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09/09/87 Lloyd Norman Et Al., v. Ford Motor Company Et Al.

September 9, 1987

LLOYD NORMAN ET AL., PLAINTIFFS-APPELLANTS

v.

FORD MOTOR COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

513 N.E.2d 1053, 160 Ill. App. 3d 1037, 112 Ill. Dec. 444 1987.IL.1314

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiffs Lloyd Norman, Deborah Norman and Sherron Norman filed a three-count complaint against defendants Ford Motor Company and Ford Motor Credit Corporation. Count I of plaintiffs' complaint sounds in negligence. Count II sounds in breach of the implied warranties of fitness and merchantability pursuant to the Magnason-Moss Warrant Act (15 U.S.C. sec. 2301 et seq. (1975)). Count III sounds in strict products liability. The trial court granted summary judgment in favor of defendants. We affirm.

On January 20, 1981, plaintiffs were driving in their automobile when the rear passenger seat of the car began to smolder. Plaintiff Lloyd Norman, who was driving the car at the time, drove into a service station. Plaintiffs then got out of the car, and a service station attendant used a fire extinguisher to smother the heat. The next day plaintiffs had the car towed to their house. Plaintiffs allege that the car was later towed to Burke Ford in Chicago, and from there, to Rena Auto Auction in Chicago, Illinois.

Plaintiffs subsequently filed a three-count complaint in the circuit court against defendants sounding in negligence, breach of warranty and strict products liability. Plaintiffs specifically alleged that the exhaust system, catalytic converter and/or safety devices in the car were defective. Plaintiffs sought injunctive relief and money damages for the damage to the car, and damages for lost profits, lost earnings and emotional distress.

Thereafter, defendants filed their motion for summary judgment with respect to counts I, II and III of plaintiffs' complaint with a supporting memorandum. In their memorandum, defendants alleged that they were entitled to summary judgment on all three counts of plaintiffs' complaint because (1) plaintiffs had presented no evidence of a defect in the automobile, (2) emotional distress and economic damages are not cognizable in the causes of action asserted by plaintiffs and (3) the alleged breach of warranty occurred after the expiration of plaintiffs' warranties on the automobile. On July 3, 1984, the trial court entered an order which allowed plaintiffs 28 days to file a response and defendants 10 days thereafter to file a reply. Plaintiffs filed no response. The case was then transferred to a different trial Judge for a hearing on defendants' motion. The hearing was scheduled for September 19, 1984.

On September 19, 1984, counsel for defendants appeared. However, the record is unclear as to whether plaintiffs' counsel or a non-attorney appeared on plaintiffs' behalf. Following a hearing on defendants' motion for summary judgment, the trial court granted summary judgment in defendants' favor on all three counts of plaintiffs' complaint. Plaintiffs then filed a motion for reconsideration in which they stated that defendants would be served with a memorandum in support of plaintiffs' motion on October 22, 1984. No memorandum was filed. On October 19, 1984, the trial court ordered plaintiffs to file their memorandum with the court and serve defendants with a copy by November 11, 1984. The trial court's order also continued the matter for a hearing on November 26, 1984. Thereafter, on November 26, 1984, following argument of counsel, plaintiffs' motion for reconsideration was denied. Neither a copy of plaintiffs' motion for reconsideration nor transcripts of the August 19 and November 26, 1984, hearings are included in the record on appeal.

In reaching a decision that summary judgment is warranted, a trial court must construe the pleadings, depositions and affidavits, if any, in the light most favorable to the nonmoving party. If reasonable men could reach different Conclusions based on the evidence available, the issues should be submitted to the trier of fact for consideration. (See Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 231, 450 N.E.2d 756, 758.) Therefore, on appeal from a trial court's entry of summary judgment in favor of a defendant, the only issue is whether the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. 115 Ill. App. 3d 228, 231, 450 N.E.2d 756, 758.

We initially address count I of plaintiffs' complaint, which sounds in negligence. For a defendant to be liable for negligence, a plaintiff must establish that the defendant had a duty towards plaintiff, defendant breached that duty, and the breach was a proximate cause of plaintiff's injury. (United States Fidelity & Guaranty Co. v. State Farm Mutual Insurance Co. (1987), 152 Ill. App. 3d 46, 48, 504 N.E.2d 123, 125.) Plaintiffs bear the burden of proof on each and every element. Here, the theory of plaintiffs' negligence claim is that defendants were negligent in the manufacture and design of the automobile's exhaust system, catalytic converter and safety devices.

Our review of the record indicates that plaintiffs offered no competent evidence that defendants were negligent in the design or manufacture of the automobile. Plaintiffs' primary evidence in this regard consisted of their assertion that the rear passenger seat of the automobile would not have smoldered without such negligence in design and manufacturing being present. Plaintiffs' evidence and testimony raise mere possibilities of the reason that the rear passenger seat of their automobile smoldered. Clearly, mere speculation and the raising of possibilities regarding the cause of an accident are insufficient to defeat a motion for summary judgment. Liability in a negligence action cannot be premised upon surmise, conjecture or speculation as to the cause of the injury. Rather, a plaintiff must produce sufficient evidence to establish the elements necessary to set forth a prima facie case of negligence. (D'Olier v. General Motors Corp. (1986), 145 Ill. App. 3d 543, 548, 495 N.E.2d 1040, 1044.) Here, plaintiffs have failed to set forth a prima facie case of negligence. As such, the trial court properly granted summary judgment in defendants' favor on count I of plaintiffs' complaint.

Plaintiffs next argue that the trial court improperly granted summary judgment in defendants' favor on count II of their complaint. Count II of plaintiffs' complaint alleges that defendants breached the implied warranties of fitness and merchantability granted to plaintiffs pursuant to the Magnason-Moss Warranty Act. (15 U.S.C. sec. 2301 et seq. (1975).) Defendants, however, contend that the trial court properly granted summary judgment in their favor as to plaintiffs' breach of ...


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