Skarski v. Ace-Chicago Great Dane Corp.

• Decision Date: 21 November 1985
• Docket Number: ACE-CHICAGO,No. 84-2400,84-2400
• Citation: 485 N.E.2d 1312,138 Ill.App.3d 301,93 Ill.Dec. 102
• Parties: , 93 Ill.Dec. 102, Prod.Liab.Rep. (CCH) P 10,875 Richard P. SKARSKI, Plaintiff-Appellant, v.GREAT DANE CORPORATION, an Illinois corporation, Defendant- Appellee.
• Court: United States Appellate Court of Illinois

Page 1312

485 N.E.2d 1312

138 Ill.App.3d 301, 93 Ill.Dec. 102,

Prod.Liab.Rep. (CCH) P 10,875

Richard P. SKARSKI, Plaintiff-Appellant, v. ACE-CHICAGO GREAT DANE CORPORATION, an Illinois corporation Defendant- Appellee.

No. 84-2400.

Appellate Court of Illinois First District, Fourth Division.

Nov. 21, 1985.

Chris J. Heaney, Jacobs, Buikema, Malak, Heaney & Hiskes, South Holland, for plaintiff-appellant.

James W. Kissel, Sidley & Austin, Chicago, for defendant-appellee.

JOHNSON, Justice:

Plaintiff, Richard Skarski, brought a one-count products liability action in the circuit court of Cook County against defendant, Ace-Chicago Great Dane Corporation, seeking damages for injuries suffered while attempting to repair a refrigeration unit attached to a trailer that defendant owned. The trial court granted defendant's motion for summary judgment. Plaintiff now appeals, contending that the trial court improperly granted summary judgment for defendant.

We reverse and remand.

The record shows that defendant, a dealer and distributor of trailers, bought a trailer equipped with a refrigeration unit for the purpose of resale. Illinois Auto Central, a dealer in the business of selling and servicing such refrigeration units, employed plaintiff as a mechanic. Defendant sent the trailer to Illinois Auto Central, under a manufacturer's warranty, for the repair of a possible freon leak in the refrigeration unit. On November 13, 1980, plaintiff suffered injuries when, in the process of separating the refrigeration unit from the trailer, the unit fell from the trailer, striking him.

The record further shows that plaintiff, in his original complaint filed on July 30, 1982, pleaded claims under the theories of negligence and products liability against defendant as the manufacturer of the trailer. On March 27, 1984, plaintiff received leave of court to file an amended complaint in which he corrected the erroneous characterization of defendant as the trailer manufacturer. Plaintiff's amended complaint contained one count under the theory of products liability, alleging that the refrigeration unit was unreasonably dangerous because it was not properly secured to the trailer and because it did not contain written instructions or warnings on the danger in removing it from the trailer.

Defendant, in its answer and affidavits by its vice president, Richard K. Carlson, stated that defendant sells trailers and does not manufacture them. Defendant further answered that at the time of plaintiff's accident it had not sold the trailer and still held title to it.

Defendant moved for summary judgment, contending that it manufactured neither the trailer nor the refrigeration unit and that it neither installed the refrigeration unit on the trailer nor made any changes in either the unit or the trailer. Defendant further contended that the trial court should grant it summary judgment because it neither sold the trailer nor created any risk, and because plaintiff was not an ultimate user or consumer of the product. On September 11, 1984, the trial court granted defendant summary judgment. Plaintiff appeals.

When a plaintiff appeals from a trial court's order of summary judgment for a defendant, the only issue on appeal is whether "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill.Rev.Stat.1983, ch. 110, par. 2-1005.) If the documents that the trial court considers show that there is a material issue as to any material fact, summary judgment should not be granted. In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits in the light most favorable to the non-moving party. If fair-minded persons could draw different conclusions from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable. Conversely, when the evidence shows that no material issue of fact has been raised, the moving party is entitled to judgment as a matter of law. Artis v. Fibre Metal Products (1983), 115 Ill.App.3d 228, 231-32, 71 Ill.Dec. 68, 70, 450 N.E.2d 756, 758.

I

Plaintiff claims that he properly pleaded sufficient facts to state a cause of action in products liability. An injured plaintiff may recover damages from a manufacturer under a products liability theory if he proves that his injury "resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time it left the manufacturer's control." Suvada v. White Motor Co. (1965), 32 Ill.2d 612 623, 210 N.E.2d 182, 188, adopting the Restatement (Second) of Torts, § 402A (1965).

