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Wooding v. L & J Press Corp.





APPEAL from the Circuit Court of Cook County; the Hon. PAUL ELWARD, Judge, presiding.


Lena Wooding brought a strict liability in tort action for personal injuries resulting from an accident involving the operation of a punch press. L & J Press Corporation, which manufactured the punch press, and other manufacturers and distributors of safety devices and attachments to the punch press, were named as defendants. The lower court granted L & J Press' motion for summary judgment and denied plaintiff's motion to vacate that judgment. Plaintiff appeals.

Plaintiff was injured in December 1975, while operating a punch press as an employee of Kalmus & Associates. The complaint alleged that, as the direct and proximate result of the defective and unreasonably dangerous condition of any or all of the punch press, safety guards, chains and dies, plaintiff was injured and one of her hands was amputated.

On August 16, 1979, plaintiff filed a notice to produce, which was served on all defendants, seeking copies of the reports and opinions concerning the inspections of the punch press and pull-back safety devices made by each defendant's representative on April 13, 1979. L & J Press filed a motion for summary judgment on September 26, 1979, prior to compliance with the notice to produce. Attached to the motion was the sworn discovery deposition of Dr. Kenneth Packer, an engineering expert who examined the machine in question for the employer's insurance carrier after plaintiff's accident. Dr. Packer concluded that there was no manufacturing or design defect in the punch press. His opinion was that the accident was caused because the left-hand cable from the pull-back device became entangled in the left front guidepost and pulled plaintiff's hand into the press after it was activated. Defendant contends that since the pull-back devices and die were in no way connected with L & J Press, there is no factual basis for finding the press the proximate cause of plaintiff's injuries. Defendant therefore moved for summary judgment.

Plaintiff responded to L & J Press' motion for summary judgment by asserting that the motion was premature since her investigation into the cause of her injuries had not been completed and the discovery inspection reports were outstanding. Plaintiff's attorney failed to appear at the December 4, 1979, hearing. Summary judgment was granted in favor of L & J Press, but said order was not made final or appealable. The case was continued as to the other defendants.

Plaintiff filed a motion to vacate the summary judgment on December 17, 1979. The hearing on plaintiff's motion was continued until March 25, 1980. Although the precise chain of events is unclear because no court reporter was present at the hearing, the substance of the proceeding was that the motion to vacate was denied and the summary judgment was made final and appealable. From bystanders' reports filed by both parties and made part of the record on appeal, it appears that the lower court based its granting of L & J Press' motion for summary judgment on plaintiff's failure to file a proper response to the motion, thereby failing to raise a genuine issue of material fact.

On April 16, 1980, plaintiff filed a motion to vacate the court's March 25, 1980, order. In the motion plaintiff endeavored to show there was evidence of the machine "repeating" and that two of plaintiff's co-workers had given unsworn statements that they heard the machine "repeat." Plaintiff's attorney also advised the court that plaintiff had not completed discovery with respect to L & J Press. It was the position of L & J Press that since none of the co-workers' statements were sworn, they did not comply with Supreme Court Rule 191(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 191(a)), which sets forth the requirements for affidavits supporting or opposing a motion for summary judgment. Plaintiff's motion to vacate was denied.

• 1 The issue before this court is whether the trial judge acted properly in granting L & J Press' motion for summary judgment and denying plaintiff's motion to vacate that judgment. The standards for issuance and proper procedure to follow on motions for summary judgment are set out in the Illinois Civil Practice Act and Supreme Court Rules. Section 57 of the Civil Practice Act states, in part:

"(3) Procedure. The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *

(4) Form of affidavits. The form and contents of and procedure relating to affidavits under this Section shall be as provided by rule." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110, par. 57(3), (4).)

The affidavits referred to in section 57 must comply with the requirements of Supreme Court Rule 191, which states:

"(a) Requirements. Affidavits in support of and in opposition to a motion for summary judgment under section 57 of the Civil Practice Act, * * * shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used." (Ill. Rev. Stat. 1979, ch. 110A, par. 191(a).)

A summary judgment will only be entered where the pleadings, depositions, admissions, and affidavits demonstrate that no genuine issue of facts exists which warrants trying the case. (Vuletich v. Alivotvodic (1979), 73 Ill. App.3d 927, 392 N.E.2d 663; see also Glen View Club v. Becker (1969), 113 Ill. App.2d 127, 134, 251 N.E.2d 778; Shramek v. General Motors Corp. (1965), 69 Ill. App.2d 72, 77, 216 N.E.2d 244.) We note, however, that the summary judgment procedure is an important tool in the administration of justice and should be encouraged in the proper case. Allen v. Meyer (1958), 14 Ill.2d 284, 292, 152 N.E.2d 576; see also Fooden v. Board of Governors (1971), 48 Ill.2d 580, 586, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L.Ed.2d 766, 92 S.Ct. 2847.

In Fooden, two assistant professors at Chicago State College alleged the administration illegally failed to renew their contracts. Defendant Board of Governors filed a motion for summary judgment supported by an affidavit which stated that since plaintiffs were untenured, they had no right to re-employment. The affidavit did not state the reasons for the dismissals and did not deny all the allegations of the complaint. Plaintiffs failed to file a counteraffidavit in ...

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