Saieva v. Budget Rent-A-Car of Rockford, RENT-A-CAR

• Decision Date: 23 April 1992
• Docket Number: A-C,RENT-A-CAR,No. 2-91-0600,2-91-0600
• Citation: 591 N.E.2d 507,227 Ill.App.3d 519
• Parties: , 169 Ill.Dec. 334, Prod.Liab.Rep. (CCH) P 13,221 Salvatore SAIEVA, Plaintiff-Appellant, v. BUDGETOF ROCKFORD, d/b/a Budget Rent-ar, et al., Defendants-Appellees. Second District
• Court: United States Appellate Court of Illinois

Page 507

591 N.E.2d 507

227 Ill.App.3d 519, 169 Ill.Dec. 334,

Prod.Liab.Rep. (CCH) P 13,221

Salvatore SAIEVA, Plaintiff-Appellant, v. BUDGET RENT-A-CAR OF ROCKFORD, d/b/a Budget Rent-A-Car, et al., Defendants-Appellees.

No. 2-91-0600.

Appellate Court of Illinois,

Second District.

April 23, 1992.

Norman R. Wheeler, James Sparkman (argued), Vella, Sparkman & Altamore, P.C., Rockford, for Salvatore Saieva.

James P. Devine (argued), Williams & McCarthy, P.C., Rockford, Gary L. Hayden (argued), Dearborn, Mich., for Budget Rent-A-Car of Rockford.

Daniel P. Hogan, Ross & Hardies, Chicago, for Ford Motor Co.

Presiding Justice INGLIS delivered the opinion of the court:

Plaintiff, Salvatore Saieva, brought this action to recover damages resulting from a one-vehicle accident that he experienced while driving a rental van on November 28, 1987. Plaintiff alleged that the accident was caused either by the negligence of defendant Budget Rent-A-Car (Budget) or by a product defect in the van that existed at the time of the van's manufacture by defendant Ford Motor Company (Ford). The circuit court of Winnebago County granted summary judgment to both defendants, and plaintiff made a timely appeal. We affirm.

THE ACCIDENT

According to plaintiff's deposition testimony, he rented a 1987 Ford Econoline 250 cargo van from Budget on November 28, 1987, to move some personal belongings from his home to his parents' home. By late evening, he had driven three round trips in the van, each round trip being approximately six miles. The rental van had been in service for over a year and had logged over 22,000 miles. At approximately 9:15 p.m., plaintiff was driving the van south on Montague Road, a rural two-lane highway which was described as bumpy, wet, and slick, at between 55 and 65 miles per hour. It was either raining or the rain had just stopped. Just before the accident occurred, plaintiff had braked suddenly to avoid a deer in the road. About a half mile farther down the road on a straight section, the rear end of the van began fishtailing. The van began to spin, eventually leaving the road and striking a fence in the ditch, injuring plaintiff and damaging the right rear portion of the van.

The accident was observed by John Glasgow, plaintiff's brother-in-law, who was following plaintiff in another vehicle. According to Glasgow's deposition testimony, plaintiff was driving at speeds of up to 65 miles per hour. Glasgow further stated that the brake lights were not illuminated when the van started to skid, although the brake lights had been working prior to the accident. Robert Wickwire, plaintiff's father-in-law, arrived at the scene immediately following the accident. Both Glasgow and Wickwire stated in their depositions that when the wrecker towed the van from the ditch, the right rear wheel was skidding and appeared to be locked up. Illinois State Trooper Leland Files stated in his deposition that he issued a citation for defective brakes based on his interview with plaintiff and the fact that the right rear wheel of the van was locked.

Sandra Johnson, manager of the local Budget agency where plaintiff rented the van, submitted a sworn affidavit with the following information. Budget brought the van to Rock River Ford, a Ford dealership in Rockford, on the Monday following the accident. A repair ticket dated November 30, 1987, two days after the accident (No. 60198, van mileage 22,954), indicates that acting upon Budget's concern about a possible lockup problem with the rear brakes, the rear brakes were cleaned, lubed and adjusted, and that the van was road tested. Budget was charged $18 for that repair. Another repair ticket dated December 11, 1987, 13 days after the accident (No. 60325, van mileage 22,965), indicates that again acting upon Budget's concern over the rear brakes possibly locking up, the rear brake shoes were replaced and the emergency brake cable control was repaired. The following was written at the bottom of the repair ticket: "Professional Opinion[:] Vehicle has been driven with Emerg. Brake On[,] per Don Lucas." The record is unclear as to who Don Lucas is. Budget was charged $111.30 for that repair. Johnson also stated in her affidavit that "[a]t no time prior to the accident was there any evidence of any defect or problem with the [van's] braking system." Budget put the van back in rental service, eventually selling the van on March 5, 1988.

