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11/25/87 Jose Alvarez Et Al., v. Koby Machinery Company

November 25, 1987





516 N.E.2d 930, 163 Ill. App. 3d 711, 114 Ill. Dec. 775 1987.IL.1750

Appeal from the Circuit Court of Cook County; the Hon. Thomas C. Hoffman, Judge, presiding.


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


Plaintiffs Jose and Gloria Alvarez appeal from an order of the trial court granting summary judgment in favor of F. A. Ziegler Company (defendant) in a products liability action. On appeal, plaintiffs argue that the trial court erred in finding that defendant was not within the chain of distribution of the allegedly defective product, that there exists a genuine issue of material fact, and thus, granting summary judgment was improper.

Plaintiff Jose Alvarez, an employee of Lamkin Leather and Rubber Company, alleges he was seriously injured during the course of his employment on January 18, 1984, while operating a mill manufactured by Koby Machinery Company. Plaintiffs filed a complaint in strict liability and negligence alleging personal injury to Jose and loss of consortium to his wife, Gloria. Plaintiffs named Koby and defendant as "engaged in the business of designing, preparing, manufacturing, advertising, distributing, supplying, and/or selling" the Koby mill in question. Koby is not involved in this appeal.

Defendant filed a motion for summary judgment supported by an affidavit from its president, Frederick Ziegler, alleging that it had no connection with the machine in question and did not participate in, or in fact design, prepare, manufacture, advertise, offer to sell, or act as a manufacturer's representative for the Koby mill in question. In support of its motion for summary judgment, defendant offered the following facts.

Frederick Ziegler is the president and sole shareholder of defendant. The company is a manufacturer's representative of rubber industry machinery products, marketing new machinery and products under contract with certain manufacturers on a commission basis. Defendant has never represented, marketed or sold Koby machinery.

In 1982, Lamkin, plaintiff's employer, contacted one of the manufacturers represented by defendant, the McNeil Akron Corp., about equipment components. McNeil Akron referred the contact to defendant. Ziegler visited Lamkin's plant to determine the compatibility of the equipment Lamkin wished to purchase with its existing machinery. Ziegler attempted to sell Lamkin a McNeil Akron mill. Lamkin indicated, however, that it did not want to spend that much money, that it already had two mills manufactured by Koby, that it had a stock of spare parts for Koby mills and that it wanted to add another used Koby mill. Defendant did not carry or sell Koby mills but Ziegler agreed to keep his eyes open for a used Koby mill for Lamkin.

Ziegler learned from reading a classified ad in a trade newspaper that Rubber City Machinery Corp. in Tampa, Florida, was selling a used Koby mill. Ziegler sent for the machine's specifications and price and forwarded this information to Lamkin. Ziegler agreed to inspect the gear box of the used mill for Lamkin. A Lamkin employee accompanied Ziegler to Florida to inspect the remainder of the mill, which they found to be unassembled in an outdoor storage facility. Ziegler received no compensation for inspecting the gear box, although Lamkin paid for his expenses. Ziegler made no recommendations to Lamkin as to any modifications to make the machine suitable for its purposes. Ziegler did not participate in the negotiations for the sale of the Koby mill, the entire transaction taking place between Lamkin and Rubber City. Ziegler received no compensation in connection with the sale of this machine, nor did he participate in the installation of the mill.

Ruling on defendant's motion for summary judgment, the trial court found that defendant's conduct could not be characterized as placing the mill into the chain of distribution, and thus defendant could not be liable in a strict liability action. On appeal, plaintiffs allege that there exists a genuine issue of material fact regarding defendant's connection to the product and its placement into the stream of commerce. Plaintiffs argue that Illinois courts have expanded the category of liable parties outside the chain of distribution of a defective product in a strict liability action, and that defendant's role in the present case sufficiently linked it to the sale of the defective mill to impose strict liability.

Our supreme court first extended the category of those who could be liable in a strict liability action in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182. Cases decided after Suvada held that all parties in the chain of distribution of a defective product could be held liable in an action based on strict liability. (Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206, 407 N.E.2d 32.) In addition to manufacturers and sellers, Illinois courts have imposed liability on distributors, retailers, wholesalers, and lessors. Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401; Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272, 274 N.E.2d 178.

This category of strictly liable defendants has been expanded by courts which have held that participation in distribution is not an essential element for the doctrine of strict liability to apply. In Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155, the court held that Uniroyal could be strictly liable after finding that Uniroyal's only connection with the defective product was as a licensor. The court held that the licensor is an integral part of the marketing enterprise and its participation in the profits reaped by placing the defective product in the stream of commerce presents the same public policy reasons for application of strict liability which supported the imposition of liability on wholesalers, retailers and lessors. (Connelly, 75 Ill. 2d 393, 389 N.E.2d 155.) It is important to note that Connelly and the cases applying the rule set forth therein emphasize the fact that profits were made by the particular defendants. The court in Connelly stated that the societal purpose of strict liability mandates that strict liability apply to one who, for consideration, authorizes the use of a trademark. ...

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