On Mаy 10, 1975, Jim Talley, an employee of the Sanitation Department of the City of LaGrange (City), was working on a garbage truck which had been manufactured originally by appellee-City Tank Corporation (CTC) and assembled and sold to the City by appellee-Service Systems, Inc. (SSI). The truck had been originally designed and equipped with a rear lifting and loading system operated in the following manner: The truck backed up to a trash container until contact was made between slotted pivot plates attached to the truck and a steel bar or bars, called trunions, running across the top of the container. The container would then be in position between the pivot plates mounted on the truck with the trunions on the container touching the plates and extending beyond them. When thus positioned, a cable attached to a roller mounted on the top of the truck was connected to the rear of the container. The cable would then be drawn upward, pulling the rear of the container off the ground. The weight of the container and the slope of the pivot plates caused the trunions to slide downward into the angled slots of the plates until each trunion became seated in the pivot point of each plate. As thus designed, if the trunions, which extended beyond and to the outside of the plates, began to dismount from the pivot point in the plates, the container would be restrained from lateral movement by the plates. With the trunions engaged in the slots of the pivot plates acting as a pivot bar, the container would be raised to a vertical *131 position and empty by gravity into the truck.
The City, however, had found it necessary to modify the lifting system on its garbage trucks in order to accommodate the design of its trash containers. The modification of the truck on which Talley was working had been made by the City’s own maintenance personnel. The LaGrange modification required that the pivot plate as originally designed be almost totally removed and replaced with an entirely different pivot system. Replacing the original design, the new LaGrange system consisted of a “ J” shaped bracket plate welded to and extending from the two sides of the back of the truck. Unlike the original open-slot plate design, the outside of the “J” brackets was enclosed so that the trunions on the container could not extend through the “J” brackets when resting in the pivot point. Consequently, in order that they could fit freely into and out of the “ J” brackets with the enclosed sides, the trunions on the City’s trash containers had to be shorter than those contemplated for use with the truck as originally designed. To this end the City found it necessary to also modify trash containers it purchased by shortening the trunions and removing the flanges, if any, from the trunions. Thus, the LaGrange design in this entirety required alteration of both the lifting system of the truck and the containers with which the original system was designed to cоuple. In short, the only unmodified component of the original lift system was the cable mechanism for hoisting the container after coupling was achieved. The original attachment components, the plates and trunions, whereby the truck and container were engaged so as to form the pivotal axis around which the container was raised and lowered were removed and replaced.
While Talley was working on the redesigned truck in May of 1975, a trash container, which had been hoisted from the ground into position to dump its contents, uncoupled from the rear of the truck and swung laterally without restraint on the end of the hoisting cable. Apparently a shortened trunion had dismounted from the “J” bracket and the then free-swinging container struck and fell on Talley. Talley died some three hours later.
The instant suit was brought against CTC and SSI in 1977 by appellant, Talley’s wife, the allegations being that their negligence and defective product had resulted in thе death of her husband. After discovery, both CTC and SSI moved for summary judgment. Several continuances later a hearing was held, the trial court heard arguments, and the parties were granted until June 4,1979, to take depositions and submit affidavits pending consideration of the motion. On July 5, 1979, summary judgment was granted to both CTC and SSI. Thereafter, appellant discovered that a deposition had
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not been filed and obtained an order vacating the original grant of summary judgment. The trial court then reconsidered the motions and reinstated the grant of summary judgment on August 8,1979. In September appellant timely filed her notice of appeal from this reinstated order and the case was docketed in this court. Subsequently the trial court entered an order in the case stating that in granting the motions no consideration had been given to two depositions which had been filed under an erroneous docket number until November of 1979, but that, having read them, “none of the testimony . . . would alter the Court’s granting of the motion for summary judgment.” When this case was orally argued in January of 1980 pursuant to the notice of appeal from the order of August 1979, it was our determination that since that order did not recite that the trial court had considered the entire record in granting summary judgment and since it appeared from the record then before us that two depositions were neither opened nor considered by the trial court until after the notice of appeal was filed, the case should be remanded “with the direction that the trial court vacate the previous order granting summary judgment, consider the entire record including all depositions taken in the case, and enter a new order after which the losing party may file a new notice of appeal.” This disposition of the appeal was necessary because the November 1979 order of the trial court, reciting consideration of the two depositions, was without еffect, having been entered subsequent to the filing of the notice of appeal.
