*1 denying Accordingly, affirm the circuit we postconviction petition. the defendant’s Affirmed. STEWART, JJ.,
SPOMER and concur. SEATING, al., GRAHAM, INC., v. et Plaintiff-Appellant, MARK BOSTROM Defendants-Appellees.
Fifth District No. 5 — 08—0409 January Opinion filed 2010. EC., Law, Wendler, both of Maag M. Wendler
Thomas G. and Brian Edwardsville, appellant. Morrissey, Gorman, Mudge Reed, Armstrong, & Szewczyk, M.
Stephen Sons, Edwardsville, appellee & Inc. Cassens appellees. brief filed for other No court: opinion delivered the
JUSTICE WEXSTTEN plaintiff, Graham, appeals County Mark the Madison circuit defendant, grant summary judgment court’s of a in favor of the Cas- (CS). Sons, granted summary judgment sens & Inc. The circuit court not in chain of distribution favor of because found CS was *2 upon plaintiff’s for the of which the sale the vehicle-hauler truck theory and under the of products claims arose was therefore not hable (1) liability.1 plaintiff points on that the circuit appeal: raises three finding court erred in within the of distribu- that CS was not chain (2) tion, law, that as a matter of “brokers” and “facilitators” Illinois (3) claims, products liability are liable for that if a “facilita- and even tor” law, genuine or “broker” is not liable under Illinois there is a is- sue of qualify. material fact about whether CS so Because would even we find a question that of fact exists CS about whether was issue, chain of for the distribution sale the truck at we do not ad- the remaining points. dress
FACTS AND PROCEDURAL BACKGROUND plaintiffs In the complaint, he claimed he injured that while a using equipped International truck awith defective seat— (the identified as truck number 4533 and trailer number 4534 truck) (CT) Transport the Cassens Company complaint fleet. The —in alleged that CS “served as a and seller distributor of the truck in question,” that CS “was in a reasonably to make the truck safe,” that prior CS was “aware at all times thereto of the defects potential for injury arising placement from the of the truck in and/or question commerce,” into stream of “participated that CS in placement question of the truck in into the stream of commerce and profited, directly through channeling savings either profits to its corporations affiliated or its board of own- directors/stock ers.” (1) plaintiffs complaint against 1The products CS in sounded three counts: (2) (3)
liability, negligence, warranty. order, however, breach of In its circuit being materially court did not treat these distinctive claims as differ ent, appeal, parties only products liability and on have briefed the count. Thus, 341(h)(7) (“Points we address that claim. See 210 Ill. 2d R argued are reply brief, argument, waived and shall not be raised in the in oral petition rehearing”). on filed for a complaint
CS answered then a motion in In its mo- judgment,2 along support with a memorandum thereof. in summary judgment, CS contended that its role tion for passive question truck in “was clerical and and can be purchase of the service,” compared agent “only or a title that its an escrow regard complained plaintiff was as [truck] [the] role facilitator, [CT],” can- [CS] “[a]s a facilitator no product and thus can have li- not be considered ‘seller’ of and that “did not even warranty theory,” under sort of CS ability no question knowledge and had possession [truck] on nothing ] had do with the Bostrom seat installed condition[ rig.” support of its made contentions its memorandum CS similar that it was not a true summary judgment. motion for contended but, rather, “paper was a seller or distributor of truck acquiring CT in truck shuffler” facilitator who assisted services, CT did not and transactional providing routine title truck, in the transaction “participation need to order the that CS’s appeal original on did not contain note that the record submitted 2We summary judgment or the attachments thereto but did CS’s motion for a corresponding attach support thereof and its contain memorandum *3 (210 329), 2d the According Supreme Rule 329 Ill. R. we take ments. to Court Despite be appeal unless shown to otherwise.” record on “as true and correct party this of the omission of the this the that neither notified court and fact disagreement justices summary judgment, the for a a arose between motion accurately in the what occurred this court about whether the record disclosed court, pursuant Supreme result, upon own motion to court. As a this circuit substance, 329, directing plaintiff, the to Rule entered an order Court sum file a that the motion for a supplement either the record or statement Subsequently, the motion mary found or was never filed. judgment cannot be filed. We judgment corresponding were summary a and its attachments ap duty complete record on plaintiffs to furnish a note that while it was the 449, (1975)), Co., Machining 31 3d 452 Ill. peal (Sandberg v. American very mo why party court that the neither notified this inexplicable we find it included in the record. appeal this taken was not upon tion which was it, Nevertheless, controversy arose, and the record this court settled because a (“Material Ill. 2d R. 329 omissions to the truth. See 210 was made conform to stipulation may corrected improper authentication be or or inaccuracies is court, or the record transmit parties byor the either before after trial Any court, reviewing judge or a thereof. reviewing byor court ted to accurately what occurred controversy as the record discloses to whether made court and the record settled that trial shall be submitted and court truth”). to conform the 305 could mandatory, as the trailer3 issue indispensable by any person Truck purchased directly been from International truck, and entity Illinois,” possession that that it never had made from the sale of truck. it no judgment: a summary
