APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 21, 1974.
This appeal was precipitated by an order of the Circuit Court of Winnebago County striking counts XIII and XIV of plaintiffs' amended complaint for failure to state a cause of action. Those counts sought recovery on the theory of strict liability against the dealer-seller of a used automobile for the death of one child and injuries to another child. Upon striking these counts, the trial judge entered an order finding there was no just reason for delay in the enforcement or appeal of the order.
• 1 Two issues are presented for our determination. First, whether the doctrine of strict liability expressed in section 402A of the Restatement (Second) of Torts, and adopted in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, includes sellers of used automobile where it is not alleged that the defect existed at the time the automobile left the manufacturer's control. And second, can a "bystander", that is, one who is neither a user nor consumer of the product, recover on the theory of strict liability for injuries or death sustained?
James A. Peterson, as administrator of the estate of Maradean Peterson, the deceased minor, and Mark Peterson, a minor, by his father, sued defendant Lou Backrodt Chevrolet Co. for damages for the wrongful death and personal injuries here involved. In essence, counts XIII and XIV of the amended complaint allege that the defendant sold a used 1965 Chevrolet to one Cornelius Spradlin on June 11, 1971. While this automobile was being driven by one John Elder on September 3, 1971, it struck the two minor pedestrians when the brakes failed. The amended complaint further alleged that at the time of the sale on June 11, 1971, the Chevrolet was not reasonably safe due to certain specified defects in the braking system; and that as a direct and proximate cause of the defective brakes, the death and injuries resulted.
The first issue to be considered is one of first impression before the Illinois courts of review. *fn1 Since our Supreme court rendered its opinion in Suvada, the concept of strict liability in tort, as applied to defective products, has become increasingly expansive. For the reasons which follow, we hold that the doctrine of strict liability as enunciated in Suvada, and expanded in its Illinois progeny, applies to those in the business of selling used motor vehicles.
• 2, 3 This holding is premised upon the fundamental policy of strict products liability which was expressed by the court in Suvada, 32 Ill.2d at 619, 210 N.E.2d at 186:
"Without extended discussion, it seems obvious that public interest in human life and health, the invitations and solicitations to purchase the product and the justice of imposing the loss on the one creating the risk and reaping the profit are present and as compelling in cases involving motor vehicles and other products, where the defective condition makes them unreasonably dangerous to the user, as they are in food cases."
This statement was made with reference to the manufacturer of defective brakes; however, it is equally applicable to any seller of a defective product. Although sellers and dealers of used motor vehicles do not "create the risk" in the sense that this phrase was used in Suvada, it is readily apparent that such sellers and dealers do place motor vehicles into the stream of commerce in a manner not unlike that of a manufacturer or retailer. Thus, there is no merit to defendant's contention that the amended complaint does not meet the Suvada requirements inasmuch as there is no allegation therein that a defect existed in the automobile at the time it left the manufacturer's control, and that the manufacturer has not been named as a defendant herein. (Sweeney v. Matthews (1968), 94 Ill. App.2d 6, 236 N.E.2d 439, aff'd (1970) 46 Ill.2d 64, 264 N.E.2d 170.) The defendant in Sweeney made this same argument which the appellate court rejected, stating "In Suvada strict liability was applied to a manufacturer but the court noted that liability extends to a seller of a defective product." (Emphasis added.) Sweeney, 94 Ill. App.2d at 13, 236 N.E.2d at p. 442.
This interpretation by the Sweeney court is consistent with the plain terms of section 402A of the Restatement (Second) of Torts which also imposes liability on the seller of any defective products:
"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the ...