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09/29/89 David York, v. John Lunkes

September 29, 1989

DAVID YORK, PLAINTIFF-APPELLEE

v.

JOHN LUNKES, D/B/A ILLINOIS BATTERY MANUFACTURING COMPANY, DEFENDANT-APPELLANT AND THIRD-PARTY, PLAINTIFF-APPELLANT (STEVE ONASSIS ET AL., THIRD-PARTY DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

545 N.E.2d 478, 189 Ill. App. 3d 689, 136 Ill. Dec. 954 1989.IL.1573

Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. PINCHAM and COCCIA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Defendant and third-party plaintiff, John Lunkes, d/b/a Illinois Battery Manufacturing Company (Lunkes), filed this appeal from various orders of the trial court granting summary judgment for third-party defendants, East Penn Manufacturing Company, Inc. and Gould/GNB Batteries, Inc. Lunkes also appeals from an order denying him summary judgment against plaintiff, David York. This latter order is not part of this appeal since it is not a final order under either Supreme Court Rule 304(a) or Rule 308 (107 Ill. 2d Rules 304(a), 308).

The following facts are relevant to this appeal. Plaintiff David York filed suit against Lunkes alleging that he was injured when an automobile battery exploded on January 21, 1979. Lunkes then filed third-party complaints against Steve Onassis (the battery owner), East Penn, Gould, and Seymour Brown, d/b/a Seymour Standard Service (plaintiff's employer), seeking indemnity and contribution should he be held liable to plaintiff.

Onassis owned a 1967 Mercedes-Benz automobile for which he had purchased a new battery from and had it installed by an employee of Illinois Battery several months prior to plaintiff's accident. The injury occurred as plaintiff was attempting to jump start the car in Onassis' garage. The battery exploded and was completely destroyed, leaving no physical evidence to aid in identifying its manufacturer or the cause of the explosion.

Onassis stated in his deposition that the new battery was red but was uncertain whether it had filler caps on top or was a maintenance-free model. No receipt for the sale of the battery was produced. Plaintiff's deposition revealed that he had worked for Seymour's Standard for about five years. Plaintiff described a specific procedure that he was trained to follow for winter jump starts, e.g., check to see if battery was frozen. On the day of his accident, plaintiff followed this procedure but could not check for a frozen battery because it was a totally sealed, maintenance-free battery. He did not attach the battery cables to a ground because there was not enough room in the garage. After failing to start the car, plaintiff simultaneously removed both cables from the battery terminals. At this time, he saw a spark and turned his head away as the battery exploded. He remembered that the battery was sealed with no filler caps and that the terminals were on the side, but did not recall the color of the battery or seeing any manufacturer's name on it.

The record also demonstrates that Onassis' car could take only batteries in BCI (Battery Council International) Group sizes 24F, 27F, and 30HR. At no time prior to plaintiff's accident did East Penn manufacture any maintenance-free batteries in these groups. It was also shown that the only suitable battery manufactured by Gould had a blue top with translucent sides and top terminals and also was not maintenance-free. The sales manager at that time for East Penn stated that during visits to Illinois Battery, he noticed that Lunkes' inventory included a red, maintenance-free battery with side terminals, manufactured by a third company, that would fit the Mercedes-Benz.

Lunkes submitted no records regarding sale of the battery nor could he identify the employee who sold it to Onassis. The only evidence as to whether the battery was defective came from Mr. John Stilson, plaintiff's expert, who stated that it was defective because it either (1) did not have spark arresters, or (2) if it did have spark arresters, they were not functioning properly. Both East Penn and Gould batteries were manufactured with spark arresters at that time.

Based on these facts, the trial court found that Lunkes had produced no evidence indicating that the exploded battery was manufactured or sold by either East Penn or Gould. The court specifically stated that it was ruling only on the narrow issue as to whether there was any evidence linking East Penn or Gould to the Onassis battery and declined to address the factual question regarding any defect in the battery. Consequently, we will not consider East Penn's arguments concerning its supplemental and independent summary judgment motion on this second issue. This appeal followed the court's finding that the summary judgment orders in favor of East Penn and Gould (not including East Penn's supplemental motion) were final and appealable.

On appeal, Lunkes argues that summary judgment was inappropriate since the evidence shows that one out of the two manufacturers supplied a defective battery. He relies on recent case law which shifts the burden of proof from a plaintiff to a defendant manufacturer in product liability cases where it is impossible to specify a particular manufacturer or producer of a defective product. In Smith v. Eli Lilly & Co. (1988), 173 Ill. App. 3d 1, the court used a theory of market share liability to compensate plaintiffs where a product, proved to be harmful many years after its use, was manufactured in the same manner by many different manufacturers. To escape liability in such a case, a manufacturer defendant would have to establish certain factors, e.g., that it did not produce or market the particular drug taken by plaintiffs' mothers; it did not market the drug in the particular geographic area. The same situation does not exist in the present case. Batteries made by different manufacturers are readily distinguishable from one another. Furthermore, all batteries are not "defective," as the drug DES was determined to be 30 years after being ingested by the plaintiffs' mothers in Smith.

We must also disagree with Lunkes' reliance on Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, where a shelf manufacturer's affidavits, with accompanying purchase receipts and packing slips, stated that the defendant was its only supplier of the defective product (shelf clips). Other affidavits supported the manufacturer and the court found that defendant's rebuttal affidavits raised a question of fact so as to preclude summary judgment. The case of Kramer v. Weedhopper of Utah, Inc. (1986), 141 Ill. App. 3d 217, is also distinguishable from the case at bar. In Kramer, the manufacturer of the defective product (airplane bolts) was known. However, there were two possible distributors of the indistinguishable bolts -- one of which supplied 90% of the bolts to the aircraft ...


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