CS attached four exhibits to its motion for (1) invoice, 1996, 24, an dated Navistar International October from (International), Transportation Corp. question, for the truck reflect- $60,423, ing buyer indicating CS as that it was ordered for CT (2) invoice, shipped Cottrell, Inc., dated stating and that was $60,423 6, 1997, January showing subject a sale of the truck for from (3) International, August origin CS 29, certificate of dated second, 1996, question, illegible mostly page for the truck in (4) purchaser, names CS affidavit from Clarence Brown, president general comanager. CS’s vice plaintiff response summary judg- filed a to CS’s for a motion ment, plaintiff and the attached 50 documents from various cases matter, involving hearing granted CS. After a on circuit a summary judgment favor, finding in CS’s not in “was plaintiff chain of appeals. distribution.” The
STANDARD OF REVIEW Our review of a summary judgment is de novo. Williams v. (2008). Manchester, 404, 228 Ill. 2d purpose summary “The fact, is not to try a but rather to determine whether a genuine Williams, issue of fact material exists.” 228 Ill. 2d at 417. The burden on movant to demonstrate that there are no (Guese genuine issues of material fact v. Farmers Inter-Insurance Exchange, Ill. (1992)), 3d “[we] must construe the evidence strictly against the and liberally movant in favor of the (Camilo nonmoving party” Co., v. Al Warren Oil 355 App. 3d (2004)). “A precluding triable issue summary judgment exists where the disputed where, material facts are the material facts be ing undisputed, persons might reasonable draw different inferences undisputed Williams, from the facts.” 228 Ill. 2d at A summary 417. judgment is a drastic litigation, means of disposing of and it should granted be where it is clear free from doubt that moving party is remedy. Williams, entitled to the at With 417. these mind, principles in we conclude circuit court erroneously granted judgment to CS. *4 3Throughout support CS’s summary memorandum in of motion for thereto, and including the attachments Clarence affidavit Brown’s attached to the motion judgment, for and refer CS Brown to a
trailer, although plaintiffs the complaint only alleges liability upon based the question. in truck
306
ANALYSIS plaintiff The contends that under Hammond v. North American (1983), 97 Ill. 2d Corp., genuine Asbestos 195 issue material fact specifically, whether CS was in the chain of distribution when exists— truck, presented acquired there was evidence that CS ordered the title truck, the and the “Strict li by arguing, sold truck. counters ability only against satisfy be those defendants should assessed who policy liability considerations that lie beneath strict doctrine.” (1) argues, liability apply mainly “[S]trict should to those who: *** (2) profits are in make or other benefits from the transaction position pressure modify to exert on the manufacturer product.” Hammond, held, Supreme
In “In a li products the Illinois Court action, injuries in ability persons all the distributive chain are liable for distributors, resulting product, including from a suppliers, defective wholesalers!!,] Hammond, 97 Ill. 2d at The court retailers.” 206. reasoned, “Imposition upon parties justified is on the liability these marketing process enables them to ground that their pressure on the manufacturer to enhance the exert Hammond, Ill. 2d product.” 97 at 206. however, manufacturer, ability pressure to exert on the imposing consideration courts Illinois considered manufacturers, sellers, liability product liability actions on
strict distributors, wholesalers, even Hebel v. suppliers, lessors. See *** (1982). 368, “Rather, liability Ill. Equipment, Sherman 2d the same combination of considerations underlie arises from products liability generally: that the loss caused doctrine of strict products the risk of harm unsafe should be borne those who create manufacture, marketing!!,] and distribution of by participating in the plac benefit from products [and those] who derive economic unsafe Hebel, Ill. 2d commerce ***.” at ing products] [the in the stream of chain distribu parties who are not within the actual 378-79. “Even marketing tion, play integral enterprise role an but who derived from allegedly profits product defective commerce, are held liable under into the stream placing product Co., liability.” Bittler v. & 3d the doctrine of strict White (1990). liability arises[ ] not because “[S]trict 29-30 or with other legal relationship with the manufacturer defendant’s of its manufacturing-marketing system, but because entities benefit, connection, personal profit or other [its] ‘participatory product enterprise that cre and with the injury-producing ” Hebel, 92 upon product.’ demand for and reliance ated consumer Co., Arms Cal. quoting Remington 2d at Kasel v.
