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05/06/87 Louise Olinski, Special v. Mack Duce

May 6, 1987





LOUISE OLINSKI, Special Adm'r of the Estate of Lynn

508 N.E.2d 398, 155 Ill. App. 3d 441, 108 Ill. Dec. 237 1987.IL.590

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


PRESIDING JUSTICE McNAMARA delivered the opinion of the court. WHITE and FREEMAN, JJ., concur.


Plaintiff Louise Olinski, as special administrator of the estate of decedent Lynn Olinski, appeals from the trial court order granting the motion of defendant Mack Duce, a Texas resident, to quash service of process for lack of personal jurisdiction under the Illinois long-arm statute (Ill. Rev. Stat. 1985, ch. 110, par. 2-209(a)).

On August 2, 1981, decedent was electrocuted on a bumper car ride in Hillcrest Park, an amusement park in Romeoville, Illinois. On August 1, 1983, plaintiff filed a fourth amended complaint in which counts II and III alleged strict liability in tort and negligence against Duce and

Duce filed a special and limited appearance and a motion to quash service of summons. Duce stated in a supporting affidavit that he is a Texas resident and that he has never engaged in the business of designing, manufacturing, distributing, or selling amusement park ride equipment in his individual capacity in Illinois. He has never been individually licensed to do business in Illinois and has never transacted business in Illinois, personally or through an agent. Duce has never been to Hillcrest Park in Illinois and was not involved in the negotiations or sale of the subject bumper car ride.

In 1978, defendant Export Sales Corporation, a Texas corporation, sold the bumper car equipment to defendant Hillcrest Corporation in Illinois. Duce worked with Export Sales for 25 years as a member of the board of directors, president, salesman, and shareholder. When Export Sales went out of business, its shares were sold to defendant Exsaco Corporation and Duce International, both Texas companies. Duce is a shareholder of Exsaco and was formerly its president and a member of its initial board of directors. Export Sales, and later Exsaco, bought amusement park equipment from S.D.C., srl., also known as Spaggiari-Duce Corporation, an Italian corporation which manufactured the subject bumper car ride equipment. Duce is also the sole proprietor of Duce & Company and Duce & Company, Inc.

Duce testified at a deposition regarding numerous trademarks, advertisements, and photographs of equipment bearing various logos and names, including: "Duce-Mark of Excellence"; "Mack Duce" as part of the identical logos used by Export Sales and Duce & Company; "equipment manufactured by Spaggiari-Duce Company"; "Duce Bumper Cars"; and "manufactured by Duce & Co."

Plaintiff contends that Illinois courts have in personam jurisdiction over Duce. Plaintiff bears the burden of proof in establishing jurisdiction over defendant. (Johnston v. United Presbyterian Church in the United States of America, Inc. (1981), 103 Ill. App. 3d 869, 431 N.E.2d 1275.) The complaint must allege facts which would bring the nonresident defendant under Illinois jurisdiction. (Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673.) Plaintiff relies upon the Illinois long-arm statute, which provides that individuals who, in person or through an agent, commit tortious acts within Illinois thereby submit themselves to the jurisdiction of Illinois courts as to any cause of action arising from that tortious act. Ill. Rev. Stat. 1985, ch. 110, par. 2-209(a)(2).

In arguing that Duce falls under this jurisdictional provision, plaintiff relies upon the "apparent manufacturer" theory of liability. (See Hebel v. Sherman Equipment (1982), 92 Ill. 2d 368, 442 N.E.2d 199.) Plaintiff reasons that Illinois jurisdiction over Export Sales is uncontested, and consequently Illinois jurisdiction over Duce "would follow the same path" because Duce has held himself out to the public, e.g., through trademarks and advertisements, as the manufacturer of the bumper cars.

Plaintiff erroneously ignores the preliminary question of jurisdiction and instead prematurely confronts the issue of Duce's liability, thereby blurring the line between liability and jurisdiction. (See First National Bank v. Boelcskevy (1984), 126 Ill. App. 3d 271, 466 N.E.2d 1182.) Personal jurisdiction refers to the power of a court to bind parties to its judgments, while personal liability involves the responsibility, and ...

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