Brown v. Wilson Chevrolet-Olds, Inc.,
Pursuant to our remand of the case, оn January 16, 1980, the trial court vacated its original order of August 8,1979. On January 22, 1980, the trial court again granted the appellees’ motions for summary judgment, and, in so doing, specifically refused to consider affidavits in opposition to the motion which had been filed in January 1980 after this court had remanded the case for entry of a new order. When it was discovered that the remittitur of this court remanding the case had not in fact been filed in the trial court until February 12, 1980, and not made the order of the trial court until February 18, 1980, a new order was entered on the latter date by the trial court which yet again granted summary judgment to appellees. This order specifically incorporated therein the previous January 1980 orders of *133 the trial court. It is from this February 18,1980 order that the instant appeal is taken.
1. On January 22,1980 when the trial court originally reentered summary judgment, it lacked jurisdiction over the case, the remittitur of this court remanding for the entry of a new order not having beеn filed with the clerk of the lower court. Cf.
Hagan v. Robert & Co. Assoc.,
2. Appellant next urges that it was error for the trial court to refuse to consider certain affidavits submitted by her in opposition to the motions which affidavits were filed in the case during the interim between this court’s order of January, 1980, remanding for entry of a new order, and February 1980, when a valid order granting summary judgment was finally entered.
“An affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act from consideration as evidence unless the record discloses the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered.”
Malone v. Ottinger,
3. We now consider appellant’s contеntion that there remain genuine issues of material fact and that, therefore, the trial court erroneously granted summary judgment in favor of appellees.
Whether proceeding under a strict liability or a negligence theory, “proximate cause” is a necessary element of appellant’s case.
Center Chemical Co. v. Parzini,
Under Code Ann. § 105-106 strict liability is imposed for injuries suffered “because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended and its condition
when sold
is the proximate cause of the injury sustained.” Thus the injury must be the proximate result of a defect in the product which existed at the time sold. It is undisputed in the instant case that Mr. Talley’s death was the result of a trash container uncoupling from the back of the garbage truck and swinging laterally on the cable around the side of the truck. The evidence is also uncontroverted that the original coupling mechanism as designed, manufactured and sold was totally eliminated and replaced by another entirely different design. When a manufacturer is sued under Code Ann. § 105-106 for injuries proximately resulting from a defect in the design of his product existing at the time of sale, obviously if the design of that product has been indepеndently altered, eliminated and replaced by a third party after the sale and injuries
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then result, those injuries cannot be traced to or be the proximate result of the manufacturer’s original design which did not exist at the time of injury. “At the time of the tragic accident, the thing being used was not the thing sold.” Young v. Aeroil Prod. Co., 248 F2d 185, 190 (9th Cir. 1957). One of the conditions for imposition of strict liability against a manufacturer of “defective” products is that the product “is expected to and
does reach the user or consumer without substantial change
in the condition in whiсh it is sold.” (Emphasis supplied.) Restatement of the Law, Torts 2d, 348, § 402A. In some cases it may be a jury question as to whether the product’s original design has been merely slightly or somewhat modified. In such cases, the jury must determine whether the original manufacturer’s design was defective and, if so, whether the proximate cause of the injuries sustained was the original defective design or the subsequent modification. However, where, as here, the evidence is uncontroverted that the original design оf the manufacturer’s product has been totally eliminated and replaced so that the only similarity between the old and new is the mere basic function to be performed, no such issue remains. See generally Coleman v. Verson Allsteel Press Co.,
Likewise, we find summary judgment properly granted as to the alleged “negligent” design of the coupling component of the truck. The evidence is uncontroverted that the truck was built to engage with a specific type of trash container in a specific manner and, to that end, a specific design was incorporated by the manufacturer into thе coupling device. That design was eliminated and replaced by an entirely different design so that the City could use the truck to lift and empty its own type of containers. Summary judgment was, therefore, properly granted as to a recovery on a negligence theory.