307 (1972). 711, 725, 314, liability applies to all Rptr. 101 Cal. 323 Strict & system. Vaughan in the v. Bush the elements distribution Dunham (1969). 339, Mfg. Co., nell 42 Ill. 2d 344 Illinois Supreme
As has explained: the Court defect, defective puts “A seller who does not create a but who the circulation, liability product responsible into is still strict to an ordinarily borne, injured will be user. Because the ultimate loss indemnification, defect, through by party that created the the public really who, injured policy concern is between the user seller, position should seller to bear the initial loss. The is in a prevent product entering from the stream of commerce. a defective may adopt inspection procedures either or influence the seller Moreover, product. a manufacturer enhance of generally seller is ing better able to distribute loss bear and result injury product.” caused a v. defective Crowe Public Comm’n, (1978), Building citing 74 Ill. 13-14 Restatement (Second) (1965). §402A, c, of Torts Comment 349-50 at Here, origin the record contains certificate of from International for the purchaser, truck in names that CS as invoice from International reflecting buyer CS was of the truck in CT, question for and an indicating invoice from CS it sold approximately alone, same truck to CT two months later. This evidence strictly against construed liberally CS and in favor plaintiff, cre a question ates participated material fact—whether in the chain question. of distribution for the truck in This is with the consistent policy consideration that the loss products caused unsafe should be borne those who by participating create the risk of harm products. distribution Hebel, 378-79; of unsafe See 92 Ill. 2d at see Hammond, also (“Regardless 2d at 206 of the nature of the defect, commercial transaction and does though even he not create the a seller puts product who defective into stream may of commerce user”). strictly still be held an injured By liable to purchasing the truck and it to was directly involved in the distribution truck, connection,” and we find “participatory that this at a minimum, creates a material question of fact about whether CS should be held strictly liable.
Nevertheless, CS strictly contends that it should not be held liable because it did not from the sale of the truck and not in pressure to exert modify on International the truck. It argues only that its role in the sale of the truck was that of “facilita- “paper that, therefore, tor” or shuffler” and not be held should strictly brokers, support, liable. In although CS contends that financial lessors, auctioneers, may technically and installers parts be chain, adopted
distributive all the courts which have nearly (Second) Torts, 402A, including Restatement section Illinois (Suvada (1965)), Co., v. Motor Ill. 2d have held White liability strictly products them not be liable in cases. The Il this v. support argument Koby linois case CS cites is Alvarez (1987). Machinery Co., disagree find 3d 711 We questions exactly of fact about role was in material exist what CS’s truck. purchasing this (Second) Torts, 402A, provides,
The Restatement section part, relevant as follows:
“(1) unreason- product One who sells a defectivecondition subject ably dangerous property or consumer to his the user liability physical thereby user to consumer, harm caused to ultimate *6 if property,
or to his (a) engaged such the seller is the business a product[ ] and
(b) expected reach the or consumer it is to and does user change in condition in which without substantial the (1965). (Second) §402A, of Torts at 347-48 sold.” Restatement (Ziegler), Alvarez, plaintiff Ziegler Company In the F.A. a sued to sell representative, attempted plaintiffs manufacturer’s which Corp. a mill manufactured McNeil Akron The employer new buy indicated that it wanted to a plaintiff’s employer declined but Koby carry Koby learned of Ziegler used mill. did not sell mills but specifications sale sent for the machine’s Ziegler one for in Florida. plaintiffs employer. Ziegler then price and forwarded this to gearbox plaintiffs employer and went agreed inspect for Ziegler compensated its inspection, Florida to do so. was not for but for made no plaintiff’s employer pay expenses. Ziegler did modifica plaintiffs employer regarding any recommendations make, negotiations the sale of participate did not for tions mill, Koby mill, did not the installation of the mill. the sale of the The compensation received no connection with be conduct could not characterized Ziegler’s trial court found thus, Ziegler that, the mill into the chain of distribution placing Alvarez, Ill. strictly App. 163 3d at 713-14. could not be held liable. plaintiffs Appellate agreed, rejecting Court The First District a client a sufficient goodwill future current was contention that Alvarez, App. Ill. Ziegler strictly liable. 163 economic benefit to hold inform Ziegler’s major role was to 715. court stated that 3d at The was mill was sale and that this too employer plaintiffs liability. Al imposing a basis for strict remote a role to be sufficient are pointed out that there varez, App. 3d at 715. Ill. many parties may general system who be related to the economic but directly process not related to the and not intended to be distributive Alvarez, products liability App. defendants in a action. 163 Ill. 3d at Co., examples, [in 716. “As the court Harms Tractor Caterpillar v. (1980),] licensor, consultant, patent cited a an independent firm, engineering independent testing laboratory, firm, transportation law company[,] independent and an warehouse.” Alvarez, 163 Ill. 3d at 716. The court then noted Ziegler general not related to the system product: “[It] economic did mill, make a from the sale of the working nor was it party ultimately Alvarez, who would profit from the sale.” App. 3d at 716. inapposite
We find Alvarez to the case at bar. CS’s role in this transaction is not as clear-cut as the situation that often arises in products liability cases representative profits where a sales products sale of it sold or facilitated the sale of on behalf of the company companies Rather, it represented. questions of fact exist played transaction, about what role CS in the exactly why this is summary judgment granted should not be in this case. Unlike in Al- varez, merely CS did not inform CT that truck was for sale—CS actually purchased Thus, the truck. directly CS was related to the process. distributive CS’s role in the certainly transaction was more involved than many of the “independent” companies service examples provided Alvarez, explained below, and as fully ques- more tions of fact exist about whether CS benefited party or worked for a that would ultimately benefit from the sale.
