Graham v. Bostrom Seating, Inc.

• Decision Date: 11 January 2010
• Docket Number: No. 5-08-0409.,5-08-0409.
• Citation: 921 N.E.2d 1222,337 Ill. Dec. 84
• Parties: Mark GRAHAM, Plaintiff-Appellant, v. BOSTROM SEATING, INC., H.O. Bostrom, International Truck and Engine Corporation, Bostrom Seating Corporation, Navistar Corporation, Cassens Corporation, Cassens Transport Company, and Cassens & Sons, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

921 N.E.2d 1222

337 Ill. Dec. 84

Mark GRAHAM, Plaintiff-Appellant, v. BOSTROM SEATING, INC., H.O. Bostrom, International Truck and Engine Corporation, Bostrom Seating Corporation, Navistar Corporation, Cassens Corporation, Cassens Transport Company, and Cassens & Sons, Inc., Defendants-Appellees.

No. 5-08-0409.

Appellate Court of Illinois, Fifth District.

January 11, 2010.

Thomas G. Maag, Brian M. Wendler, Wendler Law, P.C., Edwardsville, IL, for Appellant.

Stephen M. Szewczyk, Reed, Armstrong, Gorman, Mudge & Morrissey, Edwardsville, IL, for Cassens & Sons, Inc.

Donald L. Smith, Hoagland, Fitzgerald, Smith & Pranaitis, Alton, IL, for International Truck and Engine Corp. and Navistar Corp.

Ted Harvey, Freeark, Harvey, Mendillo, Dennis, Wuller, Cain, Murphy, Belleville,

IL, Tia Ghattas, Cozen O'Connor, Chicago, IL, for Bostrom Seating, Inc.

Martin H. Katz, Katz, Huntoon & Fieweger, P.C., Moline, IL, for International Transportation Co.

Gordon R. Broom, HeplerBroom, Edwardsville, IL, for Cassens Corp. and Cassens Transport Co.

Justice WEXSTTEN delivered the opinion of the court:

The plaintiff, Mark Graham, appeals the Madison County circuit court's grant of a summary judgment in favor of the defendant, Cassens & Sons, Inc. (CS). The circuit court granted a summary judgment in favor of CS because it found CS was not in the chain of distribution for the sale of the vehicle-hauler truck upon which the plaintiff's claims arose and was therefore not liable under the theory of products liability.¹ The plaintiff raises three points on appeal: (1) that the circuit court erred in finding that CS was not within the chain of distribution, (2) that as a matter of Illinois law, "brokers" and "facilitators" are liable for products liability claims, and (3) that even if a "facilitator" or "broker" is not liable under Illinois law, there is a genuine issue of material fact about whether CS would even so qualify. Because we find that a question of fact exists about whether CS was in the chain of distribution for the sale of the truck at issue, we do not address the remaining points.

FACTS AND PROCEDURAL BACKGROUND

In the plaintiff's complaint, he claimed that he was injured while using a 1997 International truck equipped with a defective seat—identified as truck number 4533 and trailer number 4534 (the truck)—in the Cassens Transport Company (CT) fleet. The complaint alleged that CS "served as a distributor and seller of the truck in question," that CS "was in a position to make the truck reasonably safe," that CS was "aware at all times prior thereto of the defects and/or potential for injury arising from the placement of the truck in question into the stream of commerce," and that CS "participated in the placement of the truck in question into the stream of commerce and profited, either directly or through channeling of savings for profits to its affiliated corporations or its board of directors/stock owners."

CS answered the complaint and then filed a motion for a summary judgment,² along with a memorandum in support thereof. In its motion for a summary judgment, CS contended that its role in the purchase of the truck in question "was clerical and passive and can be compared to that of an escrow agent or a title service," that its "only role with regard to the [truck] complained of by [the] plaintiff was as a facilitator of the purchase by [CT]," that "[a]s a facilitator, [CS] cannot be considered a `seller' of the product and thus can have no liability under any sort of warranty theory," and that CS "did not even have possession of the [truck] in question and had no knowledge of its condition[ ] and had nothing to do with the Bostrom seat installed on the rig."

CS made similar contentions in its memorandum in support of its motion for a summary judgment. CS contended that it was not a true seller or distributor of the truck in question but, rather, was a "paper shuffler" or facilitator who assisted CT in acquiring the truck by providing routine title and transactional services, that CT did not need CS to order the truck, that CS's "participation in the transaction was not indispensable or mandatory, as the trailer³ in issue could have been purchased directly from International Truck by any person or entity in Illinois," that it never had possession of the truck, and that it made no profit from the sale of the truck.

