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04/17/89 Bobbie Thomas, v. Unique Food Equipment

April 17, 1989

BOBBIE THOMAS, PLAINTIFF-APPELLANT

v.

UNIQUE FOOD EQUIPMENT, INC., D/B/A HOLLYMATIC SALES AND SERVICE, DEFENDANT-APPELLEE (HOLLYMATIC CORPORATION, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

537 N.E.2d 1375, 182 Ill. App. 3d 278, 130 Ill. Dec. 906 1989.IL.534

Appeal from the Circuit Court of Cook County; the Hon. Dean J. Sodaro, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Plaintiff Bobbie Thomas brought an action alleging strict products liability and negligence against the manufacturer of a meat grinder, Hollymatic Corporation, not party to this appeal, and distributor Unique Food Equipment, Inc. (Unique). The strict liability claim was dismissed due to expiration of the statute of limitations. For the reasons below, we affirm.

On September 4, 1969, Thomas' employer, the Chicago board of education, purchased a meat-grinding machine from Unique. On March 30, 1984, Thomas was injured while using the machine. Thomas filed a complaint for a bill of discovery against the board of education and learned that the machine had been manufactured by Hollymatic Corporation. Thomas dismissed the school board and named Unique and Hollymatic as defendants. Subsequently, Thomas filed amended complaints alleging strict products liability and negligence against both defendants.

On March 29, 1988, the trial court dismissed the strict liability count of the fourth amended complaint pursuant to the applicable statute of limitations, section 13-213(b) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13-213(b)), which bars product liability actions beyond 10 years from the date of first sale to the initial user. The trial court also found substantial grounds for difference of opinion regarding the question whether section 2-621(b)(1) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-621(b)(1)) created a statutory exception to section 13-213(b), and certified Thomas' appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

Section 13 -- 213(b) states:

"Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period." Ill. Rev. Stat. 1987, ch. 110, par. 13-213(b).

Section 2 -- 621 states in relevant part:

"Product liability actions. (a) In any product liability action based in whole or in part on the doctrine of strict liability in tort commenced or maintained against a defendant or defendants other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage. The commencement of a product liability action based in whole or in part on the doctrine of strict liability in tort against such defendant or defendants shall toll the applicable statute of limitation and statute of repose relative to the defendant or defendants for purposes of asserting a strict liability in tort cause of action.

(b) Once the plaintiff has filed a complaint against the manufacturer or manufacturers, and the manufacturer or manufacturers have or are required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant or defendants, provided the certifying defendant or defendants are not within the categories set forth in subsection (c) of this Section. Due diligence shall be exercised by the certifying defendant or defendants in providing the plaintiff with the correct identity of the manufacturer or manufacturers, and due diligence shall be exercised by the plaintiff in filing an action and obtaining jurisdiction over the manufacturer or manufacturers.

The plaintiff may at any time subsequent to the dismissal move to vacate the order of dismissal and reinstate the certifying defendant or defendants, provided ...


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