Miller v. Dvornik

• Decision Date: 22 September 1986
• Docket Number: No. 85-2268,85-2268
• Citation: 103 Ill.Dec. 139,501 N.E.2d 160,149 Ill.App.3d 883
• Parties: , 103 Ill.Dec. 139, Prod.Liab.Rep. (CCH) P 11,243 David A. MILLER, Plaintiff-Appellant, v. Dorothy E. DVORNIK, Yamaha Motor Corporation, U.S.A., Defendants, and Performance Center, Limited, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 160

501 N.E.2d 160

149 Ill.App.3d 883, 103 Ill.Dec. 139,

Prod.Liab.Rep. (CCH) P 11,243

David A. MILLER, Plaintiff-Appellant, v. Dorothy E. DVORNIK, Yamaha Motor Corporation, U.S.A. Defendants, and Performance Center, Limited Defendants-Appellees.

No. 85-2268.

Appellate Court of Illinois First District, First Division.

Sept. 22, 1986.

As Modified on Denial of Rehearing Dec. 15, 1986.

Michael J. McArdle, Chicago, for plaintiff-appellant.

John F. Pacocha, Chicago, for defendants-appellees.

Justice CAMPBELL delivered the modified opinion of the court upon denial of the petition for rehearing.

Plaintiff, David A. Miller, appeals from an order which dismissed counts III and IV of his second amended complaint which sought damages for personal injuries incurred when his Yamaha RX 50K-B motorcycle, manufactured by defendant, Yamaha Motor Corporation, U.S.A. ("Yamaha") and sold by defendant, Performance Center Limited ("Performance"), was allegedly struck by an automobile driven by defendant, Dorothy E. Dvornik ("Dvornik"). Count III sounded in strict liability in tort against Performance; and count IV sounded in negligence against Performance. Counts I and II, directed against Dvornik and Yamaha, respectively, remain pending below in the trial court, and are not involved in this appeal. On appeal, plaintiff contends that: (1) the trial court erred in ruling as a matter of law that the motorcycle purchased by him was not unreasonably dangerous when operated without safety crash bars; (2) the trial court erred in ruling as a matter of law that Performance did not breach any duty when it sold the motorcycle to plaintiff without safety crash bars, without recommending safety crash bars, and without warning of the dangers of operating the motorcycle without safety crash bars; and (3) Performance's motion to dismiss pursuant to sections 2-615 and 2-621 of the Code of Civil Procedure (the "Code") (Ill.Rev.Stat.1985, ch. 110, pars. 2-615, 2-621) fails to state sufficient grounds to obtain dismissal. For the reasons stated below, we affirm the decision of the circuit court.

The record sets forth the following: On June 14, 1984, plaintiff, age 19, purchased from Performance a 1983 Yamaha RX 50K-B motorcycle, unequipped with safety crash bars, an optional feature. Shortly thereafter, on June 29, 1984, plaintiff was involved in an automobile collision with Dvornik at the intersection of Kedzie and 99th Street in Evergreen Park. As a result of the collision, plaintiff was thrown into the air and onto the pavement, incurring serious injuries to his legs.

Subsequently, on October 12, 1984, plaintiff brought a single-count cause of action in negligence against Dvornik. Two months later, in January, 1985, plaintiff was granted leave to amend his complaint in order to add Yamaha and Performance as defendants and also to add counts II and III, which alleged strict liability in tort against Yamaha and Performance, respectively. In each of the two new counts, plaintiff claimed that the motorcycle was unreasonably dangerous for use by the general public on the grounds that it: (1) was not designed to incorporate crash bars to protect the legs of the user; (2) crash bars were not designed, manufactured, offered, or recommended to consumers as a safety option; and (3) the motorcycle was not equipped with a warning regarding its inherently dangerous condition when operated without crash bars.

In response, Performance moved to dismiss count III pursuant to section 2-621(b) of the Code, which permits dismissal of a strict liability in tort claim against a retailer once the plaintiff has filed a complaint against the manufacturer and the manufacturer has answered or otherwise pleaded. However, pursuant to section 2-621(c), dismissal is not permitted if any of the following exceptions apply to the retailer:

"(c) A court shall not enter a dismissal order relative to any certifying defendant or defendants other than the manufacturer even though full compliance with subsection (a) of this Section has been made where the plaintiff can show one or more of the following:

(1) that the defendant has exercised some significant control over the design or manufacture of the product, or has provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the injury, death or damage; or

(2) that the defendant had actual knowledge of the defect in the product which caused the injury, death or damage; or

(3) that the defendant created the defect in the product which caused the injury, death or damage.

