Abel v. General Motors Corp.

• Decision Date: 07 May 1987
• Docket Number: 2-86-0361,Nos. 2-85-0850,s. 2-85-0850
• Citation: 108 Ill.Dec. 28,507 N.E.2d 1369,155 Ill.App.3d 208
• Parties: , 108 Ill.Dec. 28, 66 A.L.R.4th 1, Prod.Liab.Rep. (CCH) P 11,430 Marianne F. ABEL and John F. Abel, as Co-Executors of the Last Will and Testament of Marie F. Caldwell, deceased, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, a Corporation of Delaware, Leslie Oldsmobile, Inc., a Corporation of Illinois, and Hejhal Oldsmobile, Inc., a Corporation of Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1369

507 N.E.2d 1369

155 Ill.App.3d 208, 108 Ill.Dec. 28,

66 A.L.R.4th 1,

Prod.Liab.Rep. (CCH) P 11,430

Marianne F. ABEL and John F. Abel, as Co-Executors of the Last Will and Testament of Marie F. Caldwell deceased, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, a Corporation of Delaware Leslie Oldsmobile, Inc., a Corporation of Illinois, and Hejhal Oldsmobile, Inc., a Corporation of Illinois Defendants-Appellees.

Nos. 2-85-0850, 2-86-0361.

Appellate Court of Illinois Second District.

May 7, 1987.

Rehearing Denied June 5, 1987.

Joseph C. Owens, Chicago, for plaintiffs-appellants.

Lord, Bissell & Brook, Hugh C. Griffin, David R. Reed, L. Anthony Lehr, Michelle T. Fisher, Patricia S. Harris, Chicago, for General Motors Corp. Hinshaw, Culbertson, Moelmann, Hoban & Fuller, McKee, David P. Meyer, Peter G. Panno, Chicago, for Hejhal Oldsmobile Inc.

McKenna, Storer, Rowe, White & Farrug, Lynn R. Price, Mr. H. Evan Willeams, Wheaton, for Leslie Oldsmobile, Inc.

Justice REINHARD delivered the opinion of the court:

Plaintiff, Marie F. Caldwell, filed a two-count complaint against defendants, General Motors Corporation, Hejhal Oldsmobile, Inc., and Leslie Oldsmobile, Inc., arising out of her accident while driving her Oldsmobile purchased from Hejhal Oldsmobile and serviced by Leslie Oldsmobile. The complaint stated a cause of action against all three defendants for strict products liability and negligence. Summary judgment was granted in favor of all three defendants on the strict liability counts and for General Motors and Hejhal Oldsmobile on the negligence counts. A subsequent order added the express finding of no just cause to delay enforcement or appeal of the order, and plaintiff filed a timely notice of appeal.

Later, Marianne and John Abel, co-executors of plaintiff's estate, were substituted as plaintiffs in this cause (Caldwell and the Abels are hereinafter collectively referred to as plaintiff) as Marie Caldwell died June 18, 1985, of causes unrelated to the accident. Leslie Oldsmobile thereafter filed a renewed motion for summary judgment on the remaining negligence count which was granted. Notice of appeal was filed, and the appeals were consolidated by this court.

Plaintiff does not appeal the granting of summary judgment on the negligence counts in favor of General Motors and Hejhal Oldsmobile. In her appeal of the granting of summary judgment for all defendants on the strict liability counts, plaintiff essentially contends that summary judgment was improperly granted because genuine issues of material fact remain as to whether defects existed in the automobile at the time it left General Motors' control. Plaintiff's appeal of the granting of Leslie Oldsmobile's renewed motion for summary judgment on the negligence count against it raises two issues: (1) whether genuine issues of material fact exist to preclude summary judgment, and (2) whether this second summary judgment was void because the circuit court lost jurisdiction to enter that judgment pending the appeal on the first summary judgment order.

Plaintiff's complaint alleged that plaintiff purchased from Hejhal Oldsmobile on or about February 24, 1978, a new 1978 Oldsmobile Cutlass which was manufactured by General Motors. She further alleged in the complaint that Leslie Oldsmobile and Hejhal Oldsmobile performed maintenance and repair work on the automobile from time to time and that after Leslie Oldsmobile gave the car a complete major tune-up and adjusted the shift linkage on April 13, 1981, the car would not always start up and move smoothly and controllably, but would leap forward or backward suddenly and uncontrollably. Plaintiff gave notice to Leslie Oldsmobile of this problem and returned the car in June 1981 for correction of the defect. This condition did not improve after returning the car, and it continued to lurch suddenly backward or forward from time to time when it started into motion. The complaint further stated that, before plaintiff could return the car to Leslie Oldsmobile again for additional work, she was notified by General Motors that she had to take the car to Hejhal Oldsmobile for safety recall modifications which entailed the removal and replacement of the rear suspension bolts. She took the car to Hejhal Oldsmobile on June 29, 1981, and, after the work was completed, took possession of the car which was left running, entered the car, stepped on the accelerator, and the car leapt forward faster than she could react to control it. As a result, the car struck another car and a light pole, and plaintiff suffered severe injuries.

