Carollo v. Al Warren Oil Co., Inc.

• Decision Date: 24 November 2004
• Docket Number: No. 1-03-0105.,1-03-0105.
• Citation: 289 Ill.Dec. 919,820 N.E.2d 994
• Parties: Jack CAROLLO, Plaintiff-Appellant and Cross-Appellee, v. AL WARREN OIL COMPANY, INC., an Illinois corporation, and Altom Transport, Inc., an Illinois corporation, Defendants-Appellees and Cross-Appellants.
• Court: United States Appellate Court of Illinois

820 N.E.2d 994

289 Ill.Dec. 919

Jack CAROLLO, Plaintiff-Appellant and Cross-Appellee, v.AL WARREN OIL COMPANY, INC., an Illinois corporation, and Altom Transport, Inc., an Illinois corporation, Defendants-Appellees and Cross-Appellants.

No. 1-03-0105.

Appellate Court of Illinois, First District, Fifth Division.

November 24, 2004.

Freeborn & Peters LLP, Chicago (Daniel J. Voelker and Robert J. Hall, of counsel), for Appellant/Cross-Appellee.

Clausen Miller P.C.(James T. Ferrini and Ann C. Chalstrom, of counsel) and Law Offices of Scott G. Thomas(Richard M. Jacobson, of counsel), Chicago, for Appellees/Cross-Appellants.

Justice GALLAGHERdelivered the opinion of the court:

Plaintiff, Jack Carollo, appeals from (1) an order granting summary judgment in favor of defendants, Al Warren Oil Company, Inc.(Warren), and Altom Transport, Inc.(Altom)(referred to collectively as defendants), and (2)the trial court's decision that found defendants severally liable, as opposed to jointly liable, for plaintiff's noneconomic damages.Defendants have cross-appealed from the trial court's denial of their motion for judgment notwithstanding the verdict.We affirm.

BACKGROUND

On May 13, 1998, plaintiff was seriously injured in an explosion at work.At the time, plaintiff was working for Premier Fuel & Cartage, Inc.(Premier)¹, providing fueling services at McCormick Place.Plaintiff routinely drove a tanker truck, referred to as A-2, from which he would fuel small vehicles in various locations in the Chicagoland area and then return to Premier for refueling.Premier had purchased A-2, as well as A-3, an even larger tanker truck, from defendants in 1993 and 1994, at the time Premier began its fuel business.Altom is a 48-state trucking company that provides cartage for chemicals and petroleum products.Warren is a bi-state wholesaler and retailer of motor fuels, heating oils, and chemicals.

A-2's tank had four separate compartments, each holding 500 gallons of either diesel fuel or gasoline.The Chicago fire department (CFD) had originally owned A-2's tank, which it used as a mobile fuel station to fill up CFD equipment.Altom purchased the tank from the CFD and used it for over eight years before selling it to Premier.There was no owners' manual with this used equipment when Altom purchased it.The tank, as purchased by Altom, had bottom loading capabilities; on the right side of the tank toward the bottom, a series of valves allowed "bottom-loading" transfer of fuel into A-2, making it unnecessary to refuel the truck from the top.

When Altom purchased the tank from the CFD, the tank did not have a static reel, which is a grounding device.The tank also did not have a fill pipe.A fill pipe can be either part of the tank or the fuel hose.For example, the fuel hose could have a long nozzle that could reach near the bottom of the tank to reduce splashing and static build up when the fuel hose is inserted inside the tank during fueling.

Dennis Epley, an Altom employee, testified that he and other Altom employees assembled A-2 for resale to Premier.A-2's assembly took approximately 200 hours.A-2 was assembled from an old, twice pre-owned, used tank, mounted on a chassis.The employees removed the tank from its older chassis and affixed it to a new chassis; this installation took around eight hours.The remainder of the time was spent painting the tank, replacing the rotted-out piping, reinstalling the valves, and conducting tests required by the Environmental Protection Agency and the Department of Transportation.A-3 was assembled in the same manner as A-2.

On the day of the accident, plaintiff was refueling A-2 from A-3, as he had been instructed.Plaintiff parked A-2 next to A-3, took the diesel hose attached to A-3, climbed on top of A-2, and opened the hatch to compartment number two, one of four compartments in the tank on A-2.Compartment number two held diesel fuel.Plaintiff switched the valve on the hose from diesel fuel to gasoline and waited for the diesel fuel remaining in the hose to clear out into the diesel compartment.Plaintiff planned to refuel A-2's gasoline compartments after the streaks of diesel fuel, which is a yellow-green color, dissipated.He watched for the gasoline, which is clear, to start coming out of the hose.As the fuel became clearer, with just a few yellow-green streaks remaining, a ball of fire knocked plaintiff off A-2 to the ground.After the explosion, plaintiff noticed that his hair and shirt were on fire.He tore off his shirt.The last thing plaintiff remembered was running to the dispatcher to wait for an ambulance.