In its motion to dismiss and supporting affidavit, Performance alleged that it had neither designed nor manufactured the motorcycle; it had had no control over the design or manufacture of the motorcycle; and it never has had any knowledge of any defects in the motorcycle. As a result, the court granted Performance's section 2-621 motion to dismiss, and allowed plaintiff 28 days within which to amend his complaint.

Subsequently, on May 13, 1985, plaintiff filed his second amended complaint, amending count III to allege that Performance had actual knowledge of the motorcycle's defects and conditions which rendered the motorcycle unreasonably dangerous; and adding count IV, which alleged that Performance was careless and negligent in one or more of the following respects:

"(a) Sold a Yamaha RX 50K-B, Serial Number 23 H 010533 to the Plaintiff without crashbars to protect the legs of the Plaintiff in the event of side collision, roll or fall, when it knew or should have known that operation of that motorcycle without crashbars was unreasonably dangerous.

(b) Sold and delivered Yamaha RX 50K-B, Serial Number 23 H 010533 to the Plaintiff, when it knew or should have known that the Plaintiff had no experience in the use of motorcycles, and that the operation of said motorcycle by the Plaintiff posed an unreasonably dangerous threat to the Plaintiff's well-being.

(c) Failed to warn the Plaintiff of the risks and hazards in the operation of a motorcycle, when it knew that Plaintiff was unaware of said risks and hazards."

Performance then moved to dismiss amended count III pursuant to section 2-621 and to dismiss count IV pursuant to section 2-615 of the Code. With respect to count III, Performance again stated that it had no actual knowledge of any defect in the motorcycle. Regarding count IV, Performance claimed that, as a matter of law, it had breached no duty to plaintiff because: (1) there are no Illinois cases which hold that motorcycles without crash bars are unreasonably dangerous, thus, there is no duty to warn; (2) retailers are under no duty to sell products which are incapable of causing injury; and (3) there is no duty to warn of patent risks or hazards.

On July 11, 1985, the trial court granted Performance's motion to dismiss counts III and IV and allowed plaintiff 28 days within which to add a breach of warranty count against Performance. However, plaintiff decided not to add the additional count. Thus, on July 17, 1985, the court entered an amended order, dismissing counts III and IV without leave to amend. Plaintiff's timely appeal followed.

Plaintiff first contends that the trial court erred in ruling that, as a matter of law, the motorcycle he had purchased from Performance was not unreasonably dangerous. Specifically, plaintiff asserts that: (1) because the motorcycle was not equipped with safety crash bars and because Performance had failed to offer or to recommend them to plaintiff, the motorcycle unreasonably dangerous; (2) any member of the distributive chain may be held liable under the theory of products liability, regardless of fault; and (3) Performance's failure to warn plaintiff about the dangers of operating the motorcycle without crash bars created a question of fact as to whether the motorcycle was unreasonably dangerous. We reserve discussion of the third assertion for our analysis of the negligence count on the ground that it presupposes a duty to warn.

Initially, we note that on appeal of dismissal for failure to state a cause of action, all well-pleaded facts within the complaint must be regarded as admitted and true, and all reasonable inferences which can be fairly drawn from the facts alleged must also be considered as true. (Wilczynski v. Goodman (1979), 73 Ill App.3d 51, 29 Ill.Dec. 216, 391 N.E.2d 479.) We first address plaintiff's assertion that the trial court erred in determining that the motorcycle was not unreasonably dangerous as a matter of law. It is widely held that a product is legally characterized as unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary person with ordinary knowledge common to the community. (Palmer v. Avco Distributing Corp. (1980), 82 Ill.2d 211, 45 Ill.Dec. 377, 412 N.E.2d 959; Fuller v. Fend-All Co. (1979), 70 Ill.App.3d 634, 27 Ill.Dec. 1, 388 N.E.2d 964.) Because the focus in determining whether a product is unreasonably dangerous is on the product itself, not on available safety devices, the pivotal question is whether the product in its present state, without installation of optional safety devices, is dangerous because it fails to perform in the manner reasonably to be expected in light of its nature and intended function. Hunt v. Blasius (1978), 74 Ill.2d 203, 23 Ill.Dec. 574, 384 N.E.2d 368; Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill.2d 339, 247 N.E.2d 401; Artis v. Fibre Metal Products (1983), 115 Ill.App.3d 228, 71 Ill.Dec. 68, 450 N.E.2d 756; Fuller v. Fend-All. Co. (1979), 70 Ill.App.3d 634, 27 Ill.Dec. 1, 388 N.E.2d 964.

In the case at bar, plaintiff argues that he was an inexperienced, 19-year old at the time he purchased the motorcycle and could not have been expected to have been cognizant of the dangers of riding a motorcycle without crash bars. In today's society, motorcycles are a common means of transportation for persons who...