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May 10, 1994


Appeal from the Circuit Court of Cook County. Honorable William J. Lassers, Judge Presiding.

Released for Publication May 5, 1994. As Modified On Denial of Rehearing May 10, 1994. Rehearing Denied May 4, 1994. Released for Publication June 7, 1994. As Corrected July 27, 1994. Petition for Leave to Appeal Denied October 6, 1994.

DiVito, Scariano, McCormick

The opinion of the court was delivered by: Divito


Presiding Justice DiVito delivered the opinion of the court:

Following Marshall Beattie's fatal rear end collision with defendant Roger Lindelof's semi-trailer truck, plaintiff Lauren Beattie, as administrator of the estate, filed a lawsuit pursuant to the Illinois Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq., now codified as 740 ILCS 180/1 et seq. (West 1992)), against Lindelof and several other defendants, including the manufacturer of the truck and all of its previous owners. The complaint alleged that the absence of an adequate rear end protection device attached to the truck caused Beattie's enhanced injuries which resulted in his death. The four count complaint sounded in negligence, strict products liability, and res ipsaloquitur. Thereafter, the circuit court dismissed the counts against defendant Allstate Finance & Leasing Corporation (Allstate) and granted summary judgment to defendant Brookdale Leasing Corporation (Brookdale), on the grounds that both Allstate and Brookdale were not commercial lessors, but merely financial lessors who were not subject to liability. The court then dismissed the negligence and strict liability claims against three of the prior owners, defendants Glen Holmes (Holmes), Dahlke Trailer Sales & Leasing, Inc. (Dahlke), and Lenertz System (Lenertz), on the grounds that they were merely "truckers" rather than in the business of truck sales. The court also dismissed the strict liability count against Dahlke on the grounds that as an intermediate distributor, it need only "file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage." (Ill. Rev. Stat. 1991, ch. 110, par. 2-621(a), now codified as 735 ILCS 5/2-621(a) (West 1992).) Finally, the court ruled that plaintiff failed to state a cause of action for res ipsa loquitur and dismissed that count as to all defendants and denied plaintiff's request for leave to amend her complaint. The court then found that there was no just reason to delay enforcement of its rulings, and included language pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) in its orders to allow an interlocutory appeal.

On appeal, plaintiff contends that (1) the court improperly dismissed the negligence count against Holmes, Dahlke, and Lenertz because the complaint alleged that any of the defendants may have caused the defect; (2) the court erred when it ruled that she failed to state a cause of action based on res ipsa loquitur; (3) the affidavits submitted by Allstate and Brookdale were insufficient to establish that they were merely finance lessors as opposed to commercial lessors; (4) the court erroneously dismissed the strict liability count against Holmes, Dahlke, and Lenertz on the basis that they were not in the business of sales but rather in the business of trucking; and (5) the court inappropriately dismissed the strict liability count against Dahlke pursuant to section 2-621 of the Code of Civil Procedure because the complaint alleged that Dahlke created the defect rather than simply distributing it through the stream of commerce.

At about 1:25 a.m. on December 8, 1988, Marshall Beattie was traveling eastbound "at a high rate of speed" on Interstate 90 near Schaumburg when he collided into the rear of Lindelof's truck. Beattie's car continued to travel underneath the trailer portion of the truck until the rear portion of the trailer bed came into the passenger compartment of the car, which was then dragged onto the shoulder. When rescue workers arrived, Beattie was "extricated" from his car and taken to Humana Hospital where he was pronounced dead on arrival at 2:11 a.m. An autopsy was performed and the cause of death was determined to be the multiple injuries Beattie sustained in the accident, including a 1.7 inch deep laceration to the forehead. Toxicological tests also revealed positive results for ethanol in Beattie's blood, urine, and bile.

