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Lowrie v. City of Evanston

OPINION FILED JUNE 24, 1977.

ELIZABETH J. LOWRIE, INDIV. AND AS ADM'X OF THE ESTATE OF JOHN A. LOWRIE, DECEASED, PLAINTIFF-APPELLANT,

v.

THE CITY OF EVANSTON ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This appeal involves the propriety of an order dismissing counts I and II, sounding in strict products liability and implied warranty respectively, of plaintiff's second amended complaint (hereafter the complaint).

It was generally alleged in counts I and II that the death of plaintiff's decedent resulted from injuries received in a fall from an upper level of an open air parking garage in the city of Evanston after he had paid for the use of a parking space therein. It was additionally alleged in each count that defendant Evanston was the owner-operator and defendant Albrecht the managing agent of the garage; that both were in the business of leasing it and the parking spaces within to the general public for a profit; that defendant Corrigan was the general contractor for the construction of the garage; that defendant Loebl, Schlossman, Bennett & Dart, Inc., performed the construction architectural work; that defendant DeLeuw, Cather & Company performed the construction engineering work; and that these latter three defendants participated in the placement of the garage into the stream of commerce for use by the general public.

The allegations in count I, which sounded in strict products liability, were (1) that the garage and parking spaces were in a defective and not reasonably safe condition because they were so constructed, designed and engineered (a) "that the parking bumpers and guards did not allow sufficient space for persons to move about their automobiles, and that the weight of a person coming in contact with them would not be projected inward and away from exterior openings"; and (b) "that they did not have guard rails and/or restraints to prevent individuals from falling from the windows and openings therein"; (2) that there were no adequate warnings given concerning the dangers of using said structure and the parking spaces therein; (3) that the said defective and not reasonably safe condition existed at the time the parking structure and parking spaces were placed in the stream of commerce and left the possession of control of each of the defendants; and (4) that the said defective and not reasonably safe condition was the proximate cause of death of plaintiff's decedent.

In count II, it was also alleged that each defendant impliedly warranted "that said parking structure and the parking spaces therein were fit for the purpose of allowing persons to safely park their automobiles there and to safely use said premises," and that this warranty was breached because (a) the parking bumpers and guards did not allow sufficient space for persons to move about their automobiles and that "the weight of a person coming in contact with them would not be projected inward and away from exterior openings"; (b) that guard rails or other restraints were not provided to prevent individuals from falling from the windows and openings; and (c) that no adequate warnings were given concerning the dangers of using the premises. It was alleged also that the breach of implied warranty was a proximate cause of the death of plaintiff's decedent.

The motions to dismiss counts I and II by all defendants were granted. Count III, which the trial court found to have alleged a cause of action based upon negligence, is not involved in this appeal and remains pending in the trial court.

OPINION

• 1, 2 The general question presented on appeal is whether a cause of action was stated in either of counts I and II. In this regard, we note the rule that motions to dismiss a pleading admit facts well pleaded but not conclusions unsupported by allegations of specific facts upon which such conclusions rest. (Burke v. Sky Climber, Inc. (1974), 57 Ill.2d 542, 316 N.E.2d 516.) In determining the propriety of the dismissal of a complaint or portions thereof, we are concerned only with the question of law presented by the pleadings. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538.

It is the position of plaintiff that he has stated a cause of action in count I under the concept of strict liability in tort as set forth in the Restatement (Second) of Torts § 402A (1965), and adopted in Illinois in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182. In its final form, section 402A in pertinent part provides:

"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 * * *."

In determining whether a strict products liability cause of action has been stated, we are initially concerned with the question as to whether the constructed building here, a multi-level open air garage, is a product within the meaning of the use of that term in the Restatement. Because this question is one of first impression, some historical background is required. In this regard, we note that comment b of section 402A traces the history of the doctrine from its original application to those engaged in the business of selling food and other products intended for intimate bodily use to its present extension, which includes the sale of any product that, if defective, may be expected to cause physical harm to the consumer or his property

In comment d to section 402A, what appears to be an attempt to define the meaning of the phrase "sale of any product" resulted in a mere listing of various types of products, as follows:

"The rule stated in this Section is not limited to the sale of food for human consumption, or other products for intimate bodily use, although it will obviously include them. It extends to any product sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate user or consumer. Thus the rule stated applies to an automobile, a tire, an airplane, a grinding wheel, a water heater, a gas stove, a power tool, a riveting machine, a chair, and an insecticide. It applies also to products which, if they are defective, may be expected to and do cause only `physical harm' in the form of damage to the user's land or chattels, as in the case of animal food or a herbicide." (Restatement (Second) of Torts, Explanatory Notes, § 402A, comment d, at 350 (1965).)

We note also that no definition of the term "product" appears in the works of Prosser, the driving force behind strict products liability. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966); ...


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