Further, that, it appears plain reading 402A, under a of section strictly Here, would be liable. it is undisputed that CS sold the truck *7 plaintiffs CT, to the employer, and that the truck reached CT without change substantial in the condition in which it was sold. The remain- ing issue then is whether CS engaged was selling business of trucks. states, Comment to pertinent section 402A part, “[This] f *** not, however, rule does apply to the occasional seller who is not engaged in activity that part as a of his business.” Restatement (Second) (1965). §402A, of Torts f, Comment at 350
In affidavit, Clarence Brown’s he testified primarily that CS is an light automobile and truck dealer that sells and and services new used Chrysler Dodge and automobiles and trucks. He stated that CS has never maintained an inventory car-transport trucks, had never been an authorized repair trucks, distributor or center for such had never sold the trucks to the public. deposition, however, In his he stated that since purchased CS had and sold hundreds of these CT, trucks to that purchased International, CS exclusively from trucks, and that in the sale of these not refuse to CS could Terminals, Inc., family another Cassens in the fleet of Auto the trucks and he would not through company, purchased could have been it. have known evidence, conflicting evidence we find there is upon
Based this “engaged in the business” of CS was the record about whether individual, and the sale ordinary is not an vehicle-hauler trucks. CS principal transaction unrelated trucks not an isolated these Rather, CS, dealership with an automobile of the seller. business trucks, required purchase vehicle-hauler license that was dealer’s then used these trucks to which and sold hundreds of purchased automobiles to CS. CT delivered these trucks to deliver automobiles then CS sold these automobiles. profit, at no on these trucks to CS facilitator, we find that a broker or as a classifies itself as Whether CS in the chain about what CS’s role was material fact exist questions of Hammond, (rejecting 97 Ill. 2d at See of distribution. by section contemplated seller argument that it was not a defendant’s as a broker that it acted maintained 402A where the defendant contracts parent corporation’s facilitating servicing by merely product). had control of the and never of fact exist about
Furthermore, questions find that material we enhance the International pressure on CS could exert whether for a In of its motion support the trucks. transaction” complete [the] [CS] CT “did not need alleged mandatory, as indispensable “participation was and that CS’s directly [Interna- from purchased could have been the trailer issue mo- response In to CS’s entity in Illinois.” by any person or tional] deposition testimony of from the tion, excerpt attached an plaintiff CS, explaining president Cassens, chairman of CT Allen vice “[A] trucks: International purchase used CS to the reason CT *** directly cannot sell course of business in the normal manufacturer licensed dealer involved has to be a there [because] to a customer dealer!,] and with is the licensed okay!,] [CS] intermediary!;] through the reason it went have, I that is relationship assume we could not have say [CT] fair to if it would “be asked [CS].” When CS, Allen Navistar”4 without directly from those tractors purchased Further, plaintiffs my assumption.” replied, “That is Cassens testimony of Clar- deposition excerpt included an response and trac- that “trailers agreed he Brown, Brown stated in which ence ability have the CS did not dealers” and that sold to tors had to be trailers of trucks and processing paperwork stop for CT. company of International. Corp. parent is the International
4Navistar
*8
Liberally construing
deposition testimony
of Allen Cassens
plaintiff, questions
and Clarence Brown in favor of the
of fact exist
about
needed to
trucks and
purchase
whether CS was
International
an indispensable
mandatory party
acquir-
whether CS was
to CT
ing
questions
the truck or trucks. These
are relevant to determine
whether CS was in the chain of
truck
distribution for the sale of the
purchasing
what influence CS could exert on International
these trucks. If International could not sell to
a
CT because it was not
dealer,
illogical
licensed
it would seem
that CT could
much influ-
exert
fact, however,
ence on
A question
International.
exists about what
influence CS—as
necessary
licensed dealer—had
Interna-
Furthermore,
question
tional.
of fact exists about whether CS was in
position
prevent
entering
the truck from
the stream of commerce
or whether CS could
adopted inspection procedures
to enhance
truck,
the safety of the
because it appears that the truck could not
purchased
have been
participation.
without its
The dissent
regardless
contends that
of whether CS was a neces
sary party
purchase
truck,
to the
of the
it remains true that CS could
CS,
exert no influence
alia,
on International where
inter
never
selected, ordered, negotiated,
played
any part
of the
regards
aforementioned activities in
of these trucks.
