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10/26/88 Henry Sutton, v. Washington Rubber Parts &

October 26, 1988





530 N.E.2d 1055, 176 Ill. App. 3d 85, 125 Ill. Dec. 646 1988.IL.1570

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.


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


Plaintiff, Henry Sutton, brought an action in negligence, strict products liability and breach of implied warranty against defendants, Washington Rubber Parts & Supply Company (Washington), General Electric, Inc. , Supreme Lighting Corp. (Supreme), and Westinghouse Electric Corp. (Westinghouse). G.E. and Supreme moved for and were granted summary judgments. Plaintiff did not appeal therefrom. Thereafter, Westinghouse moved for and was granted summary judgment. Plaintiff appeals therefrom.

On March 22, 1983, plaintiff, who was employed as a mechanic by McLean Trucking Company (McLean), was attempting to thaw the brakes of a trailer by injecting methanol into the brakeline. Plaintiff was underneath the trailer and was using a "drop light," i.e., a light with a hook at the top and a protective metal guard or cage over the light bulb. While plaintiff was loosening the brakeline to allow the methanol to circulate through it, the methanol blew out of the line onto the light bulb in his drop light, causing the bulb to explode. The explosion ignited a fire which burned plaintiff's hands, neck and face. Neither the light bulb nor any of its remains were ever in plaintiff's possession after the accident.

Plaintiff's amended complaint alleged that either G.E., Supreme or Westinghouse had manufactured the light bulb, identified as a "rough service" bulb, and had sold it to Washington, which, in turn, had sold it to McLean. Supreme's motion for summary judgment was predicated on the affidavit of its president which asserted that Supreme did not sell any light bulbs to Washington before October 1983. G.E.'s motion for summary judgment was predicated on plaintiff's discovery deposition. At his deposition, plaintiff failed to identify any one of the three defendants as the manufacturer and supplier, through Washington, of the light bulb which allegedly caused his injuries. Plaintiff also failed to identify a light bulb manufactured by G.E., which plaintiff allegedly obtained from McLean after his accident, as being identical to the light bulb in his drop light.

In its motion for summary judgment, Westinghouse relied on, inter alia, plaintiff's failure to identify the manufacturer of the light bulb and his admission that he knew no one who could identify the manufacturer at his deposition. The trial court granted the motion based on its Conclusion that the inferences that could be drawn from the evidence against Westinghouse were no greater than those that could be drawn against G.E. and Supreme. In response to the motion for summary judgment, plaintiff submitted, inter alia, an affidavit of Ken Jadzak, employed by McLean in its parts department at the time of plaintiff's accident, attesting to statements made in an unsworn statement to an investigator for G.E. We will consider the merits of this statement in deciding this appeal, regardless of whether the affidavit complies with Supreme Court Rule 191 (107 Ill. 2d R. 191).

In urging error on the part of the trial court in granting Westinghouse summary judgment, plaintiff claims he raised a clear inference that Westinghouse was the manufacturer of the allegedly defective light bulb. He cites the following as raising that inference.

Plaintiff stated in his affidavit in response to Westinghouse's motion for summary judgment that, on the many occasions he had been in the McLean supply room to obtain light bulbs for use in his drop light, he could recall seeing only Supreme, G.E. or Westinghouse light bulbs. In his statement to G.E., Ken Jadzak stated that McLean purchased its light bulbs from Washington at the time of plaintiff's accident. From Jadzak's statement and his own deposition statement that he was not aware of McLean buying its light bulbs from anyone other than Washington, plaintiff concludes that Washington was the sole supplier of rough service light bulbs to McLean. In answering plaintiff's supplemental interrogatories, Westinghouse admitted sales of rough service light bulbs to Washington "in 1982 and 1983 months prior to the occurrence." Finally, in an unsworn statement, Nick De Los Santos, also a McLean mechanic, stated that a Westinghouse light bulb he had put in his drop light also caused a fire when methanol which he had injected into a frozen trailer brakeline splashed out onto the bulb. He was not underneath the trailer at the time. At his deposition, plaintiff stated that De Los Santos told him this incident occurred three weeks before plaintiff's accident.

We also note that, pursuant to plaintiff's discovery request, Washington produced five invoices reflecting the sale of a total of 60 rough service light bulbs to McLean between May 1982 and February 1983. Because Washington sold the light bulbs under a generic part number, however, it could not determine who manufactured the bulbs shipped to McLean.

Plaintiff concludes from the foregoing that, because only Westinghouse, of the three manufacturer-defendants, admitted selling light bulbs to Washington and because only Washington sold light bulbs to McLean, "it is far more likely than not that Westinghouse was the manufacturer of the bulb which" injured plaintiff. Plaintiff also asserts in his opening brief that the proximity of the De Los Santos incident to his, coupled with Westinghouse's admission, raises a clear inference that Westinghouse manufactured the defective light bulb. However, in his reply brief, plaintiff abandons any reliance on the De Los Santos incident. As such, we will not consider it in this opinion.

Summary judgment is proper only where 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 [movant] is entitled to judgment as a matter of law." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005.) Summary judgment is a drastic remedy which should be granted only where the movant's right to it is clear and free of doubt. (Schnabel v. Du Page County (1981), 101 Ill. App. 3d 553, 428 N.E.2d 671; Yakupcin v. Baker (1980), 83 Ill. App. 3d 624, 404 N.E.2d 869.) That is, if the facts admit of more than one Conclusion or inference, including one unfavorable to the movant, ...

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