Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Paul F. Elward, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1980.
On December 13, 1972, plaintiff Peter Bejda was an employee of Goltra Industries, Inc., Barrington. He was operating a grinding machine when its grinding wheel disintegrated and pieces of the wheel struck him. On March 8, 1974, Bejda and his wife, Kazimera, filed suit for the injuries resulting therefrom, naming defendant Gerbing Manufacturing Company as one of several defendants.
On motion by Gerbing, alleging that plaintiffs failed to file a sufficient bill of particulars, the circuit court of Cook County dismissed plaintiffs' product liability action. The appellate court reversed and directed the circuit court to consider sanctions less drastic than dismissal. (73 Ill. App.3d 484.) We allowed Gerbing leave to appeal. Because of the nature of the issue presented, a detailed recitation of the facts and procedural history is necessary.
Plaintiffs seek to hold Gerbing liable on the theories (1) that a component of the grinding machine, a so-called "variable pitch pulley and drive belt," was designed, manufactured and sold by Gerbing in an unreasonably dangerous defective condition which allowed the grinding wheel to spin at an excessively high rate of speed, thereby causing the wheel to disintegrate; and (2) that the component, as manufactured, was in an unreasonably dangerous defective condition because it contained no warning of its inability to control the speed of the wheel. Gerbing was not named as a defendant in plaintiffs' original complaint nor in either of plaintiffs' first two amended complaints but was added as a defendant in plaintiffs' third amended complaint, filed on December 12, 1974. On February 10, 1975, Gerbing moved to strike plaintiffs' third amended complaint, insofar as it related to Gerbing, for failure to state a cause of action. On February 26, the motion to strike was granted, and plaintiffs were allowed seven days to amend.
On March 17, 1975, plaintiffs were granted leave to file their fourth amended complaint instanter. On April 2, 1975, Gerbing again filed a motion to strike, alleging that plaintiffs' fourth amended complaint failed to apprise Gerbing of the nature of the alleged defect in its pulley and drive belt and that the complaint failed to allege that Gerbing manufactured the product in an unreasonably dangerous condition. In response to the motion to strike, plaintiffs explained that they had not yet obtained an expert's evaluation of Gerbing's pulley and drive belt so as to enable plaintiffs to describe the alleged defect in more specific, technical terms, and the court denied Gerbing's motion to strike.
On February 10, 1976, Gerbing filed a demand for a bill of particulars. It claims that it filed the demand because it had determined that plaintiffs' answers to Gerbing's interrogatories were insufficient and because plaintiffs had failed to comply with Gerbing's request for production of documents. The demand for a bill of particulars requested, inter alia, that plaintiffs "[i]temize each defect in the `drive system or installation' which permitted * * * the grinding wheel to run at a speed in excess of tolerable limits and to disintegrate." The demand also asked that plaintiffs explain how they knew that Gerbing designed, manufactured and sold the drive system.
On February 18, 1976, the hearing on Gerbing's motion was continued to March 2, and though not appearing of record, Gerbing claims that this was done at the request of plaintiffs. On March 2, plaintiffs presented additional answers to Gerbing's interrogatories and a response to the request for production of documents, and the motion was thereupon continued to March 18 to enable Gerbing to assess the sufficiency of the materials presented.
On March 15, 1976, Gerbing sent plaintiffs a letter requesting production of certain items and reminding plaintiffs that they had not responded to Gerbing's demand for a bill of particulars. To allow plaintiffs time to respond to the letter, the hearing on Gerbing's motion to dismiss was continued to April 15.
The motion did not appear on the court call for April 15 and was rescheduled for April 26. Defendant did not present its motion on the latter date, and it claims that it did not do so because of the representations of plaintiffs that they would respond to the production request and the demand for a bill of particulars within 21 days after April 26.
When Gerbing received no further response, it again filed a motion to dismiss on June 9, 1976, for plaintiffs' failure to supply the requested bill of particulars and documents. The motion was entered and continued to June 23, and when plaintiffs' attorney failed to appear that day, Gerbing's motion to dismiss was granted.
On June 29, 1976, plaintiffs' attorney moved to vacate the June 23 order of dismissal, explaining that he was detained on another matter that day and arrived in court 15 minutes late and found the order of dismissal already had been entered. The motion to vacate the order of dismissal was granted.
Also on June 29, 1976, plaintiffs filed a response to Gerbing's demand for a bill of particulars. Plaintiffs stated therein that the pulley and drive belt in question has a nameplate with the name "Gerbing" on it; that plaintiffs were informed, and the nameplate would indicate, that Gerbing designed, manufactured and sold that pulley and drive belt; that the pulley-and-drive-belt system was defective in that it allowed the grinding wheel to spin at an excessive rate of speed, thereby causing the wheel to disintegrate; that the exact nature of the defect which caused the wheel to run out of control was then unknown; and that the pulley-and-drive-belt system was also defective because of the absence of a warning that the wheel would spin at an excessive rate of speed. Gerbing felt that plaintiffs' response failed to establish a relationship between the grinding wheel and Gerbing's manufacture and sale of the pulley and drive belt, and it moved for an order striking plaintiffs' bill as non-responsive. The motion was granted on July 26, 1976, and plaintiffs were granted 56 days in which to file an amended bill.
On January 31, 1977, Gerbing moved to dismiss, alleging the failure of plaintiffs to file an amended bill. The court denied the motion and granted plaintiffs an additional 14 days to file an amended bill, and the matter was continued to February 16. For reasons which do not appear of record, the court heard the motion on February 15 rather than the 16th, and it dismissed plaintiffs' action as against Gerbing. Upon being informed of the court's February 15 order of dismissal, plaintiffs moved to vacate the order, alleging (1) that the order was entered without notice to them, since the matter was not scheduled for that day; and (2) that their complaint stated a cause of action against Gerbing, and the alleged defect could not be further particularized. On March 3, the court ...