The dissent
ignore
seems to
the fact
all
required
that is
is that
ability
CS had the
in position
influence,
or was
to exert
not that
actually
Hammond,
exerted
influence. See
We also find questions material of fact exist about whether CS profited or benefited from the sale of the truck. While CS did attach an invoice from indicating International that CS had ordered the truck price $60,423 at issue for CT at a and did attach a notarized document from CS indicating that the same truck was later sold to CT $60,423, other evidence plaintiff question attached creates a of fact profited, about whether CS either directly indirectly, the sale of above, the truck or trucks. deposi- As mentioned in Brown’s tion, he stated bought that since 1933 CT had hundreds of tractors through trailers CS and that all the Cassens corporations, includ- ing policy had a that prohibited intercompany profit for Abert, sales of these tractors and Raymond trailers. an officer of CS, stated in deposition, his “[T]he overall owners of the Cassens group of companies procedure benefited where there was no intercompany profits being exchanges products.” made on plaintiff, liberally construe this evidence favor
When we working a party of fact also exists about whether CS was Hebel, Ill. 2d at ultimately profit from the sale. See that would (“[S]trict legal defendant’s liability ] not because of the arises[ *9 entities in the the manufacturer or with other relationship ‘participatory manufacturing-marketing system, but because of its benefit, injury- with the connection, personal profit or other [its] for ” ***’ Kasel, added)), 24 Cal. (emphasis quoting producing product 323; Alvarez, 725, App. 163 Ill. 3d at 716 Rptr. 3d at 101 Cal. at App. liability action products the defendant was not liable in a (finding that general not related to the economic because the defendant “was a profit the defendant “did not make system product” of the where mill, would working any party nor was it who from the sale of the for added)). (emphasis the sale” ultimately profit from working existing about whether CS was questions Besides of fact sale, also find ultimately benefit from the we party for a who would directly by purchas benefited questions of fact exist about whether CS having have been its automobile ing these trucks. CS’s benefit could cost, having pay than to another to it at rather inventory delivered inventory to it. Evidence in the company deliver its vehicle-hauler to CT, that sold the trucks to the trucks for purchased record that CS to deliver cost, then use the same trucks CT at and that CT would The dis supports an inference of this. inventory CS’s to it at no despite to this claim contends, support “There is no evidence sent at inference.” 398 Ill. 3d 316. effort to create such an majority’s Here, however, undisputed mark. there was dissent, misses the procedure this used deposition in Brown’s that evidence trucks. We believe that vehicle-hauler purchasing CS and CT this different inferences about whether people could draw reasonable ultimately CS and which no-profit of services between procedure profit, that it sold for inventory its providing resulted in CS with (“A Williams, preclud 2d triable issue 228 Ill. at 417 CS. See benefited ***, being the material facts exists where ing inferences from might draw different persons reasonable undisputed, facts”). undisputed holding parent Furthermore, are circumstances where there matter, could be company for that subsidiary company, or a “sister” 121 Ill. 3d Ogg City Springfield, v. strictly liable. See held (“[A] (1984) participates company which parent 32-33 product[ ] or of an unsafe manufacture, marketing, and distribution of com the stream placing benefit from derives economic which unsafe character eliminate the in a ] or which is merce[ (emphasis product” the loss caused is liable for product USA, Inc., Forsythe v. original)); see also Clark (“Where (2007) that a prove parent there is evidence sufficient strategy budgetary company mandated overall business authorization, strategy specific that out its own direction or carried ownership surpassing the exercised a normal incident control disregard subsidiary, parent company interests of that for the Here, (emphasis original)). there was evidence liability” could face companies policy allowing that had a no group Cassens that nine directors intercompany profits; seven of the officers and for CT; Raymond CS were also officers and Abert and directors the only Clarence Brown were two officers for CS who were not offic for CT but Clarence claimed not know who the of ers Brown were; premises ficers or board that CS made members CS avail videos; creating safety able to CT for Allen Cassens was president of Cassens all Corp., holding company CS and companies, Terminals, Cassens and was vice chairman of CT and Auto Inc.; that Allen through Cassens ordered CS the trucks CS and that purchases; CS could refuse to in these *10 Allen got negotiations that Cassens involved in with automobile respect CT; manufacturers with to the rates that to paid were that purchased Clarence Brown did not CS why know the trucks for CT boss, Cassens, but that he did so for CS because Allen told him his you did said; and what the boss CT that administered all the workers’ compensation for all companies; claims the Cassens and that CS advertised using insignia the same Corp. Forsythe, as Cassens See 224 J.) (Freeman, J., Ill. 2d at by Burke, specially concurring, joined (“In us, however, plaintiffs matter before presented sufficient evidence of genuine conduct defendant to create a issue of material as fact to whether that conduct could not be deemed ‘eccentric accepted parental under of oversight’ subsidiary’s norms of a business [citation] but ‘plainly contrary also to the interests the subsidiary of yet [citation], advantageous parent’ nonetheless to the to the extent predicate could participant liability serve as for direct on the defendant”). part We believe genuine issues of material fact ex about strictly ist whether should be purchasing CS held liable for CT, trucks for especially appears where it CS not refuse could purchases in these and claims to have and purchased sold profit. these trucks to for no CT
