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Rahn v. Gerdts

OPINION FILED SEPTEMBER 19, 1983.

SALLY RAHN ET AL., PLAINTIFFS-APPELLANTS,

v.

RUSSELL GERDTS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Peoria County; the Hon. Calvin R. Stone, Judge, presiding.

PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

PRESIDING JUSTICE STOUDER delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Peoria County dismissing the third amended complaint (hereinafter complaint) of Sally Rahn and Robert Rahn seeking to recover damages from defendants Deluxe Mobile Home Sales, Inc. (hereinafter Deluxe), and Russell and Connie Gerdts (hereinafter Gerdts). This action arises in connection with a motor home manufactured by Winnebago on a chassis supplied by Chrysler Corporation. These latter two parties were originally defendants in separate counts of the complaint, but after the notice of appeal was filed actions with them were settled and they are not parties to this appeal.

On December 21, 1979, plaintiffs, Bob and Sally Rahn, leased from Gerdts a 1975 motor home. Gerdts were at the time engaged in the business of leasing motor homes and had advertised their business in the Peoria Journal Star newspaper among others.

Later, on December 21, 1979, the Rahns and their family started out on a family trip to spend the Christmas holidays in Florida. While they were driving the leased motor home about 23 miles south of Atlanta on Interstate 75, one of the two fuel tanks became disconnected, dragged on the pavement, and as a result of the friction burst into flames. Plaintiffs and their children leaped from the flaming vehicle after it had stopped without receiving any burns or serious physical injury. Sally Rahn did sustain a scratch to her arm and an immediate pain in her chest. The personal belongings of clothes, Christmas gifts and the like were totally destroyed.

Approximately nine weeks later Sally Rahn was admitted to a psychiatric unit of St. Francis Hospital in Peoria where she was treated for severe depression, anxiety and nervousness, all of which were caused, according to the complaint, by the incident. She continues to be seen and treated by her psychiatrist.

After earlier complaints were dismissed with leave to amend, the third amended complaint was dismissed with prejudice, and it is the judgment dismissing the third amended complaint which is the subject of this appeal.

The third amended complaint may be summarized as follows:

Counts I and V are brought by Sally Rahn and Robert Rahn respectively. Each count is against Gerdts and is based on strict liability in tort. Essentially, each alleges Gerdts was engaged in the business of leasing motor homes and as such leased a motor home to plaintiffs on December 21, 1979; the motor home was at the time it left the possession of Gerdts defective and unreasonably dangerous by reason of an insecure fuel tank; and the defect was not present when the motor home left the possession and control of the manufacturer. In count I, plaintiff alleges she was injured physically and emotionally because of the defect and asks for damages. In count V, Robert Rahn seeks damages for the loss of personal property and for loss of consortium as a result of the injuries to his wife.

Counts II and VI are similar to counts I and V and are based on strict liability in tort only as against Deluxe, which was the dealer that sold the vehicle as a used vehicle to Gerdts.

Counts III, IV, VII and VIII were counts against Winnebago and Chrysler (who have since settled with plaintiffs).

Counts IX, X, XI and XII are against Gerdts (IX and XI) and Deluxe (X and XII) and seek damages for the negligent inspection of the vehicle or, in the alternative, the negligent failure to inspect.

We are initially concerned with the four counts against Gerdts and Deluxe seeking recovery based on the doctrine of strict liability in tort. The plaintiffs allege that Gerdts as lessor and Deluxe as seller of a used vehicle bear a relationship to the condition causing the injuries which subject each of them to strict liability in tort. The plaintiffs also allege facts sufficient to establish their particular rights to recover under the doctrine of strict liability in tort. Finally, plaintiff Sally Rahn argues that her allegations regarding physical injury resulting from emotional distress are compensable injuries.

• 1 One of the reasons advanced by both Gerdts and Deluxe in support of the motions to dismiss the counts of the complaint based on strict liability is the complaint alleges only emotional and mental injuries. Relying on Woodill v. Parke Davis & Co. (1980), 79 Ill.2d 26, 402 N.E.2d 194, the defendants argue that mental anguish and emotional distress unaccompanied by other physical injury are not compensable injuries in a strict liability tort action. We agree that Woodill does so hold and we believe that the Woodill precedent is still applicable notwithstanding the recent decision of our Illinois Supreme court in Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546. In Rickey, the court extended the holding of Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157, permitting recovery for mental anguish and emotional distress in non-impact cases of deliberate torts to torts based on negligence. However, the discussion of the court in Rickey makes to clear that permitting recovery for such kinds of injuries is as a policy matter related to the nature of the conduct. Emphasizing that the recovery permitted is dependent on the element of foreseeability in a negligence action, the court did not see fit to describe the extension of the doctrine in terms other than those related to ...


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