Schultz v. Hennessy Industries, Inc.

Citation584 N.E.2d 235,165 Ill.Dec. 56,222 Ill.App.3d 532
Decision Date22 November 1991
Docket NumberNo. 1-90-3127,1-90-3127
Parties, 165 Ill.Dec. 56 Melvin SCHULTZ, Plaintiff-Appellant, v. HENNESSY INDUSTRIES, INC., a Foreign Corporation, and Vulcan Tools Company, an Illinois Corporation, Defendants-Appellees (Mueller Electric Company of Cleveland, a Foreign Corporation, Reynolds Machine & Tool Corporation, an Illinois Corporation, Alice Skoglund, Patty J. Cruz, Ford Motor Company, a Foreign Corporation, and Roy Collum, Defendants).
CourtUnited States Appellate Court of Illinois

Page 235

584 N.E.2d 235
222 Ill.App.3d 532, 165 Ill.Dec. 56
Melvin SCHULTZ, Plaintiff-Appellant,
v.
HENNESSY INDUSTRIES, INC., a Foreign Corporation, and Vulcan
Tools Company, an Illinois Corporation, Defendants-Appellees
(Mueller Electric Company of Cleveland, a Foreign
Corporation, Reynolds Machine & Tool Corporation, an
Illinois Corporation, Alice Skoglund, Patty J. Cruz, Ford
Motor Company, a Foreign Corporation, and Roy Collum, Defendants).
No. 1-90-3127.
Appellate Court of Illinois,
First District, Sixth Division.
Nov. 22, 1991.

Page 237

[222 Ill.App.3d 533] [165 Ill.Dec. 58] Donald A. Kurasch, Ltd., Chicago (Donald A. Kurasch, Jessica B. Tucker, of counsel), for plaintiff-appellant.

Querrey & Harrow, Ltd., Chicago (Eric Samore, Ellen Martin, of counsel), for defendant-appellee Vulcan Tools Co.

Jobin & Flynn, Chicago (Mark Quinniff, of counsel), for defendant-appellee Hennessy Industries, Inc.

Justice LaPORTA delivered the opinion of the court:

Plaintiff, Melvin Schultz, brought an action against several defendants, seeking recovery for personal injuries sustained while he attempted to use a remote starter switch to start an automobile which had been brought in for repairs to the automotive shop at which plaintiff was employed. Counts III and IV of plaintiff's ten-count complaint, as finally amended, included allegations of negligence and strict liability in tort against Vulcan Tools Company (Vulcan), the distributor of the remote starter switch. In Counts VI and VII plaintiff asserted negligence and strict liability in tort against Hennessy Industries, Inc. (Hennessy), the manufacturer of the remote starter switch. Count X [222 Ill.App.3d 534] alleged negligence by both Vulcan and Hennessy based upon the theory of res ipsa loquitur.

Upon motions filed by Vulcan and Hennessy, the trial court granted summary judgment in favor of the defendants on the negligence and strict liability claims. The court also dismissed with prejudice the count premised upon res ipsa loquitur. The court's order disposing of these claims included a statement that there was no just reason to delay enforcement or appeal of this ruling pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)). Plaintiff has appealed the ruling of the trial court. The other named defendants are not parties to this appeal.

The issues before this court are (1) whether the trial court erred in granting summary judgment in favor of defendants on the negligence and strict products liability claims, and (2) whether the trial court erred in dismissing with prejudice the count premised upon res ipsa loquitur.

The record indicates that on September 26, 1984, plaintiff was employed by Cottman Transmissions and was injured while using a remote starter switch to start an automobile which had been parked on the street adjacent to the automotive shop. Plaintiff was standing in front of the car upon which he was working when it started and began to move forward. The car caught plaintiff in his mid-section and propelled him into 47th Street where he was struck by a passing vehicle, resulting in the severance of his left leg.

Count III of plaintiff's complaint was directed against Vulcan, the distributor of the remote starter switch, and asserted that Vulcan was negligent because (a) it sold and distributed the remote starter switch when it knew or should have known that the switch was defective and could cause injury; (b) failed to inspect the switch to ascertain its condition before selling it to the plaintiff; (c) failed to test the switch to ascertain its condition before selling to its customers, including the plaintiff; and (d) failed to warn its customers and plaintiff of the dangerous condition of the switch.

Count IV was also directed against Vulcan and sought recovery under strict liability, asserting that (a) at the time of the accident, plaintiff was using the switch in a manner for which it was intended and which was reasonably foreseeable; (b) at

Page 238

[165 Ill.Dec. 59] the time the switch was sold by Vulcan to plaintiff, it was unreasonably dangerous for its intended use in that it was not designed in a manner that would prevent the switch from causing automobiles on which it was used to suddenly move forward; and (c) the defects and unreasonably dangerous condition were present at the time the switch left the control of [222 Ill.App.3d 535] Vulcan and said defects in design and unreasonably dangerous condition continued up to and including the time of the accident complained of.