CONCLUSION genuine Because issues of material fact exist whether CS about within the distribution chain for the sale of truck of number granting the circuit erred in a summary judgment. Accord- ingly, County of the circuit court of Madison is reversed the cause is remanded. Reversed; cause remanded. J.,
CHAPMAN, concurs. WELCH, dissenting:
JUSTICE majority’s I respectfully disagree finding with the record genuine presents a issue of material fact about whether CS was opinion at In my chain of distribution for the sale of the truck issue. this and CS genuine question there is no issue of material fact on is I summary judgment Accordingly, entitled to a a matter of dis- law. sent. my opinion,
In CS’s for a sum- the exhibits attached to motion mary judgment than to meet initial burden are more sufficient CS’s posits a motion for a that the judgment. majority on invoices, “sale” of truck CS are sufficient which show a fact question alone create a material about whether CS participated Perhaps they chain of are suf- distribution. alone fact, conjunction ficient to create a but when viewed affidavit, genuine Brown’s there is no issue of material fact. recites that had been an The affidavit of Clarence Brown Brown years president general CS co- employee nearly and vice CS years. The affidavit recites that manager more than light truck dealer which sells and services primarily automobile Chrysler Dodge and used automobiles and trucks. had new inventory car-transport and had maintained an trucks never never trucks. repair been an authorized distributor center for those sale, any nor ever made never advertised such truck for had it had trucks to representations quality or soundness those manufacturing person entity. CS had never been business of their seats. CS had never public those trucks or delivered, serviced, delivery posses- of or inspected, prepared, or taken *11 altered, modified, changed, had or any of such truck and never sion paperwork or any truck. CS never received documents adjusted such sale, purchase, or regarding manufacturer directly from the truck sent and to Instead, paperwork any lease of such truck. only to CS. CS’s involve- paperwork then which forwarded limited to sale, any or of such truck was lease purchase, ment with required turning out the handling transactional tasks such routine title, mailing or acquisition transfer or Illinois documents recipients, handling the delivering appropriate those documents manufacturer, transfer purchaser of funds from the trailer assigning origin certificates purchaser. to the truck CS never selected, ordered, played any part selecting models, or ordering or features, options. or negoti- Those tasks were handled CT. CS never ated played any part negotiating any conditions, terms, or provi- or purchase any sions of the performed by truck. Those tasks were CT. terms, CS conditions, never determined the provisions or of the sale or lease of any such truck. Those performed by tasks were CT. CS never exercised design truck, control over the any manufacture of such provide nor did any warnings regarding any alleged instructions or any defects in such truck.
Although CS any was reimbursed CT for payments made and costs incurred as a result performing title work and other routine tasks, transactional CS had never any profits, made or derived broker- age fees, commissions, or other buying, selling, benefits from distributing any such truck providing or from services that facilitated buying, selling, or distributing any such truck. CS had no control or involvement in the design manufacture or of any such truck. CS never exercised any control over such truck and never held any state title to such truck. only held origin. certificates of
The majority next question finds a of fact regarding whether CS is “engaged in the business” of selling vehicle-hauler trucks within the meaning (Second) of section 402A of the Torts, Restatement despite Brown’s affidavit to the contrary. There is no evidence in the record that CS is engaged in the business of selling vehicle-hauling trucks. There is evidence that CS acts “paper as a shuffler” to assist CT purchases trucks, of such that it does this as a convenience to CT and incidentally to its business of selling light trucks, cars and that it is not engaged in the selling business of distributing vehicle- hauling trucks.
Again, despite affidavit, Brown’s uncontradicted majority finds question material of fact regarding whether CS could pressure exert on the manufacturer to enhance the of the trucks because there was evidence that CS was necessary and mandatory party to complete the transaction. The majority posits that this relevant to determine whether CS was the chain of distribution for the sale of the truck and what influences CS could exert on the in purchasing manufacturer the truck.