A.

Defendant contends that it cannot be liable in products liability where it did not manufacture the trailer with the alleged defect, where it created no risk. Defendant cites Simpson v. General Motors Corp. (1983), 118 Ill.App.3d 479, 74 Ill.Dec. 107, 455 N.E.2d 137, aff'd (1985), 108 Ill.2d 146, 90 Ill.Dec. 854, 483 N.E.2d 1, for the proposition that a manufacturer cannot delegate her duty to make a product safe to the dealer, buyer, or user of the product, and also for the proposition that an entity down the distribution chain does not have an identical duty to that of a manufacturer. 118 Ill.App.3d 479, 484, 74 Ill.Dec. 107, 455 N.E.2d 137.

In Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 73 Ill.Dec. 350, 454 N.E.2d 210, our supreme court stated:

"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. [Citation.] 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. [Citation.] Regardless of the nature of the commercial transaction and even though he does not create the defect, a seller who puts a defective product into the stream of commerce may still be held strictly liable to an injured user. [Citation.]" 97 Ill.2d 195, 206, 73 Ill.Dec. 350, 454 N.D.2d 210, 216-17.

Applying this principle, with its rationale, to the case at bar, we conclude that defendant's contention cannot stand. Although defendant sells trailers and does not manufacture them, it is in the distributive chain and, therefore, is liable for injuries resulting from defects in its trailers. Simpson v. General Motors Corp. does state the propositions that a manufacturer's duty to make a safe product is non-delegable and that an entity down the distributive chain does not have an identical duty to that of a manufacturer. However, our supreme court reasoned that "the public policy concern is really who, between the injured user and the seller, should bear the initial loss. The seller is in a position to prevent a defective product from entering the stream of commerce. The seller may either adopt inspection procedures or influence the manufacturer to enhance the safety of the product. Moreover, the seller is generally better able to bear and distribute any loss resulting from injury caused by a defective product. [Citation.]" (Crowe v. Public Building Comm. (1978), 74 Ill.2d 10, 13-14, 23 Ill.Dec. 80, 81, 383 N.E.2d 951, 952.) We hold that defendant can be liable for injuries resulting from the defective attachment of the refrigeration unit to the trailer.

B.

Defendant next contends that it cannot be liable in products liability where it has not put the trailer into the stream of commerce. Defendant argues that the term, "stream of commerce" connotes some type of commercial transaction including a payment of money or profit. Since it had not sold the trailer and since plaintiff was repairing the refrigeration unit under a warranty, defendant argues that it had not put the trailer in the stream of commerce.

Defendant correctly cites Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465, where our supreme court stated that "[t]he doctrine of strict liability was not intended to encompass injuries resulting from a 'product' which is in an unmarketable state and which had not yet been released into the stream of commerce * * *." (62 Ill.2d 456, 465, 343 N.E.2d 465, 470.) While liability does not depend on whether there was an actual sales transaction, it is necessary that a defendant be in the business of placing the allegedly defective product into the stream of commerce. (Keen v. Dominick's Finer Foods, Inc. (1977), 49 Ill.App.3d 480, 482, 7 Ill.Dec. 341, 343, 364 N.E.2d 502, 504.) Courts have used the phrase, "stream of commerce" to make the distinction between the one-time or casual seller to whom strict products liability does not apply and a defendant engaged in the business of selling products. To be in the stream of commerce does not require that the product be mass-produced or placed on the shelf at numerous locations. It is sufficient if the defendant is engaged in the business of selling the product and markets it to a buyer for the buyer's use. Boddie v. Litton Unit Handling Systems (1983), 118 Ill.App.3d 520, 530, 74 Ill.Dec. 112, 122, 455 N.E.2d 142, 149.

While the transactions between the parties in the distribution system may not necessarily be seller and buyer, the transaction and the relationship of the parties should be a part of the distribution system for the product. There are many parties who conceivably have some relation with the manufacture and sale of the product, but their relationship is peripheral and not directly related to the distributive process. (Harms v. Caterpillar Tractor Co. (1980), 80 Ill.App.3d 262, 264, 35 Ill.Dec. 656, 657, 399 N.E.2d 722, 723.) In Harms and cases cited therein, we list examples of parties that might have some relation to a product...