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03/13/95 DONALD SNELTEN v. SCHMIDT IMPLEMENT

March 13, 1995

DONALD SNELTEN, PLAINTIFF-APPELLANT,
v.
SCHMIDT IMPLEMENT COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 93-L-1021. Honorable Jack Hoogasian, Judge, Presiding.

Released for Publication April 18, 1995. As Amended September 14, 1995.

The Honorable Justice Hutchinson delivered the opinion of the court: McLAREN, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Plaintiff, Donald Snelten, appeals from the trial court's order dismissing his complaint with prejudice. In his amended two-count complaint, Snelten alleged defendant, Schmidt Implement Company, was negligent in that it failed to inspect properly, observe, or discover that the used tractor it sold to plaintiff had been altered in a manner which bypassed the neutral safety switch. Plaintiff alleged he was hurt as a result of that alteration because plaintiff started the tractor while it was in gear and it ran over him, fracturing his pelvis. The second count of the complaint alleged negligent misrepresentation. The complaint stated defendant represented in writing the equipment had not been modified or altered and it had been serviced, adjusted and inspected according to the manufacturer's recommendations. Plaintiff further alleged that oral representations had been made by the salesman which plaintiff claims clarify the written notation that the tractor was sold "as is." The trial court originally dismissed the complaint without prejudice, but then dismissed it with prejudice when plaintiff did not file an amended complaint but instead filed a motion to reconsider. We reverse.

On appeal, plaintiff's complaint does not rest on an assumption that defendant had a common-law duty to inspect; plaintiff acknowledges the law does not impose such a duty when the dealer is selling used equipment. (See Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill. 2d 17, 21, 329 N.E.2d 785; Rahn v. Gerdts (1983), 119 Ill. App. 3d 781, 787, 74 Ill. Dec. 378, 455 N.E.2d 807.) Plaintiff relies on the premise that "liability can arise from the negligent performance of a voluntary undertaking." ( Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769.) Plaintiff argues that once a duty is undertaken defendant must perform it with "due care or '"such competence and skill as [one] possesses."'" ( Frye v. Medicare-Glaser Corp. (1992), 153 Ill. 2d 26, 32, quoting Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 317, 45 Ill. Dec. 121, 412 N.E.2d 472, quoting Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769.) Here, plaintiff contends defendant did not. Defendant's position below and here on appeal is that it undertook no duty to inspect the tractor and this is evidenced by the use of the phrase "as is" on the purchase order. Defendant contends the term "as is" implies a warning to the buyer that he may be purchasing a product which has faults. ( Overland Bond & Investment Corp. v. Howard (1972), 9 Ill. App. 3d 348, 356, 292 N.E.2d 168.) Defendant relies on the case of Pelc v. Simmons (1993), 249 Ill. App. 3d 852, 189 Ill. Dec. 353, 620 N.E.2d 12, to argue that we cannot consider oral representations which take away from the meaning of "as is."

We agree with plaintiff that Pelc does not support defendant's argument. Pelc only holds that the defendant's prior oral representation, that he had rebuilt the engine, did not create an express warranty where the car was sold "as is." ( Pelc, 249 Ill. App. 3d at 856.) Furthermore, unlike the case of Pokrajac v. Wade Motors, Inc. (1954), 266 Wis. 398, 63 N.W.2d 720, cited by defendant, where the court held there was no duty of the seller to the buyer of the used car in light of the "as is" language on the contract, here the contract contained additional language at odds with the "as is" language. We must determine whether these extra representations may have negated the usual meaning of "as is" such that defendant could have voluntarily undertaken a duty to use due care in its inspection of the tractor and whether plaintiff could justifiably rely on the representations made such that a cause of action for negligent misrepresentation was sufficiently alleged.

This is a case of first impression in Illinois. Prior cases dealing with "as is" language have involved (1) a conflict between a prior oral affirmation or description and later written exclusionary language ( Pelc, 249 Ill. App. 3d 852, 189 Ill. Dec. 353, 620 N.E.2d 12); (2) exclusionary language directly supported by consideration on the seller's part, thereby indicating the disclaimer was bargained for ( Van Gessel v. Folds (1991), 210 Ill. App. 3d 403, 155 Ill. Dec. 141, 569 N.E.2d 141); or (3) a prior written affirmation or description that was subsequently omitted from the final contract ( Lake Bluff Heating & Air Conditioning Supply, Inc. v. Harris Trust & Savings Bank (1983), 117 Ill. App. 3d 284, 72 Ill. Dec. 665, 452 N.E.2d 1361). Here, we confront a conflict between express written affirmations and descriptions and an "as is" provision, both appearing within the four corners of the final contract.

In this case, the purchase order had a handwritten notation stating "Sold As Is With No Guaranties" and also, "Note: Some Items On Tractor Don't Work." Also on this document was a section entitled "Dealer's Check & Customer's Acceptance" (dealer's check), the meaning of which the parties now disagree. That section read:

"Yes No

All guards and shields in place and points

of danger protected X

Rollover Protection Structure (ROPS) in ...


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