*1 that, following and hold delivered the automobile McAnally when work, he time repair in the automobile business at that coverage policy. was excluded from the stated, judgment For reasons of the circuit court of Cook County affirmed.

Judgment affirmed.

SIMON, McGILLICUDDY, P. J., J., concur. FOODS, KEEN, FINER Plaintiff-Appellant, ELEANORE DOMINICK’S INC., Defendant-Appellee. (3rd Division) District No. 76-1183

First Opinion 1, 1977. filed June SIMON, J., dissenting. P. Seltzer, Chicago, A. appellant.

Richard Kralovec, Chicago Sweeney Sweeney,Marquard Doyle, (George & E. Scoby, counsel), appellee. Edward V.

Mr. McNAMARA delivered the court: JUSTICE Keen, defendant, plaintiff, against filed suit *2 Eleanore Inc., Foods, seeking injuries allegedly Dominick’s Finer to for recover using shopping sustained while in a Dominick’s store in cart located Park, Highland complaint alleging Illinois. Plaintiff filed four-count of negligence, liability, implied theories strict breach of warranty, duty by granted and of of trial breach care a bailor. The court upon Dominick’s motion to all except negligence. strike counts that based 110A, (Ill. 1975, Pursuant to Supreme 304(a) par. Court Rule Stat. ch. Rev. 304(a), the trial no just delaying court found reason for or enforcement appeal from of dismissing complaint. the order three counts the Plaintiff has appealed solely dismissing from that the of trial court’s order the count in which she alleged cause action in strict tort of 21,

In complaint plaintiff 1975, her charged January that on she was in shopping a grocery by As operated store owned and Dominick’s. she was pushing store, a shopping supplied by allegedly the cart the tipped over onto its side. Plaintiff injured attempted was when she to prevent the cart from overturning. charged Plaintiff further that at the time cart, she was the it using reasonably was not for safe the use intended in it that was in collapse inclined to a manner which would cause it to roll onto its In injure moving side user. to dismiss the question, count in it Dominick’s was maintained that not liable under the liability since cart could not the be product deemed a responsible for placing which for into the stream of agreed commerce. The trial court with Dominick’s contention and entered an propriety order the count. The that order is at issue us. before liability nature of a placing manufacturer’s

product into the stream of commerce was out in Suvada v. White set 623, Motor (1965), 182, Co. 32 Ill. 2d 188: “The plaintiffs prove must injury damage that their or resulted from a condition of the that the was an product, condition unreasonably dangerous at one and that the condition existed time it left the manufacturer’s control. [Citation.]” The rule in promulgated is in with the Restatement Suvada accordance (Second) (1965), special liability Torts that which defines §402A a seller incurs user or product physical when causes harm to a consumer:

482

“(1) any product in a condition One who sells defective unreasonably dangerous property the user consumer or to his to or thereby subject liability is physical harm caused consumer, if property, user or or to his ultimate (a) selling product, is such a seller business (b) it is reach or expected and does the user consumer without it is change in condition in which sold.” substantial (1969), Co. Vaughan Manufacturing In v. Dunham & Bushnell 339, 247 equal with applies stated that Suvada Ill. 2d N.E.2d the court compulsion parties place in a chain article to all the into liability depend upon commerce. While does not whether there an (Galluccio Corp. (1971), App. actual sales 1 Ill. 3d transaction Hertz charged with 178), necessary party N.E.2d be liability product placing the business into 961, 341 (Siemen the stream of commerce. v. Alden 713.) Accordingly, N.E.2d cornerstone of apparent it becomes liability upon participation placing the defendant’s active rests into One of consumption commerce for use and others. losses underlying imposing reasons for is to ensure that are subsequently reaped risk borne those who have created the *3 not product. Liability of will profit marketing allegedly the defective original and imposed upon part producing is a of the a defendant who not marketing (1975), v. Cheverolet Co. chain. Peterson Lou Bachrodt 17, 329 2d N.E.2d 785. in case, is not present plaintiff

In the that Dominick’s the concedes maintains, carts. selling renting shopping business of She either or however, the carts to its although gratuitously furnishes customers, as incident of the sale of the items which such is done an strictly hold Dominick’s attempting constitutes Dominick’s business. In liable, LP Gas v. Lamoine Co. upon relies the case Bainter this court 24 N.E.2d In case (1974), Ill. 744. liability against a a action in defendant permitted cause of The storage gas tank sold the who and gas sale of the tank was as an incident characterized use of the to include the given gas consideration was deemed tank. present demonstrably from those