Union Carbide Corp. v. Holton,
*136 Our analysis is not changed by the fact that the cable component, whereby the containers were actually lifted after coupling was completed, was unmodified by the City. Appellant urges that the truck was “defective” in a products liability sense because, if the coupling device failed and a container unloosened, there was nothing in the design of the cable system to prevent the container from swinging laterally and striking someone standing on the side of the truck, which is what happened here. However, we find this argument, which is predicated upon the failure of the coupling device, flawed.
The test is whether the product was merchantable and reasonably suited to the use intended as determined
at the time the product is sold
and when a product is alleged to be “defective” for lack of safety devices, the manufacturer is entitled to have the “defectiveness” of his product considered in the context of the overall original design of the item. This is especially true when the alleged defect in a product is the absence of safety features on a component of the product which would prevent injury in the event another cоmponent fails. This is an allegation of, in effect, merely one defect — the overall unsafeness of the failed component. We are, therefore, of the opinion that when the alleged defect in a product is the
absence
of safety features, a manufacturer is entitled to demonstrate that this alleged defect is ultimately based upon the failure of an integral part of the overall product, the original design of which component has been indepеndently eliminated and replaced by another and that there is thus no causal connection between any defect in the product existing at the time of sale and the injury. Such is the case here. Appellant’s argument is premised upon the failure of the coupling device. If the coupling device failed, then the cable should have been designed to restrain the movement of the container. However, the undisputed evidence in the instant case is that the coupling device which failed was
not
that manufactured by appellees. It cannot be disputed that Talley’s death would not have resulted but for the uncoupling of the container from the rear of the truck. Had the container not first disengaged, it would not have swung laterally and the absence of restraints on the cabling device would not have been a factor in Talley’s death. Thus, while appellant’s evidence that the “proximate cause” of the death was the lack of restraint on the unmodified cabling system may be true in a temporal sense, it is beyond question that the uncoupling of the container is the “proximate cause” of the death in the legal meaning of that phrase.
Milton Bradley Co. v. Cooper,
Similarity, we find summary judgment property granted as to any theory of recovery based upon the “negligent” design of the cable mechanism.
McNeely v. Harrison,
We turn to the issue of the alleged defectiveness of the truck due to the failure to warn. “Where, . . . , [the seller] has reason to anticipate that danger may result from a particular use,..., he mаy be required to give adequate warning of the danger ..., and a product sold without such warning is in a defective condition.” Restatement of the Law, Torts 2d, 351-352, § 402A, Comment h. A duty to warn of danger in the use of a product extends only to the use of the product in the manner reasonably contemplated and anticipated by the manufacturer. When the use to which a product was being put at the time of injury is not that originally intended by the manufacture, the determination of whether strict liability may bе asserted as a viable theory of recovery or whether the manufacturer is insulated from liability because the use of the product was “abnormal” and intervening depends, initially, upon the foreseeability that the product would be put to that use. Cf.
Union Carbide Corp. v. Holton,
Even were we to ignore this evidence of the City’s unequivocal
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assumption of sole responsibility for the design of the coupling device, we find summary judgment was nonetheless properly granted to appellees under the facts. The undisputed evidence is that the City bought, paid for and accepted delivery of a Model LM320 truck designed to function in a particular way. That design was, in the component relevant to the injury, totally redesigned and replaced by the City’s own personnel for its own particular reasons and individualized use which resulted in a product essentially different from that originally designed and manufactured. Under these circumstances, to hold as appellant urges would place the unrealistic burden on manufacturers of all products which can be redesigned by consumers to warn and instruct as to the manner in which that redesign should be madе and the resulting new product safely operated. Anderson v. Heron Engineering Co.,
For the reasons discussed above, summary judgment was properly granted to appellees. Appellees have demonstrated that thе product being used at the time of the injury was not that manufactured by them. Appellant has produced no evidence causally connecting the injuries to her husband with any defect in appellees’ product as alleged in her complaint. Coleman v. Verson Allsteel Press Co.,
Judgments affirmed.