I agree do not that evidence might that CS required have been complete for CT genuine raises a issue of material fact about whether CS could exert influence on the manufacturer and was therefore in the distributive chain. Could CS have volunteered to do so? Perhaps, but it did not because it was not in the business of *12 “go-between” or facilita-
vehicle-hauling merely trucks. CS acted as Regardless of whether CS was and the manufacturer. tor between CT truck, it remains true that CS purchase of the necessary party selected, CS never influence on the manufacturer where could exert no features, models, selecting ordering ordered, any part in or played or any any part negotiating in negotiated played or options, or conditions, terms, never truck, any never purchase of the provisions or models, selecting ordering or selected, ordered, any part in played or negotiat- in features, played any part or negotiated never options, or truck, conditions, terms, any of the provisions or ing any terms, conditions, provisions of the sale or never determined the truck, design never exercised control over any lease such truck, any instructions or provided never any manufacture of such truck, any such and never any alleged defects warnings regarding any such design manufacture or involvement had control or truck. genuine question of fact that there exists a majority
The also finds truck or from the sale of the profited or benefited about whether CS the sale. ultimately profit from working party for a that would was on any profit being made in the record of There is no evidence states, “CS’s benefit could majority truck. The the sale of the cost, rather to it at inventory delivered having its automobile been to deliver company having pay another vehicle-hauler than sup There is no evidence App. Ill. 3d at 312. inventory to it.” 398 infer to create such an majority’s effort despite this claim port ence. is that profit the record pertaining
The evidence profited CT owned CS and holding company which stockholders of a exchanges being made on “intercompany profits if there no more were of fact creates a asserts that this majority products.” ultimately party that would “working for whether CS was about any profit benefit or at 312. But sale.” 398 Ill. 3d profit from the “sale” result of the not be the holding company would inuring to the “intercompany the lack of but a result of truck CS to the kind of This is not products.” exchanges made on profits being is it chain. Nor in the distributive that CS is is evidence profit which Co., 163 Koby Machinery Alvarez v. contemplated by kind of majority, which (1987), case cited working party for a representative sales liability of a referred to the There is no evidence the sale. ultimately profit from that would holding company or representative a sales acting profit on CS made There is no evidence entity. other is- genuine is no I find that there Accordingly, would truck. sale of the indirectly, directly either profited, sue of fact about whether CS in the distributive chain. the truck and was therefore sale of as a mat I find that entitled to a Finally, would CS was 97 Ill. 2d Corp., ter of In Hammond v. North American Asbestos law. (1983), held, products liability “In a ac supreme tion, injuries result persons all the distributive chain are liable for distributors, ing product, including suppliers, from a defective wholesalers!,] imposition and retailers.” that the of li The court held ability upon justified ground parties these on the that their marketing process pressure enables them to exert on the *13 Hammond, product. manufacturer to enhance the of the 97 Ill. 2d at 206. Co., (1990),
In App. Bittler v. White & 203 Ill. 29-30 it was held, parties “Even are actual chain who not within the of distribu tion, but an in an play integral marketing enterprise who role the allegedly product and in profits defective the derived from placing product commerce, into the stream of are held hable under liability.” pointed doctrine of strict Bittler out that one of public policy justifies imposing liability rationales which strict on manufacturers, sellers, wholesalers, distributors, suppliers, as well as lessors, entities, even is based parts on the fact that these distribution, the chain of are in reap profit involved from the placement of the allegedly product defective into the stream of com merce. App. 203 Ill. 3d at imposition 29. Bittler held that the strict liability hinges on whether party any participatory has personal connection for its profit injury- or other benefit with the producing product and enterprise with the that created consumer demand for and reliance upon product. App. 3d at 30. Alvarez,
In Ill. App. 3d at the court held that one of the underlying reasons for imposing liability strict is to ensure that losses by are borne those who created subsequently the risk and reaped a marketing an allegedly product. defective Hammond, In the defendant plaintiff sought from whom the to recover in strict liability wholly was a subsidiary owned of the manufacturer of the product, defective asbestos. reports Its annual Secretary of State listed its business as the manufacture and sale of asbestos. The defendant had incorporated point been to be a contact in North America customers, for the manufacturer’s and while mak ing only asbestos, a few direct sales of it primarily functioned as a message relay center between the manufacturer and its customers. The defendant received a commission on all sales in North 2½% America. The physical possession defendant never had asbestos sold the manufacturer. plaintiff, defendant appeal jury
On
from a
verdict for the
argued
merely
that it
not a seller but that it acted
as a broker
contracts for
merely facilitating
servicing
parent corporation’s
supreme
jury
The
concluded that the
could
the sale of asbestos.
court
marketing
have concluded that the defendant’s role
asbestos
Hammond,
support
liability.
In that the company, sale another machinery used that was for piece about a the machine for the inspected gearbox the and the defendant compensation for defendant received no prospective purchaser. The purchaser pay did its although prospective the inspecting gearbox, the any recommendations defendant did not make expenses. The negotia- in the participate did the machine and not modification of the sale, place took between and the entire transaction tions for the in compensation received no The defendant purchaser and the seller. in the did not the sale. The defendant connection with advertise, manufacture, or offer to design, prepare, or in fact design of representative act as a manufacturer’s machine in or sell the the court found that Accordingly, the question. machine in for the 319 the machine placing could not be characterized as defendant’s conduct distribution, not be the chain and thus the defendant could into Alvarez, App. Ill. strictly product. held liable for defect the 163 at3d 713-14. (1986), the Mahogony Corp., App.