As a result of the explosion, plaintiff suffered serious injuries and required extensive medical treatment.He was initially taken to Cook County hospital, where he was on a respirator for approximately three weeks.Thereafter, he was treated at Loyola Hospital for five days.Many of plaintiff's burns were third-degree, while the burns on his face were first-degree and those on his hands were second-degree.Plaintiff received skin grafts that were ultimately successful, although there were rejections from time to time.Plaintiff's skin lost elasticity and his muscles were weakened.As a result, plaintiff sustained a painful torn muscle.He also suffered from a complication that caused hearing loss.In addition to his physical injuries, plaintiff suffered from post-traumatic syndrome and depression that required medication and therapy.

On April 28, 1999, plaintiff filed a two-count complaint against defendants.Count I sounded in strict products liability.Count II was based on negligence.On July 9, 2001, the trial court granted defendants' motion for summary judgment on count I.On January 25, 2002, plaintiff filed a first amended complaint.Count I, based on strict liability, was repleaded for purposes of preserving the issue for appeal.Count II sounded in negligence.Count III was based on res ipsa loquitur.On April 9, 2002, the trial court granted defendants' motion for summary judgment on count III and that decision is not at issue in this appeal.On August 30, 2002, defendants filed a motion for judgment on the pleadings as to count II of plaintiff's amended complaint, which was denied.²

On September 26, 2002, a jury trial commenced on plaintiff's negligence claim.On October 2, 2002, after a several-day trial, the jury found in favor of plaintiff.The jury determined that plaintiff had sustained damages in the amount of $1,057,600 and allocated the percentage of fault as follows: plaintiff — 15%, Warren — 15%, Altom — 18%, and Premier — 52%.After taking into account plaintiff's percentage of fault (15%), the jury awarded plaintiff recoverable damages in the amount of $899,050.

The trial court deferred entry of the judgment, directing the parties to brief the impact of section 2-1117 of the Code of Civil Procedure(735 ILCS 5/2-1117(West 2000)) upon the amount of damages for which each defendant was responsible.The trial court, relying on the case of Lilly v. Marcal Rope & Rigging, Inc.,289 Ill. App. 3d 1105, 224 Ill.Dec. 920, 682 N.E.2d 481(1997), concluded that the employer, Premier, should not be considered in the allocation of fault under section 2-1117 and redistributed Premier's 52% of fault, pro rata, among plaintiff, Warren and Altom.

The Illinois Supreme Court subsequently decided Unzicker v. Kraft Food Ingredients Corp.,203 Ill.2d 64, 270 Ill.Dec. 724, 783 N.E.2d 1024(2002), which overruled Lilly.Defendants filed a posttrial motion requesting judgment notwithstanding the verdict or, alternatively, entry of judgment in accordance with Unzicker.On December 30, 2002, the trial court denied defendants' request for judgment notwithstanding the verdict, but entered judgment pursuant to Unzicker.As a result, each defendant was only severally liable for its proportionate share of plaintiff's nonmedical damages, and jointly and severally liable for his medical expenses.On January 2, 2003, plaintiff filed this appeal.Defendants filed a cross-appeal on January 7, 2003.

PLAINTIFF'S APPEAL

I.Whether the Trial Court Correctly Granted Summary Judgment to Defendants on Plaintiff's Strict Liability Claim

Plaintiff first contends that the trial court erred when it granted defendants' motion for summary judgment on the strict liability count (count I).³Plaintiff asserts that summary judgment should not have been entered because a genuine issue of material fact existed as to whether defendants designed, manufactured, distributed or sold trucks.

We first note the following well-established principles regarding summary judgment.A trial court may render summary judgment if the record shows 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.735 ILCS 5/2-1005(c)(West 2002).A reviewing court conducts de novo review in an appeal from a trial court's grant of summary judgment.Espinoza v. Elgin, Joliet & Eastern Ry. Co.,165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323, 1326(1995).An order granting summary judgment should be reversed if the evidence shows that a genuine issue of material fact exists or if the judgment was incorrect as a matter of law.Clausen v. Carroll,291 Ill.App.3d 530, 536, 225 Ill.Dec. 692, 684 N.E.2d 167, 171(1997).To survive a motion for summary judgment, the nonmoving party must present a factual basis that would arguably entitle him to a judgment, but plaintiffs are not required to prove their case at the summary judgment stage.Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority,172 Ill.2d 243, 256, 216 Ill.Dec. 689, 665 N.E.2d 1246, 1254(1996).Summary judgment is a drastic means of disposing of litigation, and it must be clear that the moving party is truly entitled to such a remedy.Berlin v. Sarah Bush Lincoln Health Center,179 Ill.2d 1, 7, 227 Ill.Dec. 769, 688 N.E.2d 106, 108-09(1997).When...