She alleged that all three defendants are strictly liable as the car was defective and not reasonably safe for its intended use because it lurched forward or backward depending on which gear it was in and also that all three defendants were negligent. Pertinent to this appeal, plaintiff alleged that Leslie Oldsmobile was negligent in failing to properly service and/or repair the subject automobile in a manner to permit its safe operation and in failing to properly inspect and test the automobile after having performed services and/or repair work on it before redelivering it to plaintiff.

General Motors filed a motion for summary judgment which stated, in pertinent part as to the strict liability count, that there was no material issue of fact as plaintiff could not present evidentiary facts to show that the vehicle had a defect at the time it left General Motors' control causing it to lurch forward. Attached to the motion were excerpts from discovery depositions taken of plaintiff prior to her death and plaintiff's expert, Robert D. Harvey, a professor of engineering at the College of DuPage, Glen Ellyn, Illinois. In response to General Motors' motion, plaintiff filed additional excerpts from the two depositions.

Harvey stated in his deposition that he examined the automobile on July 13, 1981, that he examined all of the component parts of the accelerator system which he believed necessary to evaluate the system and found that all of the components moved freely, and that the brake pedal depression moved as he expected it to do. He did observe a limitation of travel of the throttle on the carburetor which he attributed to the deformation of the fire wall of the vehicle caused by the accident, which had caused the engine to be driven back against it. He did state, however, that he did not know the condition of the fire wall before the accident. He removed the carburetor and examined it in his home that evening. He did not observe any malfunctions of the carburetor. He wrote to plaintiff's attorney on September 6, 1983, regarding storing the carburetor and, receiving no immediate response, disposed of it at the end of 1983 or early 1984.

Plaintiff stated in her deposition that she lived near Leslie Oldsmobile and that she had all of her repair and maintenance work done there. Leslie Oldsmobile overhauled her carburetor in August 1980. She had her car "summerized" at Leslie on April 13, 1981, and, after that, the car just never acted right. The lurching began about two to three days after the "summerizing." She stated that she later took the car back to Leslie Oldsmobile. They kept it for two days, and she was told that quite a bit of adjustment was done on the car and that it should be perfectly all right. She was not billed for this adjustment. However, three days later the car started the same thing again. After she put it into drive or reverse, the car lurched forward or backward. She was unable to arrange a time to return the car to Leslie Oldsmobile for adjustment because of her work schedule and took the car to Hejhal Oldsmobile for recall repairs to the rear suspension bolts on June 29, 1981, after receiving a telephone call from them. She did not discuss the lurching problem with anyone at Hejhal Oldsmobile. The parties agree that the automobile had been driven 16,216 miles at the time of the accident.

The trial court granted General Motors' motion for summary judgment and later granted similar motions filed by Hejhal Oldsmobile and Leslie Oldsmobile. The court found that the automobile did not display any unreasonable condition after it left General Motors, that there was a passage of time between the manufacture of the automobile and the accident, that intervening factors occurred by the mechanical repairs by Leslie Oldsmobile, and that plaintiff's expert's discarding of potentially defective parts deprived General Motors of its only opportunity to rebut the inference sought to be drawn by plaintiff. The court further stated that summary judgment was granted to Leslie Oldsmobile on the products liability count because pure services by an automobile repairman cannot be construed as a product. At that time, Leslie Oldsmobile's motion for summary judgment on the negligence count was denied because there were material issues of fact regarding Leslie Oldsmobile's negligence. That portion of the order granting summary judgment was made appealable by the inclusion of the finding that there was no just cause to delay enforcement or appeal. Plaintiff filed a notice of appeal.

Subsequently, plaintiff's attorney filed motions which stated that Marie Caldwell died June 18, 1985, and requested leave to substitute the co-executors of her estate, Marianne and John Abel, as plaintiffs. The trial court granted leave to substitute parties the same day.

Leslie Oldsmobile then filed a renewed motion for summary judgment on the remaining negligence count against it stating that the death of Marie Caldwell had altered the factual status of the litigation. Leslie Oldsmobile contended that, as plaintiff's deposition was a discovery deposition rather than an evidence deposition, it could not be used at trial in place of live testimony, and, therefore, plaintiff's deposition could not be considered in ruling on the renewed motion for summary judgment so there was no...