APPEAL from the Circuit Court of Cook County; the Hon. MEL
R. JIGANTI, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Marcy S. Crowe, administrator of the estate of and widow of John F. Crowe, Jr., deceased, and mother of Gregory John Crowe, a minor, brought an action against a number of defendants, including Arrow Contractors Equipment Company, to recover money damages due to the death of her husband.
John F. Crowe, Jr., was fatally injured on September 20, 1973, when he fell approximately 100 feet from a certain hoisting tower which was then being used for a construction project at 2357 West Division Street in Chicago. At the time of his death, John Crowe was an employee of Interstate Steel Setters, Inc., one of the contractors working on the construction project. The tower from which the decedent fell had been leased by The George Sollitt Construction Company from Arrow in June 1972. In July 1973 this particular tower and other equipment owned by Arrow was sold to Southeastern Tower and Equipment Company, and the lease between Arrow and Sollitt was assigned to Southeastern by Arrow. This sale and assignment was part of a bulk sale of equipment by Arrow to Southeastern.
In count III of her complaint filed on April 3, 1974, Marcy Crowe alleged that Arrow, as one of the parties in the distribution chain relative to the hoisting tower, was liable under a strict liability theory. Arrow moved the court to dismiss count III with respect to Arrow on the grounds that the sale of the tower and assignment of the lease to Southeastern relieved Arrow of any liability under the products liability theory. Arrow's motion was granted in an order entered on March 7, 1975. The plaintiff subsequently moved for a rehearing on the motion of Arrow. This motion for a rehearing was denied on March 14, 1975. Marcy Crowe effectively raises two issues on appeal: whether defects in Arrow's motion to dismiss serve to invalidate that motion and whether the plaintiff's complaint states a cause of action against Arrow, as a matter of law, based upon the theory of products liability.
The complaint filed by Marcy Crowe excluded any references to the sale of the tower and assignment of the lease of that tower by Arrow to Southeastern; only facts relating to the original lease of the tower by Arrow to Sollitt were alleged by the plaintiff in the complaint. Arrow, therefore, appended to its motion to dismiss certain documents which indicated that, at the time of the accident, it was no longer the owner or lessor of the tower; Arrow did not, however, include any affidavit to support its motion. Crowe now contends on appeal that because Arrow's motion to dismiss was unverified, the additional facts relating to the sale and assignment were not properly before the court. Absent those additional allegations, Crowe argues that the sufficiency of count III of the complaint can be adjudicated only with respect to the facts apparent on the face of the complaint, and since those allegations clearly establish a cause of action against Arrow on a products liability theory, she argues that the order dismissing Arrow was improperly entered.
• 1 It is true that where a motion to dismiss made under the authority of section 48 of the Civil Practice Act is based upon grounds which do not appear on the face of the complaint, the motion must be supported by affidavit (Ill. Rev. Stat. 1975, ch. 110, par. 48(1)). However, the record shows that the plaintiff is raising this issue for the first time on appeal. In addition, in opposition to the motion to dismiss, she filed copies of the sales and assignment agreements between Arrow and Southeastern documents which were also attached to Arrow's motion. Given these circumstances, we feel that Crowe has clearly waived this objection. In re Leyden Fire Protection District (1972), 4 Ill. App.3d 273, 280 N.E.2d 744; Burdin v. Jefferson Trust & Savings Bank (1971), 133 Ill. App.2d 703, 269 N.E.2d 340.
The second issue, relating to whether Arrow can be liable for damages under a products liability theory, presents what we perceive to be a rather unique question. Arrow's position in the chain of distribution of the tower must be characterized as that of a former owner and a former lessor of the tower. While in Illinois an operator of a rental business can be held strictly liable for defects in products which he has leased (Galluccio v. Hertz Corp. (1971), 1 Ill. App.3d 272, 274 N.E.2d 178), neither party has cited, nor have we found, a products liability case which adjudicates the liability of a former owner and a former lessor of a product.
• 2-4 The imposition of strict liability upon suppliers of defective products was embraced by the courts> as a means of ensuring greater protection for the consumer by finessing some of the problems inherent in the more traditional theories of warranty and negligence. The reasons for placing the risk of loss upon the suppliers of products are, by this time, well known: that the general public interest in human life and health demands protection from defective products, that the burden belongs on the suppliers who, in soliciting for the use of their product, represent that it is safe and suitable for that particular use and that the general considerations of justice dictate that those who create the risk and reap the profit should also bear the loss. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182. See also Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill.2d 17, 329 N.E.2d 785.) Applying this rationale to the problem of the scope of the strict liability doctrine, the courts> have concluded that all participants in the chain of distribution of the product, including manufacturers, wholesalers and retailers, will be held to the strict liability standard. (Peterson; Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill.2d 339, 247 N.E.2d 401; Suvada.) Operators of rental businesses have likewise been included within the doctrine primarily because the position of a commercial lessor in the distribution system of a product is so analogous to that of a retailer, the courts> have seen no need to differentiate between the two for the purpose of applying the strict liability doctrine. Galluccio v. Hertz Corp. (1971), 1 Ill. App.3d 272, 277-278; Cintrone v. Hertz Truck Leasing & Rental Service (1965), 45 N.J. 434, 212 A.2d 769; Price v. Shell Oil Co. (1970), 2 Cal.3d 245, 466 P.2d 722, 85 Cal.Rptr. 178.
It seems clear that, in the present case, had the sale of the tower and assignment of the lease not taken place, Arrow would be a proper defendant under a strict liability theory. The question that must be asked then is whether a lessor may escape liability by selling the product and assigning a lease covering that product to another individual or entity. We believe that he cannot.
Arrow was undeniably a principal participant in the "stream of commerce" relating to this tower. As a party to the original lease, Arrow acted as the initial distributor of the product and, presumably, had some influence over the definition of the terms of the lease. It is also apparent that Arrow's role in the transaction was more than that of a mere conduit. The tower had to be constructed from component parts; therefore, Arrow not only supplied the parts from which the tower was built but also arranged to have an independent contractor construct it. In Dunham strict liability was imposed upon a wholesaler despite the fact that the box in which the defective hammer was packaged passed unopened through the wholesaler's warehouse. Certainly, Arrow played a more active role in the distribution of the allegedly defective product than did the wholesaler in Dunham. Recognizing the desire of the courts> to place the risk of loss on those responsible for the distribution of defective products, we believe that the role played by Arrow in causing the distribution of the tower which injured John Crowe was extensive enough to warrant holding Arrow to the strict liability standard.
For the above stated reasons, the order of the circuit court granting the defendant's motion for dismissal as to Arrow is hereby reversed and the cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.
Reversed and remanded with directions.
Mr. PRESIDING JUSTICE SIMON, specially concurring:
Although I agree with the reasoning and holding of my colleague, Justice McGillicuddy, I regard Arrow's role as something more than that of a former owner and a former lessor, and I believe that Arrow, in selling the tower and assigning the ...