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Skarski v. Ace-chicago Great Dane Corp.

OPINION FILED NOVEMBER 21, 1985.

RICHARD P. SKARSKI, PLAINTIFF-APPELLANT,

v.

ACE-CHICAGO GREAT DANE CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Myron Gomberg, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Richard Skarski, brought a one-count products liability action in the circuit court of Cook County against defendant, Ace-Chicago Great Dane Corporation, seeking damages for injuries suffered while attempting to repair a refrigeration unit attached to a trailer that defendant owned. The trial court granted defendant's motion for summary judgment. Plaintiff now appeals, contending that the trial court improperly granted summary judgment for defendant.

We reverse and remand.

The record shows that defendant, a dealer and distributor of trailers, bought a trailer equipped with a refrigeration unit for the purpose of resale. Illinois Auto Central, a dealer in the business of selling and servicing such refrigeration units, employed plaintiff as a mechanic. Defendant sent the trailer to Illinois Auto Central, under a manufacturer's warranty, for the repair of a possible freon leak in the refrigeration unit. On November 13, 1980, plaintiff suffered injuries when, in the process of separating the refrigeration unit from the trailer, the unit fell from the trailer, striking him.

The record further shows that plaintiff, in his original complaint filed on July 30, 1982, pleaded claims under the theories of negligence and products liability against defendant as the manufacturer of the trailer. On March 27, 1984, plaintiff received leave of court to file an amended complaint in which he corrected the erroneous characterization of defendant as the trailer manufacturer. Plaintiff's amended complaint contained one count under the theory of products liability, alleging that the refrigeration unit was unreasonably dangerous because it was not properly secured to the trailer and because it did not contain written instructions or warnings on the danger in removing it from the trailer.

Defendant, in its answer and affidavits by its vice president, Richard K. Carlson, stated that defendant sells trailers and does not manufacture them. Defendant further answered that at the time of plaintiff's accident it had not sold the trailer and still held title to it.

Defendant moved for summary judgment, contending that it manufactured neither the trailer nor the refrigeration unit and that it neither installed the refrigeration unit on the trailer nor made any changes in either the unit or the trailer. Defendant further contended that the trial court should grant it summary judgment because it neither sold the trailer nor created any risk, and because plaintiff was not an ultimate user or consumer of the product. On September 11, 1984, the trial court granted defendant summary judgment. Plaintiff appeals.

• 1, 2 When a plaintiff appeals from a trial court's order of summary judgment for a defendant, the only issue on appeal is whether "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show 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." (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005.) If the documents that the trial court considers show that there is a material issue as to any material fact, summary judgment should not be granted. In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits in the light most favorable to the nonmoving party. If fair-minded persons could draw different conclusions from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable. Conversely, when the evidence shows that no material issue of fact has been raised, the moving party is entitled to judgment as a matter of law. Artis v. Fibre Metal Products (1983), 115 Ill. App.3d 228, 231-32, 450 N.E.2d 756, 758.

I

• 3 Plaintiff claims that he properly pleaded sufficient facts to state a cause of action in products liability. An injured plaintiff may recover damages from a manufacturer under a products liability theory if he proves that his injury "resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control." Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182, 188, adopting the Restatement (Second) of Torts sec. 402A (1965).

A

• 4 Defendant contends that it cannot be liable in products liability where it did not manufacture the trailer with the alleged defect, where it created no risk. Defendant cites Simpson v. General Motors Corp. (1983), 118 Ill. App.3d 479, 455 N.E.2d 137, aff'd (1985), 108 Ill.2d 146, for the proposition that a manufacturer cannot delegate her duty to make a product safe to the dealer, buyer, or user of the product, and also for the proposition that an entity down the distribution chain does not have an identical duty to that of a manufacturer. 118 Ill. App.3d 479, 484.

In Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 454 N.E.2d 210, our supreme court stated:

"In a products liability action, all persons in the distributive chain are liable for injuries resulting from a defective product, including suppliers, distributors, wholesalers and retailers. [Citation.] Imposition of liability upon these parties is justified on the ground that their position in the marketing process enables them to exert pressure on the manufacturer to enhance the safety of the product. [Citation.] Regardless of the nature of the commercial transaction and even though he does not create the defect, a seller who puts a defective ...


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