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10/20/87 Amy Jay, v. United Defense Industries

October 20, 1987

AMY JAY, PLAINTIFF-APPELLANT

v.

UNITED DEFENSE INDUSTRIES, INC., DEFENDANT-APPELLEE (THE PALMER HOUSE COMPANY ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

516 N.E.2d 434, 162 Ill. App. 3d 1071, 114 Ill. Dec. 279 1987.IL.1562

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and HARTMAN, JJ. concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Plaintiff-appellant Amy Jay appeals from a summary judgment entered in favor of United Defense Industries, Inc. (United), on the ground that United did not assume liability for Jay's injuries when it purchased the business of Defense Products Manufacturing Corporation (Defense Corporation). The only issue presented for review is whether the award of summary judgment was proper. We affirm in part, and reverse and remand in part.

Jay was allegedly assaulted and raped at the Palmer House Hotel in Chicago on May 1, 1982. During the course of the attack, she tried to defend herself by spraying her assailant with an aerosol chemical defense weapon known as "Paralyzer," a product similar to tear gas, which was warranted to "instantly stop even a 300-pound man up to twenty minutes." The Paralyzer was designed, manufactured, and distributed by Defense Corporation, a defendant in the circuit court but not a party to this appeal.

On February 8, 1984, Jay filed the instant action against the Palmer House and its security personnel, alleging that the rape was a direct and proximate result of their negligent failure to provide adequately for her safety. On April 24, 1984, she initiated a similar action in Arizona State court against United and Defense Corporation, both of which are companies incorporated in that State. Subsequent to the filing of the original action in Illinois against the Palmer House and the security personnel, but prior to the initiation of the Arizona suit, United purchased the business of Defense Corporation.

The contract of sale, executed in Arizona and dated March 16, 1984, contained, among others, the following provisions:

Paragraph 2:

"Seller is now conducting the business of Defense Corporation, under the trade name "Paralyzer, Repulse" . . .. The Seller shall sell to Buyer [United] and Buyer shall purchase from Seller this business, subject to the liabilities and encumbrances, upon the terms and conditions set out in this agreement." (Emphasis added.)

Paragraph 7:

"Buyer will not assume any of the Seller's accounts payable or other debts, except those enumerated below. These shall remain Seller's obligations and Seller will indemnify Buyer against any loss that he may suffer by reason of Seller's failure to pay any of them. However, Buyer will assume the liability for the following lawsuits and judgments.

1. Oliver Pilcher of Scottsdale v. Defense Corp./Defense Products

Maricopa Cause No. C 482075.

2. Superock Development Corp. v. Defense ...


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