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Stando v. Grossinger Motor Sales





APPEAL from the Circuit Court of Cook County; the Hon. MYRON T. GOMBERG, Judge, presiding.


Leonard A. Stando (plaintiff) brought this action against Grossinger Motor Sales, Inc., Pontiac Motor Division of General Motors Corporation, Robert E. Berns and Swedish Covenant Hospital (defendants). The trial court allowed motions for summary judgment filed by Grossinger and Pontiac. Plaintiff has appealed. In this appeal we are not concerned with defendants Robert E. Berns or the Swedish Covenant Hospital. The necessary requisites for assertion of our jurisdiction as to the remaining parties have been fulfilled.

The first count of plaintiff's complaint is based upon a theory of strict liability against Pontiac and Grossinger. The record shows extensive discovery by interrogatories and depositions. The motions of Grossinger and Pontiac for summary judgment are predicated upon excerpts from the deposition of plaintiff. Plaintiff relies upon the same source.

The first count of plaintiff's complaint alleges that on or prior to June 19, 1974, plaintiff purchased a Pontiac automobile from Grossinger. The car had been manufactured by Pontiac. On June 19, 1974, while plaintiff was driving the automobile, the engine caught on fire. The car "was unreasonably dangerous" because it was assembled in such a manner as to allow a spontaneous fire in the engine; the carburetor leaked gasoline; the wiring was improperly placed in the engine area and the vehicle was otherwise negligently constructed as to allow a fire to occur.

It appears from the record plaintiff resides in Tinley Park. He is in the decorating business. Plaintiff purchased the Pontiac in new condition from Grossinger. Plaintiff's wife complained the car was not operating properly. She told plaintiff it was running rough and had a tendency to die. On June 19, 1974, six days after the purchase, plaintiff arranged to return the car to Grossinger because the engine was "vibrating" and not "running right." Plaintiff testified he made three business stops in Villa Park while driving the car. At that time everything about the automobile "seemed to be functioning."

Plaintiff then proceeded east on the Northwest Expressway toward Grossinger. Plaintiff has no recollection of what transpired for some time. He last remembered reaching Cumberland Avenue on the Northwest Expressway. He next remembered he was sitting in his car in an alley behind 4674 North Elston Avenue. This was some 20 blocks away from Grossinger. The car was full of smoke and was on fire. The engine was running. The smoke was greenish-gray. Fire was coming through the car. Plaintiff's shoes began to burn. Plaintiff got out of the left door of the car and stumbled around to the right side.

The defendant, Robert E. Berns, without speaking to plaintiff, struck plaintiff on the head with a yellow plastic baseball bat. Plaintiff remembers nothing further until a police officer at the scene asked him if he was epileptic. The police drove plaintiff to Swedish Covenant Hospital. He was given first aid.

That afternoon plaintiff's wife took him home. On June 20, 1974, plaintiff was involved in an automobile accident. He stayed in a trauma center in Maywood for a week without treatment. Very shortly thereafter plaintiff was involved in an accident in Elmhurst when he drove his car into a fire hydrant.

Plaintiff testified that a few days after the fire plaintiff's wife spoke to several mechanics at Grossinger about the car. Plaintiff was not present. These mechanics did not say where or how the fire started. They merely said it was "super combustion." Plaintiff does not know the meaning of these words. He did not know the names of the mechanics or whether they were still working for Grossinger.

Plaintiff was examined by Dr. Frank DeVincenzo, a qualified neurosurgeon. The doctor gave plaintiff a complete neurological examination on August 23, 1974. This was about 60 days after the incident. The doctor testified there was no evidence of brain disorder or atrophy. In view of plaintiff's statement to the doctor that he had been struck by a baseball bat, the doctor diagnosed plaintiff's condition as a post-concussion brain syndrome. The doctor testified his final diagnosis was there was no anoxia (deficiency of oxygen) of the brain. The doctor referred plaintiff to a psychiatrist who diagnosed plaintiff's condition as a "personality disorder."

• 1 Summary judgment procedure in Illinois is established by statute. (Ill. Rev. Stat. 1979, ch. 110, par. 57.) The motion may be made with or without supporting affidavits. The motion will be granted "`if the pleadings, depositions, admissions and affidavits on file reveal that there is no genuine issue as to any material fact * * *.'" (Smith v. Metropolitan Sanitary District (1979), 77 Ill.2d 313, 320, 396 N.E.2d 524, quoting from Econo Lease, Inc. v. Noffsinger (1976), 63 Ill.2d 390, 393, 349 N.E.2d 1.) The same authority states the converse. This court will reverse a summary judgment if we determine a material question of fact does exist.

• 2, 3 It should also be remembered the issue of the existence or absence of a genuine issue of material fact must be determined from the various sources submitted by the parties in support of and contrary to the motion for summary judgment. In addition, we learn from Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 380, 313 N.E.2d 457:

"If the party moving for summary judgment supplies facts which, if not contradicted, would entitle such a party to a judgment as a matter of law, the opposing party cannot rely upon his complaint or answer alone to raise genuine issues of material fact."

• 4 In situations such as presented by the instant case, involving strict or product liability, the duty of the plaintiff has been fully stated in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, ...

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