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ORRELL v. AMERICAN HOIST & DERRICK CO.

February 8, 1985

DAVID ORRELL, PLAINTIFF,
v.
AMERICAN HOIST & DERRICK CO., AND HOLEKAMP EQUIPMENT CO., AND DANA CORPORATION D/B/A FORMSPRAG COMPANY D/B/A FORMSPRAG-WARREN, DEFENDANTS, AND AMERICAN HOIST & DERRICK CO., THIRD-PARTY PLAINTIFF, V. HOEFFKEN BROTHERS, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Foreman, Chief Judge:

MEMORANDUM AND ORDER

Before the Court is defendant Dana Corporation d/b/a Formsprag Company's (Dana) Motion for Summary Judgment (Document No. 90). Plaintiff brings this action for damages sustained from an injury incurred while working on a platform attached to the end of a crane manufactured by American Hoist & Derrick Co., distributed by Holekamp Equipment Co., and sold to Hoeffken Brothers, Inc., the plaintiff's employer. Dana was the manufacturer of a component part of the crane in question. The plaintiff's third amended complaint is based on theories of strict product liability, negligence, and warranty.

Counts 7, 8, 9, and 10 of the third amended complaint are directed at Dana. On March 5, 1984, Dana moved to dismiss Counts 7, 9, and 10 on the theories that Count 7, sounding in strict liability, was barred by the statute of limitations, and that Counts 9 and 10 were improper under warranty theories. On July 16, 1984, this Court dismissed Count 9, but refused to dismiss Counts 7 or 10. Dana now moves for summary judgment as to all remaining counts or in the alternative as to Count 7.

Summary judgment is appropriate only where the record shows 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." Fed.R.Civ.P. 56. The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir. 1984). The Court must view the evidence, and the reasonable inferences to be drawn therefrom, in the light most favorable to the party opposing summary judgment. Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215 (7th Cir. 1984).

Where the moving party has met its initial burden and the opposing party asserts the existence of a question of fact, the Seventh Circuit has identified two considerations to be used in determining whether the non-moving party has established that there is a genuine issue as to that fact.

  To create a question of fact, an adverse party
  responding to a properly made and supported summary
  judgment motion must set forth specific facts showing
  that there is a genuine issue for trial. . . . A
  party may not rest on mere allegations or denials of
  his pleadings; similarly, a bare contention that an
  issue of fact exists is insufficient to raise a
  factual issue.

Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Furthermore, the disputed fact must be material, that is, it must be outcome-determinative under the applicable law. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied, ___ U.S. ___, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

Dana raises a number of points in its motion for summary judgment. First, it argues that Count 7 of the third amended complaint is barred by the twelve or ten year cap on a product liability action expressed in Ill.Rev.Stat.Ann. ch. 110, § 13-213 (Smith-Hurd 1984). Section 13-213(b) provides:

  Subject to the provisions of subsections (c) and (d)
  no product liability action based on the doctrine of
  strict liability in tort shall be commenced except
  within the applicable limitations period and, in any
  event, within 12 years from the date of first sale,
  lease or delivery of possession by a seller or 10
  years from the date of first sale, lease or delivery
  of possession to its initial user, consumer, or other
  non-seller, whichever period expires earlier, of any
  product unit that is claimed to have injured or
  damaged the plaintiff,

  unless the defendant expressly has warranted or
  promised the product for a longer period and the
  action is brought within that period.

Both parties agree that this action was not commenced within 12 years from the first sale to Holekamp or 10 years from the sale to Hoeffken Brothers. Plaintiff contends now, as he did in response to Dana's earlier motion to dismiss, that subsection (c) of § 13-213 tolls the above caps. Subsection c states:

  No product liability action based on the doctrine of
  strict liability in tort to recover for injury or
  damage claimed to have resulted from an alteration,
  modification or change of the product unit subsequent
  to the date of first sale, lease or delivery of
  possession of the product unit to its initial user,
  consumer or other non-seller shall be limited or
  barred by subsection (b) hereof, if
    (1) the action is brought against a seller making,
  authorizing, or furnishing materials for the
  accomplishment of such alteration, modification or
  change (or against a seller furnishing specifications
  or instructions for the accomplishment of such
  alteration, modification or change when the injury is
  claimed to have resulted from failure to provide
  adequate specifications or instructions), and
    (2) the action commenced within the applicable
  limitation period and, in any event, within 10 years
  from the date such alteration, modification or change
  was made, unless defendant expressly has warranted or
  promised the product for a longer period and the
  action is brought within that period, and
    (3) when the injury or damage is claimed to have
  resulted from an alteration, modification or change
  of a product unit, there is proof that such
  alteration, modification or change had the effect of
  introducing into the use of the product unit, by
  reason of defective materials or workmanship, ...

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