The facts in Bainter differ the tank fluidity product compelled supplying In case. Bainter the of the cart, on the shopping sale of necessary gas. as a concomitant of the hand, receptacle a which the only as convenient other can be classified checkout or to the may groceries to move temporarily customer utilize use a every customer will Not outside to the customer’s automobile. shopping cart. It is our under the that to hold Dominick’s hable principles of strict an products liability require would extension of those principles in this in supreme which neither the court Suvada nor court present Bainter envisioned. The instant case does not the Bainter situation where an allegedly integral part defective container which is an by damage. In such a injury disseminated defendant causes or may necessary case the container well and to the sale be deemed incident case, product. present allegedly In the plaintiff’s use of shopping defective a only could be considered as a use of by convenience its furnished Dominick’s to facilitate customers’ shopping. Any mishap might availing occur from oneself of such a convenience does not render the store hable under the of strict case, In this cart was shopping placed into the stream by parties responsible of commerce for its distribution to Dominick’s. The its merely store like customer is a user of cart. pohcy

Public considerations duty do not demand that of a storekeeper to keep premises in beyond a safe condition be elevated Robeson’s, traditional standard of (Ryan reasonable care. Inc. (1969), 416, 251 113 Ill. App. 2d 545.) N.E.2d Plaintiff is not denied cause of action in neghgence is precluded establishing nor she from a cause of in action strict products liability against the manufacturer of the cart and others placed the shopping cart into the stream of commerce and reaped profits simply therefrom. We hold that Dominick’s cannot be considered to be of the distributive chain within the ambit of the principles products liability.

Plaintiff’s reliance upon this court’s in holding the case of Nowakowski v. Hoppe Tire Co. 39 Ill. App. 3d misplaced. In that case neghgence suit based on strict products liability against company engaged the business of repairing, reconditioning, selling Plaintiff injured tires. when a “run-out” repaired tire supphed by exploded as he defendant mounted the tire on a vehicle plaintiffs employer. owned Defendant contended that the doctrine of strict did not it apply to because essentially organization service repairing the business of and rebuilding equipment owned its customers. There was evidence *4 which estabhshed that equipment defendant often substituted customer with parts from its own stock. On plaintiffs injury, the occasion of defendant had its parts returning substituted own instead of those of plaintiff’s employer. reason, For that a defendant was found to be suppher who had placed the stream of into and, therefore, commerce products liable under the County stated, court of Cook of the circuit the reasons order For complaint count of the founded on strict liability is affirmed.

Order affirmed.

JIGANTI, J., concurs. SIMON, dissenting: Mr. PRESIDING JUSTICE on her strict proceed to trial permitted should be The the stream of commerce part products liability count. Dominick’s cart was The cart’s manufacturer flowing from the It supermarkets. reached grocery customers of intended for use Therefore, did not the stream of commerce through Dominick’s. cart to it, distributed the parties stop, majority as the views with were Dominick’s, the customers who until the cart reached but continued it. The Dominick’s to use and for whose use intended user of the is the consumer or majority is that Dominick’s approach of the hand, supplier of the carts as the regard On I Dominick’s carts. the other marketing chain which and, therefore, in the as a conduit its customers users, customers. Dominick’s the carts to their ultimate out, nor rents neither sells Dominick’s Although, majority points as the It would be carts, its customers. supply them for it does at purchases make substantial a customer to virtually impossible for may customer a cart. The without the use of supermarts Dominick’s doing business is a cost of because the cart paying as for this use regarded makes for charge Dominick’s doubt is reflected which no Dominick’s only provides a convenience The cart not merchandise. majority As the profits. customers, Dominick’s sales and but also increases that losses liability is to ensure states, imposing strict of the reasons for one marketing an profit of reap the are borne those who this carts, fits within By supplying product. rationale. Robeson’s, Inc. Ryan v. majority cites a require not policy does public proposition care reasonable than higher a standard to adhere to

shopkeeper way. After in that not read the safe. I do keeping premises apply trial, not did at the court introduced reviewing the evidence that the proof jot find “one it did not liability rules because of defect—the said: “The element The court imperfect.” door handle totally derive—is tests of strict all other cardinal root from which leading into door Moreover, glass-paneled a that case involved absent.” fixture, door, shelf or in the case of I believe premises. the store ultimate user is the shopkeeper premises, stationary other cart, such And, unlike his customers. supplier rather than *5 use for a customer’s exclusive provided are not appliances fixtures shopping. and control while 17,

Neither is Peterson v. Lou Chevrolet Co. Ill. 2d Bachrodt appeal. complaint relevant to this Peterson dismissed prior to trial dealer was because used-car outside original producing marketing chain when he sold a defective used Dominick’s, role, car. as I view its was in the chain distribution original to cart It important that issue bear mind before us this case is not whether plaintiff products liability could strict theory, recover under a only but complaint whether her proper stated a cause of action on that prevail count. For products liability, under strict she would have to establish that defect collapse which caused the existed at the time the cart left the control the manufacturer or that Dominick’s caused the defect in question and that the condition of cart when it These, however, unreasonably dangerous. her was are proof matters of which are not this appeal raised because there has been no trial.

I believe the order alleging products liability count should be theory. reversed so can a trial have on ILLINOIS,

THE PEOPLE OF Plaintiff-Appellee, THE STATE OF RENNERT, Defendant-Appellant. RONALD (4th Division) First District Nos. 62964 cons.

Opinion filed 1977. June