the Court on third-party defendant General Electric Railcar Services Corporation's ("GERSCO") Motion for Summary Judgment against third-party plaintiff Peoria & Pekin Union Railway Company ("P & PU") (# 71) and third-party defendant PLM International, Inc.'s ("PLM") Motion for Summary Judgment against third-party plaintiff P & PU (# 76). For the reasons set for below, both Motions for Summary Judgment are GRANTED.

FACTUAL BACKGROUND

Plaintiff James Crisman ("Crisman") was injured when he fell off a railroad car while working for P & PU. Crisman sued P & PU alleging violations of the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.) and the Safety Appliance Act (45 U.S.C. §§ 1-21). Crisman claims that the hand brake on the railroad car he was operating malfunctioned and caused him to fall to the ground and sustain injury to his right leg. P & PU filed a third-party complaint against GERSCO and PLM pursuant to the Joint Tortfeasor Contribution Act (740 ILCS 100/2). In its third-party complaint, P & PU claims that if it is found liable to plaintiff Crisman, then GERSCO and PLM are liable to P & PU based on a theory of contribution. P & PU alleges that when GERSCO and PLM placed the Railroad Car in the stream of commerce,

it was defective and unreasonably dangerous in one or more of the following respects:

(a) there was a defective weld in the big link of the bell crank chain; and

(b) the big link for the bell crank chain was incapable of sustaining the stress or strain to be placed upon it in normal and reasonably to be foreseen uses.

In 1978, North American Car Corporation (NACC) manufactured the Railroad Car involved in plaintiff Crisman's accident (the "Railroad Car"). In April 1978, the Railroad Car was leased to its first user, Mississippi Chemical Corporation. No repair records for the Railroad Car dated before December 27, 1985 exist. NACC had a policy of destroying such records after a period of time. On July 3, 1986, NACC sold the Railroad Car to GERSCO. NACC transferred all available repair records for the Railroad Car to GERSCO. On December 29, 1988, GERSCO sold the Railroad Car to PLM and transferred all available repair records to PLM. On May 31, 1991, plaintiff Crisman's accident occurred. On December 31, 1991, PLM sold the Railroad Car to U.S. Rail and transferred then existing repair records. No copies of these records were kept by PLM. On April 8, 1992, plaintiff Crisman filed this action against P & PU. P & PU sued PLM for contribution on July 16, 1992. P & PU sued GERSCO for contribution on December 28, 1992.

DISCUSSION

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no `genuine' issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). When considering a motion for summary judgment, this Court views the evidence in the light most favorable to the non-moving party. Biddle v. Martin, 992 F.2d 673, 675 (7th Cir.1993).

Third-party defendants GERSCO and PLM filed motions for summary judgment based on the statute of repose contained in the Illinois product liability statute. 735 ILCS 5/13-213(b). Section 5/13-213(b) provides in relevant part:

Subject to the provisions of subsections (c) and (d) no product liability action based upon the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of the first sale, lease or delivery of possession to its initial user, consumer or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff ...

GERSCO and PLM contend that since the Railroad Car was first leased in April 1978, then any action based on strict liability in tort brought after April 1990 is barred.

Initially, P & PU argues that GERSCO and PLM have not established the date when the statute of repose began to run. Although it is undisputed that plaintiff Crisman filed his lawsuit against P & PU more than twelve years after the first lease of the Railroad Car, P & PU contends that GERSCO and PLM must also prove that none of the exceptions of the statute of repose apply. P & PU relies on Section 5/13-213(c) which provides in part:

No product liability action based on the doctrine of strict liability in tort to recover for injury or damage claimed to have resulted from an alteration, modification or change of the product unit subsequent to the date of the first sale, lease or delivery of possession of the product unit to its initial user, consumer or other non-seller shall be limited or barred by subsection (b) hereof if:

(2) the action commenced within the applicable limitation period and, in any event, within 10 years from the date such alteration, modification or change was made ... 735 ILCS 5/13-213(c)(2).

P & PU argues that GERSCO and PLM have not established that the big link was original equipment installed at the initial time of manufacture of the car, as opposed to a replacement component added later.

This Court finds that GERSCO and PLM have met their burden and are entitled to summary judgment. GERSCO and PLM have submitted an affidavit demonstrating that the Railroad Car was leased to its first user in April 1978. Plaintiff Crisman filed his lawsuit in April 1992. P & PU does not dispute these facts. According to P & PU's logic, GERSCO and PLM must prove the date on which the Railroad Car was leased to its initial user and that the big link at issue was not an alteration, modification or change of the original equipment. This Court disagrees.

Section 13-213(c) is an exception to Section 13-213(b). Since the statute of repose is an affirmative defense, GERSCO and PLM clearly have the burden of proving it. Delnick v. Outboard Marine Corp., 197 Ill. App.3d 770, 144 Ill.Dec. 187, 192, 555 N.E.2d 84, 89 (1990). However, like the statute of limitations which is also an affirmative defense, the plaintiff bears the burden of establishing an exception to the statute. Knox v. Cook County Sheriff's Police Department, 866 F.2d 905, 907 (7th Cir.1988) (burden of establishing exception to statute of limitations is on plaintiff). When the party opposing a motion for summary judgment bears the burden of proof on a particular issue, it must affirmatively demonstrate that there is a genuine issue of material fact requiring trial. Holland v. Jefferson National Life Insurance Co., 883 F.2d 1307, 1312 (7th Cir. 1989). Therefore, if P & PU wants to invoke the protections of 13-213(c) and avoid summary judgment, it must present evidence that demonstrates that a dispute of a genuine issue of material fact exists.

A genuine issue for trial exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Based on the record before this Court, no reasonable jury could find that the big link at issue was an alteration, modification, or change of the original equipment. P & PU admits that no repair records for the Railroad Car before December 27, 1985 exist. In addition, Alan Hallstrom, a mechanical repairman who has worked for P & PU since 1969, stated that it was his opinion that the big link at issue was part of the original equipment of the Railroad Car. (Hallstrom Deposition, p. 33). P & PU must do more than merely raise "some metaphysical doubt as to the material facts" in order to survive summary judgment. Holland, 883 F.2d at 1312 (quoting Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356). Absolutely no evidence of an alteration, modification or change of the big link has been presented. Therefore, no reasonable jury could find that the big link in question was altered, modified or changed and that P & PU is entitled to the benefit of Section 13-213(c).

In Gonzalez v. Federal Press Company, 94 F.R.D. 206 (N.D.Ill.1982), Judge Aspen of the Northern District of Illinois addressed this same issue. In Gonzalez, the punch press machine at issue was sold over twelve years before the plaintiff's product liability action was brought. The plaintiff argued that a genuine issue of fact existed as to whether the defendant had modified the punch press within the applicable limitations period. If such a modification occurred, the plaintiff's action would not have been barred by Illinois law. The Gonzalez court recognized that on a motion for summary judgment, the moving party bears the burden of demonstrating that no dispute of any genuine issue of fact material to a judgment in its favor exists. However, the court held that:

While the non-moving party is entitled to all reasonable inferences in its favor, the non-movant cannot create an issue of

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