Appeal from the Circuit Court of Cook County; the Hon. Charles
J. Durham, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
During the course of his employment with Forty-Eight Insulations in Aurora, Illinois, plaintiff was injured on April 21, 1975, operating a battline insulation processing and cutting machine manufactured by defendant Rock Wool Engineering and Equipment Company, Inc., an Indiana corporation. The injury resulted in the amputation of the fingers of his right hand. The machine, designed by Rock Wool's employees, Thomas Shovlin and E.R. Government was built in 1953 and modified in 1958.
On March 3, 1966, Rock Wool executed an agreement by which it sold the bulk of its assets to defendant Bemis in exchange for cash and Bemis continued to manufacture battline machines similar to the one which plaintiff asserts was defective. Bemis also supplied Rock Wool's former customers with spare parts. Later, Rock Wool changed its corporate name to Government and Shovlin and in late 1967, the corporation was dissolved under the applicable provisions of Indiana law. Thomas Shovlin, former director and vice-president of Rock Wool, accepted Bemis' offer to be its product manager. Another Rock Wool employee, Robert Stoudt, was employed as a foreman for Bemis.
In his original complaint filed February 22, 1977, plaintiff sought to attach the liability of Rock Wool for the injury caused by the allegedly defective machine to the defendant Bemis, as successor in interest to Rock Wool.
Plaintiff's fourth amended complaint, the subject of this appeal, was filed on January 11, 1982, and consisted of four counts. Count I was based on Bemis' alleged failure to give adequate warning as to the presence of certain conditions which allegedly rendered the product unreasonably dangerous. Count II alleged Bemis' negligence in failing to warn of a dangerous and defective condition. Count III pleaded a cause of action in strict liability predicated upon an alleged "de facto merger" between Bemis and Rock Wool. The final strict liability count alleged that Bemis, as corporate successor to Rock Wool, carried on the "product line" of Rock Wool.
On March 8, 1982, Bemis moved to dismiss the fourth-amended complaint and attached the affidavit of Thomas Shovlin, the product manager of Bemis. The affidavit set forth, inter alia, that there was no interchange of stock or change in ownership in either corporation following the agreement; and that the battline equipment at Forty-Eight Insulations was not serviced by Bemis from 1966 up to and including the date of plaintiff's injury, April 21, 1975.
Following a hearing, the trial court dismissed plaintiff's complaint for failure to state a cause of action. Plaintiff appeals.
The sole issue on review is whether the trial court erred in dismissing plaintiff's fourth amended complaint for failure to state a cause of action against Bemis.
An analysis of this issue requires us to address the arguments advanced by plaintiff in support of his claim.
Plaintiff argues that: (1) Bemis, as successor in interest, undertook the duty of its predecessor to warn of dangerous defects of which it was aware; (2) that the transaction in question constituted a de facto merger; and (3) that strict liability attaches to a successor corporation which acquires services and maintains its predecessor's product line.
• 1 We first address plaintiff's contention that Bemis, as a successor corporation, owed an independent duty to warn under a strict liability theory.
In Illinois, three elements are required for strict liability in tort; (1) plaintiff must have suffered an injury to an interest protected by law; (2) defendant must have had a duty to prevent the injury from occurring, and (3) defendant must have breached that duty and the injury must have resulted from that breach. (See Braband v. Beech Aircraft Corp. (1977), 51 Ill. App.3d 296, 367 N.E.2d 118, aff'd (1978), 72 Ill.2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L.Ed.2d 296, 99 S.Ct. 2857.) It is clear, however, that one who has done nothing to create a risk of injury cannot usually be burdened with the duty of preventing that injury.
Plaintiff directs our attention to dictum in Nguyen v. Johnson Machine & Press Corp. (1982), 104 Ill. App.3d 1141, 1147, 433 N.E.2d 1104, 1109, which suggests that a successor corporation may have a duty to warn of defects before an injury occurs if ...