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Hutter v. Badalamenti

OPINION FILED APRIL 18, 1977.

BETTY HUTTER, PLAINTIFF-APPELLANT,

v.

LEWIS BADALAMENTI, D/B/A RUSTY'S, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Madison County; the Hon. HORACE L. CALVO, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Plaintiff, Betty Hutter, filed a three-count complaint in the circut court of Madison County against defendant, Lewis Badalamenti for damages due to personal injuries. Count I of the complaint is based on a theory of strict liability in tort; count II is based on a breach of implied warranty; and count III is based on negligence. This appeal is from an order of the trial court dismissing counts I and II of the complaint and finding no just reason for delaying enforcement or appeal of the order. Count III of the complaint charging defendant with negligence is not involved in this appeal.

The facts, as taken from the pleadings, show that defendant operated a lounge and restaurant known as Rusty's which was in the business of selling food and beverages. As part of this business defendant also provided musical entertainment and a dance floor for customers. On the evening of April 18, 1975, the lighting on the dance floor was dim and a liquid substance had accumulated on the floor making it slippery. Plaintiff was injured on that date when she slipped on the liquid substance and fell onto the dance floor.

Plaintiff first contends that her complaint states a cause of action based on strict liability in tort. While she admits for the purposes of this contention that the facts of this case do not involve a product sold by defendant, she argues nonetheless that the application of the principles of strict liability in tort to the facts of the instant case is warranted, predicated upon the same public policy grounds as those underlying Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182.

• 1 In the landmark case of Suvada, our supreme court approved the application of strict liability in tort as set forth in Restatement (Second) of Torts § 402A (1965):

"(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 reach the user or consumer 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." (32 Ill.2d 612, 621, 210 N.E.2d 182, 187.)

In order to state a cause of action under the doctrine of strict liability, the plaintiff must allege that "[the] injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control." 32 Ill.2d 612, 623, 210 N.E.2d 182, 188; see also Hepler v. Ford Motor Co., 27 Ill. App.3d 508, 327 N.E.2d 101.

The grounds underlying the imposition of strict liability upon a manufacturer, as stated by Suvada are: (1) the public interest in human life and health; (2) the invitations and solicitations of the manufacturer to purchase the product; and (3) the justice of imposing the loss on the manufacturer who created the risk and reaped a profit by placing the product in the stream of commerce. 32 Ill.2d 612, 619, 210 N.E.2d 182, 186.

In the case at bar, plaintiff argues that these same policy considerations are applicable to the instant case as between herself, as a business invitee, and defendant, as the possessor of the business facility. Particularly she argues that there exists a like interest in human life and health; that defendant invited and solicited her use of the dance floor; and that defendant "created the risk" (presumably by failing to protect her from the alleged ...


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