CS attached four exhibits to its motion for a summary judgment: (1) an invoice, dated October 24, 1996, from Navistar International Transportation Corp. (International), for the truck in question, reflecting CS as the buyer for $60,423, indicating that it was ordered for CT and stating that it was shipped to Cottrell, Inc., (2) a CS invoice, dated January 6, 1997, showing a sale of the subject truck for $60,423 from CS to CT, (3) a certificate of origin from International, dated August 29, 1996, for the truck in question, with a second mostly illegible page that names CS as the purchaser, and (4) an affidavit from Clarence Brown, CS's vice president and general comanager.

The plaintiff filed a response to CS's motion for a summary judgment, and the plaintiff attached 50 documents from various cases involving CS. After a hearing on the matter, the circuit court granted a summary judgment in CS's favor, finding that CS "was not in the chain of distribution." The plaintiff appeals.

STANDARD OF REVIEW

Our review of a summary judgment is de novo. Williams v. Manchester, 228 Ill.2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1 (2008). "The purpose of summary judgment is not to try a question of fact, but rather to determine whether a genuine issue of material fact exists." Williams, 228 Ill.2d at 417, 320 Ill.Dec. 784, 888 N.E.2d 1. The burden is on the movant to demonstrate that there are no genuine issues of material fact (Guese v. Farmers Inter-Insurance Exchange, 238 Ill.App.3d 196, 200, 179 Ill.Dec. 383, 606 N.E.2d 215 (1992)), and "[we] must construe the evidence strictly against the movant and liberally in favor of the nonmoving party" (Carollo v. Al Warren Oil Co., 355 Ill. App.3d 172, 179, 289 Ill.Dec. 919, 820 N.E.2d 994 (2004)). "A triable issue precluding summary judgment exists where the material facts are disputed or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts." Williams, 228 Ill.2d at 417, 320 Ill.Dec. 784, 888 N.E.2d 1. A summary judgment is a drastic means of disposing of litigation, and it should only be granted where it is clear and free from doubt that the moving party is entitled to the remedy. Williams, 228 Ill.2d at 417, 320 Ill.Dec. 784, 888 N.E.2d 1. With these principles in mind, we conclude that the circuit court erroneously granted a summary judgment to CS.

ANALYSIS

The plaintiff contends that under Hammond v. North American Asbestos Corp., 97 Ill.2d 195, 73 Ill.Dec. 350, 454 N.E.2d 210 (1983), a genuine issue of material fact exists—specifically, whether CS was in the chain of distribution when there was evidence presented that CS ordered the truck, acquired title to the truck, and sold the truck. CS counters by arguing, "Strict liability should be assessed only against those defendants who satisfy the policy considerations that lie beneath the strict liability doctrine." CS argues, "[S]trict liability should apply mainly to those who: (1) make profits or other benefits from the transaction and (2) * * * are in a position to exert pressure on the manufacturer to modify the product."

In Hammond, the Illinois Supreme Court held, "In a products liability action, all persons in the distributive chain are liable for injuries resulting from a defective product, including suppliers, distributors, wholesalers[,] and retailers." Hammond, 97 Ill.2d at 206, 73 Ill.Dec. 350, 454 N.E.2d 210. The court reasoned, "Imposition of liability upon these parties is justified on the ground that their position in the marketing process enables them to exert pressure on the manufacturer to enhance the safety of the product." Hammond, 97 Ill.2d at 206, 73 Ill.Dec. 350, 454 N.E.2d 210.

The ability to exert pressure on the manufacturer, however, is not the only consideration courts in Illinois have considered for imposing strict liability in product liability actions on manufacturers, sellers, suppliers, wholesalers, distributors, and even lessors. See Hebel v. Sherman Equipment, 92 Ill.2d 368, 378, 65 Ill.Dec. 888, 442 N.E.2d 199 (1982). "Rather, * * * liability arises from the same combination of considerations that underlie the doctrine of strict products liability generally: that the loss caused by unsafe products should be borne by those who create the risk of harm by participating in the manufacture, marketing[,] and distribution of unsafe products [and by those] who derive economic benefit from placing [the products] in the stream of commerce * * *." Hebel, 92 Ill.2d at 378-79, 65 Ill.Dec. 888, 442 N.E.2d 199. "Even parties who are not within the actual chain of distribution, but who play an integral role in the marketing enterprise of an allegedly defective product and participate in the profits derived from placing the product into the stream of commerce, are held liable under the doctrine of strict liability." Bittler v. White & Co., 203 Ill.App.3d 26, 29-30, 148 Ill.Dec. 382, 560 N.E.2d 979 (1990). "[S]trict liability arises[] not because of the defendant's legal relationship with the manufacturer or with other entities in the manufacturing-marketing system, but because of its `participatory connection, for [its] personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliance upon the product.'" Hebel, 92 Ill.2d at 379, 65 Ill.Dec. 888, 442 N.E.2d 199 (quoting Kasel v. Remington Arms Co., 24 Cal.App.3d 711, 725, 101 Cal.Rptr. 314, 323 (1972)). Strict liability applies to all the elements in the distribution system. Dunham v. Vaughan &...