An affidavit from Roland L. Ruhl, a mechanical engineer and plaintiff's expert, was submitted to the trial court in support of plaintiff's motion to deny defendants' motions for summary judgment. Ford correctly notes in its brief that Ruhl never actually examined the van. Ruhl made several conclusions concerning the van and the accident, the first of which was that leaving the emergency brake on could not have caused this accident. Ruhl reasoned that the design of the emergency brake cable is such as to provide equal cable tension to each shoe set and that, absent defective shoe adjustment or the presence of a foreign matter, no preference should exist for just one shoe set to lock against its drum. He also reasoned that if the emergency brake was on, seizure of both rear shoes should occur initially, not later after they heat up and become less effective. Ruhl opined that seizure of the right rear shoe will cause the vehicle to pull to the right and that any left steer by the driver to correct for the pull will set up sufficient conditions for a counterclockwise spin on wet pavement. Ruhl stated that a properly adjusted and set emergency brake should prevent the vehicle from moving to start with or make it virtually impossible to drive the vehicle normally. Ruhl opined that the "[m]ajor likely causes of brake seizure include improperly adjusted brake shoes, and foreign matter on the shoe drum interface[; a] leaking rear axle seal is a likely candidate."

PROCEDURAL HISTORY

Plaintiff filed his first complaint on December 29, 1988, against Budget. Count I of that complaint was a negligence claim while count II was a strict liability claim. The trial court granted Budget's motion to dismiss count I, apparently because the trial court agreed with Budget that the allegations in count I were conclusory. The trial court continued Budget's motion to dismiss count II, which invoked the protection of the "seller's exception" provided by section 2-621 of the Civil Practice Law (Ill.Rev.Stat.1989, ch. 110, par. 2-621) (allowing for dismissal of a strict liability product claim against a nonmanufacturer upon its certifying the identity of product manufacturer), until such time as Ford "shall have answered or been required to answer" the complaint.

Plaintiff filed an amended complaint on February 6, 1989, which consisted of three counts: count I was a negligence claim against Budget, count II was a strict liability claim against Budget, and count III was a strict liability claim against Ford. On June 1, 1990, the trial court granted Budget's motion to dismiss count II of the amended complaint, apparently based on Budget's prior section 2-621 motion. By that date, Budget had certified that Ford manufactured the van, Ford had made an appearance and Ford had admitted that it manufactured the van. On July 6, 1990, the trial court denied plaintiff's motion to reconsider its dismissal of count II.

During February and March 1990, Budget and Ford filed motions for summary judgment concerning counts I and III, respectively. The trial court granted both motions on September 24, 1990. On May 6, 1991, the trial court denied plaintiff's motion to reconsider. On May 7, 1991, the trial court denied plaintiff's motion to vacate the order granting summary judgment in favor of Budget and denied plaintiff's motion to file a second amended complaint against Budget.

Plaintiff made this timely appeal. Plaintiff argues that the trial court erred (1) in its dismissal of plaintiff's strict liability claim against Budget; (2) in its grant of summary judgment to Budget on plaintiff's negligence claim; and (3) in its grant of summary judgment to Ford on plaintiff's strict liability claim. We will address each issue separately.

PLAINTIFF'S STRICT LIABILITY CLAIM AGAINST BUDGET

At issue is whether the trial court erred in its dismissal, pursuant to section 2-621 of the Civil Practice Law (Ill.Rev.Stat.1989, ch. 110, par. 2-621), of plaintiff's strict liability claim against Budget. Plaintiff argues that strict liability claims have long been recognized as applying to car rental agencies, citing Galluccio v. Hertz Corp. (1971), 1 Ill.App.3d 272, 274 N.E.2d 178. Plaintiff further argues that the trial court here employed an overly broad application of section 2-621, citing Bastian v. Wausau Homes, Inc. (N.D.Ill.1986), 638 F.Supp. 1325. Budget argues that the trial court properly applied section 2-621, since Ford, the manufacturer of the van, had at that point become a party to the suit.

We first examine section 2-621 (Ill.Rev.Stat.1989, ch. 110, par. 2-621). This court has stated that section 2-621, known as the "seller's exception," allows for the dismissal of a nonmanufacturer defendant from a strict liability product claim upon its certifying the correct identity of the manufacturer of the allegedly defective product. (Logan v. West Coast Cycle Supply Co. (1990), 197 Ill.App.3d 185, 190, 143 Ill.Dec. 153, 553 N.E.2d 1139; see Cherry v. Siemans Medical Systems, Inc. (1990), 206 Ill.App.3d 1055, 1060-61, 151 Ill.Dec. 944, 565 N.E.2d 215.) The Illinois Supreme Court summarized section 2-621 as follows:

"Section 2-621 provides a method by which a nonmanufacturer may be dismissed from a product liability action at an early stage in the proceedings and therefore avoid incurring the costs that arise from defending such actions. The statute provides that a nonmanufacturer 'shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer...