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CRISMAN v. PEORIA & PEKIN UNION RY. CO.

March 16, 1994

JAMES CRISMAN, PLAINTIFF,
v.
PEORIA & PEKIN UNION RAILWAY COMPANY, A CORPORATION, DEFENDANT. PEORIA & PEKIN UNION RAILWAY COMPANY, A CORPORATION, THIRD-PARTY PLAINTIFF, V. PLM INTERNATIONAL, INC., A CORPORATION, AND WESTINGHOUSE AIR BRAKE COMPANY, A CORPORATION, AND GENERAL ELECTRIC RAILCAR SERVICES CORPORATION, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Mihm, Chief Judge.

ORDER

This matter is before the Court on third-party defendant General Electric Railcar Services Corporation's ("GERSCO") Motion for Summary Judgment against third-party plaintiff Peoria & Pekin Union Railway Company ("P & PU") (# 71) and third-party defendant PLM International, Inc.'s ("PLM") Motion for Summary Judgment against third-party plaintiff P & PU (# 76). For the reasons set for below, both Motions for Summary Judgment are GRANTED.

FACTUAL BACKGROUND

  it was defective and unreasonably dangerous in one or
  more of the following respects[:]
    (a) there was a defective weld in the big link of
    the bell crank chain; and
    (b) the big link for the bell crank chain was
    incapable of sustaining the stress or strain to be
    placed upon it in normal and reasonably to be
    foreseen uses.

In 1978, North American Car Corporation (NACC) manufactured the Railroad Car involved in plaintiff Crisman's accident (the "Railroad Car"). In April 1978, the Railroad Car was leased to its first user, Mississippi Chemical Corporation. No repair records for the Railroad Car dated before December 27, 1985 exist. NACC had a policy of destroying such records after a period of time. On July 3, 1986, NACC sold the Railroad Car to GERSCO. NACC transferred all available repair records for the Railroad Car to GERSCO. On December 29, 1988, GERSCO sold the Railroad Car to PLM and transferred all available repair records to PLM. On May 31, 1991, plaintiff Crisman's accident occurred. On December 31, 1991, PLM sold the Railroad Car to U.S. Rail and transferred then existing repair records. No copies of these records were kept by PLM. On April 8, 1992, plaintiff Crisman filed this action against P & PU. P & PU sued PLM for contribution on July 16, 1992. P & PU sued GERSCO for contribution on December 28, 1992.

DISCUSSION

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no `genuine' issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). When considering a motion for summary judgment, this Court views the evidence in the light most favorable to the non-moving party. Biddle v. Martin, 992 F.2d 673, 675 (7th Cir. 1993).

Third-party defendants GERSCO and PLM filed motions for summary judgment based on the statute of repose contained in the Illinois product liability statute. 735 ILCS 5/13-213(b). Section 5/13-213(b) provides in relevant part:

  Subject to the provisions of subsections (c) and (d)
  no product liability action based upon 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 the 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 . . .

GERSCO and PLM contend that since the Railroad Car was first leased in April 1978, then any action based on strict liability in tort brought after April 1990 is barred.

Initially, P & PU argues that GERSCO and PLM have not established the date when the statute of repose began to run. Although it is undisputed that plaintiff Crisman filed his lawsuit against P & PU more than twelve years after the first lease of the Railroad Car, P & PU contends that GERSCO and PLM must also prove that none of the exceptions of ...


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