APPEAL from the Circuit Court of Tazewell County; the Hon.
IVAN L. YONTZ, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 27, 1980.
On April 20, 1975, the plaintiff, Henry D. Maddan, was seriously injured when the car he was driving in a westerly direction on State Route 98 near Pekin crossed over the eastbound traffic lane and struck a metal guardrail located on the south shoulder 1 1/2 feet from the edge of the paved portion of the highway. The defendant, R.A. Cullinan & Son, Inc., was alleged in plaintiff's complaint to be the manufacturer, assembler, and installer of the guardrail. The defendant was to construct and install the guardrail in accordance with plans and specifications required by the State of Illinois, which provided that an "offset" guardrail be connected or attached to the blunt end of the guardrail. The purpose of this offset guardrail was to deflect a vehicle colliding with it. However, at the time of plaintiff's accident no offset guardrail had yet been installed. The defendant had not completed its contract with the State, nor had its work been approved or accepted by the State at the time of the occurrence. When the plaintiff's vehicle collided with the end of the guardrail it was not deflected but instead became impaled. Fifteen feet of the guardrail entered the plaintiff's vehicle, and as a result of the injuries sustained in the collision the plaintiff's left leg was amputated below the knee. In count II of a multicount complaint, the plaintiff sought damages in the amount of $100,000 from the defendant under a products liability theory. This count was subsequently dismissed by the Circuit Court of Tazewell County upon the defendant's motion. It is from this order dismissing count II that the plaintiff appeals.
• 1 The only issue presented in this case for our resolution is whether the circuit court erred in dismissing count II of the plaintiff's complaint. The plaintiff contends that count II states a valid cause of action in products liability against the defendant, and as a consequence the dismissal of that count was improper. Under Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, there are three elements of a cause of action in strict products liability: first, the injury must result from a condition of the product; second, the condition must be unreasonably dangerous; and third, the condition must have existed at the time the product left the manufacturer's control. E.g., Hunt v. Blasius (1978), 74 Ill.2d 203, 384 N.E.2d 368; Restatement (Second) of Torts § 402A (1965).
We need not be concerned with the first two enumerated elements, since it is patently clear that the facts as set forth in count II of the plaintiff's complaint do not meet the requirement set forth as to the third element. Assuming arguendo that the guardrail was a product which was unreasonably dangerous, it had not left the manufacturer's control. The guardrail was only partially constructed; it had not been accepted or approved of by the State. In short, it had not been placed in the stream of commerce. The plaintiff is asking that this court extend the doctrine of products liability to unfinished or partially constructed structures. To agree with the plaintiff would require that a manufacturer or builder would from the onset of his efforts have to at all times have "absolute end product" safety features in the product being manufactured or the structure being built.
The plaintiff relies on Hunt v. Blasius (1978), 74 Ill.2d 203, 384 N.E.2d 368, as authority for his argument that the guardrail was a product for strict liability purposes. The case of Hunt involved a highway signpost. However, it is pertinent to note that the sign which was struck by a motor vehicle had been completed 3 1/2 years before the accident and had been approved and accepted by the State. Again assuming arguendo that the signpost involved in the case of Hunt was a product, it had left the manufacturer's control and had entered the stream of commerce.
• 2, 3 Having concluded that the guardrail in the instant case had not left the defendant contractor's control, it follows that the plaintiff's attempt to impose the doctrine of strict tort liability is not well founded. We are, however, not disposed to determine this question of strict liability on such narrow grounds. We cannot agree with the contention of the plaintiff that the law of product liability should be applicable in a situation where a plaintiff is injured when his motor vehicle has a collision with a guardrail. We are of this opinion regardless of whether construction of the rail was completed or incompleted. Classify a guardrail as a product and the courts> will next be confronted with the assertion that State-planted trees, culverts, bridges and highways themselves are products. We do not believe that the doctrine of products liability which has evolved and expanded was ever intended to encompass such items. To say that such items are in the "stream of commerce" defies logical reasoning. Parties injured in accidents involving guardrails, bridges and similar accidents if not negligent have ample theories of redress, as does the plaintiff in the instant case. We make this assertion being fully aware of the signpost case, viz, Hunt v. Blasius (1978), 74 Ill.2d 203, 384 N.E.2d 368. We are cognizant of the fact that our supreme court in the case of Hunt set forth strong language to the effect that a State signpost was a product and that a collision with the same imposed strict liability upon the designer, builder and installer of the post. However, in spite of such language, our supreme court in Hunt affirmed a circuit court and an appellate court, the effect of which was to deny recovery to the plaintiffs. A close examination of Hunt and our supreme court's criteria as to the pleadings required of a plaintiff in order to impose strict liability makes it far from clear that a signpost as in Hunt and a guardrail such as we have in the instant case can be classified as products which have entered the "stream of commerce" and which would give rise to the application of the products liability law when one is injured as the result of colliding with such objects.
For the aforesaid reasons the judgment of the Circuit Court of Tazewell County dismissing count II of the amendment to the complaint is affirmed.
Mr. JUSTICE BARRY, dissenting:
Because I disagree with both the analysis and conclusions of the majority in this cause, I respectfully dissent from the opinion of my colleagues.
The decision of the majority affirming the circuit court's dismissal of count II of the plaintiff's complaint is premised upon two erroneous legal conclusions. The first is that because the guardrail was not completed and had not been accepted or approved by the State of Illinois at the time of the accident, it was not placed in the stream of commerce. As a consequence, the majority hold that the third element of a products liability claim under Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, was not met. In reaching this conclusion, the majority disregard important policy considerations which mandate a contrary result.
Among the important policy considerations underlying the imposition of strict products liability are "(1) that the public interest in human life and health requires protection of law, and (2) that the manufacturer solicits and invites use of the product, thereby representing to the public that it is safe and suitable for use." (Domine v. Fulton Iron Works (1979), 76 Ill. App.3d 253, 258, 395 N.E.2d 19, 23.) I believe these considerations compel extension of products liability analysis to the instant case. As the plaintiff alleges in count II of his complaint, the purpose of a guardrail is to protect users of the highway from serious injury by deflecting "oncoming automobiles foreseeably deviating from the pavement." This purpose, however, is defeated by the absence of the offset guardrail. Without the offset guardrail to deflect errant vehicles, the guardrail does not serve to protect highway travelers, but instead becomes a hazard to all those who use the highway. The people of this State and of other States who use Illinois ...