Appeal from the Circuit Court of Cook County; the Hon. Brian
B. Duff, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Plaintiff Edward Genus alleged in his complaint that on June 26, 1979, he sustained injuries caused by a corrugated box machine that he operated at his place of employment, the Chicago Corrugated Box Company. He filed suit against S & S Corrugated Paper Machine, the manufacturer of the machine, and against the alleged prior owners of the machine, Box-Print Machinery Company, Green Bay Packaging, Inc. (Green Bay), and Pride Container Corporation (Pride). The complaint contained two counts, one based on strict products liability and the second based on negligence. The trial court dismissed the strict liability count with respect to all defendants. Pride moved for summary judgment on the negligence count and the trial court granted the motion. Plaintiff appeals from only the order granting Pride's motion for summary judgment on the negligence count.
In the negligence count of the complaint, plaintiff alleged that Pride:
"Carelessly and negligently failed to design and equip said machine with proper and adequate safety devices * * * [and]
Carelessly and negligently modified said machine even though the Defendants knew or should have known that the modification thereof would have caused injury to the operators of the machine."
In its answer, Pride denied all material allegations of the complaint, but it raised no affirmative defenses. In his answers to interrogatories, plaintiff specified that the modification at issue was an opening for the hand cut in the side of the machine, for which no safety device was installed to assure that the machine could not operate when a person's hand was in the machine.
Pride's motion for summary judgment is based on two stated grounds: (1) the opening in question did not exist when Pride sold the machine, and (2) Pride did not sell the machine to plaintiff's employer. Pride supported its motion with affidavits in which two of Pride's employees stated that the machine did not have the opening at issue when Pride owned the machine, and one affiant stated that the opening did not exist when the machine left Pride's possession, upon sale to Green Bay. Pride also attached the trial court order granting its motion for summary judgment on the strict liability count. That motion was based on the fact that Pride was not in the business of selling the machine referred to in the complaint, and its sale to Green Bay was a one-time transaction.
Plaintiff filed a response to Pride's motion with Green Bay's sworn answers to interrogatories attached thereto. In these answers, Green Bay stated that the opening at issue existed when the machine came into Green Bay's possession. At the hearing on the motion, Pride conceded that there was an issue of material fact regarding the existence of the opening when the machine left Pride's possession. Thus, defendant Pride relied solely on the lack of privity with the plaintiff to support its motion. Plaintiff conceded that his employer did not purchase the machine from Pride, but he argued that Pride was liable for its negligent modification of the machine even to parties who did not purchase the machine directly from Pride. The trial court rejected this argument and granted Pride's motion.
• 1 On appeal, plaintiff continues to maintain that lack of privity between him and Pride affords Pride no defense to a charge of negligence. We agree. As our supreme court stated: "Illinois * * * has long since refused to permit the ancient shield of privity to insulate a tort feasor from the consequences of his negligent conduct." (Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 84, 199 N.E.2d 769.) Similarly, section 388 of the Second Restatement of Torts provides that:
"One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel * * * for physical harm caused by the use of the chattel * * * if the supplier * * *
(c) fails to exercise reasonable care to inform them of its dangerous condition * * *." (Restatement (Second) of Torts sec. 388(c) (1965).)
If Pride negligently modified the machine, it is liable despite the fact that its sale of the machine to Green Bay was a one-time transaction. Restatement (Second) of Torts sec. 388, comments a and c (1965).
Now on appeal Pride argues that this court should affirm the trial court because the danger presented by the opening in the machine was open and obvious. (Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465; Restatement (Second) of Torts sec. 388(b) (1965).) Plaintiff maintains that this argument presents an issue of fact which is not raised by any of the pleadings, affidavits, depositions, or admissions which are properly considered in support of the motion for summary judgment (Ill. Rev. Stat. 1981, ch. 110, par. 2-1005(c)), and therefore this argument cannot be a basis for affirming the summary judgment. We agree.
"It is axiomatic that in motion practice as elsewhere a party must state the precise, particular grounds on which he bases his claim for relief." (People v. Boyd (1973), 49 Mich. App. 388, 402-03, 212 N.W.2d 333, 340.) Pride ...