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Van Slambrouck v. Economy Baler Co.

OPINION FILED FEBRUARY 22, 1985.

MICHAEL J. VAN SLAMBROUCK ET AL.

v.

ECONOMY BALER COMPANY ET AL. (ECONOMY BALER COMPANY, APPELLANT,

v.

MARSHALL FIELD & COMPANY, APPELLEE). — WILLIAM MICHAEL GUNDERSON

v.

GOODALL RUBBER COMPANY ET AL. (GOODALL RUBBER COMPANY, APPELLANT,

v.

SCHWERMAN TRUCKING COMPANY, APPELLEE).



No. 59708. — Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Myron T. Gomberg, CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 29, 1985.

Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll and Lloyd E. Williams, Jr., of counsel), for appellant.

French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Richard G. French, Dorothy F. French and Russell P. Veldenz, of counsel), for appellee.

We have consolidated the following two cases for review, Van Slambrouck v. Economy Baler Company, No. 59708 (Van Slambrouck), and Gunderson v. Goodall Rubber Company, No. 59709 (Gunderson). First, we will set forth the facts of each case. Then, we will discuss the issues presented by these two cases.

The procedural history of Van Slambrouck is long and involved. Because of our holding in the case it is not necessary to set forth the Van Slambrouck facts in detail. Michael Van Slambrouck worked for a janitorial service, Lein Chemical Company. Marshall Field and Company (Field's) hired Lein Chemical to service its Old Orchard store. On November 10, 1973, Van Slambrouck's left foot was amputated while using a paper-baling machine at work. Economy Baler Company (Economy) manufactured the baling machine, Field's owned the machine, and Lein Chemical used the machine.

Van Slambrouck sued Economy and Field's in the circuit court of Cook County in July 1974. However, Van Slambrouck voluntarily dismissed Field's with prejudice as a defendant in the case on October 6, 1976.

On August 30, 1979, Van Slambrouck moved to vacate the October 6, 1976, order which dismissed Field's from the case. In Van Slambrouck's motion, he contended that a recent inspection by Economy revealed that the paper-baling machine malfunctioned because Field's employees had removed parts from the machine. The circuit court denied the motion.

On November 15, 1979, Van Slambrouck again sued Field's. This complaint was dismissed with prejudice on March 4, 1980.

Van Slambrouck filed a fifth amended complaint against Economy on March 28, 1980. Count I of the amended complaint alleged strict products liability, and count II alleged negligence. Economy then filed a counterclaim against Field's on April 7, 1980, seeking indemnity based on active/passive negligence. On November 13, 1981, Economy amended the counterclaim seeking either indemnity or contribution. Field's motion to dismiss the amended counterclaim was granted. The circuit court held: (1) that Economy's counterclaim was barred by the prior adjudication that Field's was not negligent with regard to Van Slambrouck (the October 1976 voluntary dismissal with prejudice); (2) that since Economy was the manufacturer of the product it was actively negligent as a matter of law and, therefore, could not maintain an indemnity action based on active/passive negligence against a downstream owner such as Field's; and (3) that contribution was unavailable to Economy because of this court's decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1.

Economy appealed the circuit court's dismissal of its amended counterclaim. The appellate court affirmed the circuit court on the indemnity and contribution issues. (120 Ill. App.3d 843.) Because of its holding the appellate court did not reach the issue of whether Economy's counterclaim was barred by the prior adjudication that Field's was not negligent. Economy then petitioned this court for leave to appeal, and we allowed the petition. (We note that Van Slambrouck has not gone to trial.)

Before we discuss the merits of Van Slambrouck, we will set forth the facts of Gunderson. William Gunderson was employed by Schwerman Trucking Company (Schwerman). On August 25, 1977, Gunderson was severely injured at work when a rubber hose ruptured and caused a caustic substance to burn his eyes. As a result of the injuries, Gunderson lost his sight.

Gunderson filed a lawsuit based on a theory of products liability against Goodall Rubber Company of Canada, Ltd., the manufacturer of the hose; Goodall Rubber Company (Goodall), the distributor of the rubber hose, and Hi-Way Power and Equipment Corporation, a broker which had ordered the rubber hose from Goodall and then sold it to Schwerman.

Goodall filed a third-party action against Schwerman seeking contribution. Schwerman moved to strike Goodall's contribution claim, and the motion was granted.

Gunderson's case proceeded to trial. A jury in the circuit court of Cook County awarded a verdict to Gunderson, assessing damages in the amount of $5 million against all three defendants. In a special interrogatory, the jury found that the rubber hose was in an unreasonably dangerous condition when it left the control of all three defendants and ...


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