Count VI was directed against Hennessy, the manufacturer of the remote starter switch, and alleged negligence in that Hennessy (a) manufactured, designed, fabricated, and sold the switch in a defective manner inadequate to prevent the switch from causing an automobile to move forward suddenly and without warning; (b) failed to inspect the switch for defects before distribution; (c) manufactured, designed, and fabricated the switch in a defective condition when it knew or should have known that the switch would be unsafe and unfit for its intended use; (d) failed to warn the plaintiff of the danger incident to the foreseeable use of the switch; and (e) failed to furnish adequate safety devices to insure that the switch would not cause automobiles on which it was being used to suddenly move forward.

Count VII was also directed against Hennessy and sought recovery under strict liability, asserting that (a) at the time of the accident, plaintiff was using the switch in a manner for which it was intended and which was reasonably foreseeable; (b) at the time the switch was manufactured and sold by Hennessy, it was defective in design and was unreasonably dangerous for its intended use in that it was not designed in a manner that would prevent the switch from causing automobiles on which it was used to suddenly move forward; and (c) the defects and unreasonably dangerous condition were present at the time the switch left the control of Hennessy and said defects in design and unreasonably dangerous condition continued up to and including the time of the accident complained of.

Count X was directed against both Vulcan and Hennessy and asserted that these two defendants were guilty of negligence based upon the theory of res ipsa loquitur. Count X alleged that (a) at the time of the accident, plaintiff was using the switch in a manner for which it was intended and which was reasonably foreseeable; (b) the switch suddenly and without plaintiff's knowledge or any voluntary act on his part started the automobile's engine, causing the automobile to suddenly move forward; and (c) the accident was the type which would not have occurred in the ordinary course of events and in the absence of negligence.

Plaintiff testified at his discovery deposition that at the time of the accident, he was 26 years old, was employed by Cottman Transmissions, and had completed schooling through grade 10, but had no formal training in automobile mechanics. He had worked for various transmission shops where he used remote starter switches in removing[222 Ill.App.3d 536] and replacing transmissions, but he did not recall whether he had used remote starter switches to start vehicles. Although it was a rare occurrence for plaintiff to work on a transmission which had been stuck in the "drive" position, he had done so more than once.

Plaintiff testified further that less than 12 months before the accident, he purchased the subject remote starter switch from a Vulcan dealer who came to his place of employment. When the Vulcan dealer delivered the switch to him, it was "wrapped up like in a ball" and was not accompanied by any instructions, warnings, or packaging.

Prior to the occurrence, plaintiff had been cleaning his tools, but he had not cleaned the starter switch. Plaintiff was told by Kathleen Bartunik, the manager trainee at Cottman Transmissions, to bring into the shop a Ford Torino which had been parked on the street in front of the shop, but Bartunik did not give plaintiff any information as to the nature of the problem with the automobile.

When he went out to move the car, plaintiff noticed that the indicator on the column

Page 239

[165 Ill.Dec. 60] shift of the car was pointed to the "drive" position and that the keys were in the ignition. Plaintiff then asked Bartunik for assistance, and she got into the driver's seat of the car. After she was behind the wheel, plaintiff connected the remote starter switch by attaching both leads to the solenoid. He then told Bartunik to turn the ignition, and he depressed the starter switch button, causing the engine to start. Thereafter, plaintiff disconnected the starter switch by removing the alligator clips from the solenoid. He then closed the hood and told Bartunik to drive the car around the block and into the shop, but Bartunik refused. She then directed plaintiff to pull the car around to the shop.

Plaintiff stated that he had depressed the emergency brake pedal before Bartunik got into the driver's seat. He also indicated that he did not consult any books, brochures, or owner's manual prior to connecting the remote starter switch to the car's engine.

Plaintiff testified further that when Bartunik told him to drive the car into the shop, he reached into the car through the driver's window and turned the ignition off, which caused the engine to stop running. After Bartunik went back into the office, plaintiff attempted to restart the vehicle alone because he could not get anyone to help him. Plaintiff opened the front window on the passenger side and made sure that the emergency brake pedal was depressed and pulled the key partially out of the ignition. Plaintiff then placed the remote starter switch inside the car between the dashboard and the windshield, and he fed the leads through the front passenger window to the engine. He opened up the hood of the car and connected the leads [222 Ill.App.3d 537] to the solenoid in...

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