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Siemen v. Alden

DECEMBER 23, 1975.

ROLAND SIEMEN, PLAINTIFF-APPELLANT,

v.

VERNA R. ALDEN, EX'R OF THE ESTATE OF LLOYD G. ALDEN, DECEASED, ET AL., DEFENDANTS. — (EDWIN KORLESKI, D/B/A ROCK RIVER SAWMILL, ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding.

MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiff sued defendants to recover for injuries he sustained while operating an automated multi-rip saw. The three-count complaint sought recovery on theories of strict tort liability for sale of a defective product, breach of warranties, and negligence. Plaintiff proceeds on this appeal against defendant Korleski only. He appeals the order of the trial court granting defendant's motion for summary judgment on count one, alleging strict tort liability, and count two, alleging breach of warranties.

Plaintiff had owned and operated a sawmill since 1961. In 1968, he decided to purchase a multi-rip saw to increase his production of decking pallets. Upon the suggestion of a customer, plaintiff contacted Lloyd G. Alden, manufacturer of the saw in question. Alden informed plaintiff that a new saw could not be delivered in less than six months and suggested that plaintiff contact defendant Korleski, who owned two of the Alden saws. Plaintiff contacted defendant, who advised him that he indeed had two saws: the one he was currently using, and an older one purchased in 1962 which had not been used since 1965. Thereafter the parties met on two occasions at defendant's sawmill to discuss plaintiff's possible purchase of the older saw. At the first meeting, defendant demonstrated the new saw, which operated in the same manner as the one plaintiff was considering purchasing. Plaintiff's son accompanied him to the second meeting, at which time plaintiff was first shown the saw in question. It was sitting, partially dismantled, in a corner and was covered with boards and sawdust. Defendant informed plaintiff that it was in operating condition and that plaintiff would have to supply and install saw blades, motor, shiv, belts, pulleys, and a sawdust removal apparatus in order to use it. Thereafter, the parties agreed on a purchase price of $2900.

Plaintiff's injury, which precipitated the instant suit, occurred in 1970 when a cant of wood exploded while being fed through the saw in question.

On appeal, plaintiff contends that summary judgment in favor of defendant should be reversed because (1) defendant had a sufficient relationship to the saw which injured plaintiff to subject him to strict liability for sale of the defective product, and (2) under the Uniform Commercial Code, sections 2-314 and 2-315 (Ill. Rev. Stat. 1971, ch. 26, §§ 2-314, 2-315, the defendant is liable for implied warranties.

• 1-3 In Suvada v. White Motor Co., 32 Ill.2d 612 (1965), the Illinois Supreme Court adopted the provisions of section 402A of the Restatement (Second) of Torts (1965), which states:

"Special Liability of Seller of Product for Physical Harm to User or Consumer

(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 condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

The plain language of the rule limits the application to a seller engaged in the business of selling the product which proved defective. This limitation is buttressed by the comment accompanying the rule in that the occasional seller is explicitly excluded. (Restatement (Second) of Torts, Comment f at 350. See 55 Ill. B.J. 906 (1967).) Plaintiff contends that because the sale of the saw occurred within the scope and conduct of defendant's business, and because defendant modified the machine to suit his own purposes, thereby creating the condition which led to plaintiff's injury, defendant had a relationship to the saw sufficient to subject him to strict liability. Plaintiff's argument fails to overcome the clear requirement of the rule that the seller be engaged in the business of selling the particular product. In the instant case, defendant asserted and plaintiff has not denied that defendant's only sale of a saw or ...


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