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ROMAN v. GMC

September 22, 1989

ODILA ROMAN, CHRISTIAN ROMAN and DANIELLE ROMAN, minors by their mother and next friend ODILA ROMAN, Plaintiffs,
v.
GENERAL MOTORS CORPORATION, Defendant


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Plaintiffs Odila Roman, Christian Roman and Danielle Roman ("Romans") brought this strict products liability action against defendant General Motors ("GM") in the Circuit Court of Cook County, Illinois. GM removed the action to this Court, and now seeks summary judgment under Fed.R.Civ.P. 56. For the reasons stated below, the motion for summary judgment is denied.

 Background

 On January 26, 1988, Odila Roman was driving southbound on the Tri-State Tollroad in a 1987 Chevrolet Spectrum, manufactured by GM. Odila's children Christian and Danielle were passengers. As the car approached a toll booth at Irving Park road, it veered into the concrete median separating the northbound and southbound lanes. Odila, Christian and Danielle each were injured in the accident.

 The cause of the accident is the central disputed issue in the case. The Romans contend that the accident was caused by a defect in the automobile's steering system. Odila Roman alleges that, just prior to the accident, the vehicle began to swerve "as it had a will of its own." (O. Roman Dep., p. 68). Odila attempted to control the swerving, but the car "suddenly went into a very hard left swerve, crossed over the far left lane and the shoulder, and hit the embankment." (Id.)

 GM contends that the accident was caused by Odila's inattention. GM points to statements that Odila allegedly made to James Bosshardt, a state trooper who investigated the accident. Bosshardt claims that Odila told him that "she was momentarily distracted and had taken her eyes off the roadway." (Bosshardt Dep., p. 19). Furthermore, GM contends that Odila's failure to complain of a steering malfunction when she spoke with Bosshardt suggests that the steering system did not cause the accident. Finally, GM's expert witness Peter Rogulsky examined the vehicle and concluded that the steering system was not defective.

 Odila Roman denies that she became distracted prior to the accident. (O. Roman Dep., pp. 102-104). Furthermore, the Romans contend that, even though she may not have made a specific reference to the steering defect, Odila told Bosshardt that the vehicle went out of control. (Pltf. Ex. 2, Bosshardt Dep., pp. 31, 33). Finally, the Romans contend that photographic evidence and their examination of Rogulsky will establish a defect in the steering system.

 Standard of Review

 "A motion for summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Checkers, Simon & Rosner v. Lurie Corp., 864 F.2d 1338 (7th Cir. 1989) (citation omitted). The moving party bears the burden of establishing the absence of any disputed facts. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If, however, the nonmoving party bears the burden of proving an issue at trial, it also bears the burden of presenting sufficient facts on summary judgment from which a trier of fact could find in its favor, and the moving party need only "[point] out to the District Court . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 2554; Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202; Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir. 1988).

 Discussion

 In Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570, 357 N.E.2d 449, 2 Ill. Dec. 282 (1976), the Illinois Supreme Court discussed the necessary elements of a strict liability product defect case under Illinois law. "A prima facie case that a product was defective and that the defect existed when it left the manufacturer's control is made by proof that in the absence of abnormal use or reasonable secondary causes the product failed to perform in the manner reasonably to be expected in light of its nature and intended function." Id. at 285. A plaintiff may employ direct or circumstantial evidence to make the required showing. Id.

 GM contends that the Romans have failed to establish a prima facie case that the automobile was defective. GM claims that the Romans' case is deficient in two respects. First, GM argues that a plaintiff needs the testimony of an expert witness to state a prima facie case. Because the Romans have not indicated that they have a supporting expert witness, GM argues that it is entitled to summary judgment. Second, pointing to Odila's alleged statements to Trooper Bosshardt, GM contends the likelihood of a secondary cause of the accident defeats the Romans' prima facie case.

 Contrary to GM's contention, a products liability plaintiff is not required to produce expert testimony. In Millette v. Radosta, 84 Ill.App.3d 5, 404 N.E.2d 823, 39 Ill. Dec. 232 (1st Dist. 1980), the defendant attempted to argue that Illinois law required a products liability plaintiff to support her case with expert testimony. The court summarily rejected this argument. "[The defendants] cite no case for their assumption that a case in strict tort liability can, absent the Tweedy doctrine, be established only through expert testimony. This is not the rule. The plaintiff may rely on direct or circumstantial evidence to establish his case or on expert testimony; indeed, expert testimony is merely one kind of circumstantial evidence." Id. at 836 (citations omitted). The Court went on to hold that the plaintiff's testimony alone could create a prima facie case that the product was defective. Id. at 835, 836. See also Varady v. Guardian Co., 153 Ill.App.3d 1062, 506 N.E.2d 708, 711, 106 Ill. Dec. 908 (5th Dist. 1987)(not necessary ...


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