Bobka v. Cook County Hosp., 82-2343

• Citation: 117 Ill.App.3d 359,73 Ill.Dec. 3,453 N.E.2d 828
• Decision Date: 22 August 1983
• Docket Number: No. 82-2343,82-2343
• Parties: , 73 Ill.Dec. 3 Suzanne BOBKA, Plaintiff-Appellant, v. COOK COUNTY HOSPITAL, a Municipal corporation, The County of Cook, a Municipal corporation and body politic, Health and Hospitals Governing Commission of Cook County, a Municipal corporation, Rick Bernstein, Rafik Sarkission, Takayoshi Matsuda, Zimmer-USA, Inc., a corporation, and Bristol-Myers Company, a corporation, Defendants, and Padgett Instrument Company, a corporation, and Kansas City Assemblage Company, a corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 828

453 N.E.2d 828

117 Ill.App.3d 359, 73 Ill.Dec. 3

Suzanne BOBKA, Plaintiff-Appellant, v. COOK COUNTY HOSPITAL, a Municipal corporation, The County of

Cook, a Municipal corporation and body politic, Health and

Hospitals Governing Commission of Cook County, a Municipal

corporation, Rick Bernstein, Rafik Sarkission, Takayoshi

Matsuda, Zimmer-USA, Inc., a corporation, and Bristol-Myers

Company, a corporation, Defendants,

and

Padgett Instrument Company, a corporation, and Kansas City

Assemblage Company, a corporation, Defendants-Appellees.

No. 82-2343.

Appellate Court of Illinois,

First District, First Division.

Aug. 22, 1983.

Susan E. Loggans and Associates, Susan E. Loggans and Margaret M. O'Leary, Chicago, for plaintiff-appellant.

McDermott, Will & Emery, Steven H. Hoeft, of counsel, Chicago, for defendants-appellees.

McGLOON, Justice:

Plaintiff appeals from an order quashing service of summons on defendants Padgett Instrument Company (Padgett) and Kansas City Assemblage Company (Kansas City Assemblage) and dismissing the complaint as to these defendants. On appeal, plaintiff contends (1) her complaint set forth facts showing that defendants are amenable to jurisdiction in Illinois, and (2) defendants' affidavit in support of their motion did not negate the prima facie jurisdictional facts alleged by her.

We affirm.

Plaintiff Suzanne Bobka filed an action in strict liability in tort for damages for injuries sustained during an operation in which skin grafts were taken from her legs. Padgett and Kansas City Assemblage as well as two other surgical instrument manufacturers were added as defendants in plaintiff's fourth amended complaint. The complaint alleged that Padgett and Kansas City Assemblage designed, manufactured, and sold a Padgett Electro-Dermatone and "that strips of skin were removed from [plaintiff's] body through the use of one or more of the following products: Padgett Electro-Dermatone, Brown Electro-Dermatone, Brown Air-Dermatone and Meshgraft II Dermatone." The complaint further stated that the instruments were in unreasonably dangerous conditions when they left the manufacturers' control because they were not equipped with calibrator locks and thus could move during the course of surgery.

Padgett and Kansas City Assemblage filed a special and limited appearance contesting in personam jurisdiction. They also moved to quash service of summons and to dismiss those parts of the complaint pertaining to them. In their motion, defendants stated they were not residents of Illinois and plaintiff's complaint did not allege facts establishing that defendants committed a tortious act within this state which would render them amenable to process. After considering plaintiff's opposing motion, the memoranda filed by the parties, and the arguments of counsel during the hearing, the trial court granted defendants' motion.

On appeal, plaintiff contends the trial court erred in quashing service of summons and dismissing the complaint against defendants. She argues that her complaint sets forth facts evidencing the existence of jurisdiction over defendants under the Tortious Act provision of the Long-Arm Statute (Ill.Rev.Stat.1981, ch. 110, par. 17(1)(b).) She further contends that defendants' affidavit in support of their motion did not refute the jurisdictional facts alleged in her fourth amended complaint.

Initially, we note that plaintiff bears the burden of proof in establishing jurisdiction over defendants. (Johnston v. United Prebyterian Church in the United States of America, Inc. (1981), 103 Ill.App.3d 869, 59 Ill.Dec. 518, 431 N.E.2d 1275.) Where a plaintiff seeks to hold a non-resident defendant liable, the complaint must allege facts upon which jurisdiction under the Long-Arm Statute is based. (First National Bank of Chicago v. Screen Gems, Inc. (1976), 40 Ill.App.3d 427, 352 N.E.2d 285 citing Nelson v. Miller (1957), 11 Ill.2d 378, 143 N.E.2d 673 and Koplin v. Saul Lerner Co., Inc. (1964), 52 Ill.App.2d 97, 201 N.E.2d 763.) Thus, we must first examine plaintiff's complaint and determine whether a prima facie showing of jurisdiction appears therein. The following legal principles are relevant to determining this issue.

A court may exercise jurisdiction over a non-resident defendant if the defendant has certain minimum contacts with the state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice. (World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490; Johnston v. United Presbyterian Church in the United States of America, Inc. (1981), 103 Ill.App.3d 869, 59 Ill.Dec. 518, 431 N.E.2d 1275; Coca-Cola Co. v. A. Epstein & Sons International, Inc. (1980), 89 Ill.App.3d 253, 44 Ill.Dec. 551, 411 N.E.2d 917.) If a manufacturer or its distributor directly or indirectly markets a product for use in another state, thereby invoking the benefit and protection of that state's law, it is not unreasonable under the due process clause to subject the manufacturer to suit in that state. (World-Wide Volkswagen Corp.; Johnston.) A single transaction may be sufficient to confer jurisdiction, but in each case it is essential that the defendant purposefully avail itself of the privilege of...