On September 21, 1990, plaintiff filed a one-count complaintagainst Lindelof, *fn1 alleging that he was negligent because he "owned and operated a tractor trailer with a rear end protection device which was not substantially constructed or firmly attached." Thereafter, plaintiff joined as defendants every previous owner of the tractor trailer as well as the manufacturer and original seller, and the company Lindelof was working for when the accident occurred. Her fourth amended complaint, filed September 19, 1991, included four counts. Count I alleged negligence resulting in Beattie's enhanced injuries on the part of Lindelof and defendant Valley Express, who had entered into a "trip lease" with Lindelof and held the ICC permit displayed by him at the time of the accident.

Count II alleged strict products liability against the manufacturer and each successive owner of the truck until it was purchased by Lindelof. Plaintiff maintained that the truck was defective because it did not have a "substantially constructed and firmly attached" rear end protection device as required by the federal Interstate Commerce Commission's regulations. (49 C.F.R § 393.86(e).) She asserted that such defect was created by either: defendant Fruehauf Corporation and Fruehauf Trailer Sales (collectively Fruehauf), the manufacturer and original seller; Lenertz, the original purchaser in 1979; Allstate, who purchased it from Lenertz in September 1983; Holmes, who purchased it from Allstate in February 1984; Dahlke, who took the truck from Holmes in March 1985 on consignment until it was sold on July 31, 1985; or Brookdale, who purchased it from Dahlke but leased it to Lindelof until October 3, 1988, when he purchased the truck for $1,000.

Count III alleged negligence against the same defendants named in count II for failing to install or properly maintain an adequate rear end protection device. Finally, count IV alleged negligence against all defendants on the basis of res ipsa loquitur. Plaintiff alleged that "absent negligence on the part of one or more of the named defendants * * *, the vehicle operated by MARSHALL BEATTIE would not have been permitted to travel underneath the trailer as it did and MARSHALL BEATTIE would not have suffered theextensive injuries he did in the December 8, 1988 accident, leading to his death."

Thereafter, Dahlke, Lenertz, and Holmes each movedto dismiss counts II, III, and IV on the grounds that under Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307, no duty exists to maintain a vehicle with which it is safe to collide. Dahlke also moved to dismiss count II pursuant to section 2-621 of the Code of Civil Procedure. Allstate moved to dismiss the counts against it on the grounds that it was merely a finance company which simply held "finance papers" on the truck. The motion was supported by an affidavit from a manager of Allstate which stated that he was "familiar * * * with the transactions complained of in this cause of action" and that at no time did Allstate operate the truck, have physical access to it, or make any physical alterations. Finally, Brookdale moved for summary judgment on the grounds that it too was merely a financial lessor. Brookdale's motion was supported by an affidavit from the company's secretary, which stated that on the same day the truck was purchased from Dahlke, it was leased to Lindelof for a three year term at a rate of $590 per month plus a $1,000 residual at the end of the lease. The affidavit further stated that Brookdale sold the truck and transferred title to Lindelof on October 3, 1988, and that it never took possession of the truck or made any physical alterations to it, either before or after that date.

At the hearing on the various motions, the court first ruled that although the affidavits were "somewhat terse" it was clear that both Allstate and Brookdale were merely financial lessors, to which liability could not attach. Accordingly, the court dismissed all counts against Allstate with prejudice and granted Brookdale summary judgment on all counts pertaining to it. The court then granted Dahlke's 2-621 motion to dismiss, finding that plaintiff offered nothing other than the "broad statements" of the complaint to counter Dahlke's assertion that it was merely an intermediate distributor that did nothing to alter the vehicle.

Next, the court granted Dahlke's, Holmes', and Lenertz's motions to dismiss counts II and III against them on the grounds that they were merely truckers rather than in the business of being sellers. The court also dismissed count IV as to all defendants, finding that this case did not present an instance of res ipsa loquitur, because a situation could still exist where a substantially constructed device would give way if struck with enough force. Later, the court denied plaintiff leave to amend count IV, and granted the various motions for 304(a) language. The court did refuse, however, to dismiss count I against Lindelof and Valley Express, or to dismiss ...

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