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Keen v. Dominick's Finer Foods

OPINION FILED JUNE 1, 1977.

ELEANORE KEEN, PLAINTIFF-APPELLANT,

v.

DOMINICK'S FINER FOODS, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL COMAN, Judge, presiding. MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

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

In her complaint plaintiff charged that on January 21, 1975, she was shopping in a grocery store owned and operated by Dominick's. As she was pushing a shopping cart supplied by the store, the cart allegedly tipped over onto its side. Plaintiff was injured when she attempted to prevent the cart from overturning. Plaintiff further charged that at the time she was using the shopping cart, it was not reasonably safe for the use intended in that it was inclined to collapse in a manner which would cause it to roll onto its side and injure its user. In moving to dismiss the count in question, Dominick's maintained that it was not liable under the principles of strict products liability since the shopping cart could not be deemed a product for which Dominick's was responsible for placing into the stream of commerce. The trial court agreed with Dominick's contention and entered an order dismissing the count. The propriety of that order is at issue before us.

• 1 The nature of a manufacturer's liability for placing a defective product into the stream of commerce was set out in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182, 188:

"The plaintiffs must prove that their 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. [Citation.]"

The rule promulgated in Suvada is in accordance with the Restatement (Second) of Torts § 402A (1965), which defines that special liability which a seller incurs when his product causes physical harm to a 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 In Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill.2d 339, 247 N.E.2d 401, the court stated that Suvada applies with equal compulsion to all the parties in a chain who place the article into commerce. While liability does not depend upon whether there was an actual sales transaction (Galluccio v. Hertz Corp. (1971), 1 Ill. App.3d 272, 274 N.E.2d 178), it is necessary that the party to be charged with liability be in the business of placing the allegedly defective product into the stream of commerce. (Siemen v. Alden (1975), 34 Ill. App.3d 961, 341 N.E.2d 713.) Accordingly, it becomes apparent that the cornerstone of liability rests upon the defendant's active participation in placing the product into commerce for use and consumption by others. One of the underlying reasons for imposing strict liability is to ensure that losses are borne by those who have created the risk and subsequently reaped the profit of marketing the allegedly defective product. Liability will not be imposed upon a defendant who is not a part of the original producing and marketing chain. Peterson v. Lou Bachrodt Cheverolet Co. (1975), 61 Ill.2d 17, 329 N.E.2d 785.

In the present case, plaintiff concedes that Dominick's is not in the business of either selling or renting shopping carts. She maintains, however, that although Dominick's gratuitously furnishes the carts to its customers, such is done as an incident of the sale of the items which constitutes Dominick's business. In attempting to hold Dominick's strictly liable, plaintiff relies upon the case of Bainter v. Lamoine LP Gas Co. (1974), 24 Ill. App.3d 913, 321 N.E.2d 744. In that case this court permitted a cause of action in strict products liability against a defendant who supplied a defective tank for storage of gas sold to the plaintiff. The tank was characterized as an incident of the sale of the gas and the consideration given for the gas was deemed to include the use of the tank.

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

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

Plaintiff's reliance upon this court's holding in the case of Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App.3d 155, 349 N.E.2d 578, is misplaced. In that case plaintiff brought suit based on negligence and strict products liability against a company engaged in the business of repairing, reconditioning, and selling tires. Plaintiff was injured when a "run-out" tire repaired and supplied by defendant exploded as he mounted the tire on a vehicle owned by plaintiff's employer. Defendant contended that the doctrine of strict liability did not apply to it because it was essentially a service organization engaged in the business of repairing and rebuilding equipment owned by its customers. There was evidence which established that defendant often substituted customer equipment with parts from its own stock. On the occasion of plaintiff's injury, defendant had substituted its own parts instead of returning those of plaintiff's employer. For that reason, defendant was found to be a supplier who had placed a defective product into the stream of commerce and, therefore, liable under the principles of strict products liability.

For the reasons stated, the order of the circuit court of Cook County dismissing the count of the complaint founded on ...


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