In Rivera v. summary judgment circuit court entered a favor of the defendant plaintiffs products liability action. The circuit court found consequently defendant was a “financial” lessor and product. distributive chain of the The court ruled that the lease was primarily money provided by a financial transaction where was one selling placing products who was not in the business of into the lessee, borrower, stream of commerce to a enable him to who was purchase Rivera, product. App. appellate 145 Ill. 3d at 214. The court affirmed. case,
In that the evidence that the defendant was in the showed financing acquisition equipment by entering business of into ar rangements styled customers which were as leases. The defendant not in the type business of of machine purchased, any knowledge nor did it experience concerning manufacture, sale, injured distribution those machines. The plaintiffs employer particular selected the machine and obtained both price quotation and an offer of sale from the manufacturer. The purchase through arrangement was financed with the defendant whereby the purchased defendant the machine and leased plaintiffs employer, option purchase who also had an the machine expired. when the lease shipped directly The machine was plaintiffs employer, and the defendant possession never had or control term, of it. At the end plaintiffs employer of the lease exercised its option Rivera, machine. 145 Ill. 3d at 214-15. appellate distinguished lessors,
The “commercial” who are leasing the business of equipment and have been held to be in the original chain of they reap profit placing distribution because (see the product into the stream of commerce Crowe v. Public Build ing Comm’n, (1978)), 74 Ill. 2d from “financial” lessors such as Rivera, the defendant in the case before it. 3d at 215-16. lessor, court held that in the case public “financial” policy supporting considerations the imposition liability of strict would Rivera, not be by subjecting liability. furthered the lessor to strict Ill. App. 3d at 217. pressure The defendant was no to exert on the manufacturer to enhance did product, nor *15 defendant in any part marketing production product. take or of the Rivera, 145 Ill. Finally, any profit at 217-18. the defendant reaped having placed money, derived from its and not the defective
product, Rivera, into the stream of commerce. 3d at 218. Accordingly, appellate court affirmed the circuit court’s conclusion strictly that the defendant was not liable in tort.
I find the facts of the case at bar to be more similar to those of Al- varez Rivera than to those of Hammond and Bittler. Unlike the Bittler, in defendants Hammond and the defendant in the case at bar reaped profit car-transport no from the sale and distribution of the my opinion, undisputed although truck. In the evidence is CS was expenses performing reimbursed for its in it did services not profit make any car-transport off the sale of the truck to CT. Bittler, Unlike the defendants in Hammond and who were agents manufacturers, authorized sales for the in the defendant bar, case at represented who neither the manufacturer nor had ordering role in in question, ability pressure the truck had no to exert on the product. manufacturer to enhance the of the in input production defendant the case at bar had no into the or marketing undisputed of the car-transport truck. The evidence is did play any part selecting ordering not in or the truck or options. corresponded directly features or CS never with the truck; regarding manufacturer the sale and all that correspondence CT. conducted
Further, Bittler, unlike the in Hammond and defendants in in promoting, defendant the case at bar was not involved market- ing, creating allegedly product. consumer demand for the defective manufacturers, in representatives As sales for the the defendants played integral marketing Hammond and Bittler role in the enterprise allegedly that created consumer demand for the defective products. in
The facts of the case at bar are similar to those Alvarez Rivera, defendant did Rivera. Like the defendants Alvarez and play any promoting, marketing, creating not role in consumer allegedly product. demand for the defective Alvarez, did Like the defendant in the defendant the case at bar car-transport truck and did not not make a from the sale of any party ultimately profited as a sales representative work who participate negotiations from the sale. The defendant did not sale, place for the and the entire transaction took between purchaser and the seller. The defendant did not manufacture, advertise, design design, prepare, of or in fact or offer to representative act as the manufacturer’s sell the truck question. for the truck in Rivera, defendant in the case at bar was
Like the defendant in trucks, did it have car-transport nor the business of *16 manufacture, sale, or concerning knowledge experience directly to truck was delivered trucks. The distribution of those in question. the truck or control of possession took and CS never distribution, policy public in the chain of Because CS is not ability pres- to exert in tort —the liability strict imposing reasons for product on the manufacturer to enhance sure allegedly defective placement from the reaping apply in the case simply do not product into the stream of commerce — fact question of material genuine I believe there is no at bar. Because law, I judgment as a matter of would and that CS is entitled to the defendant. summary judgment in favor of affirmed al., GENIUS, Plaintiff-Appellant, OF et JACK L. v. THE COUNTY COOK Defendants-Appellees. (2nd Division) 1 — 08—3277
First District No. Rehearing denied Opinion February filed March 2010. 2 0 10. Thomas, Kelly Cooper Kelly John H. and Ericka J. both of Ottosen Britz Gilbert, Ltd., Naperville, appellant. & Plahm, Horvath, Welch, & Cary Lauren all of Odelson A. Matthew M. Sterk, Ltd., Park, Evergreen appellees. opinion THEIS of the court:
JUSTICE delivered Plaintiff, Genius, of the circuit appeals Jack L.