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12/30/94 RAFAEL GARZA v. NAVISTAR INTERNATIONAL

December 30, 1994

RAFAEL GARZA, SR., PLAINTIFF-APPELLANT,
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORP., A FOREIGN CORPORATION, AND HOWELL TRACTOR AND EQUIPMENT CO., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES, AND HART'S TRACTOR AND EQUIPMENT CO., INC. AN ILLINOIS CORPORATION; AMERICAN ENGINEERING, INC., AN ILLINOIS CORPORATION; RODGER PICKERING; SYED HUSSAIN; ILLINOIS TOLL HIGHWAY AUTHORITY, AND ENVIRODYNE ENGINEERS, INC., A FOREIGN CORPORATION, DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JEROME T. BURKE, JUDGE PRESIDING.

Rehearing Denied May 18, 1995. Released for Publication May 26, 1995.

The Honorable Justice Rizzi delivered the opinion of the court: Tully, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Plaintiff, Rafael Garza, Sr., brought this action against several defendants including Navistar International Transportation Corp. (Navistar) and Howell Tractor and Equipment Co. (Howell), to recover damages for personal injuries allegedly sustained in a construction accident involving a front-end loader/payloader (machine) manufactured by defendant Navistar and leased from defendant Howell by plaintiff's employer. Plaintiff's complaint contained claims based upon negligence, the Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq., and strict product liability. The trial court held that the strict liability claims against defendants Howell and Navistar were barred by the repose provisions in section 13-213 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 13-213), and thereafter denied plaintiff's motion to vacate and reconsider the dismissal order. Plaintiff appeals the denial of his motion for reconsideration. We affirm in part, reverse in part and remand.

The issues for review by this court are (1) whether this court has jurisdiction to review the dismissal of plaintiff's strict liability claim against defendant Howell; and (2) whether the trial court properly dismissed the strict liability claims against defendants Navistar and Howell pursuant to the repose provisions set forth in section 13-213 of the Code (statute of repose) (Ill. Rev. Stat. 1989, ch. 110, par. 13-213).

This action arose from an accident which occurred on May 9, 1989. Plaintiff, by his complaint, alleges that he was employed by Loring Construction Co., Inc. (Loring) at that time, and that in the course of his employment he sustained personal injuries when he was struck by a machine manufactured by defendant Navistar and leased from defendant Howell. It is undisputed that defendant Navistar sold the machine to defendant Howell on November 22, 1977, and that defendant Howell first leased the machine to its initial user, Loring, plaintiff's employer, on September 21, 1978. Plaintiff filed this action against defendant Navistar on May 17, 1989, and he amended his complaint and added Howell as a defendant on January 4, 1990.

Count I, based upon the doctrine of strict product liability, alleges that the machine was unreasonably dangerous and defective when it left defendant's Navistar's possession and control. In count VII, plaintiff alleges that defendant Howell was liable under the theory of strict liability because it was the lessor of the machine.

Defendants Howell and Navistar filed motions to dismiss counts I and VII, which were granted. The trial court held that the claims were contrary to the express language and clear intent of the statute of repose (Ill. Rev. Stat. 1989, ch. 110, par. 13-213).

Plaintiff subsequently filed a fourth amended complaint wherein he added Envirodyne Engineering, Inc., as a defendant and he repleaded the strict liability claims against defendant Navistar in count I and against defendant Howell in count III.

Defendants again filed motions to dismiss the strict liability claims, and said claims were again dismissed on April 25, 1991. Plaintiff filed a motion to vacate and reconsider the April 25, 1991, judgment but the motion was denied. Defendant appeals the July 23, 1991, order denying his motion to vacate and reconsider.

On appeal, defendant Howell contends that this court does not have jurisdiction to review the dismissal of plaintiff's strict liability claim against it, because plaintiff filed a motion to reconsider the court's April 1991 order dismissing count VII of the third amended complaint after he filed the fourth amended complaint and that by filing the fourth amended complaint, plaintiff waived his right to appeal the April 1991 dismissal order.

As a general rule, an amendment to a pleading which is complete in itself and which makes no reference to the prior pleading supersedes the original pleading and the original pleading ceases to be part of the record, as it was in effect abandoned or withdrawn. A plaintiff is entitled to review, however, where he does not demonstrate any intent to abandon his initial claim against a defendant. Such an intent is evidenced by the fact that the amended complaint is fundamentally the same as the original or previous complaint with the exception of the changed limitations. Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App. 3d 991, 994, 376 N.E.2d 660, 662-63, 17 Ill. Dec. 514.

In the present case, plaintiff never demonstrated an intent to abandon his initial claim against defendants. This is evidenced by the fact that counts I and III of plaintiff's fourth amended complaint are fundamentally the same as counts I and VII of the third amended complaint. There was no change in plaintiff's factual allegations or legal theory. It appears from the record that the primary purpose of the fourth amended complaint was to add Envirodyne Engineering, Inc. as a ...


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