Gilliland v. Rothermel
| Decision Date | 15 April 1980 |
| Docket Number | No. 79-269,79-269 |
| Citation | 38 Ill.Dec. 528,83 Ill.App.3d 116,403 N.E.2d 759 |
| Parties | , 38 Ill.Dec. 528 William GILLILAND, Plaintiff-Appellant, v. M. O. ROTHERMEL, Individually and d/b/a Rothermel's Sunoco Service Station, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Schlueter, Ecklund, Olson & Barrett, John L. Olson, Rockford, for plaintiff-appellant.
Fearer & Nye, William P. Fearer, II, Stephen C. Pemberton and James G. Ahlberg, Oregon, for defendant-appellee.
The plaintiff was injured when an automobile tire which he was inflating exploded. He sought damages against the defendant service station owner on the theory of strict products liability for supplying him with a tire gauge which allegedly failed to function, causing the over inflation of the tire and the consequent injuries. Following a jury verdict for the plaintiff the trial court entered judgment notwithstanding the verdict and a conditional ruling for a new trial. Plaintiff appeals.
It appears from the record that on the date of the accident plaintiff went to defendant's service station to obtain a title transfer, to apply for new license plates, and to inflate a tubeless tire for use on a newly purchased automobile. As defendant worked on the title transfer papers, plaintiff requested and was given the use of defendant's tire gauge. Using defendant's air hose, the plaintiff began inflating the tire, which was situated on the ground. He could hear air hissing from the tire and rim and received a reading of 10 pounds per square inch pressure from the tire gauge. He put more air in the tire and again received a reading of 10 pounds. Plaintiff then went back inside the station and asked defendant for another tire gauge. The defendant stated that he had no other tire gauges and that there was nothing wrong with that one as far as he knew. Plaintiff again checked the air pressure, received the same reading of 10, and put the hose to the valve stem of the tire to further inflate it. The tire exploded off the rim causing extensive injuries to plaintiff.
The tire gauge was never found. After plaintiff was released from the hospital, he returned to defendant's station to get the tire and rim. Defendant insisted that he pay for the lost tire gauge before he would give back the tire and rim and plaintiff did so.
Defendant sold most automotive products but did not maintain a stock of tire gauges. He would order one if a customer requested. Defendant kept two tire testers, one for cars and one for trucks, for his own use and also for loans to customers on request.
Plaintiff's complaint, as amended, alleged causes of action in negligence, willful and wanton conduct, strict products liability, and implied warranty. The negligence count was dismissed on motion but the motion to dismiss the remaining counts was denied. At the close of plaintiff's case the court directed verdicts for defendant on all counts but the strict liability count. The jury returned a verdict in favor of the plaintiff in the sum of $38,000. The court granted defendant's motion notwithstanding the verdict based principally upon defendant's argument that the strict products liability doctrine did not apply to him because he was not within the distributive chain.
The principal issue before us is whether the doctrine of strict products liability applies to defendant's conduct as shown on this record. We conclude that the doctrine does not apply.
Our ruling is based upon various fundamental propositions that have been established in Illinois. Liability in tort for damage caused by a defective product may extend to one who, while engaged in commerce supplies a defective product which causes the injury, although he is neither the manufacturer, a seller or a contractor. (Suvada v. White Motor Co., 32 Ill.2d 612, 617, 210 N.E.2d 182 (1965).) A defendant need not participate in the chain of distribution of a manufactured product to be strictly liable. (Connelly v. Uniroyal, Inc., 75 Ill.2d 393, 410-11, 27 Ill.Dec. 343, 389 N.E.2d 155 (1979).) Participation in the profits from placing a defective product in the stream of commerce "presents the same public policy reasons for the application of strict liability which supported the imposition of such liability on wholesalers, retailers and lessors." (75 Ill.2d at 411, 27 Ill.Dec. at 351, 389 N.E.2d at 163.) A defective item which is loaned by a seller as a "necessary incident" to a sale of a product is within the doctrine of strict liability. (Bainter v. Lamoine L. P. Gas Co., 24 Ill.App.3d 913, 916, 321 N.E.2d 744 (1974).) The doctrine has been held inapplicable where a defendant is found to be the ultimate user of a defective product and is thus not within the distributive chain. (Keen v....
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Lewis v. Lead Industries Ass'n, Inc.
...of Torts § 389 (1977)), or in an action premised upon the theory of strict product liability (see Gilliland v. Rothermel, 83 Ill.App.3d 116, 118, 38 Ill.Dec. 528, 403 N.E.2d 759 (1980)). We note also that, in counts I and II, the plaintiffs alleged that the defendants' acts and omissions we......
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Caplan v. United States
...incidental transfer of golf cart by defendant who was not in the business of selling golf carts); Gilliland v. Rothermel, 403 N.E.2d 759, 762, 83 Ill. App. 3d 116, 38 Ill. Dec. 528 (1980) (defendant not strictly liable for tire gauge failure where tire gauge was not necessary or integral to......
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Feik v. Sieg Co., 90-4058.
... ... Another analogous case, not cited by the parties, is Gilliland v. M.O. Rothermel, 83 Ill.App.3d 116, 38 Ill.Dec. 528, 403 N.E.2d 759 (1980). In Gilliland, plaintiff went to defendant's service station to inflate ... ...