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March 8, 1991


Marvin E. Aspen, United States District Judge.

The opinion of the court was delivered by: ASPEN


 Plaintiff David C. Montgomery sustained various injuries while being transported with his hands handcuffed behind his back in a City of Chicago police squadrol on August 27, 1985. During his ride, Montgomery was tossed around the squadrol, causing him to strike various parts of the compartment. Montgomery attributes his injuries in part to the allegedly unreasonably dangerous nature of the prisoner transportation compartment. Accordingly he has sued, among others, the manufacturer of the compartment, Penn Trailers and Truck Bodies Corp. ("Penn").

 Penn has moved for summary judgment on the ground that under Illinois law it owed no duty to the plaintiff. Penn has also moved to dismiss the complaint for failing to make certain specific allegations giving rise to an exception to that rule. For the following reasons we deny both motions.


 Summary judgment is appropriate when the moving party demonstrates that all of the facts that could affect the outcome of the lawsuit are undisputed and that it is entitled on those facts to judgment as a matter of law. Fed.R.Civ.P. 56(c), see also Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988). The moving party bears the burden of establishing the absence of any disputed material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). 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 (1986).

 In support of its motion for summary judgment, Penn relies on Hunt v. Blasius, 74 Ill. 2d 203, 384 N.E.2d 368, 23 Ill. Dec. 574 (1979). Hunt holds that an independent contractor owes no duty to third persons to judge the adequacy of plans or specifications that it merely has contracted to follow, unless the specifications are so obviously dangerous that no competent contractor would follow them. 384 N.E.2d at 371. In the context of the present motion, Hunt presents two questions for analysis. We find that genuine issues of material fact exist as to both questions.


 The first part of the Hunt holding requires us to consider whether Penn may be deemed an independent contractor who has merely followed specifications drawn up by another party -- in this case the City of Chicago. It is undisputed that, with one exception, Penn followed the City's ultimate specifications for the transportation compartment. *fn1" Montgomery, however, maintains that Penn did more than "merely follow" the specifications, but in fact played a significant role in the creation of the squadrol specifications. Thus, Montgomery's opposition to summary judgment on this issue rests on the proposition that Hunt's disclaimer of a duty on the part of independent contractors to third persons does not apply when the contractor has participated in the creation of the specifications or designs ultimately followed.

 Neither party directly addresses whether such a proposition is a proper interpretation of Hunt, or is consistent with subsequent Illinois decisions applying Hunt. Penn's motion and reply, however, effectively concede the legal issue, by focusing exclusively on the questions whether the facts create any reasonable inference that Penn did anything more than follow the specifications set by the City, or whether Penn's involvement with the City prior to the issuance of the contract concerned aspects of the design that Montgomery claims were unsafe.

 Even assuming the point has not been conceded, we find that Illinois case law supports Montgomery's interpretation of Hunt. Although the case is not precisely on point, in Ferentchak v. Village of Frankfort, 105 Ill. 2d 474, 475 N.E.2d 822, 86 Ill. Dec. 443 (1985), the Illinois Supreme Court concluded that a civil engineer who had contracted to build a water drainage system was not free from liability to third persons under Hunt because he was not following the design of another, but instead created the design himself. We see no sound reason why the distinction in Ferentchak should not apply when the defendant has shared in the drafting or creation of designs or specifications. We find unconvincing Penn's contention that liability should not be imposed for its participation because it did not have final approval of the specifications. If that was the case, the engineer in Ferentchak would have been relieved of liability once the party with whom he contracted accepted the system as designed. We do agree, however, with the implicit point of Penn's factual arguments in reply that, consistent with the principles of Hunt, the extent of a party's potential liability for participation should be limited only to those aspects of the design or specifications on which it had input and which advice was either relied upon or adopted in making the final specifications. Cf. Ferentchak, 475 N.E.2d at 825 (engineer was not liable for aspects of project for which he did not assume any kind of responsibility).

 Turning to the specific facts of this case, we see little room to doubt that Penn had input into the creation of the final specifications for the squadrols in this case. The City of Chicago's old squadrols had been deteriorating and it wanted to modernize the design by squaring it off, providing for more room, and making it safer and longer lasting inside. In its answer to the complaint, the City states that the plans for the new squadrols "were drawn up in conjunction with assistance from IRVING NUGER." Nuger is the president of Penn. According to Penn's own submissions, Nuger had several meetings with City officials prior to any contract being issued. Nuger's function was to advise the City "as to how Penn could make the squadrols to meet the City's needs." Reply at 4. These facts alone are sufficient to create an issue of fact on the initial question of participation.

 We next consider, however, whether particular aspects of Penn's participation may have pertained to the problems posed by Montgomery. Montgomery claims that the following alleged deficiencies in the design led to his injury: the squadrol prisoner compartment lacked padding; the two benches in the compartment were made of fiberglass and ran the length of the truck facing sideways, rather than facing rearward or forward; there were no seatbelts or other restraint systems; the compartment contained sharp protuberances; and there were no grab rails for a prisoner to hold onto. We find that the evidence adduced on summary judgment, though not overwhelming, creates a sufficient question of fact as to whether Penn was partially responsible for those aspects of the design that may have caused Montgomery's injury.

 As we have indicated, the City's goal with respect to a new design for the squadrol was to ". . . modernize it, square it off, give them more room, make it a little safer." (emphasis added) (Deposition of Officer Horky, Hayes v. Mercy Hospital, p. 21.). The evidence contained in the parties' submission suggests that Nuger's involvement with the City in preparing specifications to meet these objectives was extensive. Nuger, along with other Penn employees, met with City personnel as many as twelve times before the specifications were adopted and the contract was entered into. There is evidence that during these discussions, Nuger made particular suggestions that were ultimately adopted in design aspects. To provide one example, during its discussions with City officials, Nuger indicated that Penn could provide fiberglass seats to replace the padded seats formerly in use. It may be argued, and a ...

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