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July 21, 1992

SARAH HERRIOTT, individually and as Special Administratrix of the Estate of BRUTUS HERRIOTT, Deceased, Plaintiff,
ALLIED-SIGNAL, INC., a foreign corporation; ENGINEERING MATERIALS, a foreign corporation; ALLIED CHEMICAL CORPORATION, a foreign corporation; and WILPUTTE COKE OVEN DIVISION, ALLIED CHEMICAL & DYE CORPORATION, a foreign corporation, Defendants.


The opinion of the court was delivered by: CHARLES P. KOCORAS


CHARLES P. KOCORAS, District Judge:

 This matter is before the Court on defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). Jurisdiction is based on diversity. 28 U.S.C. § 1332. For the reasons set forth below, we grant defendants' motion for summary judgment.


 On January 31, 1991, plaintiff, Sarah Herriott ("Herriott"), brought a six count complaint individually and as Special Administratrix of the estate of Brutus Herriott. This suit arises out of the death of her husband, Brutus Herriott, while he was working "around and upon" a piece of equipment known as a "Larry-Car." Defendants include Allied-Signal, Inc., Engineering Materials, Allied Chemical Corporation, and the Wilputte Coke Oven division of Allied Chemical & Dye Corporation (collectively "Allied").

 The facts of this case are not complicated. *fn1" Between 1953 and 1957, Interlake Steel (now ACME Steel) hired Allied to design, manufacture, and construct two batteries of coke ovens at Interlake Steel's facilities. Each battery is a row of fifty adjacent coke ovens. One row is directly behind the other. Also as part of this construction, Interlake purchased from Allied two pieces of ancillary equipment called coal-charging cars, also known as Larry-Cars.

 A Larry-Car is a machine that receives coal from the plant's charging bins and carries it to a particular coke oven which is to be "charged." Allied assembled and constructed the Larry-Car on top of the batteries during the initial building of the batteries in the 1950's. The Larry-Car travels in a north and south direction along 490 feet of rail over the batteries. As such, the Larry-Car is assembled approximately twenty-five to thirty feet above the ground. Moreover, the machine weighs thirty tons and is twelve feet high, twenty feet long, and thirty-five feet wide. After obtaining coal from the charging bins, the Larry-Car travels on rails on top of the coke oven batteries. When over the designated oven to be charged, the Larry-Car operator drops the coal into the oven, and the coal is then cooked and processed. According to the unrebutted deposition testimony of Mr. Dick O'Hearn ("O'Hearn"), an assistant division manager at ACME Steel's coke plant, the Larry-Car is the only way to charge an oven with coal and therefore the only way at the plant to process coke.

 Brutus Herriott was employed by ACME as a Larry-Car operator. On February 1, 1989, Mr. Herriott was killed while working around and upon the Larry-Car. Subsequently, on January 31, 1991, Sarah Herriott filed a six count complaint which was removed to this Court. Herriott contends that Allied's errors in its design and manufacturing of the Larry-Car rendered it unreasonably dangerous and defective and that this condition proximately caused Mr. Herriott's death.

 In response to Herriott's complaint, Allied has filed this motion for summary judgment. Allied's sole argument is that the ten year statute of repose set forth in Illinois Revised Statute Ch. 110, section 13-214(b) bars Herriott's action. Herriott disagrees. We discuss both parties' arguments below. But first, we address the appropriate summary judgment standard.


 Summary judgment is appropriate if the pleadings, answers to interrogatories, admissions, affidavits, and other materials show "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue exists if "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A "material fact" exists only if there is a factual dispute that is outcome determinative under governing law. Id. at 248. The party seeking summary judgment has the initial burden of showing that no such issue of material fact exists.

 When a properly supported motion for summary judgment has been made, the opposing party must then "set forth specific facts showing that there is a genuine issue for trial." Id. Like the movant, the nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather contentions must be supported by proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Moreover, the opposing party is entitled to the benefit of all favorable inferences that can reasonably be drawn from the underlying facts but not every conceivable inference. De Valk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987). It is light of this standard that we address Allied's motion.


 The sole issue we must address is whether section 13-214(b) of the Illinois Code of Civil Procedure applies to this dispute. If it does, summary judgement is proper. Because we conclude that Allied's design, manufacture, and construction of Inland Steel's Larry-Car constituted an "improvement to real property" within ...

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