Appeal from the Circuit Court of Cook County; the Hon. Edwin
M. Berman, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 20, 1985.
Vivian Morgan, plaintiff, appeals from an order of the circuit court of Cook County granting summary judgment to defendants Bethlehem Steel Corporation (Bethlehem) and Trailer-Train Company (TT). Plaintiff, individually and as administrator of the estate of decedent, Robert Morgan, filed a complaint to recover damages resulting from decedent's death.
The record indicates that on February 9, 1980, at 3:45 a.m., a Chicago police officer observed a damaged auto in the middle of the railroad tracks at a railroad crossing located near 40th and Morgan Streets, in Chicago. Plaintiff's decedent was the sole occupant of the auto; he was pronounced dead on arrival at Mercy Hospital one hour later.
While there were no witnesses to the accident, subsequent investigation revealed that a railroad car in a train which had passed over that crossing at approximately 3:40 a.m. on the night in question had scrape marks on it which could have been caused by a collision. The railroad car in issue is a yellow, 90-foot long flat-bed car which was not loaded at the time of the accident. That car was the 26th car in a 36-car train which had been traveling at approximately 15 miles per hour when it passed over the Morgan Street crossing.
Plaintiff's amended complaint contains four counts. In counts I, II and III, she contends that defendant city of Chicago and Consolidated Rail Corporation had failed to provide adequate warnings at the railroad crossing. Those counts remain pending below. Count IV is brought against defendants Bethlehem and TT and sounds in strict tort liability on a "failure to warn" theory. She contends that the railroad car in question was owned by TT and manufactured by Bethlehem and that it was "unreasonably dangerous" because it:
"a. Was designed, manufactured and sold without reflectorized side markers.
b. Was designed, manufactured and sold without lighting systems indicating the side of said train.
c. Was designed, manufactured and sold without side lights on said train."
These defendants filed motions for summary judgment, contending, inter alia, that the railroad car was not made "unreasonably dangerous" due to the absence of side markers and that defendants owed no duty to warn of the danger of colliding with the railroad car since such danger was open and obvious to all. No relevant affidavits were filed by these parties, and the facts were not in dispute. The trial court granted defendants' motions for summary judgment, apparently holding that as a matter of law the absence of side markers did not render the railroad car unreasonably dangerous.
• 1 In order to recover in strict liability plaintiff must establish three elements: (1) the injury must result from a condition of the product; (2) the condition must be unreasonably dangerous; and (3) the condition must have existed at the time the product left the manufacturer's control. Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182.
Plaintiff here is not alleging the existence of any physical defect in the railroad car; rather, she argues that defendants breached a duty to warn of the risk of collision with the railroad car when they failed to affix some type of warning or illuminating marker to the side of the railroad car. Plaintiff asserts that such markers would make the car more "visible" and would thereby have prevented the collision here.
• 2 Illinois recognizes a cause of action for a manufacturer's, or seller's, failure to warn of a product's "dangerous propensities."
"It is well recognized that a failure to warn of a product's dangerous propensities may serve as the basis for holding a manufacturer or seller strictly liable in tort. [Citations.] The product is in a `defective condition unreasonably dangerous' [citation], not because of some defect inherent in the product itself, but because of the absence of an adequate warning accompanying the product." (Woodill v. Parke Davis & Co. (1980), 79 Ill.2d ...