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04/21/88 Terry W. Loy Et Al., v. Firestone Tire & Rubber

April 21, 1988





Simmons Construction Company, Third-Party, Defendant)

522 N.E.2d 848, 168 Ill. App. 3d 503, 119 Ill. Dec. 186 1988.IL.571

Appeal from the Circuit Court of McLean County; the Hon. John P. Freese, Judge, presiding.


PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.


Plaintiffs Terry W. Loy and Paula S. Loy appeal from an order entered June 28, 1987, in the circuit court of McLean County granting summary judgment to defendant Armstrong Brothers Tool Company (Armstrong). On November 5, 1982, plaintiff Terry Loy was employed by John L. Simmons Construction Company and was engaged in the repair of a "Vita Cap" heater at the plant of defendant, the Firestone Tire and Rubber Company. Plaintiff was allegedly injured when a three-quarter-inch ratchet wrench, manufactured by defendant Armstrong, slipped or malfunctioned when plaintiff was attempting to tighten a bolt. Plaintiffs' allegation against Armstrong was that the ratchet, at the time it left Armstrong's control, was unreasonably dangerous, because its gear mechanism would slip or fail to engage when it was being used to tighten objects. The existence of the defect at the time the product left Armstrong's control was a key element which plaintiff had to prove. Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401.

Plaintiffs were not able to produce the ratchet for inspection and claimed they had not retained or employed an expert for the purpose of testifying at trial. In defendant Armstrong's motion for summary judgment, Armstrong maintained plaintiffs could not, in the absence of direct or inferential evidence, prove their case.

The trial court reasoned that, because the allegedly defective product was unavailable for inspection, and plaintiffs had not offered expert opinion that the product was defective, a judgment for plaintiffs could not stand. The court entered a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Plaintiffs appeal the entry of the summary judgment. We affirm.

Section 2-1005(c) of the Code of Civil Procedure states summary judgment must be rendered "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c); Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) More specifically, summary judgment is proper only where the evidence, when construed most strongly against the moving party, establishes he is entitled to summary judgment. Burns v. Addison Golf Club, Inc. (1987), 161 Ill. App. 3d 127, 129, 514 N.E.2d 68, 70.

The court here based its decision that summary judgment was proper on the precedent of Shramek v. General Motors Corp. (1966), 69 Ill. App. 2d 72, 216 N.E.2d 244. There, the plaintiff had been injured when the car in which he was riding overturned as a result of a tire blowout. The car was taken to a junkyard, and the tire was not examined to elicit the cause of the blowout nor was it preserved. That plaintiff sued the manufacturer of the tire alleging it was defective.

Shramek granted that defendant's motion for summary judgment, noting that, without the tire and without any other evidence as to the cause of the blowout, that plaintiff would not have been able to prove, either directly or inferentially, that the accident resulted from a defective tire. That court said the mere fact of a tire blowout did not tend to establish the tire was defective, since blowouts can be attributed to a myriad of causes.

Plaintiffs here claim the trial court erred in following Shramek and argue Illinois courts have abandoned or rejected its reasoning. However, in those cases, the record contained evidence which would at least create a question of fact as to every element those plaintiffs were required to prove. For example, in Texaco, Inc. v. McGrew Lumber Co. (1969), 117 Ill. App. 2d 351, 254 N.E.2d 584, the plaintiff sued the supplier of lumber used in a scaffold, contending the lumber was defective when sold by the dealer. Evidence showed the plank broke, and the plaintiff was injured, but the plank was not available at trial. The appellate court affirmed a judgment for that plaintiff stating Shramek was not applicable, because sufficient evidence, including photographs of the broken plank showing knotholes were the cause of the break and expert testimony, substantiated such a determination.

Plaintiffs also cite Tweedy v. Wright Ford Sales, Inc. (1975), 31 Ill. App. 3d 72, 334 N.E.2d 417, aff'd (1976), 64 Ill. 2d 570, 357 N.E.2d 449, where this court also distinguished Shramek. In Tweedy, the plaintiff sued, on the basis of a defective product, the manufacturer of an automobile which suffered a brake malfunction resulting in injuries to plaintiff. The car and brake system were available. On appeal from a judgment for the plaintiff, the court concluded cases relating to a tire blowout were not persuasive, since a blowout could result from a number of causes unrelated to a defect. This court found, in that case, "'reasonable inferences'" could be drawn from established facts, whether the evidence was direct or circumstantial, and the ...

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