APPEAL from the Circuit Court of Vermilion County; the Hon.
FRANK J. MEYER, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Plaintiff, an employee of Rossville Packing Company, was severely injured when he fell into a conveyor apparatus used in the business. The conveyor was built from scratch in 1947 by Richard and Eugene Schlecht, who at that time were in partnership with their father in the Rossville Packing Company. In 1958, L.H. Schlecht sold his interest to his two sons. In 1964, Richard Schlecht bought out his brother and shortly thereafter incorporated the business under the same name. In exchange for corporation stock, Richard Schlecht transferred all assets of the company, excluding land, building, and fixtures, to the corporation. Richard Schlecht, president of Rossville Packing Company, has orally leased the land, buildings, and fixtures to the corporation every year since 1964. At no time has the corporation, or either of the brothers individually or as partners, engaged in the manufacture of conveyors. The conveyor system in question was the only one ever built by defendants and has always been used in the operation of the plant.
Because of the presence of Workmen's Compensation, the corporation, plaintiff's employer, was dismissed out. Defendants then moved for summary judgment on three theories: (1) The lease of the conveyor system was an isolated act, not properly subject to strict liability; (2) the conveyor was a fixture and real estate is not subject to strict liability; and (3) the cause of action is barred by the statute of limitations. The court granted defendants' summary judgment motion without stating its reasons.
Plaintiff argues that Richard Schlecht's lease of the conveyor to his own corporation was the act which put the product into the stream of commerce and justifies the imposition of strict liability. Defendants concede that the conveyor was a "product" and that whether this case involved a sale or a lease is irrelevant. (See Galluccio v. Hertz Corp. (1971), 1 Ill. App.3d 272, 274 N.E.2d 178.) However, defendants argue that the strict liability does not apply since (1) the conveyor was not in the stream of commerce, and (2) this was an isolated transaction by one not in the business of leasing conveyors.
• 1, 2 In Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, the Illinois Supreme Court adopted the provisions of section 402A of the Restatement (Second) of Torts (1965), which state:
"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."
Comment f of section 402A emphasizes that:
"The rule does not, however, apply to the occasional seller of food or other such products who is not engaged in that activity as a part of his business. Thus it does not apply to the housewife who, on one occasion, sells to her neighbor a jar of jam or a pound of sugar. Nor does it apply to the owner of an automobile who, on one occasion, sells it to his neighbor, or even sells it to ...