Appeal from the Circuit Court of Cook County; the Hon. Thomas
A. Rakowski, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Plaintiff, David A. Miller, appeals from an order which dismissed counts III and IV of his second amended complaint which sought damages for personal injuries incurred when his Yamaha RX 50K-B motorcycle, manufactured by defendant, Yamaha Motor Corporation, U.S.A. (Yamaha) and sold by defendant, Performance Center, Limited (Performance), was allegedly struck by an automobile driven by defendant, Dorothy E. Dvornik (Dvornik). Count III sounded in strict liability in tort against Performance, and count IV sounded in negligence against Performance. Counts I and II, directed against Dvornik and Yamaha, respectively, remain pending below in the trial court, and are not involved in this appeal. On appeal, plaintiff contends that: (1) the trial court erred in ruling as a matter of law that the motorcycle purchased by him was not unreasonably dangerous when operated without safety crash bars; (2) the trial court erred in ruling as a matter of law that Performance did not breach any duty when it sold the motorcycle to plaintiff without safety crash bars, without recommending safety crash bars, and without warning of the dangers of operating the motorcycle without safety crash bars; and (3) Performance's motion to dismiss pursuant to sections 2-615 and 2-621 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, pars. 2-615, 2-621) fails to state sufficient grounds to obtain dismissal. For the reasons stated below, we affirm the decision of the circuit court.
The record sets forth the following: On June 14, 1984, plaintiff, age 19, purchased from Performance a 1983 Yamaha RX 50K-B motorcycle, unequipped with safety crash bars, an optional feature. Shortly thereafter, on June 29, 1984, plaintiff was involved in an automobile collision with Dvornik at the intersection of Kedzie and 99th Street in Evergreen Park. As a result of the collision, plaintiff was thrown into the air and onto the pavement, incurring serious injuries to his legs.
Subsequently, on October 22, 1984, plaintiff brought a single-count cause of action in negligence against Dvornik. Two months later, in January 1985, plaintiff was granted leave to amend his complaint in order to add Yamaha and Performance as defendants and also to add counts II and III, which alleged strict liability in tort against Yamaha and Performance, respectively. In each of the two new counts, plaintiff claimed that the motorcycle was unreasonably dangerous for use by the general public on the grounds that: (1) it was not designed to incorporate crash bars to protect the legs of the user; (2) crash bars were not designed, manufactured, offered, or recommended to consumers as a safety option; and (3) the motorcycle was not equipped with a warning regarding its inherently dangerous condition when operated without crash bars.
In response, Performance moved to dismiss count III pursuant to section 2-621(b) of the Code, which permits dismissal of a strict liability in tort claim against a retailer once the plaintiff has filed a complaint against the manufacturer and the manufacturer has answered or otherwise pleaded. However, pursuant to section 2-621(c), dismissal is not permitted if any of the following exceptions apply to the retailer:
"(c) A court shall not enter a dismissal order relative to any certifying defendant or defendants other than the manufacturer even though full compliance with subsection (a) of this Section has been made where the plaintiff can show one or more of the following:
(1) that the defendant has exercised some significant control over the design or manufacture of the product, or has provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the injury, death or damage; or
(2) that the defendant had actual knowledge of the defect in the product which caused the injury, death or damage; or
(3) that the defendant created the defect in the product which caused the injury, death or damage."
In its motion to dismiss and supporting affidavit, Performance alleged that it had neither designed nor manufactured the motorcycle; it had had no control over the design or manufacture of the motorcycle; and it never has had any knowledge of any defects in the motorcycle. As a result, the court granted Performance's section 2-621 motion to dismiss, and allowed plaintiff 28 days within which to amend his complaint.
Subsequently, on May 13, 1985, plaintiff filed his second amended complaint, amending count III to allege that Performance had actual knowledge of the motorcycle's defects and conditions which rendered the motorcycle unreasonably dangerous; and adding count IV, which alleged that Performance was careless and negligent in one or more of the following respects:
"(a) Sold a Yamaha RX 50K-B, Serial Number 23 H 010533 to the Plaintiff without crashbars to protect the legs of the Plaintiff in the event of side collision, roll or fall, when it knew or should have known that operation of that motorcycle without crashbars was unreasonably dangerous.
(b) Sold and delivered Yamaha RX 50K-B, Serial Number 23 H 010533 to the Plaintiff, when it knew or should have known that the Plaintiff had no experience in the use of motorcycles, and that the operation of said motorcycle by the Plaintiff posed an unreasonably dangerous threat to the Plaintiff's well-being.
(c) Failed to warn the Plaintiff of the risks and hazards in the operation of a motorcycle, when it knew that Plaintiff was ...