Appeal from the Circuit Court of Cook County; the Hon. William
R. Quinlan, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This appeal is from summary judgment for A.J. Antunes Company (defendant) in plaintiff's personal injury action.
In his nine-count amended complaint, plaintiff alleged that he was seriously injured when molten aluminum overflowed from the die casting machine he was operating and splattered onto his legs. Counts I through VI, which were directed against the manufacturer and lessor of the machine, remain pending in the trial court and are not at issue in this appeal. Counts VII, VIII and IX sought recovery from defendant the owner of the die on theories of negligence, strict liability, and breach of warranty respectively, alleging essentially that defendant designed the die in question; that the die was defective and unreasonably dangerous in that it lacked a shield or other safety device to prevent the emission of molten metal from the parting line during the die casting process; that defendant distributed the die to plaintiff's employer, G & M Die Casting Company (G & M), in this unreasonably dangerous condition without providing warnings of the defect; and that plaintiff's injuries proximately resulted therefrom.
Defendant filed a motion for summary judgment which was supported by the affidavit of its president, August Antunes, in which he stated that defendant did not design, manufacture, possess, distribute, or sell the allegedly defective die. At a hearing in July 1983, the trial court granted the motion on procedural grounds, but on November 10, the July order was vacated without objection by defendant, and a hearing was conducted on the merits of its motion.
The documents presented at that hearing included excerpts from the deposition of Jerome Antunes, defendant's vice-president, who stated that defendant was in the business of manufacturing gas and air switches which he and his brother August designed; that they also designed the housing component of those switches and had submitted drawings thereof to Delta Die Casting Company (Delta), which in turn designed and manufactured the die it thereafter used to cast switch housings for defendant. The original die was manufactured in 1967, but was later modified by Delta at his request to increase its production capability from one to three types of housings.
In his deposition, August Antunes stated that he had not supplied Delta with any specifications for the die; however, Jerome did prepare drawings of the housing from which a sand-cast model was made for use by Delta in designing the die. Although defendant owned the die, it remained in the possession of and was maintained by Delta until that company ceased doing business with defendant. It was then transported by Delta, per defendant's direction, to defendant's loading dock and picked up the following day by G & M, which succeeded Delta as manufacturer and supplier of defendant's housings.
Also before the trial court was the affidavit of Edward McLean, an industrial engineer, who stated therein that he had examined the die casting machine, the die, and the drawings prepared by Jerome and concluded that the die was manufactured pursuant to those drawings and "was in fact designed by the maker [thereof]."
Upon conclusion of the hearing, the trial court entered summary judgment for defendant, finding that it was not in the business of designing, manufacturing, distributing or selling dies, and thus, as a matter of law, was not liable under principles of products liability for the injuries of which plaintiff complained. Plaintiff's subsequent motion for reconsideration of that order was denied, and this appeal followed.
• 1 Summary judgment is proper where the pleadings, depositions, admissions, and affidavits on file establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005(c); Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 313 N.E.2d 457.) However, it is a drastic remedy which should be granted only where the right to it is clear and free from doubt (Pitler v. Michael Reese Hospital (1980), 92 Ill. App.3d 739, 415 N.E.2d 1255), and in passing on the motion, the trial court must construe the documents presented most strongly against the moving party and most liberally in favor of the motion's opponent (Molloy v. Santucci Construction Co. (1979), 78 Ill. App.3d 249, 397 N.E.2d 125). Furthermore, a reviewing court will reverse an order granting summary judgment if it is determined that a material question of fact does exist (Connelly v. Uniroyal, Inc. (1979), 75 Ill.2d 393, 389 N.E.2d 155), but even where the facts are undisputed, if fair-minded persons may draw differing inferences from those facts, summary judgment cannot be granted (Cuthbert v. Stempin (1979), 78 Ill. App.3d 562, 396 N.E.2d 1197).
Plaintiff first contends that summary judgment was improper as to count VIII, which was based on a theory of strict products liability, because a genuine issue of material fact existed as to whether defendant designed and/or distributed the die in question.
• 2, 3 The doctrine of strict liability, as expressed in section 402A of the Restatement (Second) of Torts (1965) and adopted by the Illinois Supreme Court in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, provides:
